Tempting fate: Why make laws to be broken?

Jim Park

I really don’t think I can stomach more Hours of Service deliberations. Still, they’re upon us like the plague. The Americans have until September to finalize a rule. Mercifully, this round might be short but it’ll be anything but sweet.

Ironically, as I write this, there’s a gaggle of technocrats locked up in a room in Ottawa trying to draft some language — tiny little paragraphs of legalese — to describe how our own rules are supposed to work.

The strange thing is, they’re locking horns over how to write into the plan a deliberate contravention of the rules so it all looks legal and holds true to the spirit of the regulation. I’m speaking about the so-called 48-hour averaging provision where a driver might be allowed to work a few extra hours one day but has to cut back by a corresponding amount the following day. In principle, the two workdays should total no more than 26 hours of driving with a minimum of 20 hours off duty.

They’re using circles and arrows and hand-drawn diagrams to represent a day’s work, and trying to make it fit some definition of a “day”. Is a day a period from midnight to midnight, noon to noon, or is it simply a given 24-hour interval? To drivers, the work week is just a sequence of awake and asleep intervals that all have to add up properly so that you don’t get a ticket. But somewhere in that sequence of on- and off-duty intervals, there needs to be adequate time to make a living.

The American FMSCA (the Federal Motor Carrier Safety Administration) did a horrible job of crafting a pretty good regulation, leaving the door open to a legal challenge. And the challenge came in the form of a court-ordered re-examination of the regulation in light of its impact on driver health. I’ve read the comments posted to the docket.

Of those who have read FMCSA’s “instructions” and actually mention health impacts in their comments, most speak to the restrictive 14-hour window and the difficulties it creates for drivers in taking minor breaks without sacrificing driving time. They’re saying things like the penalty for taking an hour meal break is forcing them to consume more grab-it-and-go junk food. They want a couple of hours of free time to eat, perhaps exercise, and mostly not to have to fret over the potential loss of driving hours.

The proposed Canadian rules build in a couple of hours of discretionary time, and will probably work well in terms of getting in a good day’s work without extending the day indefinitely, or costing drivers earning time.

But so far little discussion on either side of the border has examined hours of service rules in light of driver pay. Drivers, I hasten to add, are mighty concerned about that issue, and since the regulators have chosen to ignore that little technicality, I predict widespread non-compliance in lieu of decent earning potential.

I raised that question with the Parliamentary Standing Committee a few years back — or at least I tried to. I was told pay issues were Labour Canada’s bailiwick, not Transport Canada’s.

For heaven’s sake, what will it take to convince the regulators that if not for the dollar, drivers wouldn’t have reason to cheat? Do they think drivers like driving around all night because they have nothing better to do?

While the Canadian regulators draw circles and arrows all over their 48-hour averaging proposal in hopes of coming up with a way to legally permit what is essentially a bending of the rules, and while the Yanks call for comments on the revised revisions to their newly revised rules, drivers eagerly await the final versions so they can develop strategies to combat the impact of the rules.

It’s silly, to say the least, to even attempt to develop rules that’ll have such a dramatic impact on one’s ability to earn a living without taking that into account.

Judging by the comments in FMCSA’s comment docket, drivers really like the U.S. rules, especially the 34-hour reset provision. But that’s probably seen as another reason to be suspicious. If people like it, there must be something wrong with it.

Jim Park

Jim Park was a CDL driver and owner-operator from 1978 until 1998, when he began his second career as a trucking journalist. During that career transition, he hosted an overnight radio show on a Hamilton, Ontario radio station and later went on to anchor the trucking news in SiriusXM's Road Dog Trucking channel. Jim is a regular contributor to Today's Trucking and Trucknews.com, and produces Focus On and On the Spot test drive videos.

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