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.

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.

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.

How do you get your rating upgraded to Satisfactory? It’s not easy. Under the current Obama Adminstration, it’s becoming increasingly more difficult every week. DOT used to conduct, at a motor carrier’s request, an audit, to determine a carrier’s safety fitness. If the results of the audit were good, you get the Satisfactory rating. If they were not good, you get to keep your Conditional rating, or move down to Unsatisfactory, and get a giant fine. FMCSA no longer conducts these followup audits for rating purposes. FMCSA has decided they will audit who they want to audit, and if you get a less-than Satisfactory rating in an audit, too bad for you.

So how do you get the rating put back to Satisfactory if they won’t reaudit you? There is a procedure in the rules which allows you to petition them based on corrective action. You send them a letter, with whatever backup documentation you want, and attempt to prove to them you are in compliance with the rules.

What rules must the FMCSA follow in granting or denying these petitions? None. Ok, virtually none. The rules say a motor carrier must have “adequate safety management controls in place, which function effectively to ensure acceptable compliance with applicable safety regulations”. So, what’s that mean? Well for one thing, I guarantee that your idea of ‘acceptable safety management controls’ is different than FMCSA’s. The result of this is, you can petition them and petition them and petition them, and they can just keep saying NO. On one carrier, where we were denied multiple times by the FMCSA for the Satisfactory rating, the petition we submitted where we finally got the rating weighed 25 pounds.

But there must be an appeal process, right? This is America, if FMCSA is unjustly denying me a Satisfactory rating I must be able to appeal, right? Well, yes you can appeal. You can file your appeal, and explain why you should be Satisfactory. It will go to Washington DC, where it will sit. And sit. And sit, for literally years. I am not making that up. It will sit for years. When it is finally ruled upon, you will lose. You will lose, because it is such a nebulous and undefined standard, the decision-maker will take FMCSA’s side. Not to mention the decision-maker is an employee of FMCSA. Therefore, yes, there is an appeal process. It is a useless and meaningless appeal process, and you’ll never win using it, but there is an appeal process.

Don’t get me wrong. Rating upgrades can be accomplished. I have done them. I know what FMCSA wants to see in order to grant the upgrades. If anyone can assist you in getting a rating upgrade, it’s me. Some upgrades are easier than others. I believe they will be more difficult after this Sky Express business. It is easier if you have little or no violations. It is easier if your CSA scores are not high. Most FMCSA personnel are relatively fair-minded, but they want extensive proof you are not violating the rules. Getting a safety rating upgraded is difficult, and takes a lot of time. The days of sending in a letter, and getting the rating are over. It takes time, and I get paid for my time, so don’t fall out of your chair, when I tell you how long I think it could take to get the rating, and how much I’ll charge to help you.

I have not read the new studies. I am not going to read the new studies. But I know what’s in them. This is simply a very educated guess, but FMCSA’s initial statistics justifying their restrictive rules was so slipshod, they would have been beaten in court. So, voila! 4 new studies, all of which undoubtedly state there’s an epidemic of death on the highways caused by fatigue, and only Obama’s new rules can save us. All patent nonsense, of course. Nevertheless, more junk statistics “justifying” the need for more rules. Maybe they explained how a life went from being worth $3 million to $6 million at the stroke of a pen. At any rate, ATA will turn their statisticians on them and have an answer, at some point.

Right there, that should tell you a lot of what the FMCSA does is justified with junk statistics. What’s a life worth? Uhhhhhhh…. how about $3 million? Sounds good! No, that doesn’t work, we can’t justify all the rules we want. Well….. I know, we’ll double it! Sure, that makes sense. Hey, why not make it $30 million, especially in today’s economy, $6 million doesn’t buy what it used to. As far as I’m concerned, by the agency admitting one of their measures was off by 100% just means all their statistics are junk.

Hill’s conclusion is this back and forth between the regulatory crazies, like Public Citizen and the trucking industry will forever continue going back and forth until Congress passes a law which codifies the hours of service regulations into law, which will hopefully remove the FMCSA and the Courts from making up the rules. I agree, but I highly doubt that’s going to happen, as I think Congress is perfectly happy with the all out regulatory assault which has been going on.

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I am alarmed and deeply angered at the recent proposal and remarks of Ray LaHood, Secretary of Transportation. In defending his proposal to require approximately 500,000 carriers install Electronic On-Board Recorders (EOBRs) on nearly all trucks, he said, “We cannot protect our roadways when commercial truck and bus companies exceed hours-of-service rules. This proposal would make our roads safer by ensuring that carriers traveling across state lines are using EOBRs to track the hours their drivers spend behind the wheel.”

Here’s a proposal for Mr. LaHood. Let’s put Internet-trackable GPS Electronic Tethers (IGETs) on him and each of the 55,000 people under his command at Transportation. We citizens cannot protect our freedoms when commercial politicians like him exceed the constitution’s rules. This proposal would make our nation safer by ensuring that politicians who rule across state lines are using IGETs so we can track the hours they and their staffs are spending.

After Mr. LaHood has developed this IGET system with a very small part of his $70 billion taxpayer-paid-for annual budget, prototyped it on himself and his 55,000 employees for, say, three years, he can expand his program to include all elected politicians and their staff members in the federal government. After that, he should come back to us lowly truck drivers and we’ll discuss together the installation of his EOBR spy boxes in our trucks. Then we can all spy on each other and be one big happy community together. It’ll be great! It’ll make our roads safer, right?

The EOBR spy box defenders say these are not spy boxes, but only monitoring devices that record a limited number of functions (e.g., when the truck is running, the duty status of the driver, etc.). This is the third biggest lie ever told by a politician, right after “the income tax we are creating will never exceed three per cent” and “the social security number will never be used for purposes of identification.” Today’s EOBR spy boxes are a Model T; tomorrow’s will be a 2025 government BMW with metallic paint and the ability to cruise at 35,000 feet. Today, the government will require carriers run the spy boxes and dictate to those carriers how and when they show government their every record, but tomorrow the government will control or own the carriers and their boxes, just as they now control or own car companies, student loans, mortgages, and health care. Remember how employer-provided health care was designed to eventually become government-run health care? Same song, another verse. Government-run trucking. Enjoy.

As Mr. LaHood voluntarily took office on Jan. 23, 2009, he accepted the responsibility to defend the constitution. Its 4th Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” He has not only failed in this task, but he is abusing the legitimate power of his good office to illegitimately attack the rights he is sworn to uphold. Understand what Mr. LaHood is doing: he is not simply failing to protect our 4th Amendment right with Carter-level incompetance or malfeasance, he has joined (and is leading!) the attack against it!

Mr. LaHood’s stated reason for his perpetration of the EOBR spy boxes on us is to “make our roads safer.” He is not telling the truth. Where’s his proof? Where are the longitudinal studies that support his claim? Who comprised the control group? Where is the statisticians’ report showing a proper interpretation of the raw data? How much “safer” will our roads be if we give up our right to be free from this type of government’s search of us and our things? Where is the ratified constitutional amendment by which we citizens gave up our 4th Amendment right to be free from government searches without a specific, limited warrant?

If a judge were to demonstrate a bias against an innocent defendant as Mr. LaHood’s above remark demonstrates against truck drivers, the outraged defense lawyer would rightly demand the judge’s removal from the case (perhaps from the bench!), but Mr. LaHood continues to sit in judgmental judgment of us. The government’s subjection of certain convicted criminals to its surveillance is appropriate; subjecting law-abiding citizens to this treatment is itself criminal. We are individual citizens who are not only unconvicted, but unaccused, and against whom the only evidence is Mr. LaHood’s prejudice. Mr. LaHood’s remark shows he has neither the temperament nor the judgment to be a public servant. He needs to be removed from office.

Companies have every right to know (therefore, to track) the whereabouts and use of any equipments which belong to them (consistent with employees’ rights), but government has no such right. The government has no right to track innocent citizens where the only evidence of wrongdoing is the prejudice of government leaders. Use of EOBRs is an issue between a carrier and its insurance company, and between a carrier and its employees, and it’s none of the federal government’s stinking business. Butt out, Mr. LaHood: find your new home in the unemployment line.

I favor increasing traffic safety and preserving our constitutional rights. Mr. LaHood favors using traffic safety as an excuse to violate those same rights. We do not need government-required tracking devices around us. As Mr. LaHood is unfit for public office at any level, he needs to find a new job, preferably one in the private sector where his remuneration is based on productivity instead of political connections.

The misdeeds of some is never justification for violating the rights of all. Our constitution and Bill of Rights must stand, and Mr. LaHood must stand down.

Dan the Trucker
truckdrivingdan@yahoo.com

In the news: there was a giant bus crash in the Bronx, NY where 15 people were killed. In the all the articles I saw, they still haven’t pinned down what happened. The driver may or may not have fallen asleep, or he may or may not have been run off the road by another truck. Then apparently there was another bus crash in New Jersey a few days later, killing a few more people, so right now the DOT has the heat on all the bus companies.

DOT’s hours of service proposal marches merrily along. The comment period is closed; now we wait for the final verdict from DOT. Remember, DOT means FMCSA…. I use the two interchangeably. I will be shocked if it’s anything other than what’s already been announced. Yes, we have a GOP house, but as The Who said, “Meet the new boss, same as the old boss”.

DOT moved back the deadline for commenting on the EOBR mandate to May 23. I thought about commenting, but what’s the point? My comment was going to center around the crash rates for the last 30 years. I poked around the Internet, and found NHTSA’s fatalities for both car and truck accidents littered here, there, and everywhere on the Internet. After some effort, I pieced the number of crashes together. What I found was the number of fatalities caused by truck crashes since 1980 has dropped very slowly until about 2007, then it has dropped much more quickly.

So, I then compared it to the number of fatalities caused by car crashes since 1980. Those fatalities have dropped very slowly until about 2007, then they dropped much more quickly. In fact, the rate of decline in both fataility rates were virtually identical.

So, what conclusion did I draw from this? As we all know, commercial motor vehicles and their drivers are highly regulated, and becoming more so every day. Therefore, the number of deaths from truck crashes should have dropped at a much more dramatic rate than deaths from car accidents, as car drivers are for the most part, unregulated. After all, in car drivers, we have teenagers, 90 year olds, drug addicts, drunks, drag racers, road ragers, and people who don’t speak English. In short, it’s an unregulated free-for-all.

This is not the case, however. The number of deaths in car crashes and truck crashes have moved in tandem. I conclude the extensive efforts of the DOT over the past 30 years to regulate commercial vehicles for safety have largely been for naught. Otherwise, you would see a greater improvement in the number of truck deaths.

I considered creating charts, graphs, writing up my conclusions, and commenting on DOT’s new laws, but then I thought, “why?” There’s a 90% chance they would not even bother to address the comment, and if they did, they would either invent some new statistics showing me how much safer I am because of their rules. I thought about sending it to my GOP Congressman and Senator, but considering these guys can only find $61 billion to cut in a $3.8 trillion budget….. I might as well talk to the wall. Republicans, Democrats: two sides of the same coin. Big government and Much Bigger government.

Back to DOT having nothing to do with safety: what about the Bronx bus crash? 15 people are dead, how can I say DOT is not safety related? Well, from what I have read, they have not found a violation of the safety regulations which led to the crash. That may change. Nevertheless, many crashes… in fact the vast majority of truck crashes do not involve a violation of the safety regulations. They are accidents. Most are the fault of the car who cut off, or otherwise ran into the truck. Many of the rest can be attributed to carelessness, such as a driver dozing off, even though he is well within his duty hours. Sometimes a driver runs off the road, or into another vehicle simply because he’s not paying attention.

If I were King, I’d leave the current rules alone. Just leave it alone. But, since there’s no danger of my becoming King, the regulatory onslaught will continue. You know what’s really funny? Once the economy picks up, maybe in 5 or 6 years, the number of highway fatalities will go up, despite all these draconian safety measures they are now enacting. How do I know this? The number of people killed on the roads is much more a function of how many people are on the roads, rather than the safety regulations. There was a dramatic drop in deaths over the past 2-3 years, not because of anything DOT did, but because we suffered the worst economic downturn since the Depression.