FMCSA finalizes hazmat permit rule

Aug. 1, 2004
A National Tank Truck Carriers (NTTC) request that shippers be included in a new hazmat permit rule (49 CFR Parts 385, 386, and 390) was denied by the

A National Tank Truck Carriers (NTTC) request that shippers be included in a new hazmat permit rule (49 CFR Parts 385, 386, and 390) was denied by the Federal Motor Carrier Safety Administration (FMCSA), according to information about the final rule in the Federal Register June 30. The final rule establishes a new national safety permit program for hazmat carriers and becomes effective July 30, 2004. Compliance is required, beginning January 1, 2005.

First proposed during the 1990 reauthorization of the Hazardous Materials Transportation Act, the permit rule applies to a relatively small group of carriers. Covered are those that transport products that are toxic by inhalation, liquefied natural gas, explosives, and Class 7 radioactive materials.

“Basically, this rule is totally useless and a waste of time and money,” says Cliff Harvison, NTTC president. “It's an additional administrative burden for fleets and became a requirement solely as the result of a legal settlement. It won't improve security or safety.

“The permit itself doesn't even have to be visible on the vehicle. It could be in the form of a wallet card or printed on the bill of lading. For that matter, the permit details could be written in pencil on a paper napkin.”

NTTC and Overnite Transportation had requested that shippers be included as active participants in the permit program because only the carrier bears responsibility and liability under the proposed permit requirements, while in fact the shipper plays an integral role. NTTC pointed out that Section 5109 of the Hazardous Materials Transportation Act (HMTA) includes a direct reference to shipper responsibility, and gives the Department of Transportation (DOT) unfettered discretion to determine the scope of the permit program. But FMCSA ruled that its direct jurisdiction is over carriers rather than shippers, unless the company is also a carrier, and that the authority is specifically delegated to the Research and Special Programs Administration (RSPA).

NTTC and others also argued that program duplication could be substantially eliminated if the FMCSA permitting program were combined with the RSPA hazmat registration program. However, FMCSA disagreed and said the two programs serve different purposes and require significantly different types of information from motor carriers. FMCSA added that a combined application form could confuse applicants and result in serious data and financial management problems. In addition, FMCSA argued, the RSPA registration program does not involve a safety or security evaluation of the covered carriers, and thus provides no enforcement mechanism for companies that do not comply with safety and security requirements.

FMCSA will not charge a fee for applying for a safety permit under this final rule.

Carriers must have a satisfactory safety rating in order to obtain a safety permit. In addition, until FMCSA completes a compliance review, FMCSA will not issue a safety permit to a motor carrier that has, as indicated in the agency's Motor Carrier Management Information System (MCMIS), a crash rate in the top 30 percent of the national average, or a driver, vehicle, hazardous materials, or total out-of- service rate in the top 30 percent of the national average.

A carrier must have a satisfactory security program in place and must be registered with RSPA. A satisfactory security program consists of: (1) A security plan as prescribed in 49 CFR part 172, subpart I; (2) a means of communication that will enable the vehicle operator to contact the motor carrier during the course of transportation; and (3) a means of providing hazardous materials employees with security training as required in 49 CFR part 172. Temporary safety permits will be issued to motor carriers without safety ratings, but only for a period of 180 days. In addition, a temporary safety permit will only be issued to companies that certify they have a satisfactory security program and are operating in full compliance with the hazardous materials regulations, federal motor carrier safety regulations, or comparable state regulations.

The carrier's safety permit number must appear on the shipping paper, on a copy of the safety permit, or on other documents maintained in the vehicle transporting a hazardous material requiring a safety permit.

While a permitted material is in transportation, the driver must have the telephone number of an employee or representative of the motor carrier who is able to determine whether the vehicle is on the general route for delivery of the material as expected by the company. The phone number must be made available to law enforcement officials upon request.

Companies holding safety permits must develop a communications plan that allows for the periodic tracking of the shipment. This may be accomplished either through phone calls or radio calls placed by the driver or through an electronic monitoring or tracking system.

At a minimum, the communication plan must require contact from the driver or electronic tracking equipment at the beginning and end of transportation (during loading or unloading of a permitted material) or at the beginning and end of each duty period. If the driver is making the calls, he or she should make them during periodic rests (taken for reasons other than making the call), or at the beginning and end of each duty period while not operating the vehicle or obtaining necessary rest.

If the company has any reason to suspect the shipment has been stolen, diverted, or otherwise off-route because of a lack or delay of contact from the driver, or for other reasons, then the company should contact the Transportation Security Administration's (TSA) Transportation Security Coordination Center at 703-563-3236 or 703-563-3237.

A record of communications must be kept, by either the driver (for example, recorded in the logbook) or the company, containing the time of the call and the shipment location. These records must be kept, either physically or electronically, for at least six months at the company's principal place of business and must be readily available to employees.

To see the rule in its entirety in The Federal Register, go to the Internet at, scroll to the bottom of the page, and under “executive resources” click on the “Federal Register” button. The rule is under the June 30, 2004, entries.