Hazardous Material Regulations

The Federal Motor Carrier Safety Administration ("FMCSA") announced planned improvements to the implemented in December 2010 as part of the agency’s Compliance, Safety, Accountability initiative. A preview is currently available to motor carriers and law enforcement. During this data preview period, FMCSA requests comments on the possible impact of the changes.  To comment, go to www.regulations.gov; the docket number is FMCSA 2012-0074. The changes will be available to the public in July 2012.

FMCSA says the SMS improvements are based on ongoing analysis and feedback from enforcement personnel, the motor carrier industry and other stakeholders, and are designed to more effectively identify and prioritize high-risk and other unsafe motor carriers for enforcement interventions designed to reduce commercial motor vehicle crashes and hazardous materials incidents.

 FMCSA will provide motor carriers with the ability to preview how the improvements impact their individual safety data in SMS. These improvements include:
• Changes to the SMS methodology that identify higher-risk carriers while addressing industry biases;
• Better applications of SMS results for agency interventions by more accurately identifying safety-sensitive carriers – such as carriers transporting people and carriers hauling hazardous materials – so that such firms can be selected for CSA interventions at more stringent levels; and
• More specific fact-based displays of SMS results on the SMS Website.

Roadcheck 2011, the Commercial Vehicle Safety Alliance’s ("CVSA") 72-hour safety blitz, is scheduled for June 7-9, 2011. CVSA sponsors Roadcheck with participation by the Federal Motor Carrier Safety Administration, Pipeline and Hazardous Materials Safety Administration, Canadian Council of Motor Transport Administrators, Transport Canada, and the Secretariat of Communications and Transportation (Mexico).

Roadcheck is the largest targeted enforcement program on commercial vehicles in the world, with approximately 14 trucks or buses being inspected, on average, every minute from Canada to Mexico during a 72-hour period.

Each year, approximately 10,000 CVSA-certified local, state, provincial and federal inspectors at 1,500 locations across North America perform the truck and bus inspections.

During the 2010 Roadcheck event, CMV enforcement conducted 65,327 inspections across the U.S. Of those, almost 49,000 were Level 1. Vehicle compliance rates were about 80 percent and drivers had a 95.6 percent pass rate. Driver compliance rates in 2009 set a record at 95.7 percent.

The primary causes for placing vehicles and drivers out of service continue to be brakes and logbooks, respectively.

CVSA is made up of local, state, provincial, territorial and federal motor-carrier safety officials and industry representatives in the U.S., Canada and Mexico.

The Federal Motor Carrier Safety Administration proposed its plan for a three-year pilot program in which Mexican and U.S. carriers can provides long-distance services between each country.

The pilot sets up a vetting and enforcement program to ensure the safety of Mexican trucks, with the goal of evaluating their safety performance, based on inspections at the roadside, ports of entry and weigh stations, and on traffic enforcement. Hazardous materials and passenger carriers will not be included in the program.

The program is the result of an agreement between President Obama and President Calderón of Mexico to resolve the long-standing dispute over cross-border trucking. FMCSA will publish the details of the program in the Federal Register on Thursday and will take comments for 30 days.

Once the program is in place, Mexico will suspend the tariffs it levied when the Congress killed the earlier version of the pilot.  In 2009 Mexico imposed import tariffs on about 89 U.S. agricultural and industrial products, and in 2010 it revised and expanded the list to 99 products.

In general, the program will set up a three-stage process for Mexican carriers that wish to participate. FMCSA said it does not know how many Mexican carriers will join. The last program attracted 775 applications, but only 29 of those carriers completed the paperwork and were vetted.


The Process

The process will start with the Mexican carrier filling out a 28-page application covering details of its operations, including affiliations, insurance, safety program and compliance with U.S. laws.
The application will be followed by a pre-authorization safety audit, in which FMCSA reviews the carrier's safety management system and inspects the specific trucks that will cross the border.

The safety management system would have to include such elements as a drug and alcohol testing program and a way to verify hours of service, insurance and driver qualifications, among numerous other requirements. Trucks that pass the inspection will get a CVSA decal.

If the carrier passes the audit, it would receive provisional operating authority and could commence cross-border operations. Provisional authority will last for 18 months. After that period, if the carrier has no pending enforcement or safety improvement actions and has cleared a compliance review, it is eligible for permanent authority in the pilot program.

Mexican carriers that have permanent authority in the pilot program would be eligible to convert that to standard permanent authority after the three-year pilot program is done.

For the first three months of the provisional authority stage, Mexican trucks and drivers will be inspected each time they enter the U.S. That period will be extended if the carrier does not get at least three inspections.

After three months and clearing the audit, the carrier will get the same inspection rate as the rest of the trucks now engaged in cross-border, commercial zone trucking. To be eligible for this status, the carrier must have an out-of-service rate at or below the U.S. average and its Safety Management System scores must be below the FMCSA threshold.

If instituted, the pilot program would run for three years from the first grant of provisional authority, unless FMCSA gathers enough data to make a decision about the program before that time. The agency said it could stop the program earlier if continuation is not consistent with the pilot's goals.

FMCSA will publish on its website and in the Federal Register comprehensive data on the Mexican carriers in the program, including their names, their audit performance, the trucks that have been cleared, the results of roadside inspections and the number of trips. The agency will track each carrier's data to gauge compliance.

The U.S. and Mexican departments of transportation will establish a monitoring group to supervise the administration of the program. In addition, FMCSA is establishing its own advisory committee, a subcommittee of the Motor Carrier Safety Advisory Committee, for suggestions. And the agency will make annual reports to Congress.

Earlier this month (March), the Pipeline and Hazardous Materials Safety Administration ("PHMSA") issued a final rule prohibiting texting on electronic devices by drivers hauling hazardous materials.  The final rule will be effective beginning March 30, 2011.  The Federal Motor Carrier Safety Administration ("FMCSA") already prohibits texting by commercial motor vehicle drivers operating in interstate commerce, but does not have jurisdiction over intrastate driving.  The PHMSA enjoys authority over ALL drivers hauling hazmat so this new rule will assure both interstate and intrastate hazmat haulers are prohibited from texting while driving. 

The changes made by the Pipeline & Hazardous Material Safety Administration (“PHMSA”) to the hazardous material security plan requirements became effective October 1, 2010.  These changes eliminated the need to have a written security plan for many classes of hazardous material, including Classes 1.6, 2.2, 3, 4.1, 6.1, 7, 8 and 9.  In addition, those entities with multiple terminal locations that are still required to maintain a security plan must now ensure that the plan is location-specific.  Moreover, the security plan must be reviewed at least annually and revised as necessary to reflect changing circumstances.  Finally, the new changes require that the security plan identify by job title the senior management official responsible for overall development and implementation of the security plan.

The Pipeline and Hazardous Materials Safety Administration ("PHMSA") recently revised 49 CFR Part 172 to modify certain aspects of its hazardous materials security plan.  The final rule, which should be of keen interest to those air, rail, vessel, and motor carriers who transport hazmat materials, will go into effect on October 1, 2010 and deregulate certain types and quantities of hazardous materials unlikely to be targeted for criminal or terrorist use.  The final rule also clarifies certain PHMSA regulations related to security planning, training, and documentation.  Culling less security sensitive hazardous materials from the regulatory list should help reduce carrier costs and paperwork associated with PHMSA compliance.   

Congress is cracking down on the Pipeline and Hazardous Materials Safety Administration (”PHMSA”), following a report by the House Transportation and Infrastructure Committee that found the agency was granting special permits without reviewing applicants’ safety histories. Special permits and approvals exempt applicants from certain hazardous materials regulations. Currently, PHMSA does not consider or look at applicants’ incident and enforcement histories when granting exemptions. While the agency does evaluate the safety of the action, process or package that the applicant is requesting, it does not look at the company’s prior incidents. That could be changing however. In August, PHMSA came up with several ways to address the problems, including revising policy and procedures for safety documentation evaluations and developing standard operating policies and procedures for the special permits program, among others.