Tucker Blog

Friday, October 28, 2011

Ten Years After 9/11—A Blundering USDOT HazMat Disconnect

Ten Years after 9/11, America, has a spectacularly inexcusable problem regulating motor carriers who haul hazardous materials (“HazMat”). The United States Department of Transportation (“USDOT”) and its bureaucratic dysfunction are to blame.

Under the law, shippers of HazMat freight are required to use only motor carriers who are HazMat certified. Unfortunately, shippers can’t turn to USDOT for timely, reliable information about which carriers are, or are not, certified. What is more, USDOT, the sole source of this kind of information, cannot rely on its own data to determine which motor carriers are authorized to handle hazardous materials. Yes, you read that correctly.

USDOT’s knowledge of certified HazMat haulers is spotty, at best. Shippers seeking to verify a carrier’s certification face substantial uncertainty. Verifying hazardous materials certificates from carriers of course is a good idea, but relying on faxed paper certificates presents risks of forgeries, expired certificates, and other significant risks.

The Federal Motor Carrier Safety Administration (“FMCSA”) is the agency within USDOT that regulates motor carrier safety, except for issuing HazMat certificates. Goodness knows why, but HazMat certificates are issued to motor carriers by the Pipeline and Hazardous Materials Safety Administration (“PHMSA” pronounced “Fim-suh”)—a different USDOT agency. PHMSA is failing in this critical national security and safety responsibility.

PHMSA HazMat data is made available to the public in a file named “REGIS10.” This file is intended to list company names, certificate numbers, and expiration dates and so on, so the public can identify and verify HazMat-certified carriers. Unfortunately, the REGIS10 file is useless, fraught with errors and omissions, with few, if any database rules to prohibit alpha characters to show in numeric-only fields. It’s a disaster. Shippers, law enforcement agencies, and carriers, depend on PHMSA to do its job, so we can all do ours. PHMSA’s failures leave our nation and our citizens on the roadways in harm’s way.

Over at FMCSA, they are busy completely overhauling America’s motor carrier highway safety regime with its new Compliance, Safety and Accountability (“CSA”) program. FMCSA issues and revokes operating authority, and regulates every interstate motor carrier in America, and many intrastate carriers. FMCSA’s CSA program is designed to improve commercial vehicle safety and FMCSA’s ability to review more carriers each year.

Here’s FMCSA’s problem. Partly, because PHMSA’s data is so appalling, the FMCSA isn’t connected to the PHMSA database. This leaves FMCSA in the unenviable position of not knowing what motor carriers are certified HazMat, so it must (gasp!) guess.

CSA more strictly scrutinizes and regulates HazMat carriers, compared to non-HazMat carriers, by design. In order to do this, FMCSA has been forced to develop a system for (literally) guessing which are HazMat carriers. FMCSA’s first attempt at guessing was to count every carrier who self-reported that it hauls HazMat. Wrong! The FMCSA’s second attempt at guessing, announced August 22, 2011, was to track data reported via roadside inspections or safety audits, identifying where a carrier was carrying placarded quantities of HazMat. An ever so faint improvement, but it is still guessing.

No guess will ever be as effective or justifiable as getting the data cleanly and clearly from PHMSA—the source of the problem, err, data. Then yes, by all means supplement that HazMat certified data with roadside inspections, audit findings and hazmat permits.