Author: Allan Foran
This post was written prior to our January 2017 merger, under our previous firm name, Aikins, MacAulay & Thorvaldson LLP.
New U.S. federal regulations on hours of service took effect on July 1, 2013, after an advanced 18-month notice. The rules limit the average work week for U.S. carriers to 70 hours over an eight-day work cycle and 60 hours over a seven-day work cycle. The goal is to reduce accidents and improve driver health by reducing truck driver fatigue on the road. While the objective is laudable, the rules will have a direct impact on shippers and trucking companies on both sides of the border.
The new rules will reduce the overall driving hours in the U.S. by approximately 15%, and set a new standard of stringency in North America. In Canada, a work cycle is 70 hours over seven days compared to the now 60-hour work cycle implemented in the U.S.
Before the new rules were made law, they were challenged by the American Trucking Association (ATA) as well as an association representing individual drivers in a case filed with the United States Court of Appeal for the District of Columbia. It was argued that the new safety-oriented provisions were unsupported by research and that they were overly restrictive and costly.
Specifically, the ATA argued that requiring drivers to include two nights in their 34-Hour Restart results in nighttime drivers, who generally sleep during the day, having to switch their sleep patterns. According to the ATA, studies conducted by the Federal Motor Carrier Safety Administration (FMCSA) indicates that such a disruption to circadian synchronization (sleeping and waking patterns) causes driver fatigue and other negative health effects. Further, the ATA argued that because the FMCSA was initially in favour of unlimited 34-hour restarts, that the FMCSA’s new position, permitting only one 34-Hour Restart per week, must be unsupported by research and is therefore irrational. The ATA also argued that the decision to require short-haul drivers to comply with 30-minute break provisions is arbitrary and unnecessary.
The association representing individual drivers, not surprisingly, took the position that the rules themselves did not sufficiently protect public safety. They argued that requiring evidence of cost-effectiveness before adopting a rule to improve driver safety was inconsistent with the FMCSA’s “driver health oriented” goals, and therefore the new rules should be vacated.
In response, the FMCSA stated that they changed their view on unlimited 34-Hour Restarts as a result of new evidence showing that drivers have used more than one restart in a week to add additional hours to their work cycle in the past. Further, the FMCSA stated that it “never championed the maintenance of circadian rhythms above all else,” and that there is no conclusive data to show that circadian disruption is a factor of greater weight than recovery time. Finally, with respect to the cost benefit analysis, the FMCSA stated that it primarily, but not exclusively, studied safety issues, also conducting a cost benefit analysis with respect to the implementation of the new rules.
After consideration of all the arguments, the Court of Appeal assessed the intent of the rules, considered the implication on drivers, and, except for the application of the 30-minute break provisions to short-haul drivers, concluded that the hours of service rules should be implemented. The court relied heavily on the interests of public safety and driver safety in validating the new rules and was highly deferential to the findings of the FMSCA.
There have been recent studies of the supply chain management system in the United States and the impact the new hours of service rules will have on the trucking industry. Studies have concluded that, with the future economic growth and a marketplace that is already short on drivers, there will be a significant impact on shippers.
In Canada, the Canadian Trucking Association has been warning of driver shortages for years, and it is anticipated that in the U.S., driver shortages will hit triple the current estimate of 20,000 drivers as a direct result of the hours of service rules. With the 15% reduction in overall driving hours under the new hours of service rules in the U.S., more drivers will now be required to move freight the same distance. This will result in higher trucking costs and a greater tendency for trucking companies to be selective as to which clients they serve, and how they serve them.
It is estimated that the new hours of service rules will create a direct economic impact that will increase costs to shippers by 5% or more. Surveys of shippers suggest that they anticipate higher rates as capacity tightens and greater difficulty accessing trucking companies.
To the extent that Canada follows the example set by the United States and either reduces trucking hours or strengthens the regulations for entry, it is expected that rates will also increase for Canadian shippers.
While there is common agreement that the objectives of improving road safety and reducing driver fatigue are imperative, additional regulation on hours will result in an economic impact for movements both north and south of the border. Shippers must be cautious when contracting with trucking companies with cross-border movements by checking backgrounds, credentials, safety records and ensuring that there is no skirting the new hours of service rules, even in the face of a driver shortage.
This article was originally published in Western Canada Highway News, Winter 2013 issue.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
Allan is a partner with Aikins Law and practices in the area of transportation law. His direct line is 204.957.4664. Reach him at firstname.lastname@example.org.