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”.

This is no surprise at all, and will certainly happen if we do nothing and let it happen. It will certainly happen quicker for commercial vehicles, as all will have EOBRs in them within the next 5 years if the Obama Administration and the American Trucking Association get their way. Not a problem to track and tax a truck if it has an EOBR in it.

And now, one of my favorite Beatles tunes, Taxman:

Let me tell you
How it will be.
There’s one for you,
Nineteen for me,

‘Cause I’m the taxman.
Yeah, I’m the taxman.

Should five percent
Appear too small,
Be thankful I don’t
Take it all.

‘Cause I’m the taxman.
Yeah, I’m the taxman.

If you drive a car,
I’ll tax the street.
If you drive to city,
I’ll tax your seat.
If you get too cold,
I’ll tax the heat.
If you take a walk,
I’ll tax your feet.

Taxman!

‘Cause I’m the taxman.
Yeah, I’m the taxman.

Don’t ask me what I want it for,
(Uh-uh, Mr. Wilson.)
If you don’t want to pay some more.
(Uh-uh, Mr. Heath.)

‘Cause I’m the taxman.
Yeah, I’m the taxman.

And my advice to
Those who die.
(Taxman!)
Declare the pennies
On your eyes.
(Taxman!)

‘Cause I’m the taxman.
Yeah, I’m the taxman,
And you’re working for no one but me.
(Taxman!)

I just learned something recently about this song…. it’s actually accurate. I just assumed the part about “One for you, nineteen for me” was George Harrison exaggerating. In truth, he was not exaggerating. Apparently, in the 1960′s the British government taxed high wage earners, like the Beatles, at a 95% tax rate. Therefore, one for you, nineteen for me. Well, coming soon to an IRS office near you.

Well, my underground fan club at FMCSA has been anxiously waiting for me to comment on this one, so here it is. The original article from the Buffalo News can be found here.

In summary, James H. Wood, Field Office Supervisor of the FMCSA Buffalo, New York office, is accused of taking bribes from Canadian safety consultants. In exchange, Wood would delay audits of Canadian motor carriers, or schedule audits on competing motor carriers. Apparently, one of the Canadian safety consultants who had been funnelling Wood cash contacted the FBI, and turned Mr. Wood in. He alleged he paid Wood $60,000 – 70,000 over the past two years for information and assistance.

Whoooooo! $60,000 – 70,000! No wonder I don’t have any Canadian customers right now! I mean, hell, if you’re taking bribes, shouldn’t you open that up to all consultants? Really, give us all a chance to bid on it! The article says Wood pushed back an audit for $1,000. $1,000? Hey, my guys can come up with that! Really! I’ve got that sitting in my bank account right now. What do you want, money order, Comcheck, or good ol’ cash? If I knew that was the going rate, maybe we could have avoided some of these darned audits.

Ok, I’m joking. Seriously, I would not try to bribe any FMCSA officials. One, it’s illegal. Two, it’s illegal. Three, if you get caught you go to jail, because it’s illegal. Furthermore, in the 13 years I worked at FMCSA I did not take any bribes. For that matter, I did not know of anyone taking bribes. I never even heard of anyone taking bribes. I just assumed that sort of thing could never happen. For one thing, these FMCSA guys make outrageous sums of money in salaries and benefits. To risk that, you’d have to be an idiot, crazy, or both.

There was a story once, which happened probably around 1992 or 1993. FMCSA had a guy named Pete Argen who was an auditor, working out of this very same Buffalo office. A Canadian motor carrier offered to hook him up with something in the neighborhood of $10,000 to make his audit go away. Argen reported the attempted bribe to his bosses, who then set him up with the FBI. The FBI wired Argen up, and when the Canadian trucking company official attempted to make the payoff, the FBI took him down, and arrested him. That’s the only story I ever heard about bribes.

I don’t know this guy, James H. Wood. Never met him, not sure if he was working at FMCSA when I worked there. I quit in 2003. Once upon a time, I knew everyone in that New York office. I guess I feel bad for the ones I know who still work there, because this is as bad as it gets. A good number of my customers already think the system is corrupt. If I had a nickel for every customer who asked why isn’t DOT going after my competitor, or it’s just a shakedown, or DOT just wants money…. I could retire.

I already had a customer who saw this talk to me. The conversation was along the lines of:

TRUCKER: So that’s how these guys roll? Why don’t we just pay these guys off next time they want to audit me?
ME: Well, they don’t all take bribes. This is an isolated instance.
TRUCKER: Isolated instance? I told them my screwed-up logs were an isolated instance last time, and they fined me $15,000. They’re all in it together, just tell me how much I need to come up with.
ME: I don’t think that’s going to work, especially since I know the guy you’d have to bribe, and he’d never go for it.
TRUCKER: Yeah, ok. What about his boss?

Ok, that conversation did not take place, it’s a joke, but it’s just a matter of time before it does. So thank you, James H. Wood, whoever the hell you are. Thanks for making my job tougher. Now I have to explain to my already suspicious, untrusting customer base the system really is not corrupt, and that payoffs are not a way of life at FMCSA.

To my friends at FMCSA, I do have season tickets to one of the best teams in baseball, the Philadelphia Phillies. I’m just sayin’……..

Again, that is a joke. While it is true I do have tickets to the Phillies, I would never offer said tickets in any sort of bribe attempt, nor would I offer anything else in any type of bribe attempt, because I really don’t want to go to jail. I’m just having a good time poking fun at FMCSA, so all you FBI agents reading this, please don’t bother wiretapping my phones.

In brief, all trucks which require logbooks will have to have EOBRs installed 3 years after the final rulemaking is published, which will probably be in the summer of 2011. So, the summer of 2014, you will have to have an EOBR in all of your trucks, if you operate over the road. DOT is accepting comments on their proposal for 60 days.

At this juncture I have no other comments on this.

DOT is pushing for the on-board recorders. That is, technology which completes the driver’s log for him, and fills in the locations by the use of GPS satellites. I have two customers which have made the switch to the on-board recorders. I think it’s safe to say in both cases, their decision was influenced heavily by DOT’s heavy hand. In both cases, the number speeding violations their drivers are receiving has skyrocketed. Yes, they hardly ever get put Out of Service any more for logbooks, but instead their drivers are now being stopped for traffic violations. So which is more unsafe? A driver taking his own leisurely time to make a run in 15-16 hours, or a guy pushing like a madman to squeeze it into 14? I’ve said from the outset, I do not believe these GPS audits enhance safety, and this just proves my point.

An EOBR is a computer-GPS type device which tracks where the driver and the truck are at. Basically, it takes the place of a logbook. It shows everywhere the driver has been, and the times he was at those locations. It is extremely difficult to falsify your hours of service, if an EOBR is recording where you are.

FMCSA’s regulations state that if a motor carrier is alleged to have 10% of more violations in a “critical” hours of service regulation, that motor carrier will be forced to install the EOBRs within 60 days. The motor carrier will be required to keep the EOBRs in the trucks for 2 years. These regulations will be effective on June 4, 2012.

This is a big deal. As far as the hours of service regulations go, I have always used the speed limit analogy. The limit might be 55 miles per hour, but no one actually drives 55, and it’s not enforced at 55. It’s enforced more like 10 miles over. It’s the same with the logbooks. If you do not have an EOBR, then your logs must match whatever timed documents you have, such as tolls, fuel statement, scale tickets. This enables drivers to cheat an hour or two here and there. Not so with an EOBR. Every last thing the driver does, is visible to DOT.

For the over-the-road, for-hire type carriers, if you don’t want to be forced to install black boxes in the trucks, and be forced to run strictly legal, then you cannot fail the hours of service part of a DOT audit. If you are forced to install the EOBRs, you’ll lose drivers, operational flexibility, and probably customers too, as your competitors won’t be subject to limitations of running strictly legal. Then there’s the cost of buying the equipment. These units are probably going to cost between $1,000 and $3,000 to install per unit. Then you have the cost to train the drivers, that’s another several thousands of dollars in lost time. Basically, if you have 10 trucks, you could be looking at $20,000 – 30,000 worth of equipment and training. If you don’t have the cash flow to make that kind of outlay, you’ll be done.

If you are not an over-the-road guy, say you’re a landscaper or construction outfit, this rule applies to you as well. Maybe your drivers only work 8 hours a day, but you’re sloppy on your paperwork, and they don’t fill out time records every day, like they should. If DOT finds more than 10% of your time records missing, you have to get the EOBRs. At least for the over-the-road drivers, the EOBRs do provide some benefit, such as tracking your vehicles, and eliminating that 5 minutes a day a driver fills out his logs, but if you’re a landscaper, you just bought a very expensive technology you don’t need.

The good news is this won’t happen for another 2 years, so I will revisit the topic before then. My recommendation is that you thoroughly audit your logs on a monthly basis…. or hire someone like me to do it for you. If you are getting audited, you’d better have me there, because if they write you up for log violations, you’d better get a loan to buy all the EOBRs the government demands you have.

The Obama FMCSA has already cut a deal with the safety crazies and the Teamsters, now it’s just a matter of how bad it’s going to be. According to the Fleet Owner article, Joan Claybrook…. one of the leading safety leftists out there, is on record as wanting an 8 hour limit (rather than 11), a mandatory 16 hour break, and eliminating the 34 hour reset. The Teamsters also want to eliminate the 34 hour reset.

My guess is it will be a 10 hour rule again, retain the current 14 hour rule, and the 34 hour reset will become a 48 hour reset. And that’s if we’re very lucky. If we’re not lucky, they may do away with the reset altogether. The problem is, the data and the science supports the rules, as is, so for FMCSA to have firm footing in court should the industry sue, they cannot change the rules too much. That’s why I think it’ll be 10, 14, and 48 hour reset. One thing, though, apparently, FMCSA is determined to make good on their deal with Joan Claybrook, and have declared the rule will be out by July, 2010. This means these new rules will probably be enforced by the beginning of 2011.

I know many of you have been just trying to keep the lights on, but this is a major regulatory tsunami which is going to hit in 2011. It is true this is being pushed by a Democrat Administration, and Democrat organizations such as Public Citizen and the Teamsters. However, I can’t say this would be any different under a Republican Congress. The Republicans had the Congress when the rules were changed in 2003, and rather than pass a law cementing them into place, they did nothing, allowing the Democrats to pick them apart with legal challenges. I doubt it would be any different in 2011 under a GOP Congress, if that were to happen.

No, the rules are definitely going to be more restrictive, and your profits will be even smaller. It’s just a matter of how bad it’s going to be.

_________________________

Eric Arnold is a Former Enforcement Agent with the Federal Motor Carrier Safety Administration, and a leading expert on USDOT compliance for small businesses. Do you have a question for Eric Arnold? Email him at eric@arnoldsafety.com.

Arnold Safety simplifies D.O.T. Compliance for commercial vehicle operators. Get Eric Arnold’s USDOT Compliance Guide, DVD, & Regulations at ArnoldSafety.Com.

Learn more about Arnold Safety compliance consulting services at ArnoldSafety.Com.

The DOT has said they will have a proposed rule in 9 months, and a final rule in 21 months. If they stick to this timetable, this means you will have a new set of hours of service rules to work under in 2 years. My guess is they will adhere to the timetable, since the rewrite is going to be relatively simple. I believe (and I have no inside information on this, it is merely my educated guess), the new rules will be a 10 hour rule, instead of 11, the 14 hour rule will stay the same, and we’ll lose the 34 hour restart of the 70 hour rule. That’s my guess, although it might be worse than that, since Joan Claybrook is writing the rule.

The new rule will not prevent any more accidents than the current rule. Bank on that. It will make transportation more costly and less efficient. These costs will be partially absorbed by the industry, although most of them will be passed along to the consumers. So prepare yourselves: in 2 years you will not be allowed to work as many hours as you do today.

The driver of the tractor-trailer survived, so it will be interesting in the days ahead to see how he managed to ram a line of cars at full speed at 1pm on a sunny afternoon. The driver of the truck was 76 years old. This is the sort of accident that makes you appreciate the physics of a truck accident. An 80,000 pound truck traveling at 65 mph can generate a devastating amount of force onto a stationary object.