Hazardous Materials: Enhanced Enforcement Procedures-Resumption of Transportation, 30258-30266 [2013-12123]
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Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Proposed Rules
d. Growth failure due to HIV immune
suppression.
(i) To evaluate growth failure due to HIV
immune suppression, we require
documentation of the laboratory values
described in 114.08H1 and the growth
measurements in 114.08H2 or 114.08H3
within the same consecutive 12-month
period. The dates of laboratory findings may
be different from the dates of growth
measurements.
(ii) Under 114.08H2 and 114.08H3, we use
the appropriate table under 105.08B in the
digestive system to determine whether a
child’s growth is less than the third
percentile.
A. For children from birth to attainment of
age 2, we use the weight-for-length table
corresponding to the child’s gender (Table I
or Table II).
B. For children age 2 to attainment of age
18, we use the body mass index (BMI)-for-age
table corresponding to the child’s gender
(Table III or Table IV).
C. BMI is the ratio of a child’s weight to
the square of his or her height. We calculate
BMI using the formulas in 105.00G2c.
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114.08 Human immunodeficiency virus
(HIV) infection. * * *
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H. Immune suppression and growth failure
(see 114.00F4d) documented by 1 and 2, or
by 1 and 3.
1. CD4 measurement:
a. For children from birth to attainment of
age 5, CD4 percentage of less than 20 percent;
or
b. For children age 5 to attainment of age
18, absolute CD4 count of less than 200 cells/
mm3, or CD4 percentage of less than 14
percent; and
2. For children from birth to attainment of
age 2, three weight-for-length measurements
that are:
a. Within a consecutive 12-month period;
and
b. At least 60 days apart; and
c. Less than the third percentile on the
appropriate weight-for-length table under
105.08B1; or
3. For children age 2 to attainment of age
18, three body mass index (BMI)-for-age
measurements that are:
a. Within a consecutive 12-month period;
and
b. At least 60 days apart; and
c. Less than the third percentile on the
appropriate BMI-for-age table under
105.08B2.
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PART 416—SUPPLEMENTAL
SECURITY INCOME FOR THE AGED,
BLIND, AND DISABLED
Subpart I — [Amended]
3. The authority citation for subpart I
of part 416 continues to read as follows:
■
Authority: Secs. 221(m), 702(a)(5), 1611,
1614, 1619, 1631(a), (c), (d)(1), and (p), and
1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h,
1383(a), (c), (d)(1), and (p), and 1383b); secs.
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4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 98–
460, 98 Stat. 1794, 1801, 1802, and 1808 (42
U.S.C. 421 note, 423 note, and 1382h note).
compute a CCA when we find you
disabled under listing 100.04 of the
Listing of Impairments.
4. Amend § 416.924b by revising
paragraph (b) to read as follows:
§ 416.926a
■
§ 416.924b Age as a factor of evaluation in
the sequential evaluation process for
children.
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(b) Correcting chronological age of
premature infants. We generally use
chronological age (a child’s age based on
birth date) when we decide whether, or
the extent to which, a physical or
mental impairment or combination of
impairments causes functional
limitations. However, if you were born
prematurely, we may consider you
younger than your chronological age
when we evaluate your development.
We may use a ‘‘corrected’’ chronological
age (CCA); that is, your chronological
age adjusted by a period of gestational
prematurity. We consider an infant born
at less than 37 weeks’ gestation to be
born prematurely.
(1) We compute your CCA by
subtracting the number of weeks of
prematurity (the difference between 40
weeks of full-term gestation and the
number of actual weeks of gestation)
from your chronological age. For
example, if your chronological age is 20
weeks but you were born at 32 weeks
gestation (8 weeks premature), then
your CCA is 12 weeks.
(2) We evaluate developmental delay
in a premature child until the child’s
prematurity is no longer a relevant
factor, generally no later than about
chronological age 2.
(i) If you have not attained age 1 and
were born prematurely, we will assess
your development using your CCA.
(ii) If you are over age 1 and have a
developmental delay, and prematurity is
still a relevant factor, we will decide
whether to correct your chronological
age. We will base our decision on our
judgment and all the facts in your case.
If we decide to correct your
chronological age, we may correct it by
subtracting the full number of weeks of
prematurity or a lesser number of
weeks. If your developmental delay is
the result of your medically
determinable impairment(s) and is not
attributable to your prematurity, we will
decide not to correct your chronological
age.
(3) Notwithstanding the provisions in
paragraph (b)(1) of this section, we will
not compute a CCA if the medical
evidence shows that your treating
source or other medical source has
already taken your prematurity into
consideration in his or her assessment
of your development. We will not
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[Amended]
5. Amend § 416.926a by removing
paragraphs (m)(6) and (m)(7) and
redesignating paragraph (m)(8) as (m)(6).
■ 6. Amend § 416.934 by adding
paragraphs (j) and (k) to read as follows:
■
§ 416.934 Impairments which may warrant
a finding of presumptive disability or
presumptive blindness.
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(j) Infants weighing less than 1200
grams at birth, until attainment of 1 year
of age.
(k) Infants weighing at least 1200 but
less than 2000 grams at birth, and who
are small for gestational age, until
attainment of 1 year of age. (Small for
gestational age means a birth weight that
is at or more than 2 standard deviations
below the mean or that is less than the
3rd growth percentile for the gestational
age of the infant.)
[FR Doc. 2013–11601 Filed 5–21–13; 8:45 am]
BILLING CODE 4191–02–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Part 109
[Docket No. PHMSA–2012–0259 (HM–258B)]
RIN 2137–AE98
Hazardous Materials: Enhanced
Enforcement Procedures—Resumption
of Transportation
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
SUMMARY: PHMSA is proposing to
address certain matters identified in the
Hazardous Materials Transportation
Safety Act of 2012 related to the
Department’s enhanced inspection,
investigation, and enforcement
authority. Specifically, we are proposing
to amend the opening of packages
provision to include requirements for
perishable hazardous material; add a
new notification section; and add a new
equipment section to the Department’s
procedural regulations. For the
mandates to address certain matters
related to the Department’s enhanced
inspection, investigation, and
enforcement authority, we are proposing
no additional regulatory changes. We
believe that the Department’s current
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Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Proposed Rules
rules that were previously established
through notice and comment
rulemaking and existing policies and
operating procedures thoroughly
address the hazmat transportation
matters identified by Congress. These
inspection and enforcement procedures
will not change the current inspection
procedures for DOT, but will augment
DOT’s existing enforcement procedures
and allow the Department 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: Comments must be received by
July 22, 2013. To the extent possible,
PHMSA will consider late-filed
comments as a final rule is developed.
ADDRESSES: You may submit comments
by identification of the docket number
(PHMSA–2012–0259 (HM–258B)) by
any of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Fax: 1–202–493–2251.
• Mail: Docket Operations, U.S.
Department of Transportation, West
Building, Ground Floor, Room W12–
140, Routing Symbol M–30, 1200 New
Jersey Avenue SE., Washington, DC
20590.
• Hand Delivery: To Docket
Operations, Room W12–140 on the
ground floor of the West Building, 1200
New Jersey Avenue SE., Washington,
DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays.
Instructions: All submissions must
include the agency name and docket
number for this notice at the beginning
of the comment. All comments received
will be posted without change to the
Federal Docket Management System
(FDMS), including any personal
information.
Docket: For access to the dockets to
read background documents or
comments received, go to https://
www.regulations.gov or DOT’s Docket
Operations Office (see ADDRESSES).
FOR FURTHER INFORMATION CONTACT:
Vincent Lopez or Shawn Wolsey, Office
of Chief Counsel, Pipeline and
Hazardous Materials Safety
Administration, U.S. Department of
Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590, at
(202) 366–4400.
SUPPLEMENTARY INFORMATION:
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Table of Contents
I. Executive Summary
II. Background
III. Summary of Proposals in This NPRM
IV. Summary Review of Proposed
Amendments
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This
Rulemaking
B. Executive Order 12866, 13563, and DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive
Order 13272, and DOT Procedures and
Policies
F. Paperwork Reduction Act
G. Regulatory Identifier Number (RIN)
H. Unfunded Mandates Reform Act
I. Environmental Assessment
J. Privacy Act
VI. List of Subjects
I. Executive Summary
On July 6, 2012, the President signed
the Moving Ahead for Progress in the
21st Century Act, or the MAP–21, which
included the Hazardous Materials
Transportation Safety Improvement Act
of 2012 (HMTSIA) as Title III of the
statute. Public Law 112–141, 126 Stat.
405, July 6, 2012. Section 33009 of
HMTSIA revised 49 U.S.C. 5121 to
include a notification requirement.
Congress also directed the Department
to address certain hazmat transportation
matters through rulemaking:
• The safe and expeditious
resumption of transportation of
perishable hazardous material,
including radiopharmaceuticals and
other medical products that may require
timely delivery due to life-threatening
situations;
• The means by which non-compliant
packages that present an imminent
hazard are placed out-of-service until
the condition is corrected;
• The means by which non-compliant
packages that do not present a hazard
are moved to their final destination;
• Appropriate training and
equipment for inspectors; and
• The proper closure of packaging in
accordance with the hazardous material
regulations.
We are proposing in this rulemaking,
as described further below, to clarify the
Department’s position with respect to
perishable hazardous material, by
amending the opening of packages
provision of the Department’s hazardous
materials procedural regulations for the
opening of packages, emergency orders,
and emergency recalls. The amendment
recognizes the special characteristics
and handling requirements of perishable
hazardous material by clarifying that an
agent will stop or open a package
containing a perishable hazardous
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material only after the agent has utilized
appropriate alternatives. We are also
proposing to codify the statutory
notification requirement in HMTSIA by
incorporating into the regulations the
Department’s current notification
procedures from the operations manual.
Finally, we are proposing to add a new
provision to address appropriate
equipment for inspectors. For the
remaining mandates to address certain
matters related to the Department’s
enhanced inspection, investigation, and
enforcement authority, we are proposing
no additional regulatory changes. We
believe that the Department’s current
rules that were previously established
through notice and comment
rulemaking and existing policies and
operating procedures thoroughly
address the hazmat transportation
matters identified by Congress as
requiring additional regulations. For
instance, in a prior rulemaking, the
Department established, in Part 109,
procedural regulations for opening
packages, removing packages from
transportation, and closing packages.
These regulations include the definition
of key terms, including perishable
hazardous material. The regulations
address how the Department’s agents
will handle non-compliant packages
that present an imminent hazard and
those that do not. Moreover, the rules
address when and how the
Department’s agents will open a
package. And, if an agent opens a
package, there are procedural rules for
closing the package and ensuring its safe
resumption of transportation, if
applicable. In addition, the Department
developed an internal operations
manual for training and use by its
hazmat inspectors and investigators
across all modes of transportation. The
operations manual’s guidance is
intended to target and manage the use
of the enhanced inspection and
enforcement authority in a uniform and
consistent manner within the
Department. At this time, we do not
have any data or other information that
indicate the rules, policies, and
operating procedures currently in place
are inadequate or that additional
regulations are necessary.
II. Background
On March 2, 2011, we issued a final
rule under Docket No. PHMSA–2005–
22356 (PHM–7), ‘‘Hazardous Materials:
Enhanced Enforcement Procedures.’’ 76
FR 11570. The final rule became
effective on May 2, 2011. The rule
implemented enhanced inspection,
investigation, and enforcement
authority conferred on the Secretary of
Transportation (Secretary) by the
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Hazardous Materials Transportation
Safety and Security Reauthorization Act
of 2005 (HMTSSRA). The final rule
established 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 of 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. 76 FR 11570
(codified at 49 CFR, Part 109). In
conjunction with the final rule, the
Department of Transportation
(Department or DOT) developed an
internal operations manual for training
and use by its inspectors and
investigators (collectively agents). The
operations manual is a joint document
created by the operating administrations
that enforce the Hazardous Materials
Regulations, 49 CFR parts 171–180
(HMR) 1, to provide 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
authorized function in 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. The guidance is intended 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, meets the overriding mission of
transportation safety. The operations
manual was made available to the
public on the PHMSA Web site,
https://www.phmsa.dot.gov.
On July 6, 2012, the President signed
the Moving Ahead for Progress in the
21st Century Act, or the MAP–21, which
1 Under authority delegated by the Secretary of
Transportation, four agencies within DOT enforce
the Hazardous Materials Regulations, 49 CFR Parts
171–180 and other regulations, approvals, special
permits, and orders issued under Federal
Hazardous Materials Transportation Law, 49 U.S.C.
§§ 5101 et seq.: (1) Federal Aviation
Administration, 49 CFR 1.83(d)(1); (2) Federal
Railroad Administration, 49 CFR 1.89(j); (3) Federal
Motor Carrier Safety Administration, 49 CFR
1.87(d)(1); and (4) The Pipeline and Hazardous
Materials Safety Administration, 49 CFR 1.97(b).
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 is
authorized to enforce the Hazardous Materials
Regulations in connection with certain
transportation or shipment of hazardous materials
by water but does not have Congressional/delegated
authority to carry out the enhanced inspection,
investigation, and enforcement authority.
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included the Hazardous Materials
Transportation Safety Improvement Act
of 2012 (HMTSIA) as Title III of the
statute. Public Law 112–141, 126 Stat.
405, July 6, 2012. Section 33008 of
HMTSIA created a mandate for the
Department to develop uniform
performance standards for hazmat
inspectors and investigators:
(a) In General—Not later than 18 months
after the date of enactment of this Act, the
Secretary shall develop uniform performance
standards for training hazardous material
inspectors and investigators on—
(1) how to collect, analyze, and publish
findings from inspections and investigations
of accidents or incidents involving the
transportation of hazardous material; and
(2) how to identify noncompliance with
regulations issued under chapter 51 of title
49, United States Code, and take appropriate
enforcement action.
(b) Standards and Guidelines—The
Secretary may develop—
(1) guidelines for hazardous material
inspector and investigator qualifications;
(2) best practices and standards for
hazardous material inspector and investigator
training programs; and
(3) standard protocols to coordinate
investigation efforts among Federal, State,
and local jurisdictions on accidents or
incidents involving the transportation of
hazardous material.
(c) Availability—The standards, protocols,
and guidelines established under this
section—
(1) shall be mandatory for—
(A) the Department of Transportation’s
multimodal personnel conducting hazardous
material enforcement inspections or
investigations; and
(B) State employees who conduct federally
funded compliance reviews, inspections, or
investigations; and
(2) shall be made available to Federal,
State, and local hazardous material safety
enforcement personnel.
126 Stat. at 836.
Section 33009 of HMTSIA revised 49
U.S.C. 5121, to include a notification
requirement. Congress also directed the
Department to address certain hazmat
transportation matters through
rulemaking:
(a) Notice of Enforcement Measures—
Section 5121(c)(1) is amended—
(1) in subparagraph (E), by striking ‘‘and’’
at the end;
(2) in subparagraph (F), by striking the
period at the end and inserting ‘‘; and’’; and
(3) by adding at the end the following:
‘‘(G) shall provide to the affected offeror,
carrier, packaging manufacturer or tester, or
other person responsible for the package
reasonable notice of—
‘‘(i) his or her decision to exercise his or
her authority under paragraph (1);
‘‘(ii) any findings made; and
‘‘(iii) any actions being taken as a result of
a finding of noncompliance.’’.
(b) Regulations—
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(1) Matters To Be Addressed—Section
5121(e) is amended by adding at the end the
following:
‘‘(3) Matters To Be Addressed—The
regulations issued under this subsection shall
address—
‘‘(A) the safe and expeditious resumption
of transportation of perishable hazardous
material, including radiopharmaceuticals and
other medical products, that may require
timely delivery due to life-threatening
situations;
‘‘(B) the means by which—
‘‘(i) noncompliant packages that present an
imminent hazard are placed out-of-service
until the condition is corrected; and
‘‘(ii) noncompliant packages that do not
present a hazard are moved to their final
destination;
‘‘(C) appropriate training and equipment
for inspectors; and
‘‘(D) the proper closure of packaging in
accordance with the hazardous material
regulations.’’.
(2) Finalizing Regulations—In accordance
with section 5103(b)(2) of title 49, United
States Code, not later than 1 year after the
date of enactment of this Act, the Secretary
shall take all actions necessary to finalize a
regulation under paragraph (1) of this
subsection.
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126 Stat. at 836–7.
As described further below, we
believe that the Department’s current
rules that were previously established
through notice and comment
rulemaking and existing policies and
operating procedures thoroughly
address the congressional mandates to
address certain hazmat transportation
matters. In PHM–7, the Department
established procedural regulations for
opening packages, removing packages
from transportation, and closing
packages. These regulations include the
definition of key terms, including
perishable hazardous material. The
regulations address how the
Department’s agents will handle noncompliant packages that present an
imminent hazard and those that do not.
Moreover, the rules address when and
how the Department’s agents will open
a package. And, if an agent opens a
package, there are procedural rules for
closing the package and ensuring its safe
resumption of transportation, if
applicable. In addition, the Department
developed an internal operations
manual for training and use by its
hazmat inspectors and investigators
across all modes of transportation. The
operations manual’s guidance is
intended to target and manage the use
of the enhanced inspection and
enforcement authority in a uniform and
consistent manner within the
Department. At this time, we do not
have any data or other information that
indicate the rules, policies, and
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operating procedures currently in place
are inadequate or that additional
regulations are necessary.
III. Summary of Proposals in This
NPRM
In MAP–21 Congress directed the
Secretary to address certain
transportation matters related to the
Department’s enhanced inspection,
investigation, and enforcement
authority. The relevant MAP–21
mandates for this rulemaking are:
• Notice of enforcement measures;
• The safe and expeditious
resumption of transportation of
perishable hazardous material,
including radiopharmaceuticals and
other medical products that may require
timely delivery due to life-threatening
situations;
• The means by which non-compliant
packages that present an imminent
hazard are placed out-of- service until
the condition is corrected;
• The means by which non-compliant
packages that do not present a hazard
are moved to their final destination;
• Appropriate training and
equipment for inspectors; and
• The proper closure of packaging in
accordance with the hazardous material
regulations.
We are proposing in this rulemaking,
as described further below, to clarify the
Department’s position with respect to
perishable hazardous material, by
amending the opening of packages
provision of the Department’s hazardous
materials procedural regulations for the
opening of packages, emergency orders,
and emergency recalls. The amendment
recognizes the special characteristics
and handling requirements of perishable
hazardous material by clarifying that an
agent will stop or open a package
containing a perishable hazardous
material only after the agent has utilized
appropriate alternatives. We are also
proposing to codify the statutory
notification requirement in HMTSIA by
incorporating into the regulations the
Department’s current notification
procedures from the operations manual
that was developed in conjunction with
the PHM–7 final rule. Finally, we are
proposing to add a new provision to
address appropriate equipment for
inspectors.
For the remaining mandates to
address certain matters related to the
Department’s enhanced inspection,
investigation, and enforcement
authority, we are proposing no
additional regulatory changes. We
believe that the Department’s current
rules that were previously established
through notice and comment
rulemaking and existing policies and
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Jkt 229001
operating procedures thoroughly
address the hazmat transportation
matters identified by Congress. For
instance, in a prior rulemaking, the
Department established, in Part 109,
procedural regulations for opening
packages, removing packages from
transportation, and closing packages.
These regulations include the definition
of key terms, including perishable
hazardous material. The regulations
address how the Department’s agents
will handle non-compliant packages
that present an imminent hazard and
those that do not. Moreover, the rules
address when and how the
Department’s agents will open a
package. And, if an agent opens a
package, there are procedural rules for
closing the package and ensuring its safe
resumption of transportation, if
applicable. In addition, the Department
developed an internal operations
manual for training and use by its
hazmat inspectors and investigators
across all modes of transportation. The
operations manual’s guidance is
intended to target and manage within
the Department the use of the enhanced
inspection and enforcement authority in
a uniform and consistent manner. At
this time, we do not have any data or
other information that indicate the
rules, policies, and operating
procedures currently in place are
inadequate or that additional
rulemaking is necessary.
Notice of Enforcement Measures
In PHM–7, we established procedures
to implement the enhanced inspection,
investigation, and enforcement
authority conferred on the Secretary
through HMTSSRA. In the NPRM for
that rule, in response to commenters’
concerns about notifying offerors and
consignees about a possible delay in
arrival, we agreed that all parties
responsible for a shipment that is
opened or removed from transportation
need to be notified of the action taken.
We said that ‘‘DOT inspectors will be
required to communicate the findings
made and enforcement measures taken
to the appropriate offeror, recipient, and
carrier of the package . . .’’. 73 FR
57288. In the final rule, we outlined
how we would notify affected parties
when an agent exercises one of the new
authorities. 76 FR 11580. In the
preamble to the final rule, we explained
that the notification procedures would
be incorporated into the Department’s
joint operations manual. Id. The
notification procedures that we
developed for the joint operations
manual address situations where an
agent may exercise a 49 CFR Part 109
authority for a package that is in transit.
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In this case, the person in possession of
the package, such as a carrier, may not
be the person responsible for the
package, i.e. the offeror. Therefore, we
set out separate procedures for
immediately notifying the person in
possession and the original offeror.
Generally, the agent will verbally notify
the person in possession. If the person
in possession is not the original offeror,
the agent will also take reasonable
measures to notify the original offeror.
In MAP–21 Congress added a
notification requirement to the
Department’s inspection and
investigation authority. Specifically,
Section 5121(c)(1) was amended to
include new subparagraph (G). Section
5121(c)(1) now reads:
‘‘(c) Inspections and investigations.—
(1) In general.—A designated officer,
employee, or agent of the Secretary—
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*
(G) shall provide to the affected offeror,
carrier, packaging manufacturer or tester,
other person responsible for the package
reasonable notice of—
(i) his or her decision to exercise his or her
authority under paragraph (1);
(ii) any findings made; and
(iii) any actions being taken as a result of
a finding of noncompliance.
126 Stat. at 836–7.
We are proposing in this rulemaking
to codify this statutory notification
requirement by incorporating into the
regulations the Department’s current
notification procedures from the joint
operations manual. As discussed above,
the joint operations manual includes
procedures and guidance to agents for
providing notice of enforcement
measures taken under 49 CFR part 109.
The procedures in the manual are
comprehensive and comport with the
statutory mandate. As such, under this
proposal, a new notification section will
be added to part 109, subpart B of 49
CFR. It will require that an agent, after
exercising a 49 CFR part 109 inspection
or investigation authority, immediately
take reasonable measures to notify the
appropriate person of the reason for the
action being taken, the results of any
preliminary investigation including
apparent violations of the HMR, and any
further action that may be warranted.
The Safe and Expeditious Resumption
of Transportation of Perishable
Hazardous Material
We addressed the opening, reclosing,
and resumption of transportation of
perishable hazardous material in a
previous rulemaking. In PHM–7, we
defined ‘‘perishable hazardous
material’’ as ‘‘a hazardous material that
is subject to significant risk of speedy
decay, deterioration, or spoilage, or
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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 meets a critical medical need.’’
76 FR 11592 (codified at 49 CFR
§ 109.1). Further, we established
procedures for reclosing a package
containing a perishable hazardous
material and its safe and expeditious
resumption of transportation. Section
109.13 contains the requirements for the
closing of packages and the safe
resumption of transportation, including
a specific requirement pertaining to
perishable hazardous material.
We believe the definition of
perishable hazardous material and the
rules, current procedures, and guidance
already developed for reclosing
packages, sufficiently address Congress’
concern and the need for expeditious
treatment of these types of materials. We
also note that in the Department’s joint
operations manual, we have
significantly restricted an agent’s ability
to handle or open a package containing
perishable hazardous material. For
example, an agent must have been
trained in the handling of the specific
material and may only open a
perishable hazardous material package
in a designated facility, if required, and
have all safety equipment, handling
equipment, and materials to properly
close the package. Notwithstanding, in
order to clarify the Department’s
position with respect to perishable
hazardous material, we are proposing to
amend the opening of packages
provision of the Department’s hazardous
materials procedural regulations for the
opening of packages, emergency orders,
and emergency recalls. The amendment
recognizes the special characteristics
and handling requirements of perishable
hazardous material by clarifying that an
agent will stop or open a package
containing a perishable hazardous
material only after the agent has utilized
appropriate alternatives.
In consideration of the special
characteristics and handling
requirements of perishable hazardous
material, we are proposing to establish
a Department policy that its agents will
not intentionally open packages
containing perishable hazardous
material unless a compelling safety need
exists. However, in accordance with our
current procedures, an agent may stop,
remove, or have a package containing
these types of materials transported to a
facility for further examination and
analysis. We solicit comments from the
public whether excluding these types of
materials is appropriate.
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Handling of non-compliant packages
In MAP–21 Congress mandated that
the Department take all actions
necessary to finalize a regulation
addressing the means by which noncompliant packages are processed when
an agent exercises an authority under
Part 109. Specifically, Section 5121(e)
was amended to include new paragraph
(3). The relevant amendment to Section
5121(e) includes the following language:
*
*
*
*
*
(3) Matters to be addressed.—The
regulations issued under this subsection shall
address—
*
*
*
*
*
(B) the means by which—
(i) noncompliant packages that present an
imminent hazard are placed out-of-service
until the condition is corrected; and
(ii) noncompliant packages that do not
present a hazard are moved to their final
destination.
*
*
*
*
*
126 Stat. at 837.
The Department’s procedural rules for
opening of packages, emergency orders,
and emergency recalls are in 49 CFR
part 109. These procedures address the
means by which a non-compliant
package that is found to be an imminent
hazard is placed out-of-service.
Specifically, in § 109.13, if an imminent
hazard is found to exist after an agent
opens a package, the operating
administration’s authorized official may
issue an out-of-service order prohibiting
the movement of the package. 49 CFR
109.13(b). The package must be
removed from transportation until it is
brought into compliance. Id. An out-ofservice order is a type of emergency
order. In 49 CFR, subpart C of part 109
contains the procedural regulations for
issuing an out-of-service emergency
order, including procedures for
administrative review, reconsideration,
and appellate review of an emergency
order. Furthermore, the joint operations
manual provides inspection personnel
with step-by-step procedures and
additional guidance for issuing an outof-service order. For example, at least
two levels of review and consultation
with the operating administration’s legal
office is required before an emergency
order can be issued. Moreover, the
operations manual addresses
documentation requirements,
notification, service, publication, and
termination requirements.
Regarding non-compliant packages
that do not present a hazard, it is
important to note that a non-compliant
package may not continue in
transportation until all identified noncompliant issues are resolved. 49 CFR
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109.13(d). In the PHM–7 final rule
where we established the enhanced
enforcement procedures, we stated that
for a non-compliant package, the agent
would not close the package and that
there is no obligation to bring that
package into compliance. 76 FR 11587.
Further, we stated, ‘‘[t]he Department’s
operating administrations will not be
responsible for bringing an otherwise
non-compliant package into compliance
and resuming its movement in
commerce.’’ Id. We reasoned that if the
package does not conform to the HMR
at the time of inspection, the act that a
DOT official opened it in the course of
an inspection or investigation will not
make DOT or its agent responsible for
bringing the package into compliance.
Id.
In light of the above, we have already
fulfilled the applicable mandate for the
handling of non-compliant packages
and no further action is required.
Appropriate Training and Equipment
for Inspectors
Congress recognized that ‘‘[t]here is
currently no uniform training standard
for hazardous materials (‘hazmat’)
inspectors and investigators.’’ H. Conf.
Rep. No. 112–557 at 610 (2012). To
address this problem, it mandated in
MAP–21 that the Secretary establish
uniform performance standards for
training hazmat inspectors and
investigators no later than eighteen
months from the date of enactment of
the Act. 126 Stat. at 836. The mandate
authorizes the development of
guidelines for hazmat inspector and
investigator qualifications; best
practices and standards for hazmat
inspector and investigator training
programs; and standard protocols to
coordinate investigation efforts among
Federal, State, and local jurisdictions on
accidents or incidents involving the
transportation of hazardous material. In
order to achieve a uniform hazmat
training standard, Congress required
that the standards, protocols, and
guidelines developed would be
mandatory to the Department’s
multimodal personnel conducting
hazmat enforcement inspections and
investigations.
Additionally, Congress mandated that
the Department take all actions
necessary to finalize a regulation, no
later than one year from the date of
enactment of the Act, addressing
appropriate training and equipment for
inspectors when exercising an authority
under 49 CFR Part 109. Specifically,
Section 5121(e) was amended to include
new paragraph (3). The relevant
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amendment to Section 5121(e) includes
the following language:
*
*
*
*
*
(3) Matters to be addressed.—The
regulations issued under this subsection shall
address—
*
*
*
*
*
(C) appropriate training and equipment for
inspectors; and
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*
*
*
*
*
126 Stat. at 837
Although the MAP–21 mandates here
are training related, it is evident that the
development of a uniform training
scheme is essential because it will
establish the foundation upon which
future training for hazmat inspectors
and investigators is expected to follow.
As such, it is premature to require the
Department to promulgate enforcement
procedural regulations for hazmat
training and equipment before the
Department has had the opportunity to
develop uniform performance training
standards. This approach does not
appear to be the best way to meet
Congress’ objective to ensure that all
hazmat inspectors and investigations
receive uniform and standardized
training. It would be more appropriate
for the Department to establish the
uniform performance training standards,
best practices, and protocols before it
develops additional training regulations
for its hazmat personnel. This would
ensure that new training rules are
consistent with the uniform training
scheme.
Notwithstanding, we understand that
proper training of inspectors and
investigators is essential to ensure that
the enhanced enforcement authority is
used effectively and judiciously. In the
NPRM for PHM–7, we explained that
the operating administrations
responsible for enforcement of the
HMR—PHMSA, FMCSA, FAA, and
FRA—worked together to develop the
rule and a joint operations manual. 73
FR 57285. We further explained that the
proposed regulations set out a
framework for the procedures the
operating administrations will employ
when conducting inspections or
investigations, thus ensuring
consistency in approaches and
enforcement measures among modes of
transportation. Moreover, we stated that
the final rule, implemented with the
guidance of an operational manual,
would ensure that this authority was
properly used. Id. We expressed our
confidence in this approach because
with the cooperation of the operating
administrations in the development of
the rule, and the accompanying
operations manual, it meant that all
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Department inspectors and investigators
would have the same general training
and modal specific instruction. 73 FR
57288.
Regarding equipment, we are
proposing to add a new provision to
address appropriate equipment for
inspectors when they exercise a Part 109
authority. Under this proposal, a new
equipment section will be added to new
Subpart D—Equipment, requiring an
agent to use the appropriate safety,
handling, and other equipment
authorized by his or her operating
administration’s equipment
requirements for hazardous material
inspectors and investigators.
Consequently, we do not believe that
we should develop rules for appropriate
training in this rulemaking. Instead, we
advocate addressing any performance
standards as part of the larger hazardous
materials performance standard
development activity currently
underway. In the meantime, we believe
the existing rules in 49 CFR Part 109
and the attendant operational
procedures in the joint operations
manual, as well as each operating
administration’s specific guidance for
its enforcement staff, sufficiently
address the training concern identified
by Congress in the MAP–21 directive.
Therefore, PHMSA does not believe that
further action is necessary at this time.
The Proper Closure of Packaging in
Accordance With HMR
In MAP–21 Congress mandated that
the Department take all actions
necessary to finalize a regulation
addressing ‘‘the proper closure of
packaging in accordance with the
hazardous material regulations.’’ 126
Stat. at 837.
In PHM–7 we addressed reclosing of
packages opened under the enhanced
inspection, investigation, and
enforcement authority. In several of the
comments that we received about that
rulemaking, the regulated community
raised concerns about how we were
going to reclose packages after they have
been opened under the new authority.
In the NPRM, we responded by stating
that the Department was developing
internal operational procedures and
guidance to address the proper closure
of packaging in accordance with the
HMR. We also solicited further
comment from the public on the factors
that should be considered in the
development of these procedures and
guidance. 73 FR 57286. However, we
also stated that an agent’s obligation to
reclose a package only arose if, after
opening the package, an imminent
hazard was found not to exist and the
package otherwise complied with the
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HMR. 76 FR 11587. More importantly,
we also said that the Department’s
operating administrations would not be
responsible for bringing an otherwise
non-specification or non-compliant
package into compliance and resuming
its movement in commerce. Id. If the
package did not comply with the HMR
the fact that a DOT official opened it in
the course of an inspection or
investigation would not make DOT or
its inspector responsible for bringing the
package into compliance. Id. In the final
rule, we significantly revised the new
rule for closing packages to cover each
possible re-closure scenario: no
imminent hazard found; imminent
hazard found; package does not contain
a hazardous material; and package
contains a hazardous material not in
compliance with the HMR. Id. Further,
we stated that the inspector would only
be required to reclose a package in
accordance with the packaging
manufacturer’s closure instructions or
other appropriate method when a
package was opened and no imminent
hazard was found. Id. In the joint
operations manual we developed
procedures for properly closing a
package. These procedures include
steps for reclosing a package. It also
includes additional requirements and
procedures to complete the re-closure
process, including methods to
thoroughly document the activities
performed.
In light of the above, we believe the
existing requirements in 49 CFR Part
109 for closing opened packages
(Section 109.13) and the attendant
operational procedures in the joint
operations manual sufficiently address
the matter identified by Congress in the
MAP–21 directive. Therefore, no further
action is necessary.
IV. Summary Review of Proposed
Amendments
We are proposing to amend the
opening of packages provision of the
Department’s hazardous materials
procedural regulations for the opening
of packages, emergency orders, and
emergency recalls. The amendment
recognizes the special characteristics
and handling requirements of perishable
hazardous material by clarifying that an
agent will stop or open a package
containing a perishable hazardous
material only after the agent has utilized
appropriate alternatives. We are also
proposing to add a notification
provision to 49 CFR under Part 109
Subpart B—Inspections and
Investigations. The provision will
provide for the immediate and
reasonable notification of enforcement
action taken by an inspector or
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investigator whenever he or she
exercises one of the inspection and
investigation authorities under 49 CFR
Part 109, Subpart B, which includes the
opening of packages; removing a
package and related packages in a
shipment from transportation; directing
a package to be transported to a facility
for examination and analysis; and
authorizing properly qualified
personnel to assist in activities
conducted under Subpart B. The notice
will include the reason for the action
being taken, the results of any
preliminary investigation including
apparent violations of the HMR, and any
further action that may be warranted.
Finally, we are proposing to add a new
provision to address appropriate
equipment for inspectors when they
exercise a Part 109 authority. The new
equipment section will be added to 49
CFR under new Subpart D—Equipment.
The provision will require an agent to
use the appropriate safety, handling,
and other equipment authorized by his
or her operating administration’s
equipment requirements for hazardous
material inspectors and investigators.
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V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This
Rulemaking
This notice of proposed rulemaking
(NPRM) is published under the
authority of the Federal Hazardous
Materials Transportation Law, 49 U.S.C.
§ 5101 et seq. Section 5103(b) authorizes
the Secretary to prescribe regulations for
the safe transportation, including
security, of hazardous material in
intrastate, interstate, and foreign
commerce. This NPRM would revise
PHMSA’s procedural regulations for
opening of packages, emergency orders,
and emergency recalls to address certain
matters identified in the Hazardous
Materials Transportation Safety Act of
2012 related to Department’s enhanced
inspection, investigation, and
enforcement authority. The NPRM
carries out the statutory mandate and
clarifies DOT’s role and responsibilities
in ensuring that hazardous materials are
being safely transported and promoting
the regulated community’s
understanding and compliance with
regulatory requirements applicable to
specific situations and operations.
B. Executive Order 13610, Executive
Order 13563, Executive Order 12866,
and DOT Regulatory Policies and
Procedures
This NPRM is not considered a
significant regulatory action under
section 3(f) Executive Order 12866 and,
therefore, was not reviewed by the
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Office of Management and Budget
(OMB). The proposed rule is not
considered a significant rule under the
Regulatory Policies and Procedures
order issued by the U.S. Department of
Transportation (44 FR 11034).
Executive Order 13563 is
supplemental to and reaffirms the
principles, structures, and definitions
governing regulatory review that were
established in Executive Order 12866
Regulatory Planning and Review of
September 30, 1993. Executive Order
13563, issued January 18, 2011, notes
that our nation’s current regulatory
system must not only protect public
health, welfare, safety, and our
environment but also promote economic
growth, innovation, competitiveness,
and job creation.2 Further, this
executive order urges government
agencies to consider regulatory
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public. In addition,
federal agencies are asked to
periodically review existing significant
regulations, retrospectively analyze
rules that may be outmoded, ineffective,
insufficient, or excessively burdensome,
and modify, streamline, expand, or
repeal regulatory requirements in
accordance with what has been learned.
Executive Order 13610, issued May
10, 2012, urges agencies to conduct
retrospective analyses of existing rules
to examine whether they remain
justified and whether they should be
modified or streamlined in light of
changed circumstances, including the
rise of new technologies.3
By building off of each other, these
three Executive Orders require agencies
to regulate in the ‘‘most cost-effective
manner,’’ to make a ‘‘reasoned
determination that the benefits of the
intended regulation justify its costs,’’
and to develop regulations that ‘‘impose
the least burden on society.’’
This proposed rule revises 49 CFR
part 109, which contains regulations on
DOT inspection and investigation
procedures. These regulations are not
part of the HMR, which govern the
transportation of hazmat, thus they do
not carry any additional compliance
requirements or costs for entities that
must comply with the HMR. It is
possible, however, that some carriers or
shippers, who in the absence of this rule
would have refused to open a package
when requested, may experience delays
that they would not have otherwise
2 See https://www.whitehouse.gov/the-press-office/
2011/01/18/improving-regulation-and-regulatoryreview-executive-order
3 See https://www.gpo.gov/fdsys/pkg/FR-2012-0514/pdf/2012-11798.pdf
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faced. DOT is not aware of any cases of
shippers or carriers refusing to open
packages and so anticipates that these
costs will be minimal.
C. Executive Order 13132
This proposed rule has been analyzed
in accordance with the principles and
criteria contained in Executive Order
13132 (‘‘Federalism’’). 49 U.S.C. 5125(h)
provides that the preemption provisions
in Federal hazardous material
transportation law do ‘‘not apply to any
procedure . . . utilized by a State,
political subdivision of a State, or
Indian tribe to enforce a requirement
applicable to the transportation of
hazardous material.’’ Accordingly, this
proposed rule has no preemptive effect
on State, local, or Indian tribe
enforcement procedures and penalties,
and preparation of a federalism
assessment is not warranted.
D. Executive Order 13175
This NPRM has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13175 (‘‘Consultation and Coordination
with Indian Tribal Governments’’).
Because this NPRM does not
significantly or uniquely affect the
communities of the Indian tribal
governments and does not impose
substantial direct compliance costs, the
funding and consultation requirements
of Executive Order 13175 do not apply.
E. Regulatory Flexibility Act, Executive
Order 13272, and DOT Procedures and
Policies
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires an agency to
review regulations to assess their impact
on small entities unless the agency
determines that a rule is not expected to
have significant impact on a substantial
number of small entities. I hereby certify
that the proposed rule will not have a
significant economic impact on a
substantial number of small entities.
This proposed rule applies to offerors
and carriers of hazardous materials,
some of which are small entities;
however, there will not be any
economic impact on any person who
complies with Federal hazardous
materials law and the regulations and
orders issued under that law.
Potentially affected small entities. The
provisions in this proposed rule will
apply to persons who perform, or cause
to be performed, functions related to the
transportation of hazardous materials in
transportation in commerce. This
includes offerors of hazardous materials
and persons in physical control of a
hazardous material during
transportation in commerce. Such
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persons may primarily include motor
carriers, air carriers, vessel operators,
rail carriers, temporary storage facilities,
and intermodal transfer facilities.
Unless alternative definitions have been
established by the agency in
consultation with the Small Business
Administration, the definition of ‘‘small
business’’ has the same meaning as
under the Small Business Act (15 CFR
parts 631–657c). Therefore, since no
such special definition has been
established, PHMSA employs the
thresholds (published in 13 CFR
121.201) of 1,500 employees for air
carriers (NAICS Subgroup 481), 500
employees for rail carriers (NAICS
Subgroup 482), 500 employees for
vessel operators (NAICS Subgroup 483),
$18.5 million in revenues for motor
carriers (NAICS Subgroup 484), and
$18.5 million in revenues for
warehousing and storage companies
(NAICS Subgroup 493). Of the
approximately 116,000 entities to which
this proposed rule would apply
(104,000 of which are motor carriers),
we estimate that about 90 percent are
small entities.
Potential cost impacts. This proposed
rule revises 49 CFR Part 109, which
contains regulations on DOT inspection
and investigation procedures. These
regulations are not part of the HMR,
which govern the transportation of
hazmat, thus they do not carry any
additional compliance requirements or
costs for entities that must comply with
the HMR. It is possible, however, that
some carriers or shippers, who in the
absence of this rule would have refused
to open a package when requested, may
experience delays that they would not
have otherwise faced. DOT is not aware
of any cases of shippers or carriers
refusing to open packages and so
anticipates that these costs will be
minimal.
Alternate proposals for small
business. Because this proposed rule
addresses a Congressional mandate, we
have limited latitude in defining
alternative courses of action. The option
of taking no action would be both
inconsistent with Congress’ direction
and undesirable from the standpoint of
safety and enforcement. Failure to
implement the new authority will
perpetuate the problem of undeclared
hazardous material shipments and
resulting incidents or releases. It will
also leave PHMSA and other operating
administrations without an effective
plan to abate an imminent safety hazard.
F. Paperwork Reduction Act
PHMSA has analyzed this final rule in
accordance with the Paperwork
Reduction Act of 1995 (PRA). The PRA
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requires Federal agencies to minimize
the paperwork burden imposed on the
American public by ensuring maximum
utility and quality of federal
information, ensuring the use of
information technology to improve
government performance, and
improving the federal government’s
accountability for managing information
collection activities. This final rule
contains no new information collection
requirements subject to the PRA.
procedures and allow the Department to
respond immediately and effectively to
conditions or practices that pose serious
threat to life, property, or the
environment. PHMSA has initially
determined that the implementation of
the proposed rule will not have any
significant impact on the quality of the
human environment. PHMSA, however,
invites comments about environmental
impacts that the proposed rule might
pose.
G. Regulation Identifier Number (RIN)
A regulation identifier number (RIN)
is assigned to each regulatory action
listed in the Unified Agenda of Federal
Regulations. The Regulatory Information
Service Center publishes the Unified
Agenda in April and October of each
year. The RIN contained in the heading
of this document can be used to crossreference this action with the Unified
Agenda.
J. Privacy Act
H. Unfunded Mandates Reform Act of
1995
This proposed rule does not impose
unfunded mandates under the
Unfunded Mandates Reform Act of
1995. It does not result in costs of
$141.3 million or more to either state,
local or tribal governments, in the
aggregate, or to the private sector, and
is the least burdensome alternative that
achieves the objective of the rule.
I. Environmental Assessment
The National Environmental Policy
Act of 1969 (NEPA), as amended (42
U.S.C. 4321–4347), and implementing
regulations by the Council on
Environmental Quality (40 CFR part
1500) require Federal agencies to
consider the consequences of Federal
actions and prepare a detailed statement
on actions that significantly affect the
quality of the human environment.
The purpose of this rulemaking is to
amend the Department’s existing
enforcement procedures to (1) to clarify
the Department’s position with respect
to perishable hazardous material, by
amending the opening of packages
provision; (2) provide notice of
enforcement measures to affected
parties; and (3) address appropriate
equipment for inspectors. Because this
NPRM addresses Congressional
mandates, we have limited latitude in
defining alternative courses of action.
The option of taking no action would be
both inconsistent with Congress’
direction and undesirable from the
standpoint of safety and enforcement.
These inspection and enforcement
procedures will not change the current
inspection procedures for DOT, but will
augment DOT’s existing enforcement
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Anyone is able to search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78) which
may be viewed at: https://www.gpo.gov/
fdsys/pkg/FR-2000-04-11/pdf/008505.pdf.
List of Subjects in 49 CFR Part 109
Inspections and investigations.
Equipment.
In consideration of the foregoing, 49
CFR Chapter I is proposed to be
amended as follows:
PART 109—DEPARTMENT OF
TRANSPORTATION HAZARDOUS
MATERIALS PROCEDURAL
REGULATIONS FOR OPENING OF
PACKAGES, EMERGENCY ORDERS,
AND EMERGENCY RECALLS
1. The authority citation for part 109
is revised to read as follows:
■
Authority: 49 U.S.C. 5101–5128, 44701;
Pub. L. 101–410 § 4 (28 U.S.C. 2461 note);
Pub. L. 104–121 §§ 212–213; Pub. L. 104–134
§ 31001; 49 CFR 1.81, 1.97.
2. In § 109.5, a new paragraph (b) is
added to read as follows:
■
§ 109.5
Opening of packages.
*
*
*
*
*
(b) Perishable hazardous material. To
ensure the expeditious transportation of
a package containing a perishable
hazardous material, an agent will utilize
appropriate alternatives before
exercising an authority under paragraph
(a).
■ 3. Section 109.16 is added to read as
follows:
§ 109.16 Notification of Enforcement
Measures.
In addition to the notification
requirements in § 109.7, an agent, after
exercising an authority under this
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Subpart, will immediately take
reasonable measures to notify the offeror
and the person in possession of the
package, providing the reason for the
action being taken, the results of any
preliminary investigation including
apparent violations of subchapter C of
this chapter, and any further action that
may be warranted.
■ 4. Subpart D is added to read as
follows:
VerDate Mar<15>2010
15:00 May 21, 2013
Jkt 229001
Subpart D—Equipment
§ 109.25
Equipment.
When an agent exercises an authority
under Subpart B, the agent shall use the
appropriate safety, handling, and other
equipment authorized by his or her
operating administration’s equipment
requirements for hazardous material
inspectors and investigators.
PO 00000
Frm 00024
Fmt 4702
Sfmt 9990
Issued in Washington, DC, on May 13,
2013, under authority delegated in 49 CFR
Part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous
Materials Safety, Pipeline and Hazardous
Materials Safety Administration.
[FR Doc. 2013–12123 Filed 5–21–13; 8:45 am]
BILLING CODE 4910–60–P
E:\FR\FM\22MYP1.SGM
22MYP1
]]>Agencies
[Federal Register Volume 78, Number 99 (Wednesday, May 22, 2013)]
[Proposed Rules]
[Pages 30258-30266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12123]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 109
[Docket No. PHMSA-2012-0259 (HM-258B)]
RIN 2137-AE98
Hazardous Materials: Enhanced Enforcement Procedures--Resumption
of Transportation
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: PHMSA is proposing to address certain matters identified in
the Hazardous Materials Transportation Safety Act of 2012 related to
the Department's enhanced inspection, investigation, and enforcement
authority. Specifically, we are proposing to amend the opening of
packages provision to include requirements for perishable hazardous
material; add a new notification section; and add a new equipment
section to the Department's procedural regulations. For the mandates to
address certain matters related to the Department's enhanced
inspection, investigation, and enforcement authority, we are proposing
no additional regulatory changes. We believe that the Department's
current
[[Page 30259]]
rules that were previously established through notice and comment
rulemaking and existing policies and operating procedures thoroughly
address the hazmat transportation matters identified by Congress. These
inspection and enforcement procedures will not change the current
inspection procedures for DOT, but will augment DOT's existing
enforcement procedures and allow the Department 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: Comments must be received by July 22, 2013. To the extent
possible, PHMSA will consider late-filed comments as a final rule is
developed.
ADDRESSES: You may submit comments by identification of the docket
number (PHMSA-2012-0259 (HM-258B)) by any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: All submissions must include the agency name and
docket number for this notice at the beginning of the comment. All
comments received will be posted without change to the Federal Docket
Management System (FDMS), including any personal information.
Docket: For access to the dockets to read background documents or
comments received, go to https://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
FOR FURTHER INFORMATION CONTACT: Vincent Lopez or Shawn Wolsey, Office
of Chief Counsel, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590, at (202) 366-4400.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
III. Summary of Proposals in This NPRM
IV. Summary Review of Proposed Amendments
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Order 12866, 13563, and DOT Regulatory Policies and
Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
F. Paperwork Reduction Act
G. Regulatory Identifier Number (RIN)
H. Unfunded Mandates Reform Act
I. Environmental Assessment
J. Privacy Act
VI. List of Subjects
I. Executive Summary
On July 6, 2012, the President signed the Moving Ahead for Progress
in the 21st Century Act, or the MAP-21, which included the Hazardous
Materials Transportation Safety Improvement Act of 2012 (HMTSIA) as
Title III of the statute. Public Law 112-141, 126 Stat. 405, July 6,
2012. Section 33009 of HMTSIA revised 49 U.S.C. 5121 to include a
notification requirement. Congress also directed the Department to
address certain hazmat transportation matters through rulemaking:
The safe and expeditious resumption of transportation of
perishable hazardous material, including radiopharmaceuticals and other
medical products that may require timely delivery due to life-
threatening situations;
The means by which non-compliant packages that present an
imminent hazard are placed out-of-service until the condition is
corrected;
The means by which non-compliant packages that do not
present a hazard are moved to their final destination;
Appropriate training and equipment for inspectors; and
The proper closure of packaging in accordance with the
hazardous material regulations.
We are proposing in this rulemaking, as described further below, to
clarify the Department's position with respect to perishable hazardous
material, by amending the opening of packages provision of the
Department's hazardous materials procedural regulations for the opening
of packages, emergency orders, and emergency recalls. The amendment
recognizes the special characteristics and handling requirements of
perishable hazardous material by clarifying that an agent will stop or
open a package containing a perishable hazardous material only after
the agent has utilized appropriate alternatives. We are also proposing
to codify the statutory notification requirement in HMTSIA by
incorporating into the regulations the Department's current
notification procedures from the operations manual. Finally, we are
proposing to add a new provision to address appropriate equipment for
inspectors. For the remaining mandates to address certain matters
related to the Department's enhanced inspection, investigation, and
enforcement authority, we are proposing no additional regulatory
changes. We believe that the Department's current rules that were
previously established through notice and comment rulemaking and
existing policies and operating procedures thoroughly address the
hazmat transportation matters identified by Congress as requiring
additional regulations. For instance, in a prior rulemaking, the
Department established, in Part 109, procedural regulations for opening
packages, removing packages from transportation, and closing packages.
These regulations include the definition of key terms, including
perishable hazardous material. The regulations address how the
Department's agents will handle non-compliant packages that present an
imminent hazard and those that do not. Moreover, the rules address when
and how the Department's agents will open a package. And, if an agent
opens a package, there are procedural rules for closing the package and
ensuring its safe resumption of transportation, if applicable. In
addition, the Department developed an internal operations manual for
training and use by its hazmat inspectors and investigators across all
modes of transportation. The operations manual's guidance is intended
to target and manage the use of the enhanced inspection and enforcement
authority in a uniform and consistent manner within the Department. At
this time, we do not have any data or other information that indicate
the rules, policies, and operating procedures currently in place are
inadequate or that additional regulations are necessary.
II. Background
On March 2, 2011, we issued a final rule under Docket No. PHMSA-
2005-22356 (PHM-7), ``Hazardous Materials: Enhanced Enforcement
Procedures.'' 76 FR 11570. The final rule became effective on May 2,
2011. The rule implemented enhanced inspection, investigation, and
enforcement authority conferred on the Secretary of Transportation
(Secretary) by the
[[Page 30260]]
Hazardous Materials Transportation Safety and Security Reauthorization
Act of 2005 (HMTSSRA). The final rule established 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 of 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. 76 FR 11570 (codified
at 49 CFR, Part 109). In conjunction with the final rule, the
Department of Transportation (Department or DOT) developed an internal
operations manual for training and use by its inspectors and
investigators (collectively agents). The operations manual is a joint
document created by the operating administrations that enforce the
Hazardous Materials Regulations, 49 CFR parts 171-180 (HMR) \1\, to
provide 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 authorized function
in 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. The guidance is intended 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, meets the overriding mission of
transportation safety. The operations manual was made available to the
public on the PHMSA Web site, https://www.phmsa.dot.gov.
---------------------------------------------------------------------------
\1\ Under authority delegated by the Secretary of
Transportation, four agencies within DOT enforce the Hazardous
Materials Regulations, 49 CFR Parts 171-180 and other regulations,
approvals, special permits, and orders issued under Federal
Hazardous Materials Transportation Law, 49 U.S.C. Sec. Sec. 5101 et
seq.: (1) Federal Aviation Administration, 49 CFR 1.83(d)(1); (2)
Federal Railroad Administration, 49 CFR 1.89(j); (3) Federal Motor
Carrier Safety Administration, 49 CFR 1.87(d)(1); and (4) The
Pipeline and Hazardous Materials Safety Administration, 49 CFR
1.97(b). 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 is authorized to
enforce the Hazardous Materials Regulations in connection with
certain transportation or shipment of hazardous materials by water
but does not have Congressional/delegated authority to carry out the
enhanced inspection, investigation, and enforcement authority.
---------------------------------------------------------------------------
On July 6, 2012, the President signed the Moving Ahead for Progress
in the 21st Century Act, or the MAP-21, which included the Hazardous
Materials Transportation Safety Improvement Act of 2012 (HMTSIA) as
Title III of the statute. Public Law 112-141, 126 Stat. 405, July 6,
2012. Section 33008 of HMTSIA created a mandate for the Department to
develop uniform performance standards for hazmat inspectors and
investigators:
(a) In General--Not later than 18 months after the date of
enactment of this Act, the Secretary shall develop uniform
performance standards for training hazardous material inspectors and
investigators on--
(1) how to collect, analyze, and publish findings from
inspections and investigations of accidents or incidents involving
the transportation of hazardous material; and
(2) how to identify noncompliance with regulations issued under
chapter 51 of title 49, United States Code, and take appropriate
enforcement action.
(b) Standards and Guidelines--The Secretary may develop--
(1) guidelines for hazardous material inspector and investigator
qualifications;
(2) best practices and standards for hazardous material
inspector and investigator training programs; and
(3) standard protocols to coordinate investigation efforts among
Federal, State, and local jurisdictions on accidents or incidents
involving the transportation of hazardous material.
(c) Availability--The standards, protocols, and guidelines
established under this section--
(1) shall be mandatory for--
(A) the Department of Transportation's multimodal personnel
conducting hazardous material enforcement inspections or
investigations; and
(B) State employees who conduct federally funded compliance
reviews, inspections, or investigations; and
(2) shall be made available to Federal, State, and local
hazardous material safety enforcement personnel.
126 Stat. at 836.
Section 33009 of HMTSIA revised 49 U.S.C. 5121, to include a
notification requirement. Congress also directed the Department to
address certain hazmat transportation matters through rulemaking:
(a) Notice of Enforcement Measures--Section 5121(c)(1) is
amended--
(1) in subparagraph (E), by striking ``and'' at the end;
(2) in subparagraph (F), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(G) shall provide to the affected offeror, carrier, packaging
manufacturer or tester, or other person responsible for the package
reasonable notice of--
``(i) his or her decision to exercise his or her authority under
paragraph (1);
``(ii) any findings made; and
``(iii) any actions being taken as a result of a finding of
noncompliance.''.
(b) Regulations--
(1) Matters To Be Addressed--Section 5121(e) is amended by
adding at the end the following:
``(3) Matters To Be Addressed--The regulations issued under this
subsection shall address--
``(A) the safe and expeditious resumption of transportation of
perishable hazardous material, including radiopharmaceuticals and
other medical products, that may require timely delivery due to
life-threatening situations;
``(B) the means by which--
``(i) noncompliant packages that present an imminent hazard are
placed out-of-service until the condition is corrected; and
``(ii) noncompliant packages that do not present a hazard are
moved to their final destination;
``(C) appropriate training and equipment for inspectors; and
``(D) the proper closure of packaging in accordance with the
hazardous material regulations.''.
(2) Finalizing Regulations--In accordance with section
5103(b)(2) of title 49, United States Code, not later than 1 year
after the date of enactment of this Act, the Secretary shall take
all actions necessary to finalize a regulation under paragraph (1)
of this subsection.
* * * * *
126 Stat. at 836-7.
As described further below, we believe that the Department's
current rules that were previously established through notice and
comment rulemaking and existing policies and operating procedures
thoroughly address the congressional mandates to address certain hazmat
transportation matters. In PHM-7, the Department established procedural
regulations for opening packages, removing packages from
transportation, and closing packages. These regulations include the
definition of key terms, including perishable hazardous material. The
regulations address how the Department's agents will handle non-
compliant packages that present an imminent hazard and those that do
not. Moreover, the rules address when and how the Department's agents
will open a package. And, if an agent opens a package, there are
procedural rules for closing the package and ensuring its safe
resumption of transportation, if applicable. In addition, the
Department developed an internal operations manual for training and use
by its hazmat inspectors and investigators across all modes of
transportation. The operations manual's guidance is intended to target
and manage the use of the enhanced inspection and enforcement authority
in a uniform and consistent manner within the Department. At this time,
we do not have any data or other information that indicate the rules,
policies, and
[[Page 30261]]
operating procedures currently in place are inadequate or that
additional regulations are necessary.
III. Summary of Proposals in This NPRM
In MAP-21 Congress directed the Secretary to address certain
transportation matters related to the Department's enhanced inspection,
investigation, and enforcement authority. The relevant MAP-21 mandates
for this rulemaking are:
Notice of enforcement measures;
The safe and expeditious resumption of transportation of
perishable hazardous material, including radiopharmaceuticals and other
medical products that may require timely delivery due to life-
threatening situations;
The means by which non-compliant packages that present an
imminent hazard are placed out-of- service until the condition is
corrected;
The means by which non-compliant packages that do not
present a hazard are moved to their final destination;
Appropriate training and equipment for inspectors; and
The proper closure of packaging in accordance with the
hazardous material regulations.
We are proposing in this rulemaking, as described further below, to
clarify the Department's position with respect to perishable hazardous
material, by amending the opening of packages provision of the
Department's hazardous materials procedural regulations for the opening
of packages, emergency orders, and emergency recalls. The amendment
recognizes the special characteristics and handling requirements of
perishable hazardous material by clarifying that an agent will stop or
open a package containing a perishable hazardous material only after
the agent has utilized appropriate alternatives. We are also proposing
to codify the statutory notification requirement in HMTSIA by
incorporating into the regulations the Department's current
notification procedures from the operations manual that was developed
in conjunction with the PHM-7 final rule. Finally, we are proposing to
add a new provision to address appropriate equipment for inspectors.
For the remaining mandates to address certain matters related to
the Department's enhanced inspection, investigation, and enforcement
authority, we are proposing no additional regulatory changes. We
believe that the Department's current rules that were previously
established through notice and comment rulemaking and existing policies
and operating procedures thoroughly address the hazmat transportation
matters identified by Congress. For instance, in a prior rulemaking,
the Department established, in Part 109, procedural regulations for
opening packages, removing packages from transportation, and closing
packages. These regulations include the definition of key terms,
including perishable hazardous material. The regulations address how
the Department's agents will handle non-compliant packages that present
an imminent hazard and those that do not. Moreover, the rules address
when and how the Department's agents will open a package. And, if an
agent opens a package, there are procedural rules for closing the
package and ensuring its safe resumption of transportation, if
applicable. In addition, the Department developed an internal
operations manual for training and use by its hazmat inspectors and
investigators across all modes of transportation. The operations
manual's guidance is intended to target and manage within the
Department the use of the enhanced inspection and enforcement authority
in a uniform and consistent manner. At this time, we do not have any
data or other information that indicate the rules, policies, and
operating procedures currently in place are inadequate or that
additional rulemaking is necessary.
Notice of Enforcement Measures
In PHM-7, we established procedures to implement the enhanced
inspection, investigation, and enforcement authority conferred on the
Secretary through HMTSSRA. In the NPRM for that rule, in response to
commenters' concerns about notifying offerors and consignees about a
possible delay in arrival, we agreed that all parties responsible for a
shipment that is opened or removed from transportation need to be
notified of the action taken. We said that ``DOT inspectors will be
required to communicate the findings made and enforcement measures
taken to the appropriate offeror, recipient, and carrier of the package
. . .''. 73 FR 57288. In the final rule, we outlined how we would
notify affected parties when an agent exercises one of the new
authorities. 76 FR 11580. In the preamble to the final rule, we
explained that the notification procedures would be incorporated into
the Department's joint operations manual. Id. The notification
procedures that we developed for the joint operations manual address
situations where an agent may exercise a 49 CFR Part 109 authority for
a package that is in transit. In this case, the person in possession of
the package, such as a carrier, may not be the person responsible for
the package, i.e. the offeror. Therefore, we set out separate
procedures for immediately notifying the person in possession and the
original offeror. Generally, the agent will verbally notify the person
in possession. If the person in possession is not the original offeror,
the agent will also take reasonable measures to notify the original
offeror.
In MAP-21 Congress added a notification requirement to the
Department's inspection and investigation authority. Specifically,
Section 5121(c)(1) was amended to include new subparagraph (G). Section
5121(c)(1) now reads:
``(c) Inspections and investigations.--
(1) In general.--A designated officer, employee, or agent of the
Secretary--
* * * * *
(G) shall provide to the affected offeror, carrier, packaging
manufacturer or tester, other person responsible for the package
reasonable notice of--
(i) his or her decision to exercise his or her authority under
paragraph (1);
(ii) any findings made; and
(iii) any actions being taken as a result of a finding of
noncompliance.
126 Stat. at 836-7.
We are proposing in this rulemaking to codify this statutory
notification requirement by incorporating into the regulations the
Department's current notification procedures from the joint operations
manual. As discussed above, the joint operations manual includes
procedures and guidance to agents for providing notice of enforcement
measures taken under 49 CFR part 109. The procedures in the manual are
comprehensive and comport with the statutory mandate. As such, under
this proposal, a new notification section will be added to part 109,
subpart B of 49 CFR. It will require that an agent, after exercising a
49 CFR part 109 inspection or investigation authority, immediately take
reasonable measures to notify the appropriate person of the reason for
the action being taken, the results of any preliminary investigation
including apparent violations of the HMR, and any further action that
may be warranted.
The Safe and Expeditious Resumption of Transportation of Perishable
Hazardous Material
We addressed the opening, reclosing, and resumption of
transportation of perishable hazardous material in a previous
rulemaking. In PHM-7, we defined ``perishable hazardous material'' as
``a hazardous material that is subject to significant risk of speedy
decay, deterioration, or spoilage, or
[[Page 30262]]
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 meets a critical medical
need.'' 76 FR 11592 (codified at 49 CFR Sec. 109.1). Further, we
established procedures for reclosing a package containing a perishable
hazardous material and its safe and expeditious resumption of
transportation. Section 109.13 contains the requirements for the
closing of packages and the safe resumption of transportation,
including a specific requirement pertaining to perishable hazardous
material.
We believe the definition of perishable hazardous material and the
rules, current procedures, and guidance already developed for reclosing
packages, sufficiently address Congress' concern and the need for
expeditious treatment of these types of materials. We also note that in
the Department's joint operations manual, we have significantly
restricted an agent's ability to handle or open a package containing
perishable hazardous material. For example, an agent must have been
trained in the handling of the specific material and may only open a
perishable hazardous material package in a designated facility, if
required, and have all safety equipment, handling equipment, and
materials to properly close the package. Notwithstanding, in order to
clarify the Department's position with respect to perishable hazardous
material, we are proposing to amend the opening of packages provision
of the Department's hazardous materials procedural regulations for the
opening of packages, emergency orders, and emergency recalls. The
amendment recognizes the special characteristics and handling
requirements of perishable hazardous material by clarifying that an
agent will stop or open a package containing a perishable hazardous
material only after the agent has utilized appropriate alternatives.
In consideration of the special characteristics and handling
requirements of perishable hazardous material, we are proposing to
establish a Department policy that its agents will not intentionally
open packages containing perishable hazardous material unless a
compelling safety need exists. However, in accordance with our current
procedures, an agent may stop, remove, or have a package containing
these types of materials transported to a facility for further
examination and analysis. We solicit comments from the public whether
excluding these types of materials is appropriate.
Handling of non-compliant packages
In MAP-21 Congress mandated that the Department take all actions
necessary to finalize a regulation addressing the means by which non-
compliant packages are processed when an agent exercises an authority
under Part 109. Specifically, Section 5121(e) was amended to include
new paragraph (3). The relevant amendment to Section 5121(e) includes
the following language:
* * * * *
(3) Matters to be addressed.--The regulations issued under this
subsection shall address--
* * * * *
(B) the means by which--
(i) noncompliant packages that present an imminent hazard are
placed out-of-service until the condition is corrected; and
(ii) noncompliant packages that do not present a hazard are
moved to their final destination.
* * * * *
126 Stat. at 837.
The Department's procedural rules for opening of packages,
emergency orders, and emergency recalls are in 49 CFR part 109. These
procedures address the means by which a non-compliant package that is
found to be an imminent hazard is placed out-of-service. Specifically,
in Sec. 109.13, if an imminent hazard is found to exist after an agent
opens a package, the operating administration's authorized official may
issue an out-of-service order prohibiting the movement of the package.
49 CFR 109.13(b). The package must be removed from transportation until
it is brought into compliance. Id. An out-of-service order is a type of
emergency order. In 49 CFR, subpart C of part 109 contains the
procedural regulations for issuing an out-of-service emergency order,
including procedures for administrative review, reconsideration, and
appellate review of an emergency order. Furthermore, the joint
operations manual provides inspection personnel with step-by-step
procedures and additional guidance for issuing an out-of-service order.
For example, at least two levels of review and consultation with the
operating administration's legal office is required before an emergency
order can be issued. Moreover, the operations manual addresses
documentation requirements, notification, service, publication, and
termination requirements.
Regarding non-compliant packages that do not present a hazard, it
is important to note that a non-compliant package may not continue in
transportation until all identified non-compliant issues are resolved.
49 CFR 109.13(d). In the PHM-7 final rule where we established the
enhanced enforcement procedures, we stated that for a non-compliant
package, the agent would not close the package and that there is no
obligation to bring that package into compliance. 76 FR 11587. Further,
we stated, ``[t]he Department's operating administrations will not be
responsible for bringing an otherwise non-compliant package into
compliance and resuming its movement in commerce.'' Id. We reasoned
that if the package does not conform to the HMR at the time of
inspection, the act that a DOT official opened it in the course of an
inspection or investigation will not make DOT or its agent responsible
for bringing the package into compliance. Id.
In light of the above, we have already fulfilled the applicable
mandate for the handling of non-compliant packages and no further
action is required.
Appropriate Training and Equipment for Inspectors
Congress recognized that ``[t]here is currently no uniform training
standard for hazardous materials (`hazmat') inspectors and
investigators.'' H. Conf. Rep. No. 112-557 at 610 (2012). To address
this problem, it mandated in MAP-21 that the Secretary establish
uniform performance standards for training hazmat inspectors and
investigators no later than eighteen months from the date of enactment
of the Act. 126 Stat. at 836. The mandate authorizes the development of
guidelines for hazmat inspector and investigator qualifications; best
practices and standards for hazmat inspector and investigator training
programs; and standard protocols to coordinate investigation efforts
among Federal, State, and local jurisdictions on accidents or incidents
involving the transportation of hazardous material. In order to achieve
a uniform hazmat training standard, Congress required that the
standards, protocols, and guidelines developed would be mandatory to
the Department's multimodal personnel conducting hazmat enforcement
inspections and investigations.
Additionally, Congress mandated that the Department take all
actions necessary to finalize a regulation, no later than one year from
the date of enactment of the Act, addressing appropriate training and
equipment for inspectors when exercising an authority under 49 CFR Part
109. Specifically, Section 5121(e) was amended to include new paragraph
(3). The relevant
[[Page 30263]]
amendment to Section 5121(e) includes the following language:
* * * * *
(3) Matters to be addressed.--The regulations issued under this
subsection shall address--
* * * * *
(C) appropriate training and equipment for inspectors; and
* * * * *
126 Stat. at 837
Although the MAP-21 mandates here are training related, it is
evident that the development of a uniform training scheme is essential
because it will establish the foundation upon which future training for
hazmat inspectors and investigators is expected to follow. As such, it
is premature to require the Department to promulgate enforcement
procedural regulations for hazmat training and equipment before the
Department has had the opportunity to develop uniform performance
training standards. This approach does not appear to be the best way to
meet Congress' objective to ensure that all hazmat inspectors and
investigations receive uniform and standardized training. It would be
more appropriate for the Department to establish the uniform
performance training standards, best practices, and protocols before it
develops additional training regulations for its hazmat personnel. This
would ensure that new training rules are consistent with the uniform
training scheme.
Notwithstanding, we understand that proper training of inspectors
and investigators is essential to ensure that the enhanced enforcement
authority is used effectively and judiciously. In the NPRM for PHM-7,
we explained that the operating administrations responsible for
enforcement of the HMR--PHMSA, FMCSA, FAA, and FRA--worked together to
develop the rule and a joint operations manual. 73 FR 57285. We further
explained that the proposed regulations set out a framework for the
procedures the operating administrations will employ when conducting
inspections or investigations, thus ensuring consistency in approaches
and enforcement measures among modes of transportation. Moreover, we
stated that the final rule, implemented with the guidance of an
operational manual, would ensure that this authority was properly used.
Id. We expressed our confidence in this approach because with the
cooperation of the operating administrations in the development of the
rule, and the accompanying operations manual, it meant that all
Department inspectors and investigators would have the same general
training and modal specific instruction. 73 FR 57288.
Regarding equipment, we are proposing to add a new provision to
address appropriate equipment for inspectors when they exercise a Part
109 authority. Under this proposal, a new equipment section will be
added to new Subpart D--Equipment, requiring an agent to use the
appropriate safety, handling, and other equipment authorized by his or
her operating administration's equipment requirements for hazardous
material inspectors and investigators.
Consequently, we do not believe that we should develop rules for
appropriate training in this rulemaking. Instead, we advocate
addressing any performance standards as part of the larger hazardous
materials performance standard development activity currently underway.
In the meantime, we believe the existing rules in 49 CFR Part 109 and
the attendant operational procedures in the joint operations manual, as
well as each operating administration's specific guidance for its
enforcement staff, sufficiently address the training concern identified
by Congress in the MAP-21 directive. Therefore, PHMSA does not believe
that further action is necessary at this time.
The Proper Closure of Packaging in Accordance With HMR
In MAP-21 Congress mandated that the Department take all actions
necessary to finalize a regulation addressing ``the proper closure of
packaging in accordance with the hazardous material regulations.'' 126
Stat. at 837.
In PHM-7 we addressed reclosing of packages opened under the
enhanced inspection, investigation, and enforcement authority. In
several of the comments that we received about that rulemaking, the
regulated community raised concerns about how we were going to reclose
packages after they have been opened under the new authority. In the
NPRM, we responded by stating that the Department was developing
internal operational procedures and guidance to address the proper
closure of packaging in accordance with the HMR. We also solicited
further comment from the public on the factors that should be
considered in the development of these procedures and guidance. 73 FR
57286. However, we also stated that an agent's obligation to reclose a
package only arose if, after opening the package, an imminent hazard
was found not to exist and the package otherwise complied with the HMR.
76 FR 11587. More importantly, we also said that the Department's
operating administrations would not be responsible for bringing an
otherwise non-specification or non-compliant package into compliance
and resuming its movement in commerce. Id. If the package did not
comply with the HMR the fact that a DOT official opened it in the
course of an inspection or investigation would not make DOT or its
inspector responsible for bringing the package into compliance. Id. In
the final rule, we significantly revised the new rule for closing
packages to cover each possible re-closure scenario: no imminent hazard
found; imminent hazard found; package does not contain a hazardous
material; and package contains a hazardous material not in compliance
with the HMR. Id. Further, we stated that the inspector would only be
required to reclose a package in accordance with the packaging
manufacturer's closure instructions or other appropriate method when a
package was opened and no imminent hazard was found. Id. In the joint
operations manual we developed procedures for properly closing a
package. These procedures include steps for reclosing a package. It
also includes additional requirements and procedures to complete the
re-closure process, including methods to thoroughly document the
activities performed.
In light of the above, we believe the existing requirements in 49
CFR Part 109 for closing opened packages (Section 109.13) and the
attendant operational procedures in the joint operations manual
sufficiently address the matter identified by Congress in the MAP-21
directive. Therefore, no further action is necessary.
IV. Summary Review of Proposed Amendments
We are proposing to amend the opening of packages provision of the
Department's hazardous materials procedural regulations for the opening
of packages, emergency orders, and emergency recalls. The amendment
recognizes the special characteristics and handling requirements of
perishable hazardous material by clarifying that an agent will stop or
open a package containing a perishable hazardous material only after
the agent has utilized appropriate alternatives. We are also proposing
to add a notification provision to 49 CFR under Part 109 Subpart B--
Inspections and Investigations. The provision will provide for the
immediate and reasonable notification of enforcement action taken by an
inspector or
[[Page 30264]]
investigator whenever he or she exercises one of the inspection and
investigation authorities under 49 CFR Part 109, Subpart B, which
includes the opening of packages; removing a package and related
packages in a shipment from transportation; directing a package to be
transported to a facility for examination and analysis; and authorizing
properly qualified personnel to assist in activities conducted under
Subpart B. The notice will include the reason for the action being
taken, the results of any preliminary investigation including apparent
violations of the HMR, and any further action that may be warranted.
Finally, we are proposing to add a new provision to address appropriate
equipment for inspectors when they exercise a Part 109 authority. The
new equipment section will be added to 49 CFR under new Subpart D--
Equipment. The provision will require an agent to use the appropriate
safety, handling, and other equipment authorized by his or her
operating administration's equipment requirements for hazardous
material inspectors and investigators.
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This notice of proposed rulemaking (NPRM) is published under the
authority of the Federal Hazardous Materials Transportation Law, 49
U.S.C. Sec. 5101 et seq. Section 5103(b) authorizes the Secretary to
prescribe regulations for the safe transportation, including security,
of hazardous material in intrastate, interstate, and foreign commerce.
This NPRM would revise PHMSA's procedural regulations for opening of
packages, emergency orders, and emergency recalls to address certain
matters identified in the Hazardous Materials Transportation Safety Act
of 2012 related to Department's enhanced inspection, investigation, and
enforcement authority. The NPRM carries out the statutory mandate and
clarifies DOT's role and responsibilities in ensuring that hazardous
materials are being safely transported and promoting the regulated
community's understanding and compliance with regulatory requirements
applicable to specific situations and operations.
B. Executive Order 13610, Executive Order 13563, Executive Order 12866,
and DOT Regulatory Policies and Procedures
This NPRM is not considered a significant regulatory action under
section 3(f) Executive Order 12866 and, therefore, was not reviewed by
the Office of Management and Budget (OMB). The proposed rule is not
considered a significant rule under the Regulatory Policies and
Procedures order issued by the U.S. Department of Transportation (44 FR
11034).
Executive Order 13563 is supplemental to and reaffirms the
principles, structures, and definitions governing regulatory review
that were established in Executive Order 12866 Regulatory Planning and
Review of September 30, 1993. Executive Order 13563, issued January 18,
2011, notes that our nation's current regulatory system must not only
protect public health, welfare, safety, and our environment but also
promote economic growth, innovation, competitiveness, and job
creation.\2\ Further, this executive order urges government agencies to
consider regulatory approaches that reduce burdens and maintain
flexibility and freedom of choice for the public. In addition, federal
agencies are asked to periodically review existing significant
regulations, retrospectively analyze rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and modify,
streamline, expand, or repeal regulatory requirements in accordance
with what has been learned.
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\2\ See https://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulatory-review-executive-order
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Executive Order 13610, issued May 10, 2012, urges agencies to
conduct retrospective analyses of existing rules to examine whether
they remain justified and whether they should be modified or
streamlined in light of changed circumstances, including the rise of
new technologies.\3\
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\3\ See https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf
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By building off of each other, these three Executive Orders require
agencies to regulate in the ``most cost-effective manner,'' to make a
``reasoned determination that the benefits of the intended regulation
justify its costs,'' and to develop regulations that ``impose the least
burden on society.''
This proposed rule revises 49 CFR part 109, which contains
regulations on DOT inspection and investigation procedures. These
regulations are not part of the HMR, which govern the transportation of
hazmat, thus they do not carry any additional compliance requirements
or costs for entities that must comply with the HMR. It is possible,
however, that some carriers or shippers, who in the absence of this
rule would have refused to open a package when requested, may
experience delays that they would not have otherwise faced. DOT is not
aware of any cases of shippers or carriers refusing to open packages
and so anticipates that these costs will be minimal.
C. Executive Order 13132
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132
(``Federalism''). 49 U.S.C. 5125(h) provides that the preemption
provisions in Federal hazardous material transportation law do ``not
apply to any procedure . . . utilized by a State, political subdivision
of a State, or Indian tribe to enforce a requirement applicable to the
transportation of hazardous material.'' Accordingly, this proposed rule
has no preemptive effect on State, local, or Indian tribe enforcement
procedures and penalties, and preparation of a federalism assessment is
not warranted.
D. Executive Order 13175
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this NPRM does
not significantly or uniquely affect the communities of the Indian
tribal governments and does not impose substantial direct compliance
costs, the funding and consultation requirements of Executive Order
13175 do not apply.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have
significant impact on a substantial number of small entities. I hereby
certify that the proposed rule will not have a significant economic
impact on a substantial number of small entities. This proposed rule
applies to offerors and carriers of hazardous materials, some of which
are small entities; however, there will not be any economic impact on
any person who complies with Federal hazardous materials law and the
regulations and orders issued under that law.
Potentially affected small entities. The provisions in this
proposed rule will apply to persons who perform, or cause to be
performed, functions related to the transportation of hazardous
materials in transportation in commerce. This includes offerors of
hazardous materials and persons in physical control of a hazardous
material during transportation in commerce. Such
[[Page 30265]]
persons may primarily include motor carriers, air carriers, vessel
operators, rail carriers, temporary storage facilities, and intermodal
transfer facilities. Unless alternative definitions have been
established by the agency in consultation with the Small Business
Administration, the definition of ``small business'' has the same
meaning as under the Small Business Act (15 CFR parts 631-657c).
Therefore, since no such special definition has been established, PHMSA
employs the thresholds (published in 13 CFR 121.201) of 1,500 employees
for air carriers (NAICS Subgroup 481), 500 employees for rail carriers
(NAICS Subgroup 482), 500 employees for vessel operators (NAICS
Subgroup 483), $18.5 million in revenues for motor carriers (NAICS
Subgroup 484), and $18.5 million in revenues for warehousing and
storage companies (NAICS Subgroup 493). Of the approximately 116,000
entities to which this proposed rule would apply (104,000 of which are
motor carriers), we estimate that about 90 percent are small entities.
Potential cost impacts. This proposed rule revises 49 CFR Part 109,
which contains regulations on DOT inspection and investigation
procedures. These regulations are not part of the HMR, which govern the
transportation of hazmat, thus they do not carry any additional
compliance requirements or costs for entities that must comply with the
HMR. It is possible, however, that some carriers or shippers, who in
the absence of this rule would have refused to open a package when
requested, may experience delays that they would not have otherwise
faced. DOT is not aware of any cases of shippers or carriers refusing
to open packages and so anticipates that these costs will be minimal.
Alternate proposals for small business. Because this proposed rule
addresses a Congressional mandate, we have limited latitude in defining
alternative courses of action. The option of taking no action would be
both inconsistent with Congress' direction and undesirable from the
standpoint of safety and enforcement. Failure to implement the new
authority will perpetuate the problem of undeclared hazardous material
shipments and resulting incidents or releases. It will also leave PHMSA
and other operating administrations without an effective plan to abate
an imminent safety hazard.
F. Paperwork Reduction Act
PHMSA has analyzed this final rule in accordance with the Paperwork
Reduction Act of 1995 (PRA). The PRA requires Federal agencies to
minimize the paperwork burden imposed on the American public by
ensuring maximum utility and quality of federal information, ensuring
the use of information technology to improve government performance,
and improving the federal government's accountability for managing
information collection activities. This final rule contains no new
information collection requirements subject to the PRA.
G. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
H. Unfunded Mandates Reform Act of 1995
This proposed rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141.3 million or more to either state, local or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
I. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347), and implementing regulations by the Council on
Environmental Quality (40 CFR part 1500) require Federal agencies to
consider the consequences of Federal actions and prepare a detailed
statement on actions that significantly affect the quality of the human
environment.
The purpose of this rulemaking is to amend the Department's
existing enforcement procedures to (1) to clarify the Department's
position with respect to perishable hazardous material, by amending the
opening of packages provision; (2) provide notice of enforcement
measures to affected parties; and (3) address appropriate equipment for
inspectors. Because this NPRM addresses Congressional mandates, we have
limited latitude in defining alternative courses of action. The option
of taking no action would be both inconsistent with Congress' direction
and undesirable from the standpoint of safety and enforcement. These
inspection and enforcement procedures will not change the current
inspection procedures for DOT, but will augment DOT's existing
enforcement procedures and allow the Department to respond immediately
and effectively to conditions or practices that pose serious threat to
life, property, or the environment. PHMSA has initially determined that
the implementation of the proposed rule will not have any significant
impact on the quality of the human environment. PHMSA, however, invites
comments about environmental impacts that the proposed rule might pose.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) which may be
viewed at: https://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.
List of Subjects in 49 CFR Part 109
Inspections and investigations. Equipment.
In consideration of the foregoing, 49 CFR Chapter I is proposed to
be amended as follows:
PART 109--DEPARTMENT OF TRANSPORTATION HAZARDOUS MATERIALS
PROCEDURAL REGULATIONS FOR OPENING OF PACKAGES, EMERGENCY ORDERS,
AND EMERGENCY RECALLS
0
1. The authority citation for part 109 is revised to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Sec. 4
(28 U.S.C. 2461 note); Pub. L. 104-121 Sec. Sec. 212-213; Pub. L.
104-134 Sec. 31001; 49 CFR 1.81, 1.97.
0
2. In Sec. 109.5, a new paragraph (b) is added to read as follows:
Sec. 109.5 Opening of packages.
* * * * *
(b) Perishable hazardous material. To ensure the expeditious
transportation of a package containing a perishable hazardous material,
an agent will utilize appropriate alternatives before exercising an
authority under paragraph (a).
0
3. Section 109.16 is added to read as follows:
Sec. 109.16 Notification of Enforcement Measures.
In addition to the notification requirements in Sec. 109.7, an
agent, after exercising an authority under this
[[Page 30266]]
Subpart, will immediately take reasonable measures to notify the
offeror and the person in possession of the package, providing the
reason for the action being taken, the results of any preliminary
investigation including apparent violations of subchapter C of this
chapter, and any further action that may be warranted.
0
4. Subpart D is added to read as follows:
Subpart D--Equipment
Sec. 109.25 Equipment.
When an agent exercises an authority under Subpart B, the agent
shall use the appropriate safety, handling, and other equipment
authorized by his or her operating administration's equipment
requirements for hazardous material inspectors and investigators.
Issued in Washington, DC, on May 13, 2013, under authority
delegated in 49 CFR Part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2013-12123 Filed 5-21-13; 8:45 am]
BILLING CODE 4910-60-P
