The headlines show an American trucking industry dealing with significant challenges, one of which is recruiting and retaining drivers. The American Trucking Association reported a shortage of 80,000 drivers for the year 2021 and a possible shortage of 160,000 drivers by 2030. As a result of this demand, new truck drivers are seeing salaries of $110,000, up from an average starting salary of $87,000, as well as additional bonuses and perks. Faced with a thin and competitive recruiting pool, trucking companies must ensure they are maximizing their ability to use the truck drivers they have so they can meet their client’s ever-growing demands.

One area we have seen trucking companies hamper themselves is by requiring hazmat endorsements on a driver’s CDL in situations where the driver isn’t required to have one. This mistake by the companies is undoubtedly due to the confusing language of the regulations. At first glance the regulation appears clear, drivers transporting any quantity of hazardous materials are required to have a CDL hazmat endorsement. As those in the industry know, we have 9 classes of hazardous materials. Materials in classes 1-8 are the usual suspects of what we would commonly consider hazardous (e.g., explosives, toxic chemicals), and Class 9 hazardous materials are miscellaneous hazardous materials that do not fit into any of the other 8 hazardous material classifications of the US Department of Transportation. Class 9 materials are defined in 49 CFR 173.140 and include some elevated-temperature materials.

Things start to get confusing when you must search for what is considered hazardous materials. The regulation provides that hazmat materials are defined under 49 CFR 383.5, which then defines hazmat as any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.

At the end of the quest to define hazardous materials, one comes across an apparent loophole for purposes of CDL endorsements. Although Class 9 materials fall under the classes of hazardous materials, the US Department of Transportation states that for class 9 materials domestically, including a portion of international transportation that occurs within the United States, a placard is not required, per 49 CFR § 172.504(f)(9). Since Class 9 materials don’t need a placard under 49 CFR § 172.504(f)(9), they likewise don’t require a CDL hazmat endorsement.

Class 9 materials can be a large part of any trucking company’s opportunity to expand and meet client demands. By using their current drivers without a hazmat endorsement to carry class 9 items, a trucking company will gain manpower to process additional deliveries, and the drivers are getting extra loads to ensure they have steady work.

If you have questions about this article, or about transportation compliance in general, please contact Michael Jacquez (mjacquez@setlifflaw.com) at 804-377-1262 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.