FMCSA Agrees to Review Permit Regulation; Hazmat Haulers Say It Excludes Safe Carriers

The Federal Motor Carrier Safety Administration has agreed to review a hazardous materials safety permit regulation that several trade organizations said is causing some safe carriers to unfairly lose their eligibility to haul hazmat.

In granting the petition, FMCSA Administrator Anne Ferro acknowledged that the agency needed to revise the 2005 hazardous materials safety permit regulation to ensure that “safe, qualified carriers to are able to continue transporting permitted hazardous materials and to eliminate perceived biases in the agency’s program.”

The hazmat safety permit is required for carriers transporting certain explosives, poison inhalation hazard materials, radioactive materials, and liquefied natural gas.

At present, hazmat haulers and drivers can have their safety permits revoked if they have out-of-service rates that are among the lowest 30% of the national average, but the criteria can fluctuate every two years.

Since the inception of the current regulation in 2005, the agency has calculated the national out-of-service and crash rates used to disqualify hazmat carriers every two years.

“This moving target of eligibility makes it difficult to ensure business continuity,” five trade organizations wrote in their December 2010 petition. FMCSA did not act on the petition until last month.

The current requirements are particularly damaging to carriers that make large capital investments in specialized equipment such as stainless steel cargo tanks or multipurpose bulk trucks, according to the trade groups.

The five groups include the National Tank Truck Carriers, Agricultural Retailers Association, American Pyrotechnics Association, Institute of Makers of Explosives and the National Association of Chemical Distributors.

Although Ferro agreed with their concerns, she said the agency  could not issue a revised proposal until it completes its rulemaking process to establish the agency’s new safety fitness determination program, which will replace FMCSA’s current SafeStat system.

Ferro said the agency expects to publish its proposed safety fitness determination rule in April 2012.

“The publication date of the final rule will be determined based on the nature and scope of comments to the proposed rule,” Ferro wrote.

While the petitioners said they were pleased with the agency’s decision to study ways to revise the requirements, Cynthia Hilton, executive vice president of the Institute of Makers of Explosives, expressed concerns that any revisions will be delayed.

As many of 50% of her association’s members are disqualified when the rates are changed, Hilton told Transport Topics.

“They’re not killing people and they’re not hurting people. They’re unfairly being put out of business,” Hilton said.

“While we’re thrilled that FMCSA has accepted the petition, it’s very problematic that they saying they’re not going to do anything until the Compliance, Safety, Accountability program has been finalized,” Hilton said. “We don’t have that kind of time, so we are appealing to them to make some kind of accommodation to allow for a probationary period.”

John Conley, president of NTTC, agreed.

“The good news is, “Yes, we’re going to do it,’ and the bad news is, ‘but not in your lifetime,’ ” Conley said.

Although American Trucking Associations did not join in the petition request, ATA officials said the issue is of interest to some members, particularly because of a perceived bias against less-than-truckload carriers.

“The administrator’s response indicates a willingness to consider averaging the disqualification criteria and using vehicle miles traveled along with number of power units as a normalizing factor used to calculate crash rates,” said Richard Moskowitz, ATA’s vice president and regulatory affairs counsel. “The response also indicates a willingness to exclude non-preventable crashes in its initial crash rate calculations, rather than forcing the carrier to challenge the inclusion of each crash on a case-by-case basis.”