Hazardous Materials: Enhanced Enforcement Authority Procedures, 11570-11595 [2011-4270]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Rules and Regulations]
[Pages 11570-11595]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4270]



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Vol. 76

Wednesday,

No. 41

March 2, 2011

Part II





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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49 CFR Part 109



Hazardous Materials: Enhanced Enforcement Authority Procedures; Rule

Federal Register / Vol. 76 , No. 41 / Wednesday, March 2, 2011 / 
Rules and Regulations

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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: Final rule.

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SUMMARY: PHMSA is implementing enhanced inspection, investigation, and 
enforcement authority conferred on the Secretary of Transportation by 
the Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005. This final rule establishes procedures for 
issuance of emergency orders (restrictions, prohibitions, recalls, and 
out-of-service orders) to address unsafe conditions or practices posing 
an imminent hazard; opening packages to identify undeclared or non-
compliant shipments, when the person in possession of the package 
refuses a request to open it; and the temporary detention and 
inspection of potentially non-compliant packages. These inspection and 
enforcement procedures will not change the current inspection 
procedures for DOT, but will enhance DOT's existing enforcement 
authority and allow us to respond immediately and effectively to 
conditions or practices that pose serious threats to life, property, or 
the environment. As this rule affects only agency enforcement 
procedures, it therefore results in no additional burden of compliance 
costs to industry.

DATES: This final rule is effective May 2, 2011.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 2, 2008, the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) published a notice of proposed rulemaking (NPRM) 
under Docket No. PHMSA-2005-22356 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 
(HMTSSRA). In this final rule, the agency is finalizing its procedures 
for implementing its enhanced enforcement authority.
    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 
Materials Transportation Law (Federal hazmat law), 49 U.S.C. Sec. Sec.  
5101 et seq.: (1) Federal Aviation Administration (FAA), 49 CFR 
1.47(j)(1); (2) Federal Railroad Administration (FRA), 49 CFR 
1.49(s)(1); (3) Federal Motor Carrier Safety Administration (FMCSA), 49 
CFR 1.73(d)(1); and (4) 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 
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 to 
the USCG. DHS Delegation No. 0170, Sec. 2(99) & 2(100); see also 6 
U.S.C. Sec. Sec.  457, 551(d)(2). DOT will coordinate its inspections, 
investigations, and enforcements with the USCG, through a Memorandum of 
Understanding (MOU) or otherwise, to avoid duplicative or conflicting 
efforts. Nothing in this final rule affects 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 the HMR, which prescribe 
appropriate packaging, hazard communication, and handling requirements, 
nearly all of these shipments move through the system safely and 
without incident. When incidents do occur, HMR-mandated labels and 
other forms of hazard communication provide transportation employees 
and emergency responders the information necessary to mitigate the 
consequences. These risk controls provide a high degree of protection; 
however, 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, DOT has long considered undeclared shipments of hazardous 
materials to be a serious safety issue.
    Hidden hazardous materials pose a significant threat to 
transportation workers, emergency responders, and the general public. 
By definition, an undeclared shipment is one that is not marked, 
labeled, accompanied by shipping documentation, or otherwise identified 
as hazardous materials. See 49 CFR 171.8 (definition of undeclared 
hazardous material). 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 
would move those materials as hidden shipments. Accordingly, although 
the presence of undeclared hazardous materials by no means demonstrates 
wrongful intent, DOT 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 to 
permit a DOT agent to open and examine packages suspected to contain 
hazardous materials. It is the experience of most enforcement programs 
that when asked to open a package, the offeror or regulated industry 
generally opens it voluntarily. DOT generally operates under the 
assumption that it already possesses the implicit authority, by virtue 
of our enforcement authority, to open packages that the person in 
possession refuses to open without the passage of HMTSSRA. However, the 
new statutory authority implemented here explicitly grants that 
authority. This authority will not change the current inspection 
procedures for DOT

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and is not likely to result in additional packages being opened. In 
addition to the discovery of undeclared shipments, the statutory 
authority also provides DOT with a tool to identify declared hazardous 
materials shipments that nonetheless may not have been prepared in 
accordance with all existing HMR requirements.
    Although a great deal of attention has been given to the package 
opening portion of the statutory authority and its implementing portion 
of the regulation, the authority to issue emergency orders, 
restrictions, prohibitions, and recalls in response to imminent hazards 
is the most transformative to DOT's enforcement programs. 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. Prior to the enactment of HMTSSRA, DOT could 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 was required to enlist the Department of Justice (DOJ) 
to file a civil action against the offending party, seeking a 
restraining order or preliminary injunction. As a practical matter, 
judicial relief could rarely be obtained before the hazardous 
transportation movement was 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 HMTSSRA as Title VII of the statute, 
119 Stat. 1891. Section 7118 of HMTSSRA (Section 7118) revised 49 
U.S.C. 5121, inserting procedures for enhanced enforcement authority, 
including the ability to open the outer packaging of packages believed 
to contain hazardous materials and authority to remove hazardous 
material shipments from transportation believed to pose an imminent 
hazard.
    Congress enacted HMTSSRA in part to combat the problem of 
undeclared hazardous materials shipments. While Section 7118 enhances 
DOT's authority to discover undeclared hazardous materials shipments, 
the clear language of this statutory 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 * * * 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: (1) Access, open and 
examine a package (except for the packaging that is immediately 
adjacent to the suspected hazardous material's contents) that is 
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 and does otherwise not comply with 
this Chapter; (2) remove the package from transportation if it is 
determined that the shipment may pose an imminent hazard; (3) order the 
shipment to be transported, opened, and tested at an appropriate 
facility, as necessary; and (4) permit the shipment to resume its 
transportation when an inspection does not identify an imminent hazard.

II. Notice of Proposed Rulemaking

    On October 2, 2008, PHMSA published a notice of proposed rulemaking 
(NPRM) (73 FR 57281) to propose procedures to implement the expanded 
enforcement authority conferred in HMTSSRA. As proposed, these 
procedures would apply to hazardous materials safety compliance and 
enforcement activities conducted by PHMSA, FAA, FRA, and FMCSA 
inspection personnel. Specifically, PHMSA proposed procedures to enable 
DOT agents 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, PHMSA 
proposed procedures for issuing emergency orders to address imminent 
hazards. As proposed, these procedures would apply in a number of 
contexts and circumstances:
     PHMSA proposed procedures under which an agent may open a 
package to determine whether it contains an undeclared hazardous 
material or otherwise does not comply with applicable regulatory 
requirements. These procedures would apply to the opening of an 
overpack, outer packaging, freight container, or other packaging 
component not immediately adjacent to the hazardous material. Agents 
would not open single packagings (such as cylinders, portable tanks, 
cargo tanks, or rail tank cars) nor would agents open the innermost 
receptacle of a combination packaging.
     PHMSA proposed procedures under which an agent could 
temporarily remove a package or related packages from transportation 
when the agent believed that the package posed an imminent hazard. Such 
a belief could 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 
agent could remove a package or related packages from transportation on 
his or her own authority provided he recorded his belief in writing. An 
agent could temporarily remove any type of package from transportation 
if he or she had a ``reasonable and articulable belief'' that the 
package posed an imminent hazard.
     PHMSA proposed procedures under which an agent could order 
the person in possession of or responsible for the package to transport 
the package and its contents to a facility that would examine and 
analyze its contents. An agent could issue such an order for any type 
of package or shipment, not merely those packages for which package 
opening is authorized. As proposed, the agent could issue this order on 
his own authority provided he documented his reasoning.
     PHMSA proposed procedures under which an agent could 
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 was found. If the package had been 
opened, the agent would 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.
     PHMSA proposed 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 was 
indeed found to exist. The OOS

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order would effect the permanent removal of the package from 
transportation by prohibiting its movement until it was brought into 
compliance with all applicable regulatory requirements. An OOS order 
could be issued for any type of packaging or shipment.
     PHMSA proposed procedures for the issuance of an emergency 
order when PHMSA, FAA, FMCSA, or FRA determined that a non-compliant 
shipment or an unsafe condition or practice was causing an imminent 
hazard. As proposed, the PHMSA, FAA, FMCSA, or FRA Administrator could 
issue an emergency order without advance notice or opportunity for a 
hearing. The emergency order could be issued in conjunction with or in 
place of an OOS order. The emergency order could impose emergency 
restrictions, prohibitions, or recalls and could be issued for any type 
of shipment and for any unsafe condition posing an imminent hazard, not 
merely unsafe conditions related to packaging.

III. Summary of the Final Rule

    In this final rule, PHMSA is implementing statutory authority to 
establish procedures for issuing emergency orders to address imminent 
hazards. In addition, statutory authority for DOT agents during an 
inspection conducted under existing enforcement authority is also being 
implemented. These procedures will apply in a number of contexts and 
circumstances:
     An agent may open a package to determine whether it 
contains non-compliant shipments of hazardous materials when the agent 
has reason to believe that the package does not comply with regulatory 
requirements. These procedures apply to the opening of any packaging 
component not immediately adjacent to the hazardous material. Agents 
will not open single packagings (such as cylinders, portable tanks, 
cargo tanks, or rail tank cars) nor will agents open the innermost 
receptacle of a combination packaging. An agent will only open a 
package with cause and if the person in possession of the package 
refuses to open it.
     An agent may temporarily remove a package or shipment from 
transportation, or prevent its entering transportation, when the agent 
believes that the package or shipment may pose 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. The agent may remove a 
package or related packages from transportation for up to 48 hours on 
his or her own authority provided he records in writing the basis for 
his belief that the package or related packages may pose an imminent 
hazard. This regulation implements statutory authority for DOT to take 
immediate action to remove a potentially dangerous package from 
transportation, rather than seeking a court order to stop a package.
     An agent 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 agent may 
issue such an order for any type of package. The agent may issue this 
order on his own authority provided he documents his reasoning and 
provides written notification for the reasons for removal.
     An agent 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 agent will assist in 
reclosing the package in accordance with the packaging manufacturer's 
closure instructions 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.
     An out-of-service (OOS) order will be issued if, after 
complete examination of any package, 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 
emergency order will be issued when DOT determines that a non-compliant 
shipment or an unsafe condition or practice is causing an imminent 
hazard. The PHMSA, FAA, FMCSA, or FRA Administrator may issue an 
emergency order without advance notice or opportunity for a hearing. 
The emergency order may impose emergency restrictions, prohibitions, or 
recalls and may be issued for any type of packaging, not merely those 
for which package opening is authorized, and for any unsafe condition 
posing an imminent hazard, not merely unsafe conditions related to 
packaging.

IV. Discussion of Comments on the NPRM

    The following paragraphs discuss the comments received on the NPRM 
and the revisions we have made in response to the comments. Interested 
persons should be aware that, in conjunction with this final rule, DOT 
has developed an internal operations manual for training and use by its 
agents when this final rule becomes effective. The operations manual 
will be made available to the public on the PHMSA Web site, https://www.phmsa.dot.gov. The operations manual is a joint document created by 
the operating administrations that enforce the HMR, to provide guidance 
on common issues encountered by the operating administrations in the 
exercise of existing authorities. The manual also provides guidance to 
agents who, in the course of conducting inspections, determine that 
they need to open a package, remove a package from transportation, or 
perform any other function authorized by 49 CFR Part 109. The manual 
seeks to establish baseline conditions that will ensure consistent 
application of the authorities exercised under 49 CFR part 109 at a 
minimum threshold. Each operating administration may place additional 
constraints on the application of these regulations. This guidance will 
be implemented to target and manage the use of enhanced inspection and 
enforcement authority in a manner that minimizes burdens on the 
transportation system while, at the same time, meeting the overriding 
mission of transportation safety. It may be subject to change as agency 
policies evolve.
    In the following paragraphs, we discuss the relevant comments to 
the NPRM and explain the impact of the comments on the regulatory text 
in this final rule. The comments in the docket for this rulemaking may 
be viewed at https://www.regulations.gov under Docket No. PHMSA-2005-
22356.

A. Scope of the Rule

    Although most commenters express support for the proposed rule's 
focus on the detection of undeclared hazardous materials shipments, 
many raise concerns with the scope of the rule and several practical 
aspects of the proposal. Some commenters (including the Council on Safe 
Transportation of Hazardous Articles, Inc. (COSTHA), the Association of 
Hazmat Shippers, Inc. (AHS), the American Trucking Associations (ATA), 
the Radiopharmaceutical Shippers & Carriers Conference (RSCC), and the 
Institute of Makers of Explosives (IME)) express the view that DOT 
should limit the use of its enhanced authority to discover undeclared 
shipments of hazardous materials. According to the commenters, the 
enhanced authority should not apply to shipments of hazardous materials 
that are declared but otherwise may not conform to

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requirements in the HMR. Declared shipments, the commenters contend, 
can be investigated under existing regulatory procedures to address 
noncompliance. IME comments that although the preamble to the NPRM 
states that the inspection and opening of packages authority would be 
used to identify undeclared or non-compliant shipments, no such 
limitation is stated in the proposed regulatory text. IME also suggests 
that the opening of outer packagings as proposed in the rule should be 
limited to instances where it would be ``reasonably'' necessary to 
establish that a package is non-compliant. AHS asserts that the use of 
this enhanced authority to conduct ``random stops'' in order to 
``verify that hazardous materials are packaged, marked, and labeled in 
compliance with DOT requirements'' would be contrary to the public 
interest.
    PHMSA Response:
    Commenters cite to legislative history as evidence that this 
authority should apply only to undeclared shipments; however, DOT 
interprets the statute more broadly. The plain language of the statute 
does not limit DOT's authority to undeclared shipments. Although 
discovery of undeclared shipments was a major catalyst for this 
legislation, it was not the sole purpose, as demonstrated by the 
legislative history indicating that Congress intended to promote DOT's 
authority to ensure that hazardous materials shipments are made in 
accordance with the HMR. See supra.
    Moreover, in HMTSSRA, Congress created a two-tiered standard to 
deal with noncompliant shipments of hazmat--first, the ability to 
detect the presence of non-compliant shipments of hazmat; and second, a 
means to deal with emergency situations where such shipments may 
seriously impact the safety of others or the environment.
    It is quite possible that a package declared as hazmat, but that is 
otherwise non-compliant with the HMR, could pose an imminent hazard. If 
DOT narrowed the application of this authority only to undeclared 
shipments, the agency would be rendered powerless in situations in 
which emergency enforcement action is desperately needed. DOT does not 
believe Congress granted this authority with such a limited view of 
safety in mind. Imminent hazard, as defined in the statute, means the 
existence of a condition relating to hazardous material that presents a 
substantial likelihood of death, serious illness, severe personal 
injury, or substantial endangerment to health, property, or the 
environment. See 49 U.S.C. 5102(5). We do not believe imminent hazards 
occur only as a result of undeclared hazmat shipments.
    The agency is mindful, however, of the numerous comments received 
concerning the broad scope of the package opening authority. The 
statutory authority is actually quite broad: It states that an agent 
may open and examine a package when there is an objectively reasonable 
and articulable belief that the package may contain a hazardous 
material. Thus, it would seem that the statute could allow the opening 
of any packages that may contain hazardous material, without regard to 
whether or not the package may be in compliance. In response to 
comments to the NPRM, which incorporated the language directly from the 
statute, we decided to narrow the scope of this rule from any packages 
that may contain hazardous material to any packages that may contain 
hazardous material and are not in compliance with the HMR or Federal 
hazmat law. Limiting the opening of packages to only those that may be 
non-compliant will guard against unwarranted opening or delay of 
declared compliant packages. Accordingly, this final rule includes a 
separate provision, Sec.  109.5 Opening packages, that addresses the 
opening of packages under this authority. PHMSA believes this is a 
pivotal limitation on its package opening authority, providing the 
industry a greater sense of the parameters within which agents may 
exercise this authority while also balancing the agency's need to 
enforce the HMR. By narrowing the scope of the package opening 
authority, the agency will be able to direct its inspections and 
investigations where the greatest needs exist: Undeclared and non-
compliant shipments that may pose an imminent hazard. Limiting the 
opening of packages to packages that may be non-compliant will guard 
against unwarranted opening or delay of declared packages that are in 
compliance with the HMR. Ultimately, this limitation will guard against 
the unnecessary disruption of commerce.
    Dow Chemical Co. (Dow) states that the ``objectively reasonable and 
articulable belief'' standard may lead to inconsistent application of 
the rule, and should thus be more clearly defined.
    PHMSA Response:
    The objectively reasonable and articulable belief standard was 
defined in the NPRM, and is finalized here, as a ``belief based on 
particularized and identifiable facts that provide an objective basis 
to believe or suspect'' that a package may pose an imminent hazard, 
citing well-settled case law. 73 FR 57285-86. Therefore, to remove a 
package from transportation, an agent must be able to articulate 
specific facts about the instant situation establishing that he held an 
objective and reasonable belief that a package could pose an imminent 
hazard if it continued in transportation. The application of this 
standard is inherently situational, and it would be inaccurate to draw 
bright lines absent a specific set of facts. The development of an 
internal operations manual by all of the operating administrations 
serves to prevent inconsistencies among modes of transportation by 
establishing a baseline from which all modes will work. Moreover, the 
manual will ensure the uniform administration of the authority within a 
mode.

B. Comments to Specific Definitions in Sec.  109.1 of Proposed Rule

``Perishable Hazardous Material''
    In the NPRM, PHMSA proposed to define the term ``perishable 
hazardous material'' as ``a hazardous material that is subject to 
significant risk of speedy decay, deterioration, or spoilage.'' United 
Parcel Service (UPS) suggests a change in the definition as follows: 
``A material of any kind, including either hazardous or non-hazardous 
material that is subject to significant risk of speedy decay, 
deterioration, or spoilage.'' RSCC also comments that the definition of 
``perishable hazardous material'' should be expanded to include 
packages consigned for medical use because the urgency of these 
deliveries is not limited to the perishable nature of the contents, but 
also the critical needs of the medical personnel awaiting the shipment.
    PHMSA Response:
    UPS points out a helpful distinction; however, changing the term to 
``perishable material'' to include hazardous and non-hazardous material 
is beyond the scope of this rule. The NPRM's Section-by-Section 
misstated the definitional term as ``perishable'' while it should have 
been termed ``perishable hazardous material,'' as in the regulatory 
text of Sec.  109.1. We have corrected this drafting error in the 
applicable regulatory provision, Sec.  109.13(a)(4), to be consistent 
with the term as defined in Sec.  109.1.
    PHMSA agrees, however, with RSCC that the definition of 
``perishable hazardous materials'' should be expanded to include other 
types of packages that contain hazardous materials consigned for 
medical use. In addition to the proposed definition cited above, the 
definition has been revised to also include the following

[[Page 11574]]

language: ``A hazardous material that is subject to significant risk of 
speedy decay, deterioration, or spoilage, or hazardous materials 
consigned for medical use in the prevention, treatment, or cure of a 
disease or condition in human beings or animals where expeditious 
shipment and delivery meet a critical medical need.''
``Properly Qualified Personnel''
    In the NPRM, PHMSA proposed to define ``properly qualified 
personnel'' to mean ``a company, partnership, proprietorship, or 
individual who is technically qualified to perform designated tasks 
necessary to assist an agent in inspecting, examining, opening, 
removing, testing or transporting packages.'' The Dangerous Goods 
Advisory Council (DGAC) suggests that with respect to term that 
``person'' be used consistent with the definition in 49 CFR 171.8, 
i.e., ``a person who is technically qualified.''
    PHMSA Response:
    The term is defined as DGAC suggests, as reiterated above. The 
definition for ``properly qualified personnel'' comes directly from the 
authorizing statute, 49 U.S.C. 5121 (c)(1)(F). Section 109.3(b)(4)(iv) 
from the NPRM used the term ``qualified personnel.'' The content of 
Sec.  109.3, Inspections and investigations, as proposed in the NPRM, 
has been reorganized in the final regulatory text. This particular 
provision regarding properly qualified personnel was located in Sec.  
109.3(b)(4)(iv) in the NPRM as follows: ``Authorize qualified personnel 
to assist in the activities conducted under this paragraph (b)(4).'' 
This substantive provision is now located in the new Sec.  109.11, 
Assistance of properly qualified personnel, where it states: ``If an 
agent is not properly qualified to perform a function, or when safety 
might otherwise be compromised by the agent's performance of a function 
that is essential for the agent's exercise of authority under this 
part, the agent may authorize properly qualified personnel to assist in 
the activities conducted under this part.''
``Agent''
    In the NPRM, PHMSA proposed to define ``agent'' to mean ``an 
officer, employee, or agent authorized by the Secretary to conduct 
inspections or investigations under Federal hazmat law.'' UPS expresses 
concern that despite the NPRM preamble language explaining that the 
scope of the rule is limited to personnel of designated U.S. DOT 
agencies, the definition of ``agent'' is not specific enough and could 
be read expansively by state enforcement personnel as an authorization 
for them to engage in the opening of packages, since it is customary to 
refer to State enforcement personnel as ``duly authorized 
representatives of the Department.'' UPS proposes that ``agent'' be 
defined as ``a Federal officer, employee, or agent specifically 
authorized and trained by the Secretary to conduct inspections or 
investigations under the Federal hazardous material transportation 
law.''
    PHMSA Response:
    As UPS notes in its comments, the preamble to the NPRM specifically 
stated that the rule would not apply to state personnel. Unlike DOT 
agents, State partners act under their own police powers, authorities 
that DOT agents do not possess. The preamble explained that ``the 
proposed regulations and underlying statutory authority are Federal,'' 
and accordingly, ``they would not empower State officials to exercise 
the enhanced inspection and enforcement authority'' of the rule. This 
includes State agents or officers who are enforcing equivalent 
regulations under the Motor Carrier Safety Assistance Program (MCSAP) 
and other grant programs. PHMSA agrees that the word ``Federal'' is 
helpful in the definition. Thus, in this final rule, the definition of 
``Agent of the Secretary or agent'' is revised to read: ``a Federal 
officer, employee, or agent authorized by the Secretary to conduct 
inspections and investigations under the Federal hazardous material 
transportation law.''
 ``Emergency Order''
    In the NPRM, PHMSA proposed to define ``emergency order'' to mean 
an emergency restriction, prohibition, recall, or out-of-service order. 
DGAC suggests that the definition of ``Emergency order'' include the 
term ``written'' to be consistent with the regulatory text in proposed 
Sec.  109.5.
    PHMSA Response:
    Proposed Sec.  109.5(a) specifically stated that the basis for 
issuance of an emergency order shall be set forth in writing. However, 
PHMSA agrees for the sake of clarity and consistency, the term 
``written'' should be incorporated into the definition. The definition 
of ``emergency order'' has been revised to read as follows: ``an 
emergency restriction, prohibition, recall, or out-of-service order set 
forth in writing.''
``Packaging''
    In the NPRM, PHMSA proposed to define ``packaging'' to mean any 
receptacle, including, but not limited to, a freight container, 
intermediate bulk container, overpack, or trailer, and any other 
components or materials necessary for the receptacle to perform its 
containment function in conformance with the minimum packing 
requirements of this subchapter. DGAC comments that the definition of 
``packaging'' is not fully consistent with the definition in 49 CFR 
171.8 and though illustrative, fears it may cause more confusion than 
clarity.
    PHMSA Response:
    PHMSA agrees with the commenter that the expanded definition of 
packaging is inconsistent with the existing regulatory definition. 
PHMSA has reconsidered the necessity of retaining a definition 
inconsistent with 49 CFR 171.8, and for purposes of clarity and 
consistency, the definition of ``packaging'' as provided in 49 CFR 
171.8 will apply in the final rule. ``Packaging'' is defined in 49 CFR 
171.8 as ``a receptacle and any other components or materials necessary 
for the receptacle to perform its containment function in conformance 
with the minimum packing requirements of this subchapter.'' PHMSA 
believes this definition is sufficient for the purposes of this 
authority, as the final rule makes clear that as long as the packaging 
is not immediately adjacent to the hazardous material itself, an agent 
may gain access to, open and examine such a package subject to this 
authority.
``Trailer''
    In the NPRM, PHMSA proposed to define ``trailer'' to mean ``a non-
powered motor vehicle designed for transporting freight that is drawn 
by a motor carrier, motor carrier tractor, or locomotive.'' DGAC 
comments that the definition of trailer is inconsistent with the 
definition in the Federal Motor Carrier Safety Regulations (FMCSRs) at 
49 CFR 390.5, which does not mention ``locomotive.''
    PHMSA Response:
    PHMSA agrees with the commenter that the proposed definition was 
not consistent with the preamble discussion. While the proposed rule 
defined trailer as ``a non-powered motor vehicle designed for 
transporting freight that is drawn by a motor carrier, motor carrier 
tractor, or locomotive,'' in the preamble we explained that ``a trailer 
has a chassis, hitch, and tires attached to the unit, enabling it to 
travel as a cargo unit attached to a tractor.'' Because the only time 
``trailer'' is used in the rule is when it is listed in the definition 
of ``packaging,'' and because we do not believe that the term needs 
further clarification, the definition of the term has been removed from 
Sec.  109.1.

[[Page 11575]]

``Freight Container''
    In the NPRM, PHMSA proposed to define ``freight container'' to mean 
``a package configured as a reusable container that has a volume of 64 
cubic feet or more, designed and constructed to permit being lifted 
with its contents intact and intended primarily for containment of 
smaller packages (in unit form) during transportation.'' The Reusable 
Industrial Packaging Association (RIPA) comments that there is no need 
to utilize volumetric capacity in the proposed definition of ``freight 
container.'' Further, RIPA comments that if DOT believes there is a 
need to include such a reference, the threshold should be greater than 
64 cubic feet, since it would encompass some rigid and flexible 
intermediate bulk container (IBC) designs, as well as many large 
packagings. RIPA offers the following definition for Agency 
consideration: ```Freight container' means a reusable container that is 
designed for mechanical handling and intended for the containment of 
unit packages. Freight containers are not designed for direct contact 
with hazardous ladings.''
    PHMSA Response:
    As noted in the NPRM, the definition of ``freight container,'' 
including the reference to volumetric capacity, comes directly from 49 
CFR 171.8 and is included in this rule for clarity and ease of 
referral. Therefore, in this final rule, PHMSA is adopting the 
definition as proposed.

C. Identification of Packages Subject to Proposed Sec.  109.3(b)(4)'s 
Authority To Stop, Open, Remove and Test a Package and the Objectively 
Reasonable and Articulable Belief Standard

    In the NPRM, PHMSA proposed enhanced inspection procedures for 
conducting hazardous materials inspections. In proposed Sec.  
109.3(b)(4) (now Sec.  109.5), PHMSA proposed to permit an agent to 
open an overpack, outer packaging, freight container, or other package 
component that is not immediately adjacent to the hazardous material 
contents and inspect the inside of the receptacle or container for 
undeclared hazardous material, provided the agent has an objectively 
reasonable and articulable belief that the shipment contains hazardous 
material and does not otherwise comply with Federal hazmat law or the 
HMR.
    DGAC questions how proposed Sec.  109.3(b)(4) would apply to a 
package that is marked and labeled to indicate it contains a hazardous 
material and also how that authority relates to proposed Sec.  
109.3(b)(5), which provides that: ``If, after an agent exercises this 
enhanced authority, and an imminent hazard is not found to exist, the 
agent shall assist in preparing the package for safe and prompt 
transportation when practicable, by reclosing the package in accordance 
with the packaging manufacturer's closure instructions; marking and 
certifying the reclosed package to indicate that it was opened and 
reclosed in accordance with paragraph (b)(5); and returning the package 
to the person from whom the agent obtained it, as soon as practicable. 
For a package containing a perishable hazardous material, the agent 
shall assist in resuming the safe and expeditious transportation of the 
package as soon as practicable after determining that the package 
presents no imminent hazard.''
    PHMSA Response:
    In response to comments, and for the sake of clarity and better 
organization, the provisions formerly proposed as 49 CFR 109.3(b)(3) 
and 109.3(b)(4) have been revised and restructured. For packages that 
are marked, labeled, and documented to indicate the presence of a 
hazardous material, the agent must identify evidence that the package 
may not be otherwise in compliance with Federal hazmat law or the HMR 
before taking any further action. If there is a reasonable and 
articulable suspicion that the package contains hazardous materials and 
does not comply with the regulations, then an agent may open the 
package for further investigation.
    In this final rule, the regulatory provisions originally located in 
Sec.  109.3(a)-(c) of the NPRM have been reorganized into the following 
separate provisions: Sec.  109.5 Opening of packages; Sec.  109.7 
Removal from transportation; Sec.  109.9 Transportation for examination 
and analysis; Sec.  109.11 Assistance of properly qualified personnel; 
Sec.  109.13 Closing packages/safe resumption of transportation; and 
Sec.  109.15 Termination. As PHMSA reviewed the comments received in 
response to the NPRM, it became evident that the regulatory provisions 
needed further clarification. Although the regulatory text derived 
almost entirely from the statutory language, it was necessary to 
provide additional detail and guidance as to how this authority will be 
implemented. Separating the provisions also makes the regulatory text 
easier to read and reference. Therefore, each significant action under 
this authority is laid out in its own section. For example, Sec.  109.5 
Opening of packages, provides the standard under which an agent may 
open a package: that is, a reasonable and articulable belief that a 
package offered for or in transportation may contain a hazardous 
material and does not conform to Federal hazmat law or the HMR. Under 
this standard, an agent may stop the movement of a package in 
transportation to gather information and learn the nature and contents 
of the package, and if necessary, the agent may open and examine any 
component of the package that is not immediately in contact with the 
hazardous materials.
    DGAC further comments that the reference to ``related packages'' in 
proposed Sec.  109.3(b)(4)(iii) may be read broadly to mean that an 
``entire load could be removed because the freight in the transport 
vehicle is destined to the same terminal or ultimate destination.'' 
Accordingly, DGAC recommends that (1) the term ``related packages'' in 
Sec.  109.3(b)(4)(iii) be connected to the offeror of the package at 
issue (presumably so that only packages from that offeror could be 
considered ``related packages'' subject to removal), and that (2) the 
``articulable belief'' standard be connected to each package that is 
being removed. Further, DGAC asserts that the phrase ``in a shipment or 
freight container'' in paragraph (b)(4)(iii) ``creates a conflict in 
terminology'' that ``could be resolved by deleting the words.''
    PHMSA Response:
    Although the term ``related packages'' comes directly from Section 
7118, the agency agrees that it is connected to the objectively 
reasonable and articulable belief standard that an imminent hazard 
exists. This provision will serve to deal with situations in which 
there are a number of packages that appear to have been prepared by a 
single offeror or appear to present a similar hazard. PHMSA agrees, 
however, that the term ``related packages'' requires more explanation. 
A definition of ``related packages'' has been added to the regulatory 
text in Sec.  109.1 to respond to DGAC's concern that related packages 
share some common connection and undergo the same standard of a 
reasonable and articulable belief that related packages may pose an 
imminent hazard in order to be removed. ``Related packages'' is now 
defined to mean ``any packages in a shipment, series or group of 
packages that can be traced to a common nexus of facts, including, but 
not limited to: The same offeror or packaging manufacturer; the same 
hazard communications information (marking, labeling, shipping 
documentation); present a similar hazard; or other reasonable and 
articulable facts that may lead an agent to believe such packages may 
pose an imminent hazard.'' Packages that are located within the same 
trailer, freight container, unit load device, etc. as a package removed 
subject to this enhanced authority without additional

[[Page 11576]]

facts to substantiate its nexus to an imminent hazard are not `related 
packages' for purposes of removal. The related packages must also 
demonstrate that they may pose an imminent hazard. They must exhibit a 
commonality or nexus of origin, which may include, but are not limited 
to, a common offeror, package manufacturer, marking, labeling, shipping 
documentation, hazard communications, etc.

D. Proposed Sec.  109.3(b)(4)--Custody and Detention of Package

    DGAC, Ecolab, FedEx, and National Association of Chemical 
Distributors (NACD) questioned who is the responsible person at each 
step of the inspection process in proposed Sec.  109.3. For example, if 
a DOT agent removes a package and related packages from transportation 
in accordance with proposed Sec.  109.3(b)(4), is he then responsible 
for the safe handling of those packages? Moreover, if an agent directs 
a package to be moved to another location for testing, is that agent 
responsible for compliance with the HMR rather than the carrier from 
whom it has been taken? To answer questions regarding custody, we 
created the following chart breaking down each subparagraph under 
proposed Sec.  109.3(b)(4) (now located at Sec. Sec.  109.5-109.13) and 
determined who has custody during each potential stage of the 
inspection process.

------------------------------------------------------------------------
    Regulatory provision       Enforcement action     Who has custody?
------------------------------------------------------------------------
Sec.   109.5(a)(1)..........  When an agent has an  Person in
                               objectively           possession, as this
                               reasonable and        step is only
                               articulable belief    information
                               that a package        gathering.
                               offered for or in
                               transportation in
                               commerce may
                               contain a hazardous
                               material and the
                               agent has reason to
                               believe that such a
                               package does not
                               otherwise comply
                               with this chapter,
                               the agent may:
                              (1) Stop movement of
                               the package in
                               transportation and
                               gather information
                               from any person to
                               learn the nature
                               and contents of the
                               package;.
Sec.   109.5(a)(2)..........  Open any overpack,    DOT.
                               outer packaging, or
                               other component of
                               the package that is
                               not immediately
                               adjacent to the
                               hazardous materials
                               contained in the
                               package and examine
                               the inner
                               packaging(s) or
                               packaging
                               components.
Sec.   109.7................  An agent may remove   DOT.
                               a package and
                               related packages in
                               a shipment or a
                               freight container
                               from transportation
                               in commerce for up
                               to forty-eight (48)
                               hours when the
                               agent has an
                               objectively
                               reasonable and
                               articulable belief
                               that the packages
                               may pose an
                               imminent hazard,
                               provided the agent
                               records this belief
                               in writing as soon
                               as practicable and
                               provides written
                               notification
                               stating the reason
                               for removal to the
                               person in
                               possession.
Sec.   109.9................  When an agent         Person in possession
                               determines that       (carrier) if
                               further examination   carrier is
                               of a package is       transporting to the
                               necessary; if         facility; once the
                               conflicting           carrier is done
                               information exists;   transporting
                               or to otherwise       package, it is the
                               determine that a      responsibility of
                               package is in         the offeror since
                               compliance with       it is its package.
                               this chapter, the
                               agent may:
                              (1) Direct the
                               offeror of the
                               package, or other
                               person responsible
                               for the package, to
                               have the hazardous
                               material
                               transported to a
                               facility where the
                               material will be
                               examined and
                               analyzed;.
                              (2) Direct the
                               packaging
                               manufacturer or
                               tester of the
                               packaging to have
                               the package
                               transported to a
                               facility where the
                               packaging will be
                               tested in
                               accordance with the
                               HMR; or.
                              (3) Direct the
                               carrier to
                               transport the
                               package to a
                               facility capable of
                               conducting such
                               examination and
                               analysis..
Sec.   109.11...............  If an agent is not    Person in possession
                               properly qualified    (carrier) if
                               to perform a          carrier is
                               function, or when     transporting to the
                               safety might          facility; once the
                               otherwise be          carrier has
                               compromised by the    transported the
                               agent's performance   package, it is the
                               of a function that    responsibility of
                               is essential for      the offeror since
                               the agent's           it is its package.
                               exercise of
                               authority under
                               this part, the
                               agent may authorize
                               properly qualified
                               personnel to assist
                               in the activities
                               conducted under
                               this part.
Sec.   109.13(a)(1)-(2).....  No imminent hazard    DOT.
                               found. If, after an
                               agent exercises an
                               authority under
                               Sec.   109.5, an
                               imminent hazard is
                               not found to exist,
                               and the package is
                               otherwise found to
                               be compliant, the
                               agent shall:
                              (1) Assist in
                               preparing the
                               package for safe
                               and prompt
                               transportation,
                               when practicable,
                               by reclosing the
                               package in
                               accordance with the
                               packaging
                               manufacturer's
                               closure
                               instructions;.
                              (2) Mark and certify
                               the reclosed
                               package to indicate
                               that it was opened
                               and reclosed in
                               accordance with
                               this part;.
Sec.   109.13(a)(3).........  Return the package    Custody of person in
                               to the person from    possession at the
                               whom the agent        time of the
                               obtained it, as       enhanced
                               soon as               inspection.
                               practicable; and

[[Page 11577]]

 
Sec.   109.13(a)(4).........  For a package         DOT (during
                               containing a          repackaging until
                               perishable            it is returned).
                               hazardous material,
                               the agent shall
                               assist in resuming
                               the safe and
                               expeditious
                               transportation of
                               the package as soon
                               as practicable
                               after determining
                               that the package
                               presents no
                               imminent hazard.
Sec.   109.13(b)............  If, after an agent    Person in possession
                               exercises an          (carrier) or person
                               authority under       responsible for the
                               Sec.   109.5, and     package (offeror).
                               an imminent hazard
                               is found to exist,
                               the Administrator
                               or his/her designee
                               may issue an out-of-
                               service order
                               prohibiting the
                               movement of the
                               package until the
                               package has been
                               brought into
                               compliance [with
                               Subchapter C of
                               Title 49 of the
                               Code of Federal
                               Regulations. Upon
                               receipt of the out-
                               of-service order,
                               the person in
                               possession of
                               [(carrier)], or
                               responsible for
                               [(offeror)], the
                               package shall
                               remove the package
                               from transportation
                               until it is brought
                               into compliance.
Sec.   109.13(c)............  A package subject to  Person transporting.
                               an out-of-service
                               order may be moved
                               from the place
                               where it was found
                               to present an
                               imminent hazard to
                               the nearest
                               location where the
                               package can be
                               brought into
                               compliance,
                               provided that the
                               agent that issued
                               the out-of-service
                               order is notified
                               before the move.
Sec.   109.13(d)............  Noncompliant          Person in possession
                               package. If, after    (carrier) or person
                               an agent exercises    responsible for the
                               an authority under    package (offeror).
                               Sec.   109.5, a
                               package is found to
                               contain hazardous
                               material in
                               violation of this
                               Chapter, but does
                               not present an
                               imminent hazard,
                               the agent shall not
                               close the package
                               and is under no
                               obligation to bring
                               the package into
                               compliance.
------------------------------------------------------------------------

E. Opening and Reclosing Outer Packagings as Proposed

Inner vs. Outer Packaging
    In accordance with Section 7118, in Sec.  109.3(b)(4)(ii) of the 
NPRM, PHMSA proposed to, in certain circumstances, authorize DOT agents 
to open ``any overpack, outer packaging, freight container, or other 
component of the package that is not immediately adjacent to the 
hazardous materials contained in the package.'' For example, a 
combination packaging could consist of a fiberboard box (the outer 
component) and glass or plastic bottles or jugs (the inner components). 
Reclosing the package would be done in accordance with the 
manufacturer's closure instructions. Here, the original fiberboard box 
would likely be re-taped or when re-taping is not possible, the bottles 
and jugs could be overpacked in another suitable outer packaging 
component.
    UPS comments that it would be difficult for an agent to determine 
what is inner vs. outer packaging, especially since hazmat may not be 
properly packaged and may not have an inner packaging. UPS proposes to 
modify this section of the NPRM, which is now finalized as Sec.  
109.5(a)(2), to read, ``Ascertain through careful inspection whether 
the contents of the package are contained in single packaging or 
combination packaging; whether the contents are a hazardous article 
that may be handled safely; or whether the contents are loose within 
the packaging in a condition that would be unsafe if the packaging is 
opened. If the agent determines it is safe to do so, he may open any 
overpack, outer packaging, freight container, or other component of the 
package that is not immediately adjacent to the hazardous materials 
contained in the package and examine the inner packaging(s) or 
packaging components.''
    PHMSA Response:
    UPS raises a valid concern. This is an important consideration that 
would serve as a helpful guideline for DOT agents in the operational 
manual. This comment has been incorporated into the manual.
Radioactive Packages
    RSCC commented that inspection procedures should recognize that 
even the outer layers of certain declared packages (i.e., 
radiopharmaceutical) should never be breached because of the sterile 
and radioactive nature of the contents of packages. Similarly, 
Ameriflight commented that Certain Class 7 (Radioactive) shipments, 
particularly material used in cancer therapy, are extremely time 
critical, and delays of even an hour have an immediate impact on the 
usability of the product.
    PHMSA Response:
    Initially, it is important to remember that properly prepared 
packages will not be opened by DOT agents simply to see what may be 
inside the packages in question. As is currently the case, the 
information relied upon may come from a variety of sources, including 
but not limited to the following: package appearance, conflicting 
information between the shipping papers and the markings on the 
package, identity of offeror or carrier, an odor emanating from a 
container, and anonymous tips. The agent will conduct a careful 
inspection of the package to determine if there is an inner and outer 
package and if the outer package can be opened. If the agent believes 
there is reasonable suspicion to open a package, he/she will request 
the person in possession to open the package. Only if refused, which 
rarely, if ever, happens, would the explicit statutory authority 
codified by this rule be invoked by the agent to open the package.
    If a shipment is not properly prepared for transportation the agent 
will order the package out-of-service until the deficiencies are fixed 
by the offeror and the package is suitable for transportation as 
required by the HMR. Opening of the package will be the last resort in 
an overall effort to identify the contents and correcting the 
violations of the HMR. The Department has no intention of allowing 
agents to physically handle radioactive materials while in 
transportation. Moreover, DOT or other agencies charged with enforcing 
these regulations cannot be responsible for delays of time-sensitive 
materials that have not been properly prepared for shipment under the 
HMR.

[[Page 11578]]

Perishable Hazmat/Pharmaceuticals
    NACD states that for pharmaceuticals and other perishable 
materials, if packages have been breached, customers will not accept 
them, even if they have DOT seals. Receivers in these cases demand 
original, manufacturer seals and consider any evidence of tampering, 
even if by government inspectors, as possible cause for the materials 
to be contaminated and unusable.
    PHMSA Response:
    Properly marked, labeled and packaged pharmaceuticals and other 
perishable hazardous materials will not be breached or delayed, as 
there would be no reason for them to undergo further scrutiny. If a 
pharmaceutical package is improperly packaged or otherwise not in 
compliance, it should not continue in transportation, with or without 
this enhanced enforcement authority. Needless to say, distributors of 
sensitive pharmaceuticals and other perishable materials must be 
especially diligent in adhering to the packaging, marking and labeling 
requirements to avoid package breaches that result from errors in the 
packaging requirements and communication standards that are integral to 
the HMR. Because the scope of the package opening authority has been 
limited in the final rule, unless an agent believes that the packages 
do not conform to the HMR, these pac