Uncertainty over future of US Hours-of-Service rules
October 1, 2007
At the time of writing this article, the legal status of the US hours-of-service was to say the least chaotic and of concern to virtually all Canadian carriers that operate into, out of and within the...
At the time of writing this article, the legal status of the US hours-of-service was to say the least chaotic and of concern to virtually all Canadian carriers that operate into, out of and within the United States.
I doubt the situation will have been resolved – though perhaps a reprieve of sorts will have been attained – by the time you read this.
As everyone should now be aware, on July 24 of this year the US Court of Appeals for the District of Columbia Circuit ruled in favour of a legal challenge by the US lobby (some say anti-trucking) group, Public Citizen, to the US hours-of-service rules introduced in August 2005, by issuing a decision which, if it became effective as scheduled on Sept. 14, would vacate (set aside) two key parts of the current US HoS rules – namely the 34-hour reset provision and the 11-hour driving rule.
As bizarre as it might seem, what this would mean in the absence of successful legal action by the American Trucking Associations (ATA) and/or the Federal Motor Carrier Safety Administration (FMCSA) is that the US hours-of-service rules would revert back to what they were prior to August 2005. There would be no reset provision and drivers would be restricted to 10 hours driving in a shift which could not exceed 14 hours before the driver would be required to take 10 hours off-duty. Obviously, this would have significant consequences not just for US carriers, but for the many Canadian carriers too.
However, at the time of writing, a flurry of legal activity was underway. ATA was in the process of filing a motion for a stay of the decision with the court after collecting information on the experience of carriers since the new rules were put into place in 2005 in order to quantify the impact if the rules are vacated. (CTA participated in this by helping collect data from Canadian carriers). From there things get very complicated and confusing. As understood at the time, once a motion is filed the ruling is temporarily stayed. The opposing party, Public Citizen, would then likely have eight days to respond, after which ATA would have another five days to reply. (Although the court could apparently rend its decision without hearing from Public Citizen). The court would then have a perhaps indefinite period of time to consider its decision while the July decision is temporarily stayed.
If the court ultimately rules in favour of ATA, the existing rules including the reset provision and the 11-hour rule would remain in effect at least for a further period. However, the court would probably include in its decision a requirement that FMCSA introduce a new rulemaking within a specified period of time. FMCSA would then have several options: 1) It could reintroduce the same rules with appropriate justification, something it did not do previously; 2) it could introduce different rules; or 3) it could decide to do nothing in which case the reset rule would be eliminated and the amount of driving allowed would revert to10 hours. The latter of course, would be the worst possible outcome. If the stay is not ultimately granted by the Court, it is possible that FMCSA would issue a notice stating that it would not enforce the 10-hour driving limit and the prohibition against a reset for a limited period, perhaps 60 days.
In addition, in a separate action we understood that ATA was in the process of filing, or had filed a petition with FMCSA requesting that FMCSA publish an Interim Final Rule re-adopting the rules as they currently exist. This would be followed by a public comment period and then a new final rule; all to be completed within a specified time.
As can be seen there is still considerable uncertainty as to what will happen in the near future. This uncertainty is compounded by the fact that the individual states would have to adopt any changes to the existing rules and that would be as – if not more – complicated than it is to get the Canadian provinces to adopt national standards.
The process varies from state to state. In many states legislative action would be required. Believe it or not, this would be further complicated by the fact that in some states, like Texas, the state legislature only sits every other year.
As Canadians, we have very little influence over the outcome and therefore there’s little we can do, although CTA stands ready to assist ATA however we can. This is ultimately something that US courts, governments, industry and stakeholders will decide. All of which is not a comfortable place to be if you’re a Canadian carrier. It is difficult to advise our carriers under the circumstances. But, in view of the current uncertainty, perhaps the best advice is that Canadian carriers take a wait-and-see approach for the time being and continue to conduct business as normal in terms of the US hours of service rules. Recognizing, of course, that things may have changed substantially even by the time you read this.
– David Bradley is president of the Ontario Trucking Association and chief executive officer of the Canadian Trucking Alliance.