Hazardous Materials: Enhanced Enforcement Authority Procedures, 57281-57297 [E8-23248]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 192 (Thursday, October 2, 2008)]
[Proposed Rules]
[Pages 57281-57297]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23248]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 109

[Docket No. PHMSA-2005-22356]
RIN 2137-AE13


Hazardous Materials: Enhanced Enforcement Authority Procedures

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
Department of Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA is proposing to issue rules implementing certain 
inspection, investigation, and enforcement authority conferred on the 
Secretary of Transportation by the Hazardous Materials Transportation 
Safety and Security Reauthorization Act of 2005. The proposed rules 
would establish procedures for: (1) The inspection and opening of 
packages to identify undeclared or non-compliant shipments; (2) the 
temporary detention and inspection of suspicious packages; and (3) the 
issuance of emergency orders (restrictions, prohibitions, recalls, and 
out-of-service orders) to address unsafe conditions or practices posing 
an imminent hazard. These new inspection and enforcement procedures 
will enhance DOT's ability to respond immediately and effectively to 
conditions or practices that pose serious threats to life, property, or 
the environment.

DATES: Comments must be received by December 1, 2008.

ADDRESSES: You may submit comments by any of the following methods:
     U.S. Government Regulations.gov Web site: https://
www.regulations.gov. Use the search tools to find this rulemaking and 
follow the instructions for submitting comments.
     U.S. Mail or private delivery service: Docket Operations, 
U.S. Department of Transportation, West Building, Ground Floor, Room 
W12-140, Routing Symbol M-30, 1200 New Jersey Avenue, SE., W12-140, 
Washington, DC 20590-0001.
     Fax: 1-202-493-2251.
     Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays:
    Instructions: You must include the agency name and docket number, 
PHMSA-05-22356 or the Regulatory Identification Number (RIN) for this 
rulemaking at the beginning of your comment. Note that all comments 
received will be posted without change to the U.S. Government 
Regulations.gov Web site: https://www.regulations.gov., including any 
personal information provided. Please see the Privacy Act section of 
this document.

FOR FURTHER INFORMATION CONTACT: Jackie K. Cho or Vincent M. Lopez, 
Office of Chief Counsel, (202) 366-4400, Pipeline and Hazardous 
Materials Safety Administration.

SUPPLEMENTARY INFORMATION: 

I. Background

    Under authority delegated by the Secretary of Transportation 
(Secretary), four agencies within DOT enforce the Hazardous Materials 
Regulations (HMR), 49 CFR parts 171-180 and other regulations, 
approvals, special permits, and orders issued under Federal Hazardous 
Material Transportation Law (Hazmat Law), 49 U.S.C. 5101 et seq.; the 
Federal Aviation Administration (FAA), 49 CFR 1.47(j)(1); Federal 
Railroad Administration (FRA), 49 CFR 1.49(s)(1); Federal Motor Carrier 
Safety Administration (FMCSA), 49 CFR 1.73(d)(1); and Pipeline and 
Hazardous Materials Safety Administration (PHMSA), 49 CFR 1.53(b)(1). 
The Secretary has delegated authority to each respective operating 
administration to exercise the enhanced inspection and enforcement 
authority conferred by the Hazardous Materials Transportation Safety 
and Security Reauthorization Act of 2005 (HMTSSRA). 71 FR 52751, 52753 
(Sept. 7, 2006). The United States Coast Guard (USCG) is authorized to 
enforce the HMR in connection with certain transportation or shipment 
of hazardous materials by water. This authority originated with the 
Secretary and was first delegated to USCG prior to 2003, when USCG was 
made part of the Department of Homeland Security. Enforcement authority 
over ``bulk transportation of hazardous materials that are loaded or 
carried on board a vessel without benefit of containers or labels, and 
received and handled by the vessel without mark or count, and 
regulations and exemptions governing ship's stores and supplies'' was 
also transferred in 2003. DHS Delegation No. 0170.1(2)(103) & 2(104); 
see also 6 U.S.C. 458(b), 551(d)(2). The USCG inspects portable tanks 
and freight containers primarily under two laws: the Safe Container Act 
46 U.S.C. 80501 et seq. with its implementing regulations found in 46 
CFR 450-453, and 49 U.S.C Chapter 51 Transportation of Hazardous 
Material as it relates to waterborne transportation. DOT will 
coordinate its inspections, investigations, and enforcements aboard 
vessels and waterfront facilities, as defined in 33 CFR 126.3, with the 
USCG to avoid duplicative or conflicting efforts. Moreover, nothing 
proposed herein would affect USCG's enforcement authority with respect 
to transportation of hazardous materials.

A. Need for Enhanced Enforcement Authority

    Each year, about three billion tons of hazardous materials are 
transported in the United States. United States Government 
Accountability Office, Undeclared Hazardous Materials: New DOT Efforts 
May Provide Additional Information on Undeclared Shipments, GAO-06-471, 
at 9 (March 2006) (GAO Report). Under DOT-mandated safety standards, 
including suitable packaging and handling, nearly all of these 
shipments move through the system safely and without incident. When 
incidents do occur, DOT-mandated labels and other forms of hazard 
communication provide transportation employees and emergency responders 
the information necessary to mitigate the consequences. Together, these 
risk controls provide a high degree of protection. Yet their 
effectiveness depends largely on compliance by hazmat offerors, 
beginning with proper classification and packaging of hazardous 
materials. When a package containing hazardous materials is placed in 
transportation without regard to HMR requirements, the effectiveness of 
all other risk controls is compromised, increasing both the likelihood 
of an incident and the severity of consequences. Accordingly, we have 
long considered undeclared shipments of hazardous materials to be a 
serious safety issue. The HMR define

[[Page 57282]]

``undeclared hazardous material'' as a material ``offered for 
transportation in commerce without any visible indication to the person 
accepting the hazardous material for transportation that a hazardous 
material is present, on either an accompanying shipping document, or 
the outside of a transport vehicle, freight container, or package'' 
that is subject to the hazardous materials communication standards. 49 
CFR 171.8.
    Approximately 1.2 million hazardous materials shipments are 
transported daily; of those, approximately 800,000 involve 
consolidations, intermodal, or intramodal transfers and in-transit 
storage. 68 FR at 67751 (Dec. 3, 2003). These figures do not include 
the unknown numbers of hazardous materials shipments that are 
undeclared and, accordingly, less readily accounted for. To detect and 
deter hidden shipments of hazardous materials, PHMSA's predecessor 
agency amended the HMR in 2004 to require persons who discover 
shipments of undeclared hazardous materials to report these incidents 
to the agency. 49 CFR 171.16(a)(4). These requirements were intended, 
in part, to ``define the extent of the problem, establish trends, and 
help gauge the effectiveness of efforts to reduce undeclared 
shipments.'' 68 FR 67746, 67754. In 2005, offerors and carriers 
reported about 1,000 incidents of undeclared hazardous materials, 70 of 
which involved shipments entering the United States from abroad. GAO 
Report at 28.
    FAA enforcement statistics show that undeclared hazardous materials 
are a frequent and persistent problem. In 1993, FAA reported 420 
enforcement cases involving undeclared hazardous materials shipments. 
Seven years later, the number of such enforcement cases rose to 1,716.
    Hidden hazardous materials pose a significant threat to 
transportation workers, emergency responders, and the general public. 
By definition, an undeclared shipment does not include markings or 
documentation designed to communicate the material's hazards in the 
event of an accidental release. And experience demonstrates that 
undeclared hazardous materials are more likely to be packaged 
improperly and, consequently, more likely to be released in 
transportation. Moreover, it is likely that terrorists who seek to use 
hazardous materials to harm Americans will move those materials as 
hidden shipments. Accordingly, although the presence of undeclared 
hazardous materials by no means demonstrates wrongful intent, we cannot 
expect to target willful violations and security threats by limiting 
inspections and enforcement to declared shipments. One way to address 
the problem of undeclared shipments is by expanding our inspection 
authority to permit an enforcement officer to open and examine packages 
suspected to contain hazardous materials. This expanded enforcement 
authority would also provide us with a tool to identify declared 
hazardous materials shipments that nonetheless may not have been 
prepared in accordance with the HMR requirements.
    DOT's experience enforcing Federal hazmat law and the HMR also 
suggests a need for expedited procedures to address imminent safety 
hazards. Imminent hazards, by definition, require immediate 
intervention to reduce the substantial likelihood of death, serious 
illness, severe personal injury, or a substantial endangerment to 
health, property, or the environment. Under current statutory law, DOT 
may obtain relief against a hazmat safety violation posing an imminent 
hazard only by court order. Even with such a threat present, the DOT 
operating administration seeking such relief must coordinate with the 
Department of Justice (DOJ) to file a civil action against the 
offending party, and seek and obtain a restraining order or preliminary 
injunction. As a practical matter, judicial relief could rarely be 
obtained before the hazardous transportation movement is complete. The 
streamlined administrative remedies implemented in this rulemaking will 
materially enhance our ability to prevent unsafe movements of hazardous 
materials and reduce related risks.

B. Statutory Amendments to Inspection, Investigation, and Enforcement 
Authority

    On August 10, 2005, the President signed the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU), which included the Hazardous Materials Transportation 
Safety and Security Reauthorization Act of 2005 (HMTSSRA) as Title VII 
of the statute, 119 Stat. 1891. Section 7118 of HMTSSRA revised 49 
U.S.C. 5121 to read:

    --In paragraph (c)(1) that a designated officer, employee, or 
agent of the Secretary of Transportation:
    (A) May inspect and investigate, at a reasonable time and in a 
reasonable manner, records and property relating to a function 
described in section 5103(b)(1);
    (B) Except in the case of packaging immediately adjacent to its 
hazardous material contents, may gain access to, open, and examine a 
package offered for, or in, transportation when the officer, 
employee, or agent has an objectively reasonable and articulable 
belief that the package may contain a hazardous material;
    (C) May remove from transportation a package or related packages 
in a shipment offered for or in transportation for which--
    (i) Such officer, employee, or agent has an objectively 
reasonable and articulable belief that the package may pose an 
imminent hazard; and
    (ii) Such officer, employee, or agent contemporaneously 
documents such belief in accordance with procedures set forth in 
guidance or regulations prescribed under subsection (e);
    (D) May gather information from the offeror, carrier, packaging 
manufacturer or tester, or other person responsible for the package, 
to ascertain the nature and hazards of the contents of the package;
    (E) As necessary, under terms and conditions specified by the 
Secretary, may order the offeror, carrier, packaging manufacturer or 
tester, or other person responsible for the package to have the 
package transported to, opened, and the contents examined and 
analyzed, at a facility appropriate for the conduct of such 
examination and analysis; and
    (F) When safety might otherwise be compromised, may authorize 
properly qualified personnel to assist in the activities conducted 
under this subsection.
    --In paragraph (c)(3) that, in instances when, as a result of an 
inspection or investigation under this subsection, an imminent 
hazard is not found to exist, the Secretary, in accordance with 
procedures set forth in regulations prescribed under subsection (e), 
shall assist--
    (A) In the safe and prompt resumption of transportation of the 
package concerned; or
    (B) In any case in which the hazardous material being 
transported is perishable, in the safe and expeditious resumption of 
transportation of the perishable hazardous material.
    --In subsection (d) that,
    (1) In General.--If, upon inspection, investigation, testing, or 
research, the Secretary determines that a violation of a provision 
of this chapter, or a regulation prescribed under this chapter, or 
an unsafe condition or practice, constitutes or is causing an 
imminent hazard, the Secretary may issue or impose emergency 
restrictions, prohibitions, recalls, or out-of-service orders [as 
defined in paragraph (d)(5)], without notice or an opportunity for a 
hearing, but only to the extent necessary to abate the imminent 
hazard.
    (2) Written Orders.-The action of the Secretary under paragraph 
(1) shall be in a written emergency order that-
    (A) Describes the violation, condition, or practice that 
constitutes or is causing the imminent hazard;
    (B) States the restrictions, prohibitions, recalls, or out-of-
service orders issued or imposed; and
    (C) Describes the standards and procedures for obtaining relief 
from the order.
    (3) Opportunity for Review.--After taking action under paragraph 
(1), the Secretary shall provide for review of the action under

[[Page 57283]]

section 554 of title 5 if a petition for review is filed within 20 
calendar days of the date of issuance of the order for the action.
    (4) Expiration of Effectiveness of Order.--If a petition for 
review of an action is filed under paragraph (3) and the review 
under that paragraph is not completed by the end of the 30-day 
period beginning on the date the petition is filed, the action shall 
cease to be effective at the end of such period unless the Secretary 
determines, in writing, that the imminent hazard providing a basis 
for the action continues to exist.

119 Stat. at 1902-1905.
    Congress enacted HMTSSRA in part to combat the problem of 
undeclared hazardous materials shipments. While section 7118 of HMTSSRA 
(Section 7118), which amended 49 U.S.C. 5121, enhances DOT's authority 
to discover undeclared hazardous materials shipments, the application 
of this enforcement authority is not limited to undeclared shipments. 
On a broader scale, Section 7118 promotes the Department's inspection 
and enforcement authority ``to more effectively identify hazardous 
materials shipments and to determine whether those shipments are made 
in accordance with the [H]azardous [M]aterials [R]egulations.'' H. 
Conf. Rep. No. 109-203, at 1079 (2005), reprinted in 2005 U.S.C.C.A.N. 
452, 712. Congress reasoned that the Department needed enhanced 
inspection and enforcement authority to ensure that ``DOT officials, 
law enforcement and inspection personnel * * * have the tools necessary 
to accurately determine whether hazardous materials are being 
transported safely and in accordance with the relevant law and 
regulations.'' H. Conf. Rep. No. 109-203, at 1081, 2005 U.S.C.C.A.N. at 
714. Section 7118 carries out this directive by authorizing DOT 
employees to access, open and examine a package (except for the 
packaging that is immediately adjacent to the suspected hazardous 
material's contents) that was offered for, or is in transportation in 
commerce, when those employees have an objectively reasonable and 
articulable belief that the shipment may contain a hazardous material, 
remove the package from transportation when the shipment may pose an 
imminent hazard, order the shipment to be transported, opened, and 
tested at an appropriate facility, as necessary, and permit the 
shipment to resume its transportation when an inspection does not 
identify an imminent hazard.
    Following enactment of HMTSSRA, several interested parties 
recommended that PHMSA issue regulations that adopt the traditional 
notice and comment rulemaking procedure rather than the temporary 
regulations prescribed by statute. PHMSA agrees that the traditional 
notice and comment rulemaking is necessary. As described further below, 
this rulemaking presents several critical factual and policy issues 
warranting public comment and development of an administrative record.

II. Summary of Proposals in This NPRM

    This NPRM proposes procedures to implement the expanded enforcement 
authority conferred in HMTSSRA. These procedures would apply to 
hazardous materials safety compliance and enforcement activities 
conducted by PHMSA, FAA, FRA, and FMCSA inspection personnel. 
Specifically, we are proposing procedures to enable DOT inspectors to 
open, detain, and remove a hazardous materials shipment from 
transportation in commerce, and order the package to be transported to 
a facility to analyze its contents. In addition, we are proposing 
procedures for issuing emergency orders to address imminent hazards. As 
proposed, these procedures will apply in a number of contexts and 
circumstances:
     We are proposing procedures under which an inspector may 
open a package to determine whether it contains an undeclared hazardous 
material or otherwise does not comply with applicable regulatory 
requirements. These procedures apply to the opening of an overpack, 
outer packaging, freight container, or other packaging component not 
immediately adjacent to the hazardous material. Inspectors will not 
open single packagings (such as cylinders, portable tanks, cargo tanks, 
or rail tank cars) nor will inspectors open the innermost receptacle of 
a combination packaging.
     We are proposing procedures under which an inspector may 
temporarily remove a package or shipment from transportation when the 
inspector believes that the package or shipment poses an imminent 
hazard. Such a belief may arise from a compliance problem identified as 
a result of opening the package or from conditions observed through an 
inspection that does not include opening the package. As proposed, the 
inspector may remove a package or shipment from transportation on his 
or her own authority provided he records his belief in writing. An 
inspector may temporarily remove any type of package or shipment from 
transportation if he or she has a ``reasonable and articulable belief'' 
that the package poses an imminent hazard.
     We are proposing procedures under which an inspector may 
order the person in possession of or responsible for the package to 
transport the package and its contents to a facility that will examine 
and analyze its contents. An inspector may issue such an order for any 
type of package or shipment, not merely those packages for which 
package opening is authorized. As proposed, the inspector may issue 
this order on his own authority provided he documents his reasoning.
     We are proposing procedures under which an inspector will 
assist in preparing a package for safe and prompt transportation if, 
after a complete examination of a package initially thought to pose an 
imminent hazard, no imminent hazard is found. If the package has been 
opened, the inspector will assist in reclosing the package in 
accordance with the packaging manufacturer's closure instructions or an 
alternate closure method approved by PHMSA, marking the package to 
indicate that it was opened and reclosed in accordance with DOT 
procedures, and returning it to the person from whom it was obtained.
     We are proposing procedures for the issuance of an out-of-
service (OOS) order if, after complete examination of a package 
initially thought to pose an imminent hazard, an imminent hazard is 
indeed found to exist. The OOS order effects the permanent removal of 
the package from transportation by prohibiting its movement until it 
has been brought into compliance with all applicable regulatory 
requirements. An OOS order may be issued for any type of packaging or 
shipment. For example, in the case of motor carriers, DOT will apply 
the Commercial Vehicle Safety Alliance (CVSA) OOS criteria for 
hazardous materials in identifying an imminent hazard for which an OOS 
order may be issued.
     We are proposing procedures for the issuance of an 
emergency order when PHMSA, FAA, FMCSA, or FRA determines that a non-
compliant shipment or an unsafe condition or practice is causing an 
imminent hazard. As proposed, the PHMSA, FAA, FMCSA, or FRA 
Administrator may issue an emergency order without advance notice or 
opportunity for a hearing. The emergency order may be issued in 
conjunction with or in place of an OOS order. The emergency order may 
impose emergency restrictions, prohibitions, or recalls and may be 
issued for any type of shipment and for any unsafe condition posing an 
imminent hazard, not merely unsafe conditions related to packaging.

[[Page 57284]]

III. Summary of Comments

    PHMSA published a notice on January 25, 2006 (71 FR 4207), inviting 
interested persons to participate in a series of public meetings to 
comment on the agency's implementation of section 7118. The notice 
identified 11 possible topics on which PHMSA would begin a discussion 
at the public meetings. The topics were:

    (1) The types of outer packagings that could be opened by an 
inspector, if the person in possession of the package does not agree 
to open the package himself.
    (2) Whether the legal standard for opening an outer packaging--
i.e., an objectively reasonable and articulable belief that the 
package may pose an imminent hazard--needs further explanation in 
the regulations.
    (3) The locations at which a package would be observed and the 
relevance of this fact to the manner of opening the outer packaging 
and, if no imminent hazard is found, the manner of reclosing the 
package for further transportation in compliance with the HMR.
    (4) The amount of time required to open an outer packaging, 
examine the inner container(s) or receptacle(s) and, if no imminent 
hazard is found, reclose the package for further transportation in 
compliance with the HMR.
    (5) The circumstances under which a person would be required to 
have a package transported, opened, and the contents examined and 
analyzed, at an appropriate facility.
    (6) The time and cost for the facility to examine and analyze 
the contents of a package which would be examined and analyzed at an 
appropriate facility.
    (7) The value of the contents of a package which would be 
examined and analyzed at an appropriate facility.
    (8) The effect upon offeror or transporter subject to an 
emergency action or order, including removing a package from 
transportation or ordering a restriction, prohibition, recall, or 
OOS order to abate an imminent hazard.
    (9) Conditions that would be appropriate for including in an 
emergency restriction, prohibition, recall, or OOS order, such as 
allowing a vehicle to be moved to a safe location for inspection or 
vehicle repairs.
    (10) The time and cost of preparing a petition for review of an 
emergency action or order.
    (11) The criteria necessary to seek relief from the issuance of 
an emergency action or order.

71 FR at 4208 (Jan. 25, 2006).
    PHMSA convened public meetings on February 21, 2006, in Dallas, 
Texas; March 8, 2006, in Washington, DC; and March 15, 2006, in 
Seattle, Washington; in which the agency invited interested persons to 
comment on the agency's implementation of section 7118 within the 
context of the above 11 topics and any other issues of interest. The 
material comments both oral and written elicited from these meetings 
are summarized below. (Transcripts of these meetings are available on 
the U.S. Government Regulations.gov Web site at https://
www.regulations.gov.)

(1) Types of Outer Packagings That Could Be Opened By an Inspector

    Several participants (Brumbaugh, Jackson, McElhoe, Rinehart, 
Roberts, Surovi, Tobin, Association of Hazmat Shippers (AHS), Alaska 
Airlines, Boeing Company, Dangerous Goods Advisory Council (DGAC) and 
Tyco Healthcare (Tyco)) expressed concern about how DOT intends to 
exercise its new enforcement authority, i.e., identifying undeclared 
shipments or non-compliant shipments and the procedures DOT would 
follow when opening such packages during an inspection. Additionally, 
the International Vessel Operators Hazardous Materials Association 
(VOHMA) and Council on Safe Transportation of Hazardous Articles 
(COSTHA) questioned the manner in which section 7118 would apply to 
carriers given that carriers may not open packages that they do not 
own. Others suggested that DOT should limit the exercise of its 
enhanced inspection and enforcement authority to an offeror's facility 
to minimize the risk of a hazardous material release during 
transportation and to direct enforcement effort toward the parties most 
responsible for ensuring proper packaging and certification.
    PHMSA Response: As discussed above, the primary objectives of DOT's 
enhanced inspection and enforcement authority are to discover and 
prevent undeclared shipments of hazardous materials that would 
otherwise pose imminent hazards in transportation. This authority, 
however, is not limited to undeclared hazardous material shipments. If 
a shipment, whether or not it is a declared hazardous material, is 
found to be leaking; is improperly marked, labeled or packaged; or the 
shipping paper indicates a potential problem, a DOT inspector may 
invoke this authority to open and examine the shipment to determine the 
scope of the problem and potential hazard. In addition, if the shipment 
poses an imminent hazard, the inspector may remove it from 
transportation. The procedures governing such inspections are 
enumerated under proposed section 109.3(b) and discussed in the 
section-by-section analysis below. In other words, PHMSA intends for 
DOT inspectors to use their enhanced inspection authority to verify 
that hazardous materials shipments are packaged, marked, and labeled in 
compliance with DOT requirements.
    The package opening authority, however, applies only to an 
overpack, outer packaging, freight container, or other packaging 
component that is not immediately adjacent to the hazardous material it 
contains. Thus, as proposed, DOT inspectors will not open packagings 
that serve as the primary means of containment (such as cargo tanks, 
portable tanks, railroad tank cars, or cylinders) and will not open 
inner packagings of combination packages (such as the bottles inside a 
fiberboard box or test tubes inside an infectious substances triple 
packaging). In any case, this proposed rule in no way limits the 
Department's general inspection and investigation authority under 49 
U.S.C. 5103(b)(1). The final rule will authorize certain additional 
investigatory techniques and remedies, without limiting DOT's existing 
authority with respect to the safe transportation, including security, 
of hazardous materials in intrastate, interstate, and foreign commerce. 
Section 5103(b) also grants the Secretary regulatory authority with 
respect to security in the transportation of hazardous materials. 
Therefore, the authority to issue emergency orders is not limited to 
safety; rather, it is foreseeable that this authority may be invoked in 
a case of national emergency to address potential security violations 
involving the transportation of hazardous materials.
    PHMSA foresees that DOT hazardous materials inspections will 
continue at offeror or carrier fixed facilities or terminals. But we 
note that inspections may be conducted at other locations within the 
Department's jurisdiction, consistent with the authority conveyed by 
section 7118, depending upon the relevant circumstances and as 
necessary to promote the interest of public safety. PHMSA recognizes 
that detaining a shipment may impact a commercial transaction involving 
the package in transit and will make every effort to avoid unnecessary 
delays and interruptions.
    The instances in which this authority may be invoked are heavily 
fact-specific and situation-dependent. Thus, it would not serve the 
interest of public safety to limit the context in which this authority 
may be exercised. Though we will make every effort to avoid unnecessary 
delays and shipment interruptions, the authority granted in SAFETEA-LU 
is sufficiently specific and particularized, authorizing designated DOT 
agents to open a package in transportation if that agent has an 
objectively reasonable and articulable belief that the package may 
contain a hazardous material, irrespective of the location at which the 
package is identified.

[[Page 57285]]

    With respect to comments regarding carriers' ability to open 
packages, we do not intend this rulemaking to affect contractual or 
other legal rights or obligations surrounding the carrier-shipper 
relationship. Although carriers and shippers may wish to clarify or 
address their contractual arrangements, the regulatory procedures we 
are proposing do not depend on carriers' consent or assistance in 
opening packages. Should a carrier refuse consent, section 7118 
authorizes an agent of the Secretary to open the package himself or 
herself or to order the package to be transported to an appropriate 
facility at which it may be opened and examined. In any case, we 
consider contract negotiations among private entities beyond the scope 
of this rulemaking.
    The operating administrations responsible for enforcement of the 
HMR--PHMSA, FMCSA, FAA, and FRA--all worked together under PHMSA's 
leadership to develop this proposed rule. This NPRM proposes 
regulations that establish a clear, basic outline of the procedures all 
four operating administrations will use to implement DOT's new 
enforcement authority. To provide for uniformity across modes of 
transportation and separate enforcement staffs, the regulations 
proposed in this NPRM must be broad and provide a common framework. The 
operating administrations are also developing a joint operations manual 
to address issues particular to a specific mode of transportation or 
regulated industry. It is our intent that the joint operations manual 
will be publically available on PHMSA's Web site at the time of 
issuance of the Final Rule. The proposed regulations set out a 
framework for the procedures PHMSA, FMCSA, FAA, and FRA will employ 
when conducting inspections or investigations, thus ensuring 
consistency in approaches and enforcement measures among modes of 
transportation. A Final Rule, implemented with the guidance of an 
operational manual, will ensure that this authority, especially a 
finding of an imminent hazard, is used effectively yet judiciously. It 
will focus and direct an informed enforcement effort to address 
problems with undeclared shipments of hazardous material and other 
packaging communication requirements while preventing the additional 
authority from being misused as an exploratory tool or without reasoned 
deliberation.

(2) The Meaning and Application of Objectively Reasonable and 
Articulable Belief That a Package May Pose an Imminent Hazard

    Commenters raised two critical questions regarding the legal 
standards that determine whether DOT may open a shipment and detain and 
remove it from transportation. The American Trucking Association (ATA), 
COSTHA, DaRuBa Enterprises (DaRuBa), Arrowhead Industrial Services, 
DGAC, VOHMA, and Tyco contend that the operative term ``objectively 
reasonable and articulable belief'' requires further explanation. AHS, 
COSTHA, and VOHMA also requested clarification on what the term 
``imminent hazard'' means. Finally, several interested persons, 
including DGAC, ATA, and the Institute of Makers of Explosives (IME) 
questioned how PHMSA would define these terms in the regulatory text.
    PHMSA Response: The proposed rule defines ``objectively reasonable 
and articulable belief'' as ``a belief based on particularized and 
identifiable facts that provide an objective basis to believe or 
suspect.'' See proposed Sec.  109.1. The proposed rule defines 
``imminent hazard'' as ``the existence of a condition relating to 
hazardous material that presents a substantial likelihood that death, 
serious illness, severe personal injury, or a substantial endangerment 
to health, property, or the environment may occur before the reasonably 
foreseeable completion date of a formal proceeding begun to lessen the 
risk of that death, illness, injury, or endangerment.'' See proposed 
Sec.  109.1. This proposed definition of ``imminent hazard'' is 
consistent with the statutory definition of the term found in 49 U.S.C. 
5102(5). Both of these terms determine whether the Department may 
detain, open, and examine a suspect shipment for the presence of 
hazardous material in its contents and/or remove the package from 
transportation in commerce.
    PHMSA starts with the premise that an offeror that places articles 
in a closed and opaque container has a legitimate expectation of 
privacy and retains a possessory interest in those items when they are 
being transported in commerce. Jacobsen, 466 U.S. at 113, 114; U.S. v. 
Villarreal, 963 F.2d at 773. The hazardous materials transportation 
industry, however, is closely regulated, meaning that a person engaging 
in this industry has a reduced expectation of privacy. U.S. v. V-1 Oil 
Company, 63 F.3d 909, 911 (9th Cir. 1995), cert. denied, 517 U.S. 1208 
(1996). DOT therefore is authorized to conduct warrantless and 
unannounced inspections of an entity that offers or transports 
hazardous material in commerce to determine its level of compliance 
with the Hazmat Law and HMR under the ``administrative search'' 
doctrine. Id. at 913.
    When the government asserts control of the shipment and its 
contents, e.g., by detaining the package from further transportation, 
it has conducted a seizure subject to the Fourth Amendment. Jacobsen, 
466 U.S. at 120. Nevertheless, brief investigative detentions are 
authorized, provided there is a reasonable articulable suspicion that 
the shipment does not comply with regulatory requirements. V-1 Oil 
Company v. Means, 94 F.3d 1420, 1424 (10th Cir. 1996). Known as a 
``Terry'' stop after the landmark decision, Terry v. Ohio, 392 U.S. 1 
(1968), such an investigative stop is permitted when an inspector can 
``point to specific and articulable facts which, taken together with 
rational inferences from those facts, reasonably warrant'' the 
detention. Terry, 392 U.S. at 21. The inspector must have 
particularized and identifiable facts, i.e., some articulable basis, to 
believe that a Federal statute or regulation has been violated. See 
Brierley v. Schoenfeld, 781 F.2d 838, 841 (10th Cir. 1986). Terry 
employs a ``less demanding standard than probable cause and requires a 
showing considerably less than preponderance of the evidence.'' 
Illinois v. Wardlow, 528 U.S. 119, 123 (2000). (In contrast, probable 
cause means ``a fair probability that contraband or evidence of a crime 
will be found.'' Alabama v. White, 496 U.S. 325, 330 (1990)). In short, 
DOT need only establish a ``minimal level of objective justification'' 
to detain, open, and inspect a shipment that may have hidden or 
undeclared hazardous materials. See U.S. v. Sokolow, 490 U.S. 1, 7 
(1989).
    Accordingly, an inspector would need to produce facts establishing 
that the official reasonably believed that a noncomplying condition 
existed. U.S. v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006). An 
inchoate hunch or guess would be insufficient: an inspector is required 
to set out evidence supporting the detention. Alabama, 496 U.S. at 329-
30; see also 59 FR 7448, 7454 (Feb. 15, 1994) (FRA ``reasonable cause'' 
testing standard requires reasonable suspicion). The information relied 
upon may come from a variety of sources, including but not limited to 
the following: package appearance, identity of offeror or carrier, an 
odor emanating from a container, and anonymous tips. U.S. v. Wheat, 278 
F.3d 722, 726 (8th Cir. 2001), cert. denied, 537 U.S. 850 (2002). The 
basis for reasonable

[[Page 57286]]

suspicion would center on the totality of circumstances experienced by 
the inspector and the official's skill and experience in determining 
whether an investigative stop would be justified. Brierley, 781 F.2d at 
841. The Department therefore would afford its inspectors reasonable 
discretion in making reasonable suspicion findings in light of the 
flexible nature of Terry and its progeny.
    While this proposed regulation implements the Department of 
Transportation's enforcement authority, it does not in any way affect 
Department of Homeland Security (DHS) agents exercising their statutory 
authority at points of entry. Therefore, DOT's standards for the 
inspection and detention of packagings, vehicles or persons, including 
a requirement of an objectively reasonable and articulable belief that 
a package may contain a hazardous material, do not apply to DHS, which 
operates under separate statutory and regulatory authorities.
    Finally, Department officials would exercise reasonable, intrusive 
means when stopping a shipment from continuing in transportation in 
commerce. An inspector would be authorized to hold a package at a 
terminal or depot until qualified personnel or shipping papers arrived 
to ascertain its contents. The inspector also would be permitted to 
order the shipment to be moved to an appropriate facility when 
necessary to safely conduct an inspection. See Means, 94 F.3d at 1427. 
The inspector would release the shipment for transportation when the 
underlying objectives of the detention had been met.
    The term imminent hazard has been defined in the hazmat law for 
many years (49 U.S.C. 5102(5)) and PHMSA proposes to retain that 
definition without change. An imminent hazard exists when an unsafe 
condition or practice, or a combination thereof, causes, or is causing, 
a situation that is likely to result in serious injury or death, or 
significant property or environmental damage if not discontinued 
immediately. The proposed rule would authorize a designated DOT 
inspector to remove a package from transportation if the inspector has 
an objectively reasonable and articulable belief that the package may 
pose an imminent hazard, provided that he contemporaneously documents 
such belief in accordance with the regulations issued under section 
7118(e).
    In summary, this proposed rule would provide three new enhanced 
enforcement tools. First, a Department inspector would be permitted to 
stop, open, and examine a shipment when he or she has a reasonable 
suspicion that the package contains a hazardous material. Depending on 
the circumstances, a package may be suspicious even if it bears no 
mark, label, or shipping paper indicating the presence of a hazardous 
material. In other cases, a package could be marked or labeled 
incorrectly, thus causing the inspector to believe that the package 
contains hazardous material. Misidentification of the package contents 
can have serious safety implications, well justifying use of the 
package opening authority to inspect HMR compliance. Listing of an 
incorrect UN identification number, for example, could result in 
improper segregation, handling, and/or response measures. Likewise, the 
inspector could elect to open a package that is properly marked and 
labeled but that appears not to comply with other regulatory 
requirements or otherwise presents an imminent hazard.
    Second, the Department inspector or delegated official would be 
authorized to remove the package and related packages in the shipment 
from transportation in commerce and order their delivery to an 
appropriate facility for testing and analysis when he or she has 
determined that an imminent hazard may exist. A finding of imminent 
hazard is not a prerequisite to the detention, opening and examination 
of a package suspected of containing a hazardous material. Third, upon 
further investigation, PHMSA on its own initiative, or after advice and 
recommendation from the other modal officials, may issue a recall of an 
entire packaging design if it presents an imminent hazard.

(3) Reclosing Packages

    Several commenters expressed concern about the reclosing of 
packages after they have been opened. Allergan, COSTHA, Delta Airlines, 
and Rykos expressed concern about preserving the integrity of a package 
after it has been opened and found not to contain an undeclared 
hazardous material. The regulated community also was interested in 
learning about the manner in which DOT intends to reclose certain 
packagings that have been opened in transit, including specification 
packaging; refrigeration packaging; specific-mode packaging; 
pharmaceutical manufacturing and healthcare products packaging; 
overnight or express delivery packaging; and packages containing 
expensive, valuable, or perishable products. American President Lines 
(APL), the Association of American Railroads, Nuclear Energy Institute, 
and Rykos inquired about reclosing packagings that require specialized 
seals, and the ATA suggested that DOT develop a seal or tape to 
identify that a package has been opened to ensure against rejection 
upon delivery. Finally, American Eagle Airlines, Brookwarehousing 
Corporation, COSTHA, DGAC, International Warehouse Logistics 
Association (IWLA), United Parcel Service, and VOHMA advised that PHMSA 
should consider whether small businesses or carrier terminals are 
properly equipped to reclose a package that is already in transit at 
the time DOT conducts an inspection.
    PHMSA Response: The Department is developing internal operational 
procedures to address the proper closure of packaging in accordance 
with the HMR. As part of these procedures, we are considering affixing 
a DOT-specific tape over the packaging that identifies the agency and 
the inspector who opened the package in question. These procedures will 
be covered within the joint operations manual discussed above in the 
section entitled ``Types of Outer Packages that could be Opened by 
Inspectors.''
    We are sensitive to concerns about reclosing shipments that are 
opened during a hazardous materials inspection. The availability of 
qualified personnel, equipment, accessibility, and other capabilities 
are factors we are considering for the guidelines on reclosing 
shipments after conducting inspections. PHMSA thus solicits further 
comments from the public on these and other factors in reclosing 
packages and the manner and materials available to prevent release of 
hazardous materials.

(4) Amount of Time Required To Open and Examine an Outer Packaging

    The ATA and VOHMA expressed concern that enhanced inspections may 
delay their business operations and questioned whether exercising this 
authority may impact carriers' other existing regulatory requirements. 
For example, ATA expressed concern that the amount of time required to 
open and examine a package may potentially affect a carrier's 
obligation to comply with hours of service requirements under the 
Federal Motor Carrier Safety Regulations. Moreover, VOHMA stated that 
if a package is opened in accordance with this enhanced authority, 
inspectors may not be able to restore every package in accordance with 
the manufacturer's instructions, and thus the package could become 
noncompliant with other regulatory

[[Page 57287]]

requirements or be refused by the consignee.
    PHMSA Response: We believe that the package opening authority can 
be exercised without undue interference with business operations. DOT 
will take reasonable measures to narrow the scope of an enhanced 
inspection to determine compliance with the HMR and will remove a 
shipment from transportation only when there is a reasonable basis for 
suspecting that the package may pose an imminent hazard. 
Correspondingly, the Department will limit the time of such inspections 
to minimize transportation delays when we can do so without 
compromising transportation safety. We request comments relating to any 
time-sensitive standards or consignment contracts mandated by law that 
may be affected by a final rule.
    The implementation of this enhanced authority will not waive or 
supersede any other regulatory requirements. The packages must be 
reclosed and shipped in accordance with the HMR. An inspector who 
exercises this enhanced authority will take action to facilitate the 
resumption of transportation in commerce if the package is found to be 
in compliance with the HMR. If the package is not in compliance, the 
package will not be returned to the stream of commerce until the 
package is brought into conformance with the HMR.

(5) When a Package Must Be Transported and Analyzed at an Appropriate 
Facility

    The ATA and DGAC inquired about which entity would transport a 
hazardous material package to an offsite facility, pay to transport, 
and test the material subject to this authority.
    PHMSA Response: The operating administration requiring the testing 
will pay for the transportation and analysis of the material if the 
package is found to be in compliance with the HMR. If the material is 
found to be packaged in violation of the HMR, the costs for the 
transportation and analysis of the material would be taken into 
consideration at the time any civil penalty is assessed against the 
party responsible for the violation (usually the offeror). Furthermore, 
nothing herein is intended to relieve any entity or person of hazmat 
clean-up costs under Federal, State, or local laws as enforced by other 
Federal government agencies (e.g., Environmental Protection Agency, 
Bureau of Alcohol Tobacco, Firearms, and Explosives, and Occupational 
Safety and Health Administration).

(6) Effect on Offeror or Transporter Subject to an Emergency Action or 
Order

    Commenters addressed the issue of the impact that an emergency 
order may have on an offeror or transporter that is subject to its 
requirements. Their primary concern was the effect that an emergency 
order may have on commercial operations relating to pre-transportation 
and transportation functions that are regulated by the HMR.
    PHMSA Response: PHMSA understands that an emergency order may 
affect commercial operations of offerors or transporters that perform 
regulated activities. Indeed, because issuance of an emergency order 
does not require a finding of noncompliance, it is possible that such 
an order could require a regulated entity to alter or amend otherwise 
lawful practices or transactions. The circumstances warranting such 
extraordinary action are necessarily fact-specific and, in all 
likelihood, rarely encountered. In any case, DOT intends to tailor the 
remedy to the imminent hazard present, issuing only the appropriate 
restriction, prohibition, recall, or out-of-service order necessary to 
abate the condition. We will use this enforcement tool judiciously, as 
a means of addressing imminent hazards and not as a substitute for 
rulemaking or other measures for addressing emergent risks.

(7) Liability

    Commenters also raised the issue of whether DOT or its operating 
administrations would be liable for any damages to business operations 
when an inspector conducts an enhanced inspection or when a modal 
administration issues an emergency order. In particular, the interested 
persons asked whether the Federal government would be responsible for 
compensatory, consequential, or incidental damages incurred by any 
regulated entity that had its shipments contaminated, damaged, delayed, 
destroyed, or removed from service as a result of an enhanced 
inspection or emergency order.
    PHMSA Response: PHMSA acknowledges that the exercise of enhanced 
inspection and enforcement authority occasionally may result in the 
breach of packages and/or delay of shipments that have been offered and 
transported in full compliance with regulatory requirements. Although 
we will strive to minimize such effects, we believe the public benefits 
to be gained through enhanced inspection and enforcement measures 
justify the increased burdens. The exercise of enhanced inspection and 
enforcement authority in accordance with the proposed rule will protect 
life, property, and the environment, and improve the performance of the 
transportation system by reducing risks posed by undeclared and other 
noncompliant hazardous materials shipments.
    To minimize burdens on the transportation system, the Department 
will take measures to target and manage its exercise of enhanced 
inspection and enforcement remedies. Such measures include training its 
inspectors to exercise appropriate discretion while carrying out their 
inspection tasks consistently with HMTSSRA and a final rule. In any 
case, we do not expect DOT to bear financial responsibility for private 
costs related to our exercise of enhanced inspection and enforcement 
authority. Under the discretionary function exception, the Federal Tort 
Claims Act (FTCA) would bar any common law tort action against the 
Department or operating administration based on such activities. See 28 
U.S.C. 2680(a); United States v. S.A. Empresa de Viacao Aerea Rio 
Grandense, 467 U.S. 797, 809-10 (1984) (``Varig Airlines'') 
(discretionary function exemption was intended to exempt claims 
stemming from Federal agencies' regulatory activities); Hylin v. U.S., 
755 F.2d 551, 553 (7th Cir. 1985) (discretionary function exception 
prohibits tort claims against government for inspection and enforcement 
activities requiring exercise of discretion); Mid-South Holding Co. v. 
United States, 225 F.3d 1201, 1206 (11th Cir. 2000) (discretionary 
function exception applies to any discretionary act irrespective of 
``administrative level at which it is authorized or taken''); Wells v. 
United States, 655 F. Supp. 715, 720 (D.D.C. 1987) (government's 
discretionary acts in regulating private conduct ``are presumptively 
exempt from liability''), aff'd, 851 F.2d 1471 (D.C. Cir. 1988), cert. 
denied, 488 U.S. 1029 (1989); cf., Roundtree v. United States, 40 F.3d 
1036 (9th Cir. 1994) (FAA not liable in suspending operating 
certificate under FTCA's discretionary function exception).

(8) Training of Inspectors

    APL and DGAC recommended that DOT properly train the inspectors who 
will exercise the enhanced inspection and enforcement authority in the 
field. They contend training is essential to ensure that well-defined 
inspections are conducted, enforcement actions are measured, and the 
public (and the inspectors themselves) are protected.
    PHMSA Response: PHMSA agrees that the DOT inspectors conducting

[[Page 57288]]

enhanced inspections will need to be trained on carrying out such 
inspections. Inspectors will also be trained on utilizing an 
enforcement remedy commensurate with the non-complying condition or 
imminent hazard identified and having the requisite knowledge in 
repackaging shipments that have been opened. The inspectors also will 
need to be trained on various scenarios in which they will need to 
order a shipment to be transferred to an appropriate facility for 
testing and analysis. Because all Department inspectors will have the 
same general training and modal specific instruction (as discussed 
above in the section on ``Types of Outer Packages that could be Opened 
by Inspectors''), PHMSA is confident that inspectors will be proficient 
in applying the enhanced inspection and enforcement regulations to 
inspections conducted at offeror or carrier facilities.

(9) State Participation in the Federal Hazardous Materials Inspection 
Program

    APL, ATA, IME, and Prezant Consulting cautioned that DOT and State 
inspectors conducting hazardous materials inspections need to be 
consistent in carrying out the regulations implementing the enhanced 
inspection and enforcement authority.
    PHMSA Response: The proposed rule is limited in scope to authorized 
Federal enforcement employees of PHMSA, FRA, FAA, and FMCSA. The 
proposed regulations and underlying statutory authority are Federal; 
they would not empower State officials to exercise the enhanced 
inspection and enforcement authority. All emergency orders under this 
enhanced enforcement authority will be issued solely by the Federal 
government, not State participants. These proposed regulations are not 
intended to be part of the Motor Carrier Safety Assistance Program 
(MCSAP) or the Rail Safety State participation program. However, the 
proposed regulations would not limit the States from passing similar 
statutes or from promulgating similar regulations for their hazardous 
materials transportation enforcement officials.

(10) Communications/Notification to Parties

    APL, IWLA, DaRuBa, and Tyco expressed concern about notifying 
offerors and consignees about a possible delay in arrival because DOT 
intended to open a package for inspection.
    PHMSA Response: PHMSA believes that all parties responsible for a 
shipment that is opened or removed from transportation need to be 
notified of the action taken. DOT inspectors will be required to 
communicate the findings made and enforcement measures taken to the 
appropriate offeror, recipient, and carrier of the package, and the 
expected delay or detention based on the condition of the shipment, 
location of the inspection, and need and availability of personnel, 
equipment, and other resources to reclose the package to safely resume 
its transportation.

(11) Assumption of Control of Detained Shipment

    Commenters questioned who would assume control of a package when an 
inspection found undeclared hazardous material or determined that the 
shipment may pose an imminent hazard, and when such control would 
commence.
    PHMSA Response: The offeror tendering the package or the carrier 
transporting the shipment retains custody of the shipment until the 
government asserts or exercises dominion or control over the package 
and its contents. Jacobsen, 466 U.S. at 120. Once an inspector opens 
the package to continue the inspection or detain or remove the shipment 
from transportation, the Department will become the responsible 
custodian for the package. If a package is opened but does not pose an 
imminent hazard, and is otherwise in compliance with the HMR, the 
inspector will assist in reclosing the package, at which point custody 
will revert to the offeror or carrier, and reenter the transportation 
stream. If a package is non-compliant before it is opened, and it is 
later found not to pose an imminent hazard, the offeror or carrier will 
resume custody of the package at the conclusion of the investigation. 
It is the ultimate responsibility of the offeror to bring any such 
package into compliance.
    This proposed rule contemplates DOT informing the private party of 
the government's intent to assert and relinquish control of the 
shipment and the measures it will take to safeguard and reclose the 
package until it is safe to resume its movement in transportation. 
PHMSA welcomes comments on the parties' expectations when the 
government exercises control of a package and whether further 
clarification of possessory interest is necessary.

Section-by-Section Analysis

    PHMSA proposes to add part 109 to Title 49, Code of Federal 
Regulations, prescribing standards and procedures governing exercise of 
enhanced inspection and enforcement authority by DOT operating 
administrations. Below is an analysis of the proposed regulatory 
provisions.

Section 109.1 Definitions

    This section contains a comprehensive set of definitions. PHMSA 
proposes to promulgate these definitions in order to clarify the 
meaning of important terms as they are used in the text of this 
proposed rule. Several terms introduce concepts new to the HMR. These 
definitions require further discussion as set forth below. Other terms 
defined in this rule are borrowed from the Hazmat Law at 49 U.S.C. 5102 
and are used in their statutory meaning.
    Administrator and Agent of the Secretary or agent are proposed to 
identify the parties authorized by delegation from the Secretary to 
carry out the functions of the proposed rule. Administrator is defined 
as the head official of each operating administration within DOT to 
whom the Secretary has delegated authority under 49 CFR part 1 and any 
person employed by an operating administration to whom the 
Administrator has delegated authority to carry out this rule. Likewise, 
Agent of the Secretary or agent means a Federal officer or employee, 
including an inspector, investigator, or specialist authorized by the 
Secretary or Administrator to conduct inspections or investigations 
under the Hazmat Law and HMR.
    Chief Safety Officer or CSO refers to the Assistant Administrator 
for PHMSA who is appointed in competitive service by the agency's 
Administrator. See 49 U.S.C. 108(e).
    Emergency order is defined as an emergency restriction, 
prohibition, recall, or out-of-service (OOS) order. (The term ``out-of-
service order'' is defined below.) As proposed, an Administrator, and 
in the case of an OOS order, an agent of the Secretary would be 
authorized to impose an equitable remedy restricting, prohibiting, 
recalling, or removing from service a package that contains a hazardous 
material. An emergency order is the type of extraordinary relief 
available to address imminent hazard circumstances.
    Freight container is defined as it is defined in 49 CFR 171.8 and 
has been included in this section for clarity and ease of referral.
    Immediately adjacent to the hazardous material contained in the 
package means a packaging that is in direct contact with the hazardous 
material, or otherwise serves as the primary means of containment of 
the hazardous material.

[[Page 57289]]

    As defined by statute, imminent hazard means ``the existence of a 
condition that presents a substantial likelihood that death, serious 
illness, severe personal injury, or a substantial endangerment to 
health, property, or the environment may occur before the reasonably 
foreseeable completion date of a formal proceeding begun to lessen the 
risk of that death, illness, injury, or endangerment.'' 49 U.S.C. 
5102(5). Restated, an imminent hazard exists when any condition is 
likely to result in serious injury or death, or significant property or 
environmental damage if not discontinued immediately. Cf. Sen. Rep. No. 
98-424, at 12 (1984), reprinted in 1984 U.S.C.C.A.N. 4785, 4796 
(definition of ``imminent hazard'' under the Motor Carrier Safety Act).
    Objectively reasonable and articulable belief is defined in this 
proposed rule as a belief based on discrete facts or indicia that 
provide a reasonable basis to believe or suspect that a shipment may 
contain a hazardous material. The term, which is discussed above in the 
context of DOT inspections of hazardous materials shipments, codifies 
the temporary stop and detention principle often referred to as a 
``Terry'' stop, referring to Terry v. Ohio, 392 U.S. 1 (1968). The 
reasonable suspicion standard must be more than an ``inchoate and 
unparticularized suspicion or `hunch[,]' '' id. at 27, meaning that a 
reasonable person possessing the same information as the inspector had 
must have believed that the action taken was appropriate. Id. at 21-22. 
In determining whether an officer or agent had such a reasonable 
suspicion, courts consider the ``totality of the circumstances.'' See 
Schneckloth v. Bustamonte, 412 U.S. 218 (1973). At its core, the term 
refers to an investigatory stop in which there is particularized 
suspicion based on observations made, inferences drawn, and deductions 
made that the shipment does not comply with the Hazmat Law or HMR. See 
generally, U.S. v. Cortez, 449 U.S. 411, 417-18 (1981).
    The brief investigative detention enables the inspectors to conduct 
a more thorough inspection to determine the level of compliance with 
the Hazmat Law or HMR and is reasonably related in scope to the 
circumstances justifying the detention. See Means, 94 F.3d at 1424; 
U.S. v. McSwain, 29 F.3d 558, 561 (10th Cir. 1994). This legal standard 
authorizes minimally intrusive conduct to detain a shipment for a short 
duration when articulable facts and circumstances suggest that a 
package contains undeclared hazardous materials. See McSwain, 29 F.3d 
at 561. The agency notes that the standard authorizes inspectors to 
employ reasonable intrusive means, but not the least intrusive means, 
to conduct an inspection, meaning that safety and security measures may 
justify moving a package to another site when necessary to carry out an 
inspection. See Means, 94 F.3d at 1427.
    Out-of-service (OOS) order is defined as a written requirement 
issued by an agent of the Secretary prohibiting further movement or 
operation of an aircraft, vessel, motor vehicle, train, railcar, 
locomotive, transport vehicle, or freight container, portable tank, or 
other package until certain conditions have been satisfied. An order is 
similar in concept and application to a special notice for repairs that 
FRA issues for freight cars, locomotives, passenger equipment, and 
track segments. See 49 CFR part 216. The definition covers transport 
vehicles and packages that are unsafe for further movement, requiring 
that the equipment be removed from transportation until repairs are 
made or safety conditions are met. PHMSA believes that an OOS order is 
appropriate when equipment or a shipment is unsafe for further service 
or presents an unreasonable or unacceptable risk to safety, creating an 
imminent hazard at a given instant.
    Packaging as defined in this part is more expansive than the 
definition provided at 49 CFR 171.8. In this part, proposed Sec.  109, 
the term includes a freight container, intermediate bulk container, 
overpack, or trailer as a receptacle to contain a hazardous material. 
As proposed, the regulatory text would authorize DOT inspectors to 
open, detain, and remove from transportation such container or 
enclosure units when circumstances warrant.
    Perishable refers to a hazardous material that may experience 
accelerated decay, deterioration, or spoilage. PHMSA envisions 
etiologic agents, such as biological products, infectious substances, 
medical waste, and toxins as perishable commodities that will require 
special handling.
    Properly qualified personnel means a company, partnership, 
proprietorship, or individual who is qualified to inspect, examine, 
open, remove, test, or transport hazmat shipments.
    Remove means to keep a package from entering into the stream of 
transportation in commerce; to take a package out of the stream of 
transportation in commerce by physically detaining a package that was 
offered for transportation in commerce; or stopping a package from 
continuing in transportation in commerce. The term is defined to make 
clear that if a DOT inspector has an objectively reasonable and 
articulable belief that a package may pose an imminent hazard, that 
inspector is authorized to stop, detain, and prevent the further 
transportation in commerce of that package until the imminent hazard is 
abated.
    Safe and expeditious refers to appropriate measures or procedures 
available to minimize any delays in resuming the movement of a 
perishable hazardous material.
    Trailer is added to set out the contours of another type of package 
that is subject to this rule. Although a trailer and freight container 
perform the same function, a trailer has a chassis, hitch, and tires 
attached to the unit, enabling it to travel as a cargo unit attached to 
a tractor.

Section 109.3 Inspections and Investigations

    Propo