OTTAWA, (Sept. 13, 2004) — A recent U.S. Appeals Court decision rejecting new American hours-of-service rules for truck drivers will not throw this country’s upcoming regulation off course, says Transport Canada’s senior policy advisor.

“We are monitoring developments in the U.S. That’s for sure. We are very interested in how they intend to resolve this issue,” Brian Orrbine tells Today’s Trucking. “But with respect to Canada, we’re moving forward.

“We put the rules together in Canada, and they work for what happens in Canada,” he says. “It would be misleading to assume we would be guided by what is happening in the U.S. at this time.”

Canada is expected to publish its final rules in the Canada Gazette this month, while implementation will not likely occur until late 2005, says Orrbine.

On July 16th, the U.S. Court of Appeals in the District of Columbia threw out the American hours-of-service rules that we’ve been living with since January. In its decision, the court sided with a lobby group called Public Citizen (founded by Ralph Nader many years ago) and its argument that the regulations are “arbitrary and capricious,” and that FMCSA failed to comply with a statute requiring it to consider the rule’s impact on the health of drivers.

The Court sent the case back to the Federal Motor Carrier Safety Administration for review. The agency recently responded by asking for a stay of at least six months on the decision. In a motion filed with the DC Circuit Court of Appeals, FMCSA asked for a stay to determine what steps could be taken to amend or replace the rule vacated by the court. Were the stay to be granted, the present HOS rules would remain in effect until a new solution has been arrived at.

Both the American Trucking Associations and the Canadian Trucking Alliance have filed a motions in support of the FMCSA’s request for a stay so that highway safety wouldn’t be compromised by an abrupt return to the old rules. CTA asked the court to grant it amicus curiae — or “friend of the court” — status so its arguments are taken into account. The Canadian association told the court that it offers a perspective not represented by any of the parties.

“No other party to the proceeding represents the thousands of Canadian trucking companies that will be affected by this court’s decision whether to require the FMCSA to revert back to its former hours of service regulations or to allow the current rules to remain in effect while the agency fulfills the requirements set forth in this court’s July 16th decision,” the CTA wrote.

CTA argued that the Canadian industry would face significant and unwarranted costs if the current rules are vacated for some interim period. Echoing arguments made by the ATA, the Canadian association told the court that unless the July ruling is stayed, hundreds of thousands of drivers — including 80,000 Canadian-based truckers operating into the U.S. — will need to be trained on the former rules and then retrained on whatever rules are put in place once the current legal proceedings are concluded.

Should the FMCSA’s motion be denied, it would likely have to reinstate the previous hours of service rule for some indeterminate period while it attempts to put in place a revised rule or otherwise deal with the concerns raised by the court. However, the idea of reverting back to the old rules is a concept that Washington insiders told Today’s Trucking is highly unlikely. For now, the current rules remain in effect. The court will rule on the FMCSA’s latest motion next week.

Kristen Cooke, of the Canadian logbook-auditing service LogChek, says she was not surprised in the least that the HOS rule was so harshly treated in the original court ruling. “I could see this coming since last May,” she says. “It was a rule that was not tested properly. There were just too many speculations, too many interpretations. They should never have put out a big regulation like that — one that was replacing a rule in place for 65 years — without a proper trial period.”

Cooke expects it will be a couple years before the issue is resolved, and perhaps longer if the FMCSA is required in the future to go back to the drawing board in addressing the Court’s additional concerns. “If that’s the case, it’ll likely be ironed out in chapters,” she says. “How that is done will be anyone’s guess.”

Those additional issues the Court has trouble with include: increasing the maximum driving time from 10 to 11 hours; the sleeper berth provision; the 34-hour “restart” provision; and the FMCSA’s decision not to include in the final rule the earlier proposal to require electronic onboard recorders (EOBRs). On the latter point, the FMCSA recently published a proposal requesting public comment on the issue of including EOBRs as part of the new HOS mandate.

While Transport Canada insists the situation in the U.S. will not distract Canadian rulemakers from their job at home, the agency will analyze any potential changes as they happen. “If, over the years, new developments happen, we’ll always be looking at whether we should be making amendments or adjustments,” says Orrbine. “Right now it’s just conjecture on our part.”