Opinion: Hazmat Drivers — No Rest for the Weary?

This Opinion piece appears in the March 17 print edition of Transport Topics. Click here to subscribe today.

By Boyd Stephenson

Director, Hazardous Materials & Licensing Policy

American Trucking Associations

By now, the 30-minute rest break requirement is old news. The Federal Motor Carrier Safety Administration has exempted shorthaul drivers from it. But everyone else needs to be off-duty for at least 30 minutes after their first eight hours, before they can drive again. To make matters crystal clear, in July, FMCSA issued guidance about what is and isn’t allowed for that off-duty time. But for hazmat drivers, the guidance muddied the waters.

During the break, drivers must be “relieved of all duty and responsibility for the care and custody of the vehicle, its accessories, and any cargo” and free to leave the vehicle. There’s no confusion if the driver is hauling a load of lumber, candy or any other innocuous product. But what happens when that driver is transporting a tanker full of ammonium nitrate? Or anything poisonous by inhalation? Or a sample of some extremely deadly and contagious virus? Should the driver be relieved of all responsibility for cargoes like these?

For the ammonium nitrate and other dangerous explosives, FMCSA has taken care of the issue: Since 1971, the Department of Transportation has required that highly explosive materials such as ammonium nitrate be monitored continuously by drivers transporting it. FMCSA has even provided an exception to the rest break for drivers who must meet this requirement. So, rest easy — FMCSA has made sure that drivers can ensure their highly explosive loads are transported safely and are not stolen en route. These drivers still must take the break but can do so while remaining on duty to protect their dangerous cargo.

Too bad this explosives rule doesn’t apply for poisonous-by-inhalation materials. It also doesn’t apply for deadly viruses.

And what about a substance that ignites when it gets wet, or a flammable liquid? “Sorry, shipper, my driver couldn’t stop the thieves that took your load because he was forbidden from being responsible for the cargo during those 30 minutes.”

Fortunately, in the name of national security, the DOT’s Pipeline and Hazardous Materials Safety Administration has a list of “security-sensitive” hazmat that could be used as weapons. This list covers poisonous-by-inhalation materials, highly contagious substances, dangerous-when-wet materials and hazmat that could be turned into a weapon. At the same time, it excludes hazmat that your average terrorist would find unattractive to use as a weapon, like paint.

Carriers that want to move security-sensitive hazmat must have a security plan. Once the carrier adopts a security plan, it has the force of law, and violating the plan could cost the carrier up to $75,000 per violation.

The security plan requires carriers to perform background checks on their workers, ensure that their facilities are fortified against terrorists that might break in to steal and ensure en-route security.

Not surprisingly, most carriers ensure en-route security through the same constant attendance procedures required for highly explosive materials. But, is there an exception to the 30-minute rest break rule for security-sensitive hazmat? No, only for the security-sensitive hazmat that also is highly explosive.

This leaves carriers and drivers moving security-sensitive hazmat with three choices:

• They can follow PHMSA’s national security requirement and violate the rest-break requirement. 

• They can follow the rest-break requirement and ignore their dangerous cargo for half an hour. 

• They can double the cost of the run by assigning team drivers to ensure that someone always can be on duty. 

None of these solutions is palatable. The first two require choosing whether to violate one agency’s regulation or another’s. With a single driver, it is impossible to obey both. The third option makes transporting security-sensitive hazmat uneconomical.

The obvious solution is to grant security-sensitive hazmat the treatment currently given explosives.

Security-sensitive hazmat might not have a constant-attendance requirement in FMCSA’s regulations — but it does in PHMSA’s. And FMCSA already has stated there are no fatigue concerns that trump concerns while explosives drivers are on duty during their rest period solely because they are watching their cargo. Is there really any harm in allowing PHMSA’s similar security requirement to be followed?

American Trucking Associations and the National Tank Truck Carriers raised this issue the day FMCSA issued its rest-break guidance — in July. FMCSA agreed that the situation required attention and promised a speedy solution.

More than seven months have passed since then, and during that time, the driver of every single security-sensitive hazmat shipment has faced the same impossible choice when approaching that seventh hour of time on duty: “Which regulation do I follow?”

And we ask, “How much longer until FMCSA and PHMSA give that driver an answer?

American Trucking Associations, the largest national trade federation for the trucking industry, has headquarters in Arlington, Va., and affiliated associations in every state. ATA owns Transport Topics Publishing Group.