ATA’s comments on this are here. They view the rule as a disaster. They are correct. It is a disaster. Of course, we all knew it was coming. The main change is the 70 hour rule. At present, you can take a 34 hour off-duty break, which resets your 70 hour clock to zero. Easy, simple, effective.

Under the new rule, your 34 hour break, must encompass two periods covering 1:00am to 5:00am in order to count. In other words, if you start your 34 hour break at 2:00am on Saturday morning, in order to reset your clock to zero, it will have to last until 5:00 am Monday. Presently, you could start your week at noon Sunday, with a fresh 70 hours, in this example.

Also, you are only allowed to use the 34 hour reset provision once every 168 hours, ie once every 7 days. So, if you work 14 hours a day, for 5 days, then take your 34 hour reset on the weekend, you can start back at zero when the 34 hour break is over, but you cannot start another 34 hour reset until 168 hours have passed. Basically, this serves the purpose of limiting a driver to no more than 70 hours in any 7 days, whereas under the current rule, I could get over 80 hours, if I have reset included in the 7 days. I haven’t worked at all the details of exactly how that works, but it will definitely limit the hours a driver can work.

So now what? Well, hopefully, the ATA or OOIDA will sue the agency. The “safety” groups have already indicated they intend to sue based on the fact that the 11 hour driving rule was retained. They are suing to make the rules even more restrictive. So, there is a chance that relief from this idiocy will be granted in the courts since FMCSA has no scientific or statistical basis for these changes. However, I wouldn’t count on that. The other, more effective way, of ridding ourselves of these new rules is to rid ourselves of Barack Obama and Ray LaHood on November 6, 2012. There’s no guarantee a new President will halt this rulemaking, although I would say it is more likely than not. One thing is certain: 4 more years of Barack Obama guarantees these rules will go into effect in 2013.

Just to clarify, that means, if you are in your car, and you want to make a phone call, even with your Bluetooth, it would be illegal. The NTSB wants it to be illegal to talk on the phone, no exceptions.

What does this mean? Initially, nothing. The NTSB has no regulatory power. However, when it makes recommendations, the safety nannies now have cover to implement their draconian bans, rules, and laws, if they want. Naturally, under the Obama Department of Transportation, they most certainly do want. All you need do is listen to the language they use, as they breathlessly describe the NTSB’s declaration as a “game-changer”.

The way the Obama DOT would take your cellphone is by blackmailing the States to adopt their cellphone ban by withholding highway funding. The Federal government successfully used this tactic when it forced all States to adopt a 0.08 BAC level for drunk driving.

Naturally, the NTSB has no data to support their ban, none. In fact, it was just announced highway fatalities fell again, to the lowest levels since 1949. Furthermore, there has been no reduction in crashes in those States, which have banned hand-held cellphones. But hey, never let the facts get in the way of a good story, right NTSB?

According to the NTSB, talking on a cellphone in a car is a public-health epidemic, like drunk driving, or smoking. Nonsense! What is the difference if I am talking on my Bluetooth to a customer in Detroit, or to talking to my wife sitting in the passenger seat? There is no difference! I guess that will be next, the safety nazis will ban passengers, or perhaps conversation.

Every time these fools break out their “no life is worth, blah, blah, blah” crap, they ignore certain realities. If we wanted to eliminate highway deaths, we could do so tomorrow. We would just eliminate cars. Of course, no would be able to get to work, the economy would stop, and we’d all starve to death, but you wouldn’t be killed in a highway crash. Just a slower, more likely death due to starvation.

This type of a ban would be crippling to the economy. Nearly every type of working person communicates with a cellphone while driving. Utility workers. Lawyers. Accountants. Teachers. Salesmen. Contractors. All doing work, and creating economy activity while driving. Gone. Poof. The amount of people thrown into the unemployment line, would be staggering. By all means, that’s what we need right now are more unemployed people.

Then again, forget the economy, this ban would be crippling to my freedom. You cannot legislate away risk! Not in a free society. The more you try, the less free we become. The statistics say the amount of highway deaths are at their lowest levels since 1949. I’m ok with that! LEAVE ME THE HELL ALONE!

President Obama’s regulatory Commandant, Ray LaHood, recently said, “Keeping Americans safe is without question the Federal government’s highest priority”. Let’s compare that with Thomas Jefferson:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

Jefferson should have added, “but they don’t have the Right to talk on the Cellphone, if some government bureaucrat declares they Cannot”.

Using a hand-held cellphone is no longer allowed, if you are driving a truck with a Gross Vehicle Weight Rating of 10,001 lbs. in interstate commerce. You may not answer a phone call, unless you can do it by pressing only one button. You may not hold a cellphone to your ear and talk. You may not initiate a phone call, unless you can do it by pressing only one button.

Let’s stop there. I think it’s clear these are now prohibited actions. If you do want to use a cellphone while driving, you need hands-free technology, and it must be operable by only one button. I know there are headsets out there which allow you to talk without holding the phone to your ear. I’m also pretty sure there are devices, which enable you to dial the phone strictly by using your voice. I’m less sure about that, but my wife tells me there are, so there must be, because she’s always right.

It’s a little less clear what else might be prohibited. The rule seems to have allow activities on the smartphone which do not involve communication. For example, under the new definition of “texting”, it says “Texting does not include using a device capable of performing multiple functions (e.g., fleet management systems, dispatching devices, smart phones, citizens band radios, music players, etc.) for a purpose that is not otherwise prohibited in this part.”

Therefore, if I use my smartphone, while driving, to find my favorite Eric Clapton album, which I have hooked up through my speaker system, I believe that would be legal, if no other reason, it specifically says the words, “music players”.

If I use the phone to enter in an odometer reading, that is illegal. I know this, as the preamble of this rule says it is. However, if you reach into the glove box, and pull out a piece of paper, and physically write down your odometer reading, that is legal.

Using CB’s is still legal. However, using push-to-talk cellphones are not. I am not sure what the difference is, other than it was easy to define cellphones using a previous definition from the FCC regulations.

I think the real world answer is if a police officer sees you fiddling with your Iphone, or Droid while you’re driving, he’s going to write you a giant ticket and ask questions later.

Presently, this rule only applies if you are operating in interstate commerce. However, the Federal government forces the States to adopt similar, if not identical rules, by threatening to withhold Highway monies. Therefore, both the texting and the cellphone ban will apply nearly everywhere within a year or two, as the States adopt the new Federal rules.

This means it will apply to all of the various shapes and forms of commercial motor vehicles. Landscapers, dump trucks, utility vehicles, three quarter ton pickups pulling small trailers….. all will be prohibited from using a hand-held cellphone, regardless of whether their State has passed that kind of law or not.

What will the new rules be? No one knows for sure, but it’s probably a pretty safe bet there will be a 10 hour driving rule, instead of 11. Also, they will probably go ahead with their stupid revision of the 34 hour reset to the 70 hour rule, effectively making it a 48 hour reset. God knows what else they’ll do. The day after the new rules are issued, ATA is going to file suit, arguing the new rules are unjustified, and will actually not prevent accidents, but cause more accidents. They’re right. I think there’s a 50-50 chance they’ll forge a standoff in the courts forcing FMCSA to keep using the current rules, but no one knows if that will happen, or when.

Undoubtably, they’ll be a phase-in period before FMCSA starts issuing fines for the new rules. I assume, however, they will continue to instruct their State cops and highway patrolmen to keep writing violations, without fines, which will hurt everyone’s CSA scores. Since everyone is compared against everyone else in CSA, it’ll be important to teach your drivers the new rules faster than your neighbor, or your CSA scores are going to be wrecked. Furthermore, you’d better scrutinize your violations closely, as the cops are going to make lots of mistakes, as the new rules will almost certainly be very complex.

Court action is not the only thing which could stop the new rules. The GOP Presidential candidates have been making noise about stopping the Obama orgy of regulations. Will they follow through if elected? Probably not, unless it’s Ron Paul, in which case he’ll probably just fire everyone at FMCSA. Nevertheless, if the current Depression continues, a new President may put the brakes on the government. At any rate, the new rules should be released within days, so stay tuned.

On the hours of service front, FMCSA is probably within a month of announcing what the new hours of service rules will be. The ATA has pulled out all the stops to stop the new rules, but presently, it looks like the Obama Administration will dance with who brung them, that being the Teamsters. The FMCSA has signaled it IS going to issue these new rules, and they will be more restrictive. Chairman of the House Transportation and Infrastructure Committee John Mica has threatened to “aggressively oversee” any attempted changes to the hours of service rules. I hold out no hope he’s going to do anything. The only thing Congress does aggressively is spend taxpayers money. The fact that Mica is a Republican is irrelevant. In fact, before becoming Obama’s regulatory point-man, Ray LaHood was a Congressman. Do you know which party he belonged to? Wait for it………… the Republican party. Mica will do nothing.

The ATA has promised an immediate lawsuit when FMCSA finally makes its move. I think there is a better than even chance ATA will achieve some kind of standoff in court which will force FMCSA to keep using the old rules, at least for awhile. The bottomline is, no one knows what rules will be in effect 6 months from now.

One other thought: I have been watching these Republican debates. I’m deciding who to support in the GOP primary. I did hear one candidate say something which I’ve been waiting to hear. This candidate said he would halt all of Obama’s rulemakings, which I think would be absolutely fantastic, and help get the economy moving again. Unfortunately, the candidate who said it was Mitt Romney, who takes both sides of every issue. Romney is no way, shape or form will stop the government takoever of the private sector now underway. In fact, I have decided if Romney is the nominee I will vote for myself. While I don’t like my chances on winning, at least I won’t be a Big Government socialist like Obama or Romney.

Here is an article from Bloomberg which talks about this issue. Of the seven, four of the most expensive where EPA rules. No surprise there. Another was a rule by NHTSA, potentially requiring back-up cameras on cars. The final two rules were the FMCSA re-write of the hours of service rules, and the FMCSA mandate of EOBRs.

This means FMCSA is now being mentioned in the same breath as EPA! Way to go FMCSA! Seriously, this is no small accomplishment. FMCSA is, by the size of their agency and their budget, pretty small in terms of governmental agencies. To have not just one, but two of the most expensive rules in all the government, is really saying something. FMCSA may finally be getting the recognition it deserves. In fact, it’s possible this is the first time the Speaker of House has ever even heard of “FMCSA”. Hopefully he, and the rest of the GOP caucus will keep these uber-expensive regulations in mind when it comes time to pass the over-due Highway Reauthorization bill.

So, FMCSA is a subdivision of DOT. When I write my articles, I use the two interchangeably. Why? Early in my work-life, I learned no one in the trucking industry recognizes the term “FMCSA”. Or back in the day when I learned this, they were called the Office of Motor Carriers. However, all truckers recognize “DOT”. So, I will liberally refer to DOT when I am referring to FMCSA. For my purposes, they are the same thing.

Since the 2014, sweeping, industry-wide edict is only a ‘proposed’ rule, no one can sue DOT over it. Yet. The first rule, which would have been effective next year, was challenged in court by the Owner Operator Independent Driver Association (OOIDA). They challenged it on a number of grounds. One of which was “harassment”. Apparently in the law which gives DOT the authority to monitor drivers’ hours of service, it says whatever they come up with cannot be harassing to the drivers. The Court, by a 2-1 vote, found DOT did not sufficiently address the harassment issue, and threw out the 2012 rule.

So, what does it mean? I am a well-known opponent of government-mandated EOBRs. If they work for you and your fleet, by all means, feel free to use the e-logs. However, carriers who do not want to use the EOBRs should not be forced to do so. This decision is a good thing. Not a great thing. A good thing. I think what has happened here could likely be a legal technicality, which might only be a temporary roadblock to the sweeping EOBR mandate wanted by the Obama Administration and the American Trucking Association.

The DOT made very little effort in their rulemaking to address the harassment issue, which is one of the things the Court pointed out. The law says the monitoring system cannot be “harassing”; OOIDA argued this was harassment. DOT in their rulemaking virtually ignored the harassment clause in the law, merely stating, “yes, we considered that, this isn’t harassment”. Basically they made so little effort on this point, the Court had no choice but to rule for OOIDA.

So what happens next? DOT as we speak, is huddling, deciding how to save their EOBR mandate, which they very well may be able to do. The Court did not say this type of rulemaking was illegal, or could never happen. It merely laid out a number of points it wanted DOT to address on the harassment issue. My guess is once DOT does address these points, the Court will waive its objections on the harassment issue.

The points the Court wanted addressed are not things which DOT can throw together in a week or even a month. In fact, there is a very good chance they will decide to scrap the remedial EOBR rulemaking struck down by the Court altogether, and focus their efforts on the pending final rulemaking which will apply to virtually all carriers in 2014 or 2015.

The clock is starting to turn against DOT. Things move at a glacial pace anyway at DOT, and the Court just added a huge pile of work for them to do in order to force all motor carriers to use EOBRs. Even before this Court decision, DOT said it would probably be next summer before they had their final EOBR rulemaking finished. They probably need to issue the rulemaking before November 6, 2012.

Why that date? That is date of next Presidential election. If President Obama loses, that means DOT Secretary Ray LaHood is out, too. Granted, these rules often take on a life of their own, especially if the ATA is pushing it. The next President could very well let all of the previous Administrations rulemakings carry forward. On the other hand, if the economy is still in the tank, which it probably will be, the new President should be concerned about dumping more productivity-killing regulations on business. Of course, there’s probably a 50% chance Obama wins again, in which case EOBRs will be mandated. Look on the bright side: if Obama is re-elected, buying and using EOBRs will be the least of your worries.