Vol. 143, No. 11 — March 14, 2009

Regulations Amending the Commercial Vehicle Drivers Hours of Service Regulations

Statutory authority

Motor Vehicle Transport Act

Sponsoring department

Department of Transport

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue

The City of Ottawa, by motion of Council on January 25, 2009, has petitioned the federal government to amend the Commercial Vehicle Drivers Hours of Service Regulations to remove the exemption for public transit services, as it applies to their particular transit system operations. The City has advised that their transit operators are currently engaging in work-rest scheduling practices that would result in hundreds of serious violations if their transit authority had been subject to the federal regulations. The City indicated that they have serious concerns with respect to public safety because their transit bus drivers are working excessive hours and resting less than what is necessary to ensure the safety of passengers and reduce the risk of bus collisions caused by fatigue. The City of Ottawa notes that the Commercial Vehicle Drivers Hours of Service Regulations were put in place to address safety concerns arising from driver fatigue and wants to ensure that municipal bus operators are subject to the same work-rest rules as other commercial vehicle drivers.

The safety concerns raised by the City are equally alarming to the federal government, who had been led to believe that transit systems were operating substantially in compliance with the proposed hours of service work-rest rules that were adopted by all governments in 1988. The Government has conducted a preliminary investigation into the issues associated with the work-rest scheduling of public transit service and has concluded that the current exemption for public transit service, as it applies to extra-provincial transit bus undertakings, is no longer in the public interest because it permits the occurrence of unacceptable risk to driver and public safety due to transit bus operator fatigue.

Objectives for government action

The purpose of this action is to ensure that extra-provincial undertakings that provide transit service are doing so in conformance with work-rest rules that promote the safety of drivers, transit riders and other road users. The Government believes this action will reduce risk of collisions as it relates to transit operator fatigue and will serve to meet the expectations of transit riders that they will arrive safely at their destination.

Description

The Government is proposing to amend these Regulations to ensure that public transit services under federal jurisdiction are required to modify their work scheduling procedures, where necessary, in order to ensure full compliance with the Regulations.

Shared jurisdiction with provincial and territorial governments

The safety oversight of commercial vehicle operations in Canada is a responsibility shared by the federal, provincial and territorial governments. The federal government has jurisdiction over extra-provincial undertakings, which are motor carriers that operate beyond either provincial or territorial boundaries or our international border, whereas the provinces and territories have jurisdiction over intra-provincial undertakings, which are motor carriers that operate entirely within their respective boundaries. The provincial and territorial governments are responsible for enforcement as it applies to all motor carriers, including extra-provincial undertakings under federal jurisdiction.

The Ottawa transit service is under federal jurisdiction because it operates routes that travel outside of Ontario and into Quebec. Ottawa’s transit service is one of only three municipal transit systems that operate under federal jurisdiction, with the other two being situated in the Outaouais region of Quebec, which has routes into Ontario, and in Windsor, Ontario, which has routes into the United States. The vast majority of public transit systems operate purely under provincial/territorial jurisdiction.

Regulatory framework for hours of service regulations

The safety rules that govern commercial motor vehicle operations are jointly developed under the auspices of the Canadian Council of Motor Transport Administrators, which is a non-profit organization composed of members from the federal, provincial and territorial governments as well as regulated stakeholders and other road safety organizations. The Council is responsible for the development and maintenance of the National Safety Code for Motor Carriers, which is a series of 15 standards that govern all aspects of commercial vehicle, driver and motor carrier safety. The standards are intended to serve as a template for the writing of federal, provincial and territorial regulations and to promote the harmonization and consistent application of the rules that govern the entire motor carrier industry, irrespective of whether the motor carrier falls under federal or provincial/territorial jurisdiction. The work-rest rules for commercial drivers are contained in the National Safety Code Hours of Service Standard No. 9.

Exemptions as they relate to public transit service

The National Safety Code Hours of Service Standard No. 9 was initially established in 1988, and at that time the Canadian Urban Transit Association (the “Association”) successfully lobbied the governments for an exemption to the hours of service Regulations on behalf of its transit authority members. The Association was of the opinion that the National Safety Code was clearly intended to regulate long haul trucking and bussing and that urban transit should therefore be exempt from all aspects of the Code, including hours of service. The Association stated that their members needed the exemption in order to retain scheduling flexibility to address absenteeism, peak times and to meet their obligations to the public. They also indicated that workplace schedules were already substantially in compliance with the proposed rules; however, in this industry split shifts were normal and any short breaks, if required, would totally disrupt service delivery. Finally, the Association indicated that if the exemption was not granted, it would add considerably to operational costs, estimated at $300 million in extra payroll costs, and would create a service burden on transit users and funding agencies at the municipal and provincial levels.

In 1988, the hours of service rules were still under development and therefore, it was not possible for the Canadian Council of Motor Transport Administrators to conduct a safety risk assessment with respect to the transit association’s request for exemption. At the time, the regulators were actively engaged in trying to complete the development of the 15 standards that make up the National Safety Code and their attention was focused on preparing for the safety challenges that were expected to arise in the for-hire bus and truck industry as a result of the imminent deregulation of market entry and exit controls. Regulating the government-owned and operated transit systems under the hours of service rules was not a priority safety issue at the time, so the regulators consequently endorsed the exemption request. The Council of Ministers Responsible for Transportation and Highway Safety subsequently approved the request and common wording for the exemption became part of the Hours of Service Standard in 1988 and was incorporated by the Government into section 2 of these Regulations in 1989. The exemption reads as follows:

2. (1) These Regulations apply to all commercial vehicles other than the following:

(d) a bus that is part of the public transit service that is provided in a municipality, in contiguous municipalities or within 25 km of the boundary of the municipality or contiguous municipalities in which the public transit service is provided;

Like the federal government, all provincial and territorial governments, with the exception of the province of British Columbia, have also enacted the same exemption for transit systems that operate within their own jurisdictions. British Columbia believes that exemptions to safety requirements contained within the 15 standards of the National Safety Code should be kept to a minimum or eliminated altogether. Consequently, transit operations within British Columbia are required to comply with all aspects of the National Safety Code, including hours of service.

Today, public transit services are exempt from all of the prescriptive work-rest rules in the Regulations, which are designed to combat fatigue and promote commercial vehicle safety. The exemption also completely removes their operations from any government monitoring and oversight with respect to hours of service and does not require the transit authority to provide any necessary monitoring and oversight in lieu of government. In fact, under the exemption the public transit services are not even required to maintain driving, on-duty and off-duty records, which would be necessary for monitoring and oversight purposes.

Furthermore, under the Regulations, all extra-provincial bus and truck undertakings are prohibited from requesting, requiring or allowing a driver to drive if the driver’s faculties are impaired to the point where it is unsafe or if the driving would jeopardize or is likely to jeopardize the safety of the public, the driver or employees of the motor carrier. As well, motor carriers are also prohibited from requesting, requiring or allowing a driver to drive, if the driving would result in non-compliance with the Regulations or if the driver was already in a state of non-compliance. Public transit services have been completely exempted from all of these requirements.

The hours of service rules

The federal Commercial Vehicle Drivers Hours of Service Regulations govern the maximum driving and on-duty times and establish the minimum off-duty times of commercial truck and bus drivers employed or otherwise engaged in extra-provincial transportation. The Regulations represent a balanced approach that accounts for current fatigue research findings and the requirements of the motor carrier industry, and are the result of exhaustive consultations with bus and truck industry stakeholders. The current hours of service rules limit the number of hours that commercial drivers may operate a commercial vehicle during a workday, the length of the work shift within which driving may occur, the minimum off-duty period before starting the next work shift, and the cumulative number of hours during either a 7-day or 14-day cycle, after which a commercial vehicle may not be driven by that driver.

Commercial drivers may not drive after having accumulated 13 driving hours or being on-duty more than 14 hours. Drivers may not drive after 16 hours of elapsed time since first reporting to work. The elapsed time includes all driving and on-duty time as well as any off-duty time taken for meal or coffee breaks. As well, every driver must be off-duty for a minimum of 10 hours daily. Between work shifts, drivers must also take a minimum of eight consecutive hours off-duty in order to be able to obtain recuperative rest. Finally, drivers must be off-duty for least one 24-hour period within every 14 days.

Violations of these rules are considered very serious and would normally result in fines up to a maximum of $5,000 and the driver being declared out-of-service. Being declared out-of-service would remove the driver from the road until such time that he or she has obtained sufficient rest to bring them back into compliance with the Regulations. Furthermore, a motor carrier that permits its drivers to operate under a work-rest schedule that systemically permits non-compliance with the Regulations, could also face severe sanctions, up to and including the loss of its licence to operate as an extra-provincial undertaking as well as fines up to a maximum of $25,000. As mentioned, public transit authorities and their drivers who are under federal jurisdiction have been completely exempted from all of these requirements.

The Commercial Vehicle Drivers Hours of Service Regulations also contain several provisions that provide extra-provincial undertakings with some degree of operational flexibility, by permitting additional driving and on-duty time in the event of adverse weather or an emergency situation. There are also provisions that permit a driver to utilize up to two additional hours of driving and on-duty time, by deferring the off-duty time utilized for short rest breaks, such as for meal and coffee, to the next period of recuperative sleep. As well, drivers that recover from the work demands by taking extended off-duty time in order to obtain two or more periods of eight consecutive hours of rest, may reset their accumulated on-duty hours in their 7-day or 14-day cycle back to zero.

Furthermore, in what appears to be a significant anomaly, it should be noted that the Government currently regulates the light rail portion of Ottawa’s public transit service as it applies to hours of service under the rail safety rules and regulations. There are approved work-rest rules in place that are entitled “Work/Rest Rules For Capital Railway,” which apply to all employees working for or on Capital Railway in safety critical positions. The rules state that employees have the responsibility to report for work rested and fit for duty and be in compliance with the rules at all times. The rules establish maximum time on duty, mandatory off-duty time and the requirement for the implementation of a fatigue management program. Ottawa currently is using employees who are selected from a large pool of transit bus operators, and after receiving appropriate training and certification, are assigned to work as light rail operators. Occasionally, drivers move back and forth between driving bus and working as a light rail operator. Under these rules, it is understood that all hours worked both in bus service as a driver and in rapid transit as a light rail operator are counted toward the maximum hours of work permitted for a light rail operator. This is a situation where an individual extra-provincial transit undertaking has the light rail portion of their operations regulated whereas the bus portion of that transit service is exempted. Furthermore, the working hours of a transit bus operator only count when they are operating light rail.

National consistency in the application of hours of service standards

The Motor Vehicle Transport Act is the enabling instrument that provides authority for the establishment of the Commercial Vehicle Driver Hours of Service Regulations. Parliament has enacted policy objectives within section 3 of the Motor Vehicle Transport Act that state that the operating standards that apply to extra-provincial undertakings be applied consistently across Canada. The Commercial Vehicle Drivers Hours of Service Regulations are one of the applicable operating standards referred to in section 3, so when considering the petition from the City of Ottawa, the federal government is obligated to do so within the context of ensuring that operating standards are consistently applied to all extra-provincial transit bus undertakings. This policy direction from Parliament is the reason that the other two extra-provincial transit bus undertakings in Outaouais, Quebec, and Windsor, Ontario, must also be included as part of the Government’s analysis and response to the City of Ottawa’s petition to remove the exemption for their public transit system.

Ottawa transit system work-rest scheduling practices

The transit system in Ottawa serves more than 850 000 people, operates over approximately 6 500 km of routes and has buses in service for nearly 2.5 million hours per year. In response to the petition from the City, the Government requested and received information regarding the work-rest scheduling practices of its transit system. The work schedules of the 1 684 Ottawa drivers were reviewed for a period that covered a recent two-week period, and the review revealed that 135 drivers, or 8.5% of the workforce, had been working more than 14 hours in a day before having an opportunity for recuperative rest. In some cases, that recuperative rest was as little as four hours from the last shift to the next shift on the next day. Some drivers are working and driving as long as 22 hours in a 24-hour period.

When the focus of the review shifted to various weekends during 2008, it showed that the problem was even worse and that some drivers were working double shifts (back to back) with no rest break. On statutory holidays, a total of 50 drivers were shown to drive/work more than 14 hours and rest less than 8 consecutive hours between work shifts, and in some cases they were doing both. As well, during 2008 there were 10 operators who worked more than 45 continuous workdays without a day off for rest, and of these, one operator worked for 101 consecutive workdays. This information demonstrates that the transit system in Ottawa is engaging in work-rest practices that run contrary to science-based regulations and would be considered serious violations of those rules.

Scheduling practices of other public transit services

The Government does not possess similar work-rest scheduling data to assess the safety of the Windsor and Outaouais public transit systems. When consulted, the transit service in Windsor indicated that it does not believe that safety has been compromised under its existing structure for work-rest scheduling. Windsor believes that conforming to the Commercial Vehicle Drivers Hours of Service Regulations would require that it hire additional full-time staff to meet service needs and conform to the Regulations. Furthermore, the administrative requirements necessary for tracking hours of service would require additional staff as Windsor is currently operating at capacity. The transit authority in the Outaouais indicated that while it does not plan to exceed the on-duty hours, doing so occasionally happens. The transit system advised that it needs flexibility in its scheduling to deal with special events. It does not permit a driver to drive if he or she looks fatigued. While having such a prohibition is a good recommended practice, it is not very effective when it comes to preventing fatigued drivers from operating a commercial vehicle. The identification of fatigue is a science unto itself and is very difficult to achieve using only subjective measures. Consequently, fatigue usually goes undetected.

Commercial driver fatigue research

In discussing the development of the science-based work-rest rules, it is important to note that the Regulations were developed with considerable time and effort by federal, provincial and territorial regulators. The Government worked with researchers, stakeholders and the community at large, spanning a period of over 10 years, to develop consensus-based hours of service rules that are guided by science and balanced with economic and social impacts. The principal research that guided the development of the Regulations consisted of a unique $6.5-million joint research program between Canada and the United States, known as the Driver Fatigue and Alertness Study, (see footnote 1) which was at the time of publication the largest on-the-road commercial driver fatigue study ever conducted in the world and took six years to complete.

The Government also assembled a panel of experts on shift work, sleep and human performance to assist in converting the science into principles that guided the development of the National Safety Code Hours of Service Standard. The goals were to reduce fatigue-related collisions by decreasing the duration of the work shift; by more closely aligning the body’s sleep and rest cycle with the natural circadian rhythm; and by increasing opportunities for daily rest, which is the only way to recover from the effects of fatigue.

The Driver Fatigue and Alertness Study found that commercial drivers are poor judges of their own fatigue impairment. Furthermore, even under ideal conditions, the drivers did not manage their time to obtain adequate rest, regardless of the amount of off-duty hours that were made available to them. The research indicates that every person’s sleep needs are unique; however, over 90% of the population needs between 7.5 and 8.5 hours of sleep per 24-hour day in order to maintain alertness. Some Ottawa transit drivers are obtaining as little as six consecutive hours off-duty. When one accounts for off-duty time utilized for meals, family, hygiene, and commuting to and from work, etc., this means that some drivers are getting as few as four to five hours of recuperative sleep between work shifts, thereby creating acute sleep loss and increasing by five times their risk of being in a sleep-related crash.

As well, the science shows that going without any sleep beyond the normal 14- to 16-hour waking day will result in a cumulative sleep debt if continued over several consecutive days. This cumulative sleep debt creates fatigue and adversely affects the level of alertness during the next work shift, which in turn determines how well one does a job. Fatigue can affect a driver’s ability to respond to changing driving conditions as it can take longer to perceive, understand and react to changing sensory stimuli. Furthermore, fatigue affects the ability to judge distance, speed and time, an ability which is critical to safe driving.

According to one study, the two most important contributing factors in distinguishing between fatigue- and non-fatigue-related accidents are the duration of the last sleep period and the amount of sleep in the last 24 hours. The duration of continuous wakefulness, acute sleep loss, and the cumulative sleep debt contribute significantly to fatigue-related accidents.

There is also significant research emerging that shows that commercial drivers are operating in a work environment that has an elevated risk for sleep disorders relative to that of non-commercial drivers. Long hours of driving can lead to a sedentary life style and a prevalence towards obesity, which can in turn contribute to sleep apnea. Scheduling practices associated with long shifts or split shifts combined with irregular schedules can double the risk for insomnia, which also contributes to fatigue and poor driver health.

Fatigue research directly related to bus and transit

The Government also conducted a search for all available studies that were directly related to fatigue in transit bus operations and found that there were very few throughout the world. The Government found three studies from Australia and the United States. Two of the studies addressed self-reported fatigue by transit bus drivers and another consisted of a meta-analysis on stress, fatigue and health-related issues. The studies pertained to transit systems and bus operations where the drivers were operating under work-rest schedules that were consistent with hours of service rules.

One study, titled An investigation of sleep and fatigue in transit bus operators on different work schedules, (see footnote 2) was a survey-based study to assess relationships between work schedules, sleep duration, and before and after measures of tiredness, alertness and mental exhaustion. The study noted that all drivers slept less during workdays than rest days. Split-shift operators, who work at least two blocks of time separated by off-duty time, were found to get less sleep than straight-shift operators on workdays. These split-shift workers were found to be more mentally exhausted than the straight-shift workers. All drivers were more alert, less tired and less exhausted before commencing work than after completion of their workday, which demonstrated that there is evidence of fatigue in this passenger transport sector.

Another study, titled Fatigue issues for metropolitan bus drivers: Ramifications for quantitative and qualitative research for safety management, (see footnote 3) was a focus-group and survey-based study to identify contributing factors to transit bus drivers’ fatigue. The study noted that the fatigue issues were mainly related to stress on the job and heavy workloads. The authors introduced the notion of a natural conflict between rigid timetables and safety. Driver participants perceived that management was typically authoritative and rigid with a focus on achieving deadlines, restricting time for breaks and pressuring drivers to prioritize operational efficiency over safety, all of which can significantly contribute to driver fatigue. Furthermore, other typical driver duties related to ensuring the collection of fares, interacting with passengers and other road users, and shift irregularities were also moderate contributors to fatigue. The recommendations arising from this study were mainly directed towards changes that should be made at the management level to foster a more positive safety-oriented climate, to implement more realistic and flexible schedules, and to increase opportunities for drivers to take rest breaks.

Finally, a review titled Bus driver well-being review: 50 years of research (see footnote 4) consisted of a meta-analysis of 27 separate studies related to the issues of stress and health of bus drivers. Like in other studies, fatigue and stress were found to be central to the issue of driver health, and poor cabin ergonomics, rotating shift patterns and unrealistic running times were identified as main factors. In terms of recommendations, the emphasis was again on creating a positive management style oriented towards health and safety for the drivers and the public. In other words, the bus operator should create a working culture that is not at odds with employee health.

Safety as it relates to fatigue

Overall, the assessment of the research suggests that there is a fatigue problem in the transit bus industry. This problem is mainly related to stress and heavy workload. It stems from the nature of the job itself (e.g. split shifts, limited possibility to take breaks, rigid timetables, conflict between operational efficiency and safety, interactions with passengers, other road users, traffic density) and from a management style that is perceived as rigid, task-oriented and unsupportive. The main recommendations are oriented towards creating stable shifts, realistic and more flexible schedules and timetables, creating more opportunities for breaks and promoting a positive safety culture where drivers feel they are supported by management and where their safety, fatigue and health are genuinely identified as a top priority in the organization.

The findings suggest that many transit drivers face significant fatigue and safety related issues. While these particular drivers were exempt from work-rest rules, they were working work-rest schedules that would have been considered compliant with hours of service regulations had they been subject to them. The research indicates that the problems of stress and fatigue are salient and need to be addressed even in transit systems where drivers are operating under prescriptive work-rest rules and regulations. The Government believes that in the interest of public safety, extra-provincial undertakings, including public transit systems, still need to employ additional tools beyond simple conformance with hours of service regulations, such as incorporating fatigue management programs and proactive safety management systems within their organizations and operations.

The City of Ottawa has been able to provide the Government with detailed information regarding work-rest practices that elevate the risk of collision due to fatigue; however, it could provide little information that directly links transit driver fatigue to collisions. The City is not alone when it comes to the challenge of linking fatigue as a causal factor to collisions. Information regarding the causal factors of collisions is collected by the Department of Transport and is derived from police collision reports, as provided by the provinces and territories. It is difficult for police to recognize and evaluate driver fatigue at the scene of a collision. As well, a fatigued driver is usually wide-awake right after a collision, when dealing with the police and the aftermath of the collision. Consequently, it is widely felt by researchers and officials that fatigue-related collisions are grossly under-reported today. The U.S. Federal Motor Carrier Safety Administration suggests that fatigue could be a causal factor in about 15% of annual road fatalities, while other sources suggest that the number could be considerably higher — up to 40%. With respect to the driving population at large, recent data from Quebec indicates that driver fatigue is one of the top three causal factors for collisions within their province, with involvement rates just below that of driving under the influence of alcohol. Overall, the Québec data indicates that 21.6% of collisions had driver fatigue as a causal factor. As well, recent Canadian statistics indicate that driver fatigue is a causal factor in 19% of fatal collisions and in 23% of overall crashes, including those with serious injuries. (see footnote 5)

The Société de l’assurance automobile du Québec reports that it paid out more than $1 billion for road crashes in 2007. In light of the above, fatigue-related crashes are associated with an estimated $200 million payout for Quebec alone. While by no means scientific, one can extrapolate from the Quebec experience that the cost of fatigue-related crashes in Canada could well be in the magnitude of $800 million annually. If that same assumption is applied to the collision experience for the transit system in Ottawa, one could conclude that approximately 300 of their 1 500 collisions annually could well have fatigue present as a causal factor.

As a result, the absence of collision data that are directly attributable to fatigue as a causal factor does not necessarily correlate into a risk that is acceptable in terms of public safety and the corresponding economic and social costs. Today, drivers in many transit systems regularly travel on higher speed roads and controlled access highways. A fatigue-related crash involving a transit bus that is travelling at a posted speed of 100 km/h, with 80 passengers on board, and with many of them typically standing, would in all likelihood be catastrophic. This risk is further aggravated by the fact that, transit buses do not provide the same passenger compartmentalization protection that is required to be built into motor coaches and school buses. Even a low-speed crash with a transit bus can result in serious injuries, especially to standing passengers.

Regulatory and non-regulatory options considered

Status quo

This alternative would have the government ignore the petition from the City of Ottawa to remove the exemption for transit service as it applies to their operations. The Government would take no further action.

The Government believes that this option would allow a continuation of the elevated risk for occurrence of a fatigue-related bus collision during normal transit operations both in Ottawa and in the other transit systems as well. This risk could result in a crash causing serious injury or death to the riders who utilize transit service daily. The present workplace scheduling practices would likely continue without anticipation of change that would see the adoption of an acceptable fatigue management program that respects the science-based work and rest rules. Consequently, transit riders will not have confidence that their bus driver is operating as safely as possible, which in turn could discourage the public from utilizing transit service to its fullest potential. This in turn would undermine other important government policy and funding efforts to promote transit in order to reduce urban congestion, fuel consumption and greenhouse gas and particulate matter emissions.

The Government believes that the landscape for commercial driver fatigue has changed over the 20 years since the exemption was originally adopted into the National Safety Code Hours of Service Standard. Regulators know a lot more now about workplace scheduling as it relates to commercial driver fatigue because of ground-breaking research that has since been conducted. That research has led to major changes to the hours of service standard, which in turn have been incorporated into the federal regulations that went into effect on January 1, 2007. Finally, the federal Government now knows that not all transit systems (e.g. Ottawa transit system) are operating substantially in compliance with the work-rest rules, as was initially believed when the exemption was originally granted. The Government feels that this issue needs to be revisited as the original decision to grant the exemption in 1988 is no longer relevant or in the public interest.

In addition, the Canadian Council of Motor Transport Administrators intends to review the issues related to hours of service exemptions in late 2009 or more likely in 2010. It is estimated that it would take a minimum of one year before this issue could be addressed through that process and perhaps a total of two to three years for the federal, provincial and territorial regulators to conclude regulatory amendments that would coincide with that work. The Government believes that the risk associated with the public transit service issue is much too urgent for it to wait that long in order to be addressed.

Repeal the transit service exemption paragraph 2(1)(d)

This alternative would amend section 2, Application; to remove the exemption in paragraph 2(1)(d) thereby bringing Ottawa and the other two extra-provincial transit undertakings under the full scope and application of the federal hours of service regulations. This amendment would make it a legal requirement for the transit authorities and their bus drivers to modify their work scheduling procedures to conform to the regulations.

The Government believes in taking a precautionary approach when there are serious threats to the safety of drivers, riders and other road users. The actual impact of driver fatigue is most likely much worse than the collision statistics would indicate. The identification of fatigue is a science unto itself and is very difficult to achieve by using only subjective measures. It is widely believed that there are a large number of collisions in which the initial cause of the loss of vehicle control is drowsiness but is reported as something else because fatigue usually goes undetected. Consequently, the Government believes that the lack of full scientific certainty should not be used as a reason for postponing action to manage the risk due to driver fatigue in our public transit systems.

The utilization of work-rest scheduling practices such as those described herein, do not adhere to either the best practices as determined by the fatigue science or the hours of service science-based work-rest rules. This results in an unacceptable level of risk to public safety being borne by drivers, transit riders and other road users. To address this problem, the Government considered the implementation of voluntary education and public awareness programs directed at reducing driver fatigue, however the Government concluded that these types of programs are not particularly effective in countering the monetary incentives for drivers to work longer hours. The Government believes that the only effective way to manage the risks associated with the operational and scheduling demands of a public transit system is to ensure that the services provided are done so in conformance with science-based work-rest rules.

Certainly, based on the research, there is a persuasive and compelling argument that transit drivers should be expected to operate under the same safety rules that other truck and bus passenger operations must follow. The Government further believes that the present situation cannot be permitted to continue during the estimated two to three years that it would take to remove the exemption through the normal standard setting process. By proceeding with this proposed amendment, road safety is expected to improve as the risk in transit operations is reduced.

The Government is of the view that granting a complete exemption from the Regulations for an entire class of undertakings, such as the current exemption for public transit service, may not be in the public interest unless the exemption also includes such terms and conditions that are considered necessary to mitigate risk of serious injury or death, and to ensure an equivalent level of safety for the travelling public as would be provided via full regulation. Regulating commercial vehicle safety is particularly challenging because the size and weight of commercial vehicles present a greater risk of serious injury or death to the driver and other road users, in the event of a collision. The associated risks are further exacerbated when it involves the transport of bus passengers and its greater potential for multiple injuries and deaths. Consequently, for the Government, the safety regulation of bus passenger service is taken very seriously.

In proposing to remove the transit exemption for hours of service, the federal government is encouraged by the fact that the province of British Columbia has for many years required that all transit systems under their provincial jurisdiction comply with all of the National Safety Standards, including hours of service. British Columbia has advised that they have no significant issues with regulating transit bus undertakings like any other bus or truck undertaking. The Province also indicated that they have no apparent safety concerns with transit system operations within their province.

The importance of ensuring passenger safety is equally applicable to all transit systems that fall under federal jurisdiction. Through preliminary consultation, the transit systems in both Windsor and the Outaouais have indicated that they are opposed to the removal of their exemption. However, if both of these transit systems are currently operating substantially in compliance with the current work-rest rules, as the Government has been led to believe by their national association, then the changes and their associated cost to adapt to the rules should be minimal. Furthermore, the research now shows that the issue of driver fatigue is not confined to the type of service rendered or the vehicle driven. Fatigue is a common physiological state that can affect all human operators.

The Government believes that the rationale and justification for applying these science-based work-rest rules to transit service under federal jurisdiction is equally applicable to those operating under provincial and territorial jurisdiction. Consequently, in the interest of road safety in Canada, the Government also intends to propose changes to the other provincial and territorial regulators that would amend the National Safety Code Hours of Service Standard No. 9 to remove the transit service exemption for all transit service operations across Canada. If successful, that work would likely be completed in approximately two to three years and would result in all of the approximately 140 public transit systems in Canada being subject to nationally consistent work-rest limitations as set out in federal, provincial and territorial hours of service regulations.

The Government also notes that the Federal Transit Administration of the United States Department of Transportation is currently contemplating the adoption of hours of service regulations for application to public transit services under federal jurisdiction. This proposed amendment is consistent with the direction being contemplated by our federal counterparts in the United States.

It is also worth noting that the exemption for public transit systems has had an impact on competition within the bus sector. While issues related to competition within the motor carrier industry are not part of the over-arching objective for a safety regulation such as Commercial Vehicle Drivers Hours of Service Regulations, they are nonetheless a matter of interest to the Government. Public transit services frequently transport students and offer charter-type services for special events and venues, thereby placing them in direct competition with other bus sector groups such as school bus and motor coach. They are able to operate under the exemption while offering and providing charter service inside their community boundaries and within 25 km of those boundaries without having to operate under the same scheduling limitations and associated cost that non-exempt bus sector groups have to contend with in order to conform to the Commercial Vehicle Drivers Hours of Service Regulations.

As mentioned, the Motor Vehicle Transport Act is the enabling instrument for the establishment of these Regulations. The Act contains policy objectives in section 3 to ensure that the National Transportation Policy outlined within the Canada Transportation Act is carried out with respect to extra-provincial bus and truck undertakings. It is the responsibility of the Department of Transport to consider the contribution or impact that the application of the Commercial Vehicle Drivers Hours of Service Regulations can have with respect to furtherance of the National Transportation Policy and the objective of a competitive transportation system for all Canadians.

The motor coach industry provides passenger charter service and this group in particular, has long argued that transit services should be subject to the hours of service regulations, just like the school bus and motor coach sectors. Unlike transit systems, bus companies are not subsidized and are privately operated. Their trade organization, Motor Coach Canada, has pointed out in the past that adapting the operations of their member companies to the hours of service regulations has had a substantial economic impact on their industry and they believe that it is unfair that they have to compete with public transit service that is exempt from the work-rest rules.

As well, the Canadian Bus Association provided comments when the transit service exemption was first being contemplated by the Canadian Council of Motor Transport Administrators in 1988. At that time, they had no disagreement to granting the exemption for municipal transit drivers provided it was confined to transit service per se, and did not extend to transit drivers engaged in other (non-transit) services, such as charters outside the municipal area. They argued that if allowed, it would result in an inequitable situation with transit drivers being exempted whereas other non-transit bus drivers, operating in a similar situation, would have to follow the rules. However, despite their arguments, the exemption was adopted and today, the exemption as worded permits transit systems to remain exempted while engaged in any type of bus service including charters, while operating “within 25 km of the boundary of the municipality.”

In addition to the safety and research arguments, which are both persuasive and equally applicable to all transit systems, the Government notes that this option provides the indirect benefit of ensuring that all charter service provided by the bus sector will be done on a more competitive basis both within and near municipalities.

It should also be noted that there is an unintended impact on Yukon territorial jurisdiction as it applies to the regulation of transit systems in their jurisdiction. All of the provinces and territories, with the exception of Nunavut, have hours of service regulations that are also based on the National Safety Code Hours of Service Standard and are very consistent with, if not identical to, the federal Commercial Vehicle Drivers Hours of Service Regulations. The provincial and territorial regulations are applied to intra-provincial undertakings, which are truck and bus motor carriers that operate entirely within the boundaries of a particular province or territory. As mentioned previously, of the 12 provinces and territories that have hours of service regulations, all have an exemption for public transit service, with the exception of British Columbia.

Most jurisdictions have enacted the prescriptive work-rest regulations in a similar approach as taken by the federal government; however, three jurisdictions have chosen the approach of adopting the federal Regulations by reference “as amended from time to time” for application to intra-provincial undertakings within their own jurisdiction. This means that when the federal Government changes its Regulations from time to time, it automatically results in concurrent changes to the jurisdiction’s regulations. Yukon alone has adopted the federal Application provisions in section 2 by reference, which as mentioned, also contains the exemption provisions for public transit service. Consequently, the repeal of the exemption for public transit service in this proposed amendment will inadvertently result in the removal of the exemption as it applies to the intra-provincial transit authorities based within their jurisdiction.

Currently, Yukon Territory has only one public transit service operating within their jurisdiction. The capital City of Whitehorse has a 10-bus transit system that serves their population of approximately 25 000 people. Preliminary information indicates that this public transit system is likely offering a level of service that would already comply with the current work-rest rules. This inadvertent consequence would ordinarily occur at the same time as this proposed amendment goes into effect, unless the Yukon government, should they decide to do so, takes earlier steps to amend their regulations to retain their own exemption for public transit service. The Yukon government will most likely have to conduct a review to determine if the 20-year-old exemption for public transit service continues to be relevant to the public interest in Yukon. While the federal government regrets this unintended consequence of this proposed amendment, it also believes that the issues and safety concerns addressed in this proposed amendment are no less relevant for the approximately 140 public transit systems that are under provincial and territorial jurisdiction than they are for those under federal jurisdiction. The Government is interested in hearing the views of the Yukon government with respect to how they intend to respond to this situation and the time needed to prepare for the changes that would occur if this amendment goes into effect.

Benefits and costs

The primary benefit of this proposed amendment is that road safety is expected to improve as the risk in transit operations is reduced. Transit bus operators are expected to be more rested and alert resulting in fewer critical safety incidents and collisions and improved safety for drivers, transit riders and other road users.

After conforming to the rules, the Ottawa transit authority advises that it would save more than $3.4 million in annual operating costs and an additional $12 million in avoided capital costs by not having to buy an additional 20 buses. It is not yet known what the cost and benefits would be for the other affected transit authorities in order to adapt to the work-rest rules; however, the Department is interested in hearing their views regarding the benefits and costs of adapting to these Regulations.

The provinces of Ontario and Quebec would be responsible for enforcement of the Regulations. It is expected that, based on the relative size of each transit system, it would require 6 to 10 person-days of audit effort to conduct a periodic facility audit of a transit system’s scheduling and work records, with an estimated cost of $5,000 per audit.

If transit riders knew that their transit system was subject to work-rest rules that are designed to combat driver fatigue and improve safety, it would increase public confidence in the safety of the transit operations. This in turn should increase usage by transit riders and the corresponding efficiency of the transit system. This in turn would improve the efficiency of the transit system thereby supporting the financial investments made by all three levels of government in order to promote transit to reduce urban traffic congestion, fuel consumption and its associated emissions of greenhouse gas and particulate matter.

Consultation

The Government has conducted preliminary consultations with some stakeholders. These consultations were held with the federally regulated transit operators, labour representatives, the industry’s national association and some provincial and territorial regulatory agencies. With the exception of the City of Ottawa, all other stakeholders were either not supportive of the possibility of repealing the transit exemption or cautioned that, given the potential effect it could eventually have on intra-provincial transit operators, unilateral action at the federal level should be avoided.

The provincial and territorial governments noted that further consultations with stakeholders were both necessary and required. The Government agrees with them and given the systemic difficulty in conclusively linking transit driver fatigue to the causal factors associated with collisions, the Government is requesting that all affected stakeholders, as identified in this Regulatory Impact Analysis Statement, submit detailed information to support their position.

Selected option and cooperation

After careful consideration, the Government proposes to react favourably to the petition from the City of Ottawa to place their transit service under the application of the Regulations by removing the exemption. Furthermore, the Government is also proposing to remove the exemption as it applies to the other two transit systems that fall under federal jurisdiction. The Government is therefore very interested in hearing the views of the provinces, territories, affected cities, their transit system operators and riders regarding this proposed amendment.

The Government notes that these specific rules have been in place since January 1, 2007, and all bus and truck sectors have now adapted their operations to conform to the requirements of the Regulations. The Government believes that there is enough flexibility built into the Commercial Vehicle Drivers Hours of Service Regulations to accommodate the scheduling and operational challenges that are unique to public transit service operations that fall under federal jurisdiction.

The Government also acknowledges that this proposed amendment could create public pressure on provincial and territorial governments, other than British Columbia, to review the continued relevance of their own exemption for public transit service within their own regulations. It will also have unintended consequences for the Yukon who has adopted these Regulations and the Application section by reference, which will result in the removal of the intra-provincial transit authority based within Whitehorse, unless they take earlier steps to reinstate the exemption for their jurisdiction.

As well, the Government intends to propose removal of the transit exemption from the National Safety Code Hours of Service Standard No. 9. Should that proposal be accepted, it would result in a consistent national approach towards regulating all of the other public transit systems within Canada that fall under the jurisdiction of the provincial and territorial governments. Consequently, the Government is very interested in hearing the views of provincial and territorial governments regarding this proposed amendment.

Implementation, enforcement and service standards

The transit operator in Ottawa has advised that they are committed to making the necessary changes to be able to comply with the Regulations although they are facing numerous operational challenges posed by their need to provide service for special events and charters, and to bring their labour agreements into conformity. This proposed amendment would therefore come into force six months after the date of registration in order to provide Ottawa and the other transit authorities with sufficient time to amend their administrative processes, train employees as to their new work-rest obligations arising from the Regulations, and to ensure that sufficient audit procedures and record-keeping are in place.

Under the Motor Vehicle Transport Act, the provincial and territorial governments are delegated the authority to enforce these Regulations. It is anticipated that enforcement would consist of a periodic audit of the workplace scheduling system and of the records kept by each transit authority. The Department of Transport will work with each province affected to verify that the necessary resources are in place to ensure compliance with this proposed amendment.

Contact

Brian Orrbine
Chief, Motor Carriers
Road Safety and Motor Vehicle Regulation Directorate
Transport Canada
275 Slater Street, 17th Floor
Ottawa, Ontario
K1A 0N5
Email: brian.orrbine@tc.gc.ca

Please note: It is important that your submission be provided to the attention of the person noted above before the closing date. Submissions not sent directly to the person noted may not be considered as part of this regulatory proposal. Individual responses will not be sent to your submission. Any subsequent final regulation that is published in the Canada Gazette, Part II, would contain any changes that are made, along with a summary of the comments received. Please indicate in your submission if you do not wish to be identified or if you do not wish to have your comments published in the Canada Gazette, Part II.

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 16.1(1) (see footnote a) of the Motor Vehicle Transport Act (see footnote b), proposes to make the annexed Regulations Amending the Commercial Vehicle Drivers Hours of Service Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Brian Orrbine, Chief, Motor Carriers, Road Safety and Motor Vehicle Regulation, Department of Transport, 17th Floor, 275 Slater Street, Ottawa, Ontario K1A 0N5 (tel.: 613-990-8855; fax: 613-990-2913; e-mail: brian.orrbine@tc.gc. ca).

Ottawa, March 5, 2009

MARY PICHETTE
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE COMMERCIAL VEHICLE DRIVERS HOURS OF SERVICE REGULATIONS

AMENDMENT

1. Subsection 2(1) of the Commercial Vehicle Drivers Hours of Service Regulations (see footnote 6) is amended by adding “and” at the end of paragraph (c) and by repealing paragraph (d).

COMING INTO FORCE

2. These Regulations come into force six months after the day on which they are registered.

[11-1-o]

Footnote 1
C. D. Wylie, T. Shultz, J. C. Miller, M. M. Mitler and R. R. Mackie (1996). Commercial motor vehicle driver fatigue and alertness study: technical summary, Transport Canada (Transportation Development Centre - Safety and Security, Publication Number TP 12876E) and U.S. Department of Transportation (Federal Highway Administration, Report Number FHA-MC-97-001).

Footnote 2
H. D. Howarth (2002), An investigation of sleep and fatigue in transit bus operators on different work schedules, doctoral thesis, University of Connecticut.

Footnote 3
H. C. Biggs, D. P. Dingsdag and N. J. Stenson (2006), Fatigue issues for metropolitan bus drivers: Ramifications of quantitative and qualitative research findings for safety management. In: 2006 Australasian Road Safety Research, Policing and Education Conference, 25–27 October 2006. Surfers Paradise, Queensland.

Footnote 4
L. M. Tse, R. Flin and K. Mearns (2006), Bus driver well-being review: 50 years of research, Transportation Research Part F, 9, 89–114.

Footnote 5
Council of Motor Transport Administrators, National Collision Data Base, April 2007.

Footnote 6
SOR/2005-313

Footnote a
S.C. 2001, c. 13, s. 6

Footnote b
R.S., c. 29 (3rd Supp.); S.C. 2001, c. 13, s. 1

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