I almost cut my hair, it was happened just the other day.
It was gettin' kinda long, I could've said it was in my way.
But I didn't and I wonder why, I feel like letting my freak flag fly,
And I feel like I owe it to someone.
Well, must be because I had the flu for Christmas and I'm not feeling up to par.
You know, it increases my paranoia, like looking in my mirror and seeing a police car.
But I'm not givin' in an inch to fear. I promised myself this year.
I feel like I owe it to someone.
Crosby, Stills and Nash
Happy New Year and welcome to the Theatre of the Absurd. I enjoyed the holidays as we watched our daughter contend with our grandchildren over nap time. As the federal government publishes 25,000 proposed regulations per year, trucking finds the latest nugget of coal in our Christmas stocking from the FMCSA, to be about….nap time.
Demonstrating that God has a sense of humor, the baby boom generation, now ensconced in business, finds that The Man they protested against in the late 1960's and early 1970's has returned in the form of the succeeding generation of regulators. Coming out of the most severe recession of our lives, our situation reminds me of Sisyphus, a figure of Greek mythology who was condemned to repeat forever the same meaningless task of pushing a boulder up a mountain, only to see it roll down again. The essay concludes, "The struggle itself... is enough to fill a man's heart. One must imagine Sisyphus happy."
Anything can be justified in the name of "safety" and "fairness." It is inevitable that these concepts result in colliding regulations which leave a business person in Sisyphus' dilemma.
For example, the American Disabilities Act defines a reformed alcoholic or drug user as "disabled." In an auto accident case, past crimes, such as a DWI, are generally inadmissible, because they don't tend to prove or disprove the cause of the accident. Yet, under a negligent hiring theory, plaintiffs attorneys have succeeded in getting this information admitted to inflame juries. Trucking company's, supported by the FMCSA, desire a "zero tolerance" policy on drugs and alcohol for drivers. Yet, the EEOC recently brought suit against Old Dominion Truck Line for disability discrimination for pulling an admitted alcoholic driver out of the truck and putting him in a different job.
The plaintiff's bar and the FMCSA push sleep apnea testing for drivers with an excess body mass index. A friend of mine with a company that invested seven figures in a sleep apnea program was told by the EEOC that they were discriminating against heavy people.
One company was sued by the EEOC for harassment when mixing males and female in training teams and then sued again when they adopted a same gender policy, citing discrimination against women.
Right before Christmas, the FMCSA published new hours of service regulations, which for the first time, not only tell a driver how much to work and how much to rest, but added provisions on when to do so.
The regulations retain the 11 hour on duty provisions, but require a driver to take 30 minutes off prior to completion of 8 hours of driving. In other words, it's nap time. What does this mean? It means more than 30 minutes. A driver en route must locate a place to stop, navigate a congested truck stop, take his 30 minutes, navigate out of the truck stop and then return to the highway each day. This will take at least one hour, if not more. It will burn more fuel as the driver gears down to exit, idles, and then gears up again to return to the highway. It could involve out of route miles to find a place to break, as overcrowded truck stops become even more congested. Truck stops, already the site of many fender benders will become demolition derbies. Why? Despite no evidence that missing a break is unsafe, the FMCSA now wants to force the children to take a nap. The 30 minute break will result in a reduction in the 14 hour "on duty" time to 13.5 hours to 12.5 hours, depending on how long it takes to comply in reality. Shippers who require drivers to load and unload or live load and unload should see significant capacity tightening. Meat packing houses and grocery warehouses are notorious for holding drivers up. I haven't met one refrigerated carrier who is happy yet with the changes CSA and EOBR's have wrought in productivity loss. This will exacerbate their woes.
But it doesn't stop there. In contradiction to previous rulings that a 34 hour restart would rest a driver, the FMCSA now says that a driver cannot have more than one per week, and, that is must include two consecutive periods of night from 1 am to 5 am. So the teenagers now have a one o'clock curfew! This expands the 34 hour restart to something else, especially for drivers who like night runs. The effect will be to push more trucks onto the roads during daytime hours and increase congestion on obsolete roads with the resultant traffic jams, accidents, idling, pollution and wasted time.
But here is the real kicker. Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense. Building on CSA, drivers now have a serious motivation to comply and to leave or blow the whistle on carriers who have shippers or lanes that don't work under the rules. This will reduce capacity, in a time of severe driver shortage.
The ray of sunshine in this is that it does not take effect until 2013, leaving time for litigation and the election cycle to address the over zealous regulation of business..
Speak out, you got to speak out against the madness,
You got to speak your mind,
If you dare.
But don't no don't now try to get yourself elected
If you do you had better cut your hair.
`Cause it appears to be a long,
Appears to be a long,
Appears to be a long,
Time, such a long long long long time before the dawn.
Crosby, Stills and Nash