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



[[Page 11569]]

Vol. 76

Wednesday,

No. 41

March 2, 2011

Part II





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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49 CFR Part 109



Hazardous Materials: Enhanced Enforcement Authority Procedures; Rule

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

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 109

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


Hazardous Materials: Enhanced Enforcement Authority Procedures

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

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 2, 2008, the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) published a notice of proposed rulemaking (NPRM) 
under Docket No. PHMSA-2005-22356 proposing to issue rules implementing 
certain inspection, investigation, and enforcement authority conferred 
on the Secretary of Transportation by the Hazardous Materials 
Transportation Safety and Security Reauthorization Act of 2005 
(HMTSSRA). In this final rule, the agency is finalizing its procedures 
for implementing its enhanced enforcement authority.
    Under authority delegated by the Secretary of Transportation 
(Secretary), four agencies within DOT enforce the Hazardous Materials 
Regulations (HMR), 49 CFR parts 171-180 and other regulations, 
approvals, special permits, and orders issued under Federal Hazardous 
Materials Transportation Law (Federal hazmat law), 49 U.S.C. Sec. Sec.  
5101 et seq.: (1) Federal Aviation Administration (FAA), 49 CFR 
1.47(j)(1); (2) Federal Railroad Administration (FRA), 49 CFR 
1.49(s)(1); (3) Federal Motor Carrier Safety Administration (FMCSA), 49 
CFR 1.73(d)(1); and (4) PHMSA, 49 CFR 1.53(b)(1). The Secretary has 
delegated authority to each respective operating administration to 
exercise the enhanced inspection and enforcement authority conferred by 
HMTSSRA. 71 FR 52751, 52753 (Sept. 7, 2006). The United States Coast 
Guard (USCG) is authorized to enforce the HMR in connection with 
certain transportation or shipment of hazardous materials by water. 
This authority originated with the Secretary and was first delegated to 
USCG prior to 2003, when USCG was made part of the Department of 
Homeland Security. Enforcement authority over ``bulk transportation of 
hazardous materials that are loaded or carried on board a vessel 
without benefit of containers or labels, and received and handled by 
the vessel without mark or count, and regulations and exemptions 
governing ship's stores and supplies'' was also transferred in 2003 to 
the USCG. DHS Delegation No. 0170, Sec. 2(99) & 2(100); see also 6 
U.S.C. Sec. Sec.  457, 551(d)(2). DOT will coordinate its inspections, 
investigations, and enforcements with the USCG, through a Memorandum of 
Understanding (MOU) or otherwise, to avoid duplicative or conflicting 
efforts. Nothing in this final rule affects USCG's enforcement 
authority with respect to transportation of hazardous materials.

A. Need for Enhanced Enforcement Authority

    Each year, about three billion tons of hazardous materials are 
transported in the United States. United States Government 
Accountability Office, Undeclared Hazardous Materials: New DOT Efforts 
May Provide Additional Information on Undeclared Shipments, GAO-06-471, 
at 9 (March 2006) (GAO Report). Under the HMR, which prescribe 
appropriate packaging, hazard communication, and handling requirements, 
nearly all of these shipments move through the system safely and 
without incident. When incidents do occur, HMR-mandated labels and 
other forms of hazard communication provide transportation employees 
and emergency responders the information necessary to mitigate the 
consequences. These risk controls provide a high degree of protection; 
however, their effectiveness depends largely on compliance by hazmat 
offerors, beginning with proper classification and packaging of 
hazardous materials. When a package containing hazardous materials is 
placed in transportation without regard to HMR requirements, the 
effectiveness of all other risk controls is compromised, increasing 
both the likelihood of an incident and the severity of consequences. 
Accordingly, DOT has long considered undeclared shipments of hazardous 
materials to be a serious safety issue.
    Hidden hazardous materials pose a significant threat to 
transportation workers, emergency responders, and the general public. 
By definition, an undeclared shipment is one that is not marked, 
labeled, accompanied by shipping documentation, or otherwise identified 
as hazardous materials. See 49 CFR 171.8 (definition of undeclared 
hazardous material). Experience demonstrates that undeclared hazardous 
materials are more likely to be packaged improperly and, consequently, 
more likely to be released in transportation. Moreover, it is likely 
that terrorists who seek to use hazardous materials to harm Americans 
would move those materials as hidden shipments. Accordingly, although 
the presence of undeclared hazardous materials by no means demonstrates 
wrongful intent, DOT cannot expect to target willful violations and 
security threats by limiting inspections and enforcement to declared 
shipments. One way to address the problem of undeclared shipments is to 
permit a DOT agent to open and examine packages suspected to contain 
hazardous materials. It is the experience of most enforcement programs 
that when asked to open a package, the offeror or regulated industry 
generally opens it voluntarily. DOT generally operates under the 
assumption that it already possesses the implicit authority, by virtue 
of our enforcement authority, to open packages that the person in 
possession refuses to open without the passage of HMTSSRA. However, the 
new statutory authority implemented here explicitly grants that 
authority. This authority will not change the current inspection 
procedures for DOT

[[Page 11571]]

and is not likely to result in additional packages being opened. In 
addition to the discovery of undeclared shipments, the statutory 
authority also provides DOT with a tool to identify declared hazardous 
materials shipments that nonetheless may not have been prepared in 
accordance with all existing HMR requirements.
    Although a great deal of attention has been given to the package 
opening portion of the statutory authority and its implementing portion 
of the regulation, the authority to issue emergency orders, 
restrictions, prohibitions, and recalls in response to imminent hazards 
is the most transformative to DOT's enforcement programs. Imminent 
hazards, by definition, require immediate intervention to reduce the 
substantial likelihood of death, serious illness, severe personal 
injury, or a substantial endangerment to health, property, or the 
environment. Prior to the enactment of HMTSSRA, DOT could obtain relief 
against a hazmat safety violation posing an imminent hazard only by 
court order. Even with such a threat present, the DOT operating 
administration was required to enlist the Department of Justice (DOJ) 
to file a civil action against the offending party, seeking a 
restraining order or preliminary injunction. As a practical matter, 
judicial relief could rarely be obtained before the hazardous 
transportation movement was complete. The streamlined administrative 
remedies implemented in this rulemaking will materially enhance our 
ability to prevent unsafe movements of hazardous materials and reduce 
related risks.

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

    On August 10, 2005, the President signed the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU), which included the HMTSSRA as Title VII of the statute, 
119 Stat. 1891. Section 7118 of HMTSSRA (Section 7118) revised 49 
U.S.C. 5121, inserting procedures for enhanced enforcement authority, 
including the ability to open the outer packaging of packages believed 
to contain hazardous materials and authority to remove hazardous 
material shipments from transportation believed to pose an imminent 
hazard.
    Congress enacted HMTSSRA in part to combat the problem of 
undeclared hazardous materials shipments. While Section 7118 enhances 
DOT's authority to discover undeclared hazardous materials shipments, 
the clear language of this statutory authority is not limited to 
undeclared shipments. On a broader scale, Section 7118 promotes the 
Department's inspection and enforcement authority ``to more effectively 
identify hazardous materials shipments and to determine whether those 
shipments are made in accordance with the [H]azardous [M]aterials 
[R]egulations.'' H. Conf. Rep. No. 109-203, at 1079 (2005), reprinted 
in 2005 U.S.C.C.A.N. 452, 712. Congress reasoned that the Department 
needed enhanced inspection and enforcement authority to ensure that 
``DOT officials * * * have the tools necessary to accurately determine 
whether hazardous materials are being transported safely and in 
accordance with the relevant law and regulations.'' H. Conf. Rep. No. 
109-203, at 1081, 2005 U.S.C.C.A.N. at 714. Section 7118 carries out 
this directive by authorizing DOT employees to: (1) Access, open and 
examine a package (except for the packaging that is immediately 
adjacent to the suspected hazardous material's contents) that is 
offered for, or is in transportation in commerce, when those employees 
have an objectively reasonable and articulable belief that the shipment 
may contain a hazardous material and does otherwise not comply with 
this Chapter; (2) remove the package from transportation if it is 
determined that the shipment may pose an imminent hazard; (3) order the 
shipment to be transported, opened, and tested at an appropriate 
facility, as necessary; and (4) permit the shipment to resume its 
transportation when an inspection does not identify an imminent hazard.

II. Notice of Proposed Rulemaking

    On October 2, 2008, PHMSA published a notice of proposed rulemaking 
(NPRM) (73 FR 57281) to propose procedures to implement the expanded 
enforcement authority conferred in HMTSSRA. As proposed, these 
procedures would apply to hazardous materials safety compliance and 
enforcement activities conducted by PHMSA, FAA, FRA, and FMCSA 
inspection personnel. Specifically, PHMSA proposed procedures to enable 
DOT agents to open, detain, and remove a hazardous materials shipment 
from transportation in commerce, and order the package to be 
transported to a facility to analyze its contents. In addition, PHMSA 
proposed procedures for issuing emergency orders to address imminent 
hazards. As proposed, these procedures would apply in a number of 
contexts and circumstances:
     PHMSA proposed procedures under which an agent may open a 
package to determine whether it contains an undeclared hazardous 
material or otherwise does not comply with applicable regulatory 
requirements. These procedures would apply to the opening of an 
overpack, outer packaging, freight container, or other packaging 
component not immediately adjacent to the hazardous material. Agents 
would not open single packagings (such as cylinders, portable tanks, 
cargo tanks, or rail tank cars) nor would agents open the innermost 
receptacle of a combination packaging.
     PHMSA proposed procedures under which an agent could 
temporarily remove a package or related packages from transportation 
when the agent believed that the package posed an imminent hazard. Such 
a belief could arise from a compliance problem identified as a result 
of opening the package or from conditions observed through an 
inspection that does not include opening the package. As proposed, the 
agent could remove a package or related packages from transportation on 
his or her own authority provided he recorded his belief in writing. An 
agent could temporarily remove any type of package from transportation 
if he or she had a ``reasonable and articulable belief'' that the 
package posed an imminent hazard.
     PHMSA proposed procedures under which an agent could order 
the person in possession of or responsible for the package to transport 
the package and its contents to a facility that would examine and 
analyze its contents. An agent could issue such an order for any type 
of package or shipment, not merely those packages for which package 
opening is authorized. As proposed, the agent could issue this order on 
his own authority provided he documented his reasoning.
     PHMSA proposed procedures under which an agent could 
assist in preparing a package for safe and prompt transportation if, 
after a complete examination of a package initially thought to pose an 
imminent hazard, no imminent hazard was found. If the package had been 
opened, the agent would assist in reclosing the package in accordance 
with the packaging manufacturer's closure instructions or an alternate 
closure method approved by PHMSA, marking the package to indicate that 
it was opened and reclosed in accordance with DOT procedures, and 
returning it to the person from whom it was obtained.
     PHMSA proposed procedures for the issuance of an out-of-
service (OOS) order if, after complete examination of a package 
initially thought to pose an imminent hazard, an imminent hazard was 
indeed found to exist. The OOS

[[Page 11572]]

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

III. Summary of the Final Rule

    In this final rule, PHMSA is implementing statutory authority to 
establish procedures for issuing emergency orders to address imminent 
hazards. In addition, statutory authority for DOT agents during an 
inspection conducted under existing enforcement authority is also being 
implemented. These procedures will apply in a number of contexts and 
circumstances:
     An agent may open a package to determine whether it 
contains non-compliant shipments of hazardous materials when the agent 
has reason to believe that the package does not comply with regulatory 
requirements. These procedures apply to the opening of any packaging 
component not immediately adjacent to the hazardous material. Agents 
will not open single packagings (such as cylinders, portable tanks, 
cargo tanks, or rail tank cars) nor will agents open the innermost 
receptacle of a combination packaging. An agent will only open a 
package with cause and if the person in possession of the package 
refuses to open it.
     An agent may temporarily remove a package or shipment from 
transportation, or prevent its entering transportation, when the agent 
believes that the package or shipment may pose an imminent hazard. Such 
a belief may arise from a compliance problem identified as a result of 
opening the package or from conditions observed through an inspection 
that does not include opening the package. The agent may remove a 
package or related packages from transportation for up to 48 hours on 
his or her own authority provided he records in writing the basis for 
his belief that the package or related packages may pose an imminent 
hazard. This regulation implements statutory authority for DOT to take 
immediate action to remove a potentially dangerous package from 
transportation, rather than seeking a court order to stop a package.
     An agent may order the person in possession of or 
responsible for the package to transport the package and its contents 
to a facility that will examine and analyze its contents. An agent may 
issue such an order for any type of package. The agent may issue this 
order on his own authority provided he documents his reasoning and 
provides written notification for the reasons for removal.
     An agent will assist in preparing a package for safe and 
prompt transportation if, after a complete examination of a package 
initially thought to pose an imminent hazard, no imminent hazard is 
found. If the package has been opened, the agent will assist in 
reclosing the package in accordance with the packaging manufacturer's 
closure instructions marking the package to indicate that it was opened 
and reclosed in accordance with DOT procedures, and returning it to the 
person from whom it was obtained.
     An out-of-service (OOS) order will be issued if, after 
complete examination of any package, an imminent hazard is indeed found 
to exist. The OOS order effects the permanent removal of the package 
from transportation by prohibiting its movement until it has been 
brought into compliance with all applicable regulatory requirements. An 
emergency order will be issued when DOT determines that a non-compliant 
shipment or an unsafe condition or practice is causing an imminent 
hazard. The PHMSA, FAA, FMCSA, or FRA Administrator may issue an 
emergency order without advance notice or opportunity for a hearing. 
The emergency order may impose emergency restrictions, prohibitions, or 
recalls and may be issued for any type of packaging, not merely those 
for which package opening is authorized, and for any unsafe condition 
posing an imminent hazard, not merely unsafe conditions related to 
packaging.

IV. Discussion of Comments on the NPRM

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

A. Scope of the Rule

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

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

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

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

[[Page 11574]]

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

[[Page 11575]]

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

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

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

[[Page 11576]]

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

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

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

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

[[Page 11577]]

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

E. Opening and Reclosing Outer Packagings as Proposed

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

[[Page 11578]]

Perishable Hazmat/Pharmaceuticals
    NACD states that for pharmaceuticals and other perishable 
materials, if packages have been breached, customers will not accept 
them, even if they have DOT seals. Receivers in these cases demand 
original, manufacturer seals and consider any evidence of tampering, 
even if by government inspectors, as possible cause for the materials 
to be contaminated and unusable.
    PHMSA Response:
    Properly marked, labeled and packaged pharmaceuticals and other 
perishable hazardous materials will not be breached or delayed, as 
there would be no reason for them to undergo further scrutiny. If a 
pharmaceutical package is improperly packaged or otherwise not in 
compliance, it should not continue in transportation, with or without 
this enhanced enforcement authority. Needless to say, distributors of 
sensitive pharmaceuticals and other perishable materials must be 
especially diligent in adhering to the packaging, marking and labeling 
requirements to avoid package breaches that result from errors in the 
packaging requirements and communication standards that are integral to 
the HMR. Because the scope of the package opening authority has been 
limited in the final rule, unless an agent believes that the packages 
do not conform to the HMR, these packages will not be opened.
Perishable Medical Products
    RSCC comments that products in this industry are specially packed, 
marked, labeled, and documented, and the carriers operate under special 
DOT controls and limitations. Thus, both the shipper and carrier can 
respond to questions about subject packages in a prompt manner, without 
the need to delay or stop the shipment.
    PHMSA Response:
    This rule is designed to address those packages that are undeclared 
or not properly packaged, marked, labeled, or documented. Packages such 
as those described in RSSC's comment, i.e., compliant shipments, would 
not fall under scrutiny and no delays would occur to those shipments.
    We also agree with RSCC's comment that declared nuclear medical 
packages must be handled with the utmost care and caution, and have 
provided accordingly in the internal operations manual. We cannot, 
however, except radioactive medical packages from the scope of this 
authority, as radioactive materials are regulated under the HMR. 
Radioactive materials also cannot be exempted from the regulations by 
operation of a special permit under 49 CFR part 107 subpart B, as 
special permits are issued on the basis that there is an equivalent 
level of safety or it is consistent with the public interest and 
protects against the risks to life and property should radioactive 
materials be exempted from the HMR for the purposes of this regulation. 
This burden would not be met. The rule, as provided in the definition 
of perishable hazardous material and through Sec.  109.13(a)(4), 
sufficiently addresses the expeditious treatment of perishable 
hazardous material.
Leaking Packages
    ATA comments that if an agent opens a package that is leaking and 
suspected of containing undeclared hazardous materials, it would be 
inconsistent with the statutory limitation on opening packages that are 
adjacent to the hazardous materials. If a package has visible signs of 
a breach and release of hazardous materials, then by definition the 
outer packaging is now adjacent to the hazardous materials and may not 
be opened by the agent. In such a situation, for the safety of all 
present, ATA recommends only a trained emergency responder should 
handle the leaking package.
    PHMSA Response:
    We agree that a package with visible indications of a breach and/or 
release of hazardous materials may not be opened. Evidence of leakage, 
however, may be one of the facts leading an agent to detain the 
shipment, remove it from transportation altogether, or if the case 
requires, seek immediate assistance from emergency responders. Again, 
we must reiterate that DOT agents will not open packages simply because 
the authority exists in the rule, without parameters and justifying 
circumstances, especially at the cost of safety of all individuals 
present in such situations. We have added appropriate precautions to 
the operating manual.
Reclosing Packages
    RIPA states that there is potential conflict between reclosing a 
package in accordance with manufacturer's instructions and following a 
PHMSA-approved method: When an agent opens a freight container or, in 
some cases, an overpack, that is not covered by the HMR, he will not 
have access to closure instructions, since none are required by DOT. In 
these cases, the agent will have no option but to close the package in 
accordance with an approved PHMSA method. RIPA suggests proposed Sec.  
109(b)(4)(v) be amended by adding a new second sentence, as follows: 
``If a package does not meet a DOT specification or UN standard, the 
agent shall close it using an approved PHMSA closure method.''
    PHMSA Response:
    If a package is not packaged or otherwise prepared in accordance 
with existing regulatory requirements under the HMR and the Federal 
hazmat law, DOT is under no obligation to bring the non-compliant 
package into compliance. In Sec.  109.13, each possible re-closure 
scenario is discussed in detail. It appears that RIPA's concern is 
sufficiently addressed in the newly created provision, Sec.  109.13(a), 
when it has been determined that the package is in compliance and an 
imminent hazard is found not to exist: ``The agent shall assist in 
preparing the package for safe and prompt transportation, when 
practicable, by reclosing the package in accordance with the packaging 
manufacturer's closure instructions or other appropriate closure 
method. Packages certified and reclosed subject to Part 109 will not be 
subject to testing requirements under 49 CFR Part 178 until the package 
has reached its final destination, or is returned to the offeror or 
packaging manufacturer.'' In instances where the opening and re-closing 
is done at a fixed facility, where the offeror is present, the agent 
shall assist in preparing the package for transportation. On occasions 
where the opening and reclosing of a package that is later determined 
to be compliant is in the possession of a carrier, and the offeror is 
not present, the agent will reclose the package accordingly to resume 
transportation.
    Dow poses the question: If a package is opened, tested, re-closed 
and then found to be leaking when it is offered back into 
transportation or when it arrives at the consignee's facility, who will 
ultimately be liable? UPS comments that an agent should have full 
responsibility for reclosing a shipment, not just assisting, as a 
carrier may lack the expertise regarding packaging requirements.
    PHMSA Response:
    First, with respect to Dow's questions regarding reclosing a 
package following testing, PHMSA must clarify that only packages that 
are opened subject to Sec.  109.5, i.e., opened and examined at the 
time of inspection, will be reclosed by, or with the assistance of, the 
DOT agent. Packages that are ordered transported to another facility 
for further examination and testing under Sec.  109.9, will not be 
reclosed by the agent. The offeror of the package at the time of 
testing will be responsible for preparing the package for continued 
transportation or disposal upon conclusion of testing, as appropriate. 
Simply stated, a package ordered for

[[Page 11579]]

testing to determine its chemical composition will not be reclosed and 
offered back into transportation under this authority.
    Second, with respect to UPS's proposal that the agent assumes full 
responsibility for reclosing a shipment following an enhanced 
inspection, should a carrier lack the expertise regarding packaging 
requirements, the agent will be able to make sure the packaging is 
properly reclosed. Agents may need to reclose or assist in reclosing 
packages during inspections involving carriers more so than when an 
inspection takes place at a fixed facility (such as a manufacturer's or 
offeror's facility) where the offeror, who is the party responsible for 
the proper packaging and hazard communication, is present to reclose 
the package.
    As we explained in detail in the NPRM, DOT does not bear financial 
responsibility for private costs related to the exercise of enhanced 
inspection and enforcement authority. Under the discretionary function 
exception, the Federal Tort Claims Act (FTCA) would bar any common law 
tort action against the Department based on such activities. See 73 FR 
57287.

F. Ordering the Transportation of a Package for Further Examination

    ATA expresses concern that proposed Sec.  109.3(b)(4)(iv), 
authorizing under certain circumstances, an agent to order the 
transportation of a package to a facility to be opened and examined, 
will lead to agents ordering motor carriers to transport undeclared 
hazardous materials shipments, or otherwise ordering motor carriers to 
move packages that are out of compliance with the HMR. ATA further 
contends that before ordering the further transportation of a package 
in accordance with proposed Sec.  109.3(b)(4)(iv), the agent should 
have an objectively reasonable and articulable belief that the package 
may contain a hazardous material, and the same belief that the package 
may pose an imminent hazard. ATA states that this prerequisite is 
articulated in the enabling statute, while also requiring an agent to 
contemporaneously document his reasonable and articulable belief.
    PHMSA Response:
    The rule does not state, nor does it imply, that an agent will 
direct an undeclared hazmat shipment or a non-compliant hazardous 
material shipment to be transported. Only if the agent cannot determine 
the contents of the package, or if it would be more feasible to have 
the package contents analyzed elsewhere and to avoid further delays, 
would the package be transported to a facility capable of such further 
examination. If an imminent hazard is found to exist, a package will 
not be transported any further by anyone. It will be ordered out of 
service immediately. If the package posing an imminent hazard has been 
removed from a larger shipment, the remainder of the otherwise 
compliant shipment may continue in transportation.
    Section 5121(c)(1)(E) states that an agent ``as necessary, under 
terms and conditions specified by the Secretary, may order the offeror, 
carrier, packaging manufacturer or tester, or other person responsible 
for the package to have the package transported to, opened, and the 
contents examined and analyzed, at a facility appropriate for the 
conduct of such examination and analysis * * *.'' An imminent hazard 
need not be present for an agent to order a package to be transported, 
opened, and examined. Section 5121(c)(1)(E) stands apart from Sec.  
5121(c)(1)(B) (which provides for the opening of packages) and (C) 
(which provides for the removal of packages from transportation when 
they may pose an imminent hazard), and thus is not a corollary of 
either provision. The statute states that, as necessary under specified 
terms and conditions, an agent may order the package to be moved. The 
corresponding regulatory provision, formerly Sec.  109.3(b)(4)(iv) in 
the NPRM, has been revised in the final rule. In consideration of ATA's 
comment, PHMSA has attempted to specify the situations in which this 
authority may be used. This provision is now located at Sec.  109.9, 
Transportation for examination and analysis, and states that if an 
agent determines that further examination of a package is necessary, if 
there is conflicting information, or if it is otherwise necessary to 
determine compliance of a package, the agent may direct a package to be 
transported to a facility for further examination and analysis.
    An agent may consider removing a package from a shipment in 
transportation when he or she believes the package may pose an imminent 
hazard, but for some reason, the agent does not have all of the 
information necessary in order for his/her operating administration's 
qualifying official to make a determination of an imminent hazard. For 
example, there is conflicting or missing information about the material 
or packaging, or examination and analysis of the material or packaging 
is needed to determine compliance. In most situations, a removal is 
limited to 48 hours. Furthermore, exercising this authority will 
minimize the burden on commerce by allowing the rest of an otherwise 
conforming shipment to continue in transportation.
    When an agent determines that further examination of the material 
is required, he or she may have the package transported to a testing 
facility. However, this authority will likely be used sparingly. For 
example, before deciding to use this authority, an agent will need to 
identify a facility capable of performing the proper examination and 
analysis and consider the facility's location, and whether the 
suspected package can be safely transported to the facility. In most 
instances, the agent should be able to identify a qualified facility 
based on his or her own professional experience and assistance from 
his/her operating administration.
    IME questioned how any package presenting an imminent hazard can be 
ordered to be moved.
    PHMSA Response:
    This comment assumes that an imminent hazard is a prerequisite for 
the ordering of the transportation of the package for further 
examination; that Sec.  109.3(b)(4)(iv) necessarily precedes (v). 
However, these regulatory provisions are not mutually inclusive. The 
purpose of Sec.  109.3(b)(4) was to list all of the options available 
to an agent, to be used alone or in tandem with other provisions in 
Sec.  109.3(b)(4). In the final rule, the regulatory text has been 
revised and reorganized to illustrate this point more clearly.
    The point of these procedures is to provide a way for DOT to 
prevent and immediately address violations of the existing regulations 
that rise to the urgency of an imminent hazard. Proposed Sec.  
109.3(b)(4)(v) (now Sec.  109.9) would likely come into play where an 
agent may not be able to determine immediately that a package is in 
compliance, or where there are indications that the labels on a package 
do not accurately reflect the contents, or where shipping papers are 
inconsistent with the package, etc. Nevertheless, the purpose of the 
provision is not to place an undue burden on a carrier by forcing it to 
transport a non-compliant package. Rather, it is an option for the 
agent when a conclusive examination cannot be made at the time the 
package is observed due to logistics, timing, location, or other 
similar factors; and in the interest of safety of all parties involved, 
it would be best to have the package opened, analyzed, or tested 
elsewhere.
Compensation for Costs in the Transportation and Testing of a Package
    In the NPRM, PHMSA explained how responsibility for costs would be

[[Page 11580]]

determined if a package is ordered to be transported and analyzed at 
another facility pursuant to Sec.  109.3(b)(4)(iv). The operating 
administration requiring the testing will pay for the transportation 
and analysis of the material if the package is found to be in 
compliance with the HMR. If the material is found to be packaged in 
violation of the HMR, the costs for the transportation and analysis of 
the material may be taken into consideration at the time any civil 
penalty is assessed against the party responsible for the violation 
(usually the offeror). ATA comments that the compensation of costs for 
the transportation and analysis of a subject package should be included 
in the regulatory text.
    PHMSA Response:
    We decline to adopt the compensation structure as part of the 
regulatory text, as it remains an administrative matter that is not 
integral to carry out subsections (c) (Inspections and investigations) 
and (d), (Emergency orders) of Sec.  5121, which is the substantive 
focus of this authority and the basis for the Department's rulemaking 
authority. Once this regulation is in effect, DOT will not compensate 
parties for monetary losses incurred for packages subject to an 
emergency order as it is related to our exercise of inspection and 
enforcement authority. For a detailed discussion of the discretionary 
function exception under the Federal Tort Claims Act (FTCA), please see 
relevant portions of the NPRM. 73 FR 57287. The probability of packages 
projected to be found in compliance after opening is relatively low. 
These are projections, but it is likely that the numbers may be even 
lower once the regulation is implemented.
Directing a Retail Store Owner Not Engaged in the Transportation of 
Hazardous Materials to Move the Hazmat
    A number of retail shipping store owners provided the same or 
similar comments. We refer to their comments under the group name, 
storefront retail owners. Storefront retail owners suggest that in a 
scenario where undeclared hazmat is found during an inspection at their 
stores, and should DOT direct store staff to move it, stores would face 
liability because they cannot legally or safely transport hazmat. 
National Alliance of Retail Ship Centers (NARSC) expressed similar 
concern that the rule may cause employees to repack or hold hazmat 
packages at retail shipping stores, or to transport such packages from 
store locations. NARSC states that such actions will cause stores to 
violate their leases, franchise agreements, and local zoning laws; 
transportation of hazmat is also beyond the scope of their abilities.
    PHMSA Response:
    We realize that retail shipping stores do not have the capability 
to transport hazardous materials. Our agents will not direct a carrier, 
business, or offeror to transport a questionable shipment where it is 
not a feasible and safe option, either because a facility is not 
equipped to do so, or if doing so would endanger the people in the 
area, or would otherwise exacerbate a potentially dangerous situation. 
When in doubt, retail shipping stores should contact the offeror to 
safely transport the package.
Notice to Offeror
    Several commenters (ATA, Dow, Fed Ex, IME and MDS Norton) suggest 
that shippers and recipients should be notified immediately each time 
their packages are detained and/or opened. They suggest this could be 
done by sending an alert to the shipper's emergency response contact.
    PHMSA Response:
    We agree that notice should be given to the offeror and this type 
of provision has been incorporated into the operations manual. The 
operating administration will take every reasonable effort to 
immediately notify the recipient that the order has been issued and 
provide a copy of the order (without attachments) by facsimile or 
electronic mail. With regard to the person in possession of the 
package: Generally, the removal order and the sticker the agent affixes 
to the package(s) is adequate notification. However, when practicable, 
the agent should provide to the person with custody of the package 
copies of the documentation and evidence used to obtain the removal. 
With regard to the original offeror: If the person with custody and 
control of the package is not the original offeror, the agent should 
immediately take reasonable measures to notify the original offeror of 
the removal. In addition, reasonable measures should also be taken to 
supply the original offeror with copies of any documentation that was 
provided to the person with custody and control of the package. A 
telephone call, facsimile, or e-mail message are some examples of 
reasonable measures for satisfying the notification requirement.
    NACD recommends that the agent provide immediate notification that 
the shipment will be held as well as how long it is expected to be 
held. This will allow the carrier to more effectively communicate with 
the shipper and receiver about the delay.
    PHMSA Response:
    We will make every effort to notify the offeror once a decision has 
been made to issue an emergency order and remove the package from 
transportation.

G. Liability for Undeclared and Non-Compliant Shipments Identified 
Through Sec.  109.3 Inspections and Investigations

Liability of Retail Shipping Stores
    Storefront retail owners contend that they face the risk of legal 
action from their customers if DOT inspectors conduct any inspection in 
their stores without a warrant or probable cause. Moreover, they state 
that allowing DOT to open and discover undeclared hazmat packages would 
cause them to be in violation of their lease agreements, local zoning 
laws, carrier contracts and franchise agreements.
    Storefront retail owners further argue that the liability and 
expenses for non-compliant hazmat packages should be on the actual 
shipper, not on the business that serves as a drop-off location between 
the carriers and their customers. NARSC is concerned that the liability 
falls on store owners if the inspection of a package results in a 
damaged, delayed or canceled shipment. NARSC also states that retail 
stores are prohibited by carriers from shipping or accepting hazmat, 
but at the same time, required to accept drop-off packages from 
shippers for which the store becomes liable if these packages contain 
undeclared hazmat. And finally, storefront retail owners and NARSC 
suggest that a special classification be created for the retail 
shipping channel.
    PHMSA Response:
    With respect to the retail store owners' concern regarding DOT 
inspections without a warrant or probable cause, as stated previously 
in the NPRM, because the hazardous materials transportation industry is 
closely regulated, those engaged in the industry have a reduced 
expectation of privacy. U.S. v. V-1 Oil Company, 63 F.3d 909, 911 (9th 
Cir. 1995), cert. denied, 517 U.S. 1208 (1996). Therefore, DOT is 
authorized under 49 U.S.C. 5121(c) to conduct warrantless and 
unannounced inspections of an entity that offers or transports 
hazardous material in commerce to determine its level of compliance 
with the Federal hazmat law and HMR under the administrative search 
doctrine. Id. at 913. See also 73 FR 57285.
    PHMSA understands the commenters' underlying concern for how this 
final rule may impact their daily operations.

[[Page 11581]]

As stated previously, DOT will not conduct investigative activities in 
unsuitable locations. Indeed, inspections at a retail shipping store 
may happen only in rare circumstances as the package opening authority 
may only be exercised during inspections arising under existing 
authority under the HMR and Federal Hazmat law. It is unclear how 
compliance with this final rule would violate store owners' private 
agreements or contracts, or conflict with local zoning laws; however, 
retail store owners may need to renegotiate agreements to accommodate 
compliance with this Federal regulation as necessary if they feel this 
final rule may impact such operations. It should be noted, however, 
that contractual negotiations between private parties and municipal 
land use policy are beyond the scope of this final rule.
    The retail shipping stores face a situation similar to carriers in 
that because they are not the original offerors, they must rely on the 
information given to them by the shipper, but face the possibility of 
having to deal with a problem package while it is in their possession. 
The HMR generally do not apply to retail shipping stores that do not 
accept hazardous materials shipments. Retail shipping stores will not 
be responsible for unknowingly accepting hazmat shipments at their 
stores if there are no indications through marking, labeling, shipping 
documentation, or any other means in accepting the package indicating 
that it contains hazardous materials. The store may rely on information 
provided by the person offering the package for transportation unless 
it knows (or a reasonable person acting in the circumstances and 
exercising reasonable care would have knowledge) that the information 
provided is incorrect. If the retail shipping store accepts shipments 
that may contain hazardous material, its staff must be able to 
recognize such shipments and its proper handling or preparation of 
hazard communication. With that in mind, employees of such shipping 
stores are strongly recommended to receive training on the recognition 
of possible hazardous materials shipments.
    Nonetheless, an offeror who fails to properly declare a shipment of 
hazardous materials bears the primary responsibility for a non-
compliant or undeclared shipment. Whenever hazardous materials have not 
been shipped in accordance with the HMR, DOT will generally attempt to 
identify and bring an enforcement proceeding against the person who 
first caused the transportation of a non-compliant shipment. A special 
classification, therefore, is not necessary, as retail shipping stores 
are not offerors. If a retail shipping store discovers undeclared 
hazardous materials, it should contact the offeror immediately to 
retrieve the package and ship it accordingly.
Liability of Carriers
    In that same vein, ATA comments that a motor carrier, who did not 
prepare the package and did not participate in the opening of the 
package, should not be held liable for injuries that result to 
inspectors or others in the vicinity of packages that are opened if the 
motor carrier did not knowingly accept the undeclared hazardous 
material for transportation and did not choose to participate in the 
opening of the package. Similarly, Ameriflight, LLC (Ameriflight) 
comments that air cargo operators are limited in their ability to 
assist in opening suspect packages because of privacy and delivery 
integrity concerns. Therefore, if an FAA inspector requires a package 
opening, it must be on FAA's authority alone, and the FAA must be 
prepared to assume liability for downstream problems such as items 
missing from high-value shipments.
    PHMSA Response:
    Refusing to open a package may be the carrier's prerogative, but 
that alone does not end a carrier's responsibility. Although a carrier 
may not knowingly accept undeclared hazmat, that in and of itself does 
not absolve a carrier from its existing obligations under the HMR. A 
carrier who transports hazmat in commerce may rely on information 
provided by the offeror unless the carrier knows, or a reasonable 
person, acting in the circumstances and exercising reasonable care, 
would have knowledge that the information provided by the offeror is 
incorrect. Therefore, a carrier cannot ignore a package that clearly 
does not contain what it claims to contain; is not packaged, marked, 
labeled, or documented properly; or otherwise raises red flags as to 
its contents. A carrier, as a person who transports hazardous material 
under 49 CFR 171.1(c), is subject to the existing requirements under 
the HMR (49 CFR 172.700) to be trained to recognize and identify 
hazardous materials, and have knowledge of emergency response 
information, self protection measures and accident prevention methods 
and procedures as it did before this regulation.
Air Carrier Industry
    Air carriers in particular bear responsibility for accepting 
declared shipments of hazardous materials in violation of 49 CFR 
175.30, which requires air carriers to conduct an inspection ensuring 
that the shipment is, among other things, within quantity limitations, 
accompanied by shipping papers that properly describe the material, and 
is marked, labeled and packaged in accordance with the HMR. An air 
carrier's failure to conduct a proper inspection could result in a 
violation of 49 CFR 175.30 or 175.3, which prohibits an air carrier 
from offering or accepting for transportation, or transportation aboard 
an aircraft, hazardous materials that are not prepared for shipment in 
accordance with 49 CFR part 175.
Packaging Manufacturers, Reconditioners, and Distributors
    RIPA is concerned that packaging manufacturers, reconditioners, and 
distributors may be subject to DOT enforcement actions in the event of 
a hazardous materials release from packaging opened, closed and 
returned to transportation by a DOT agent.
    PHMSA Response:
    If a release is caused by a packaging failure, then the responsible 
party may face enforcement action under DOT's existing statutory 
authority (49 U.S.C. 5121). If there is evidence that a subsequent 
release was caused by the actions of a DOT agent, such evidence would 
be a defense to an enforcement action assigning blame for the failure 
upon the shipper or carrier. We reiterate: If a package complies with 
the HMR, it will not be stopped, opened, or put out of service. If a 
package is opened based upon an objectively reasonable and articulable 
belief that there is a violation of the HMR, and then deemed to be 
compliant upon further investigation, the package will be closed 
according to manufacturer's closing instructions or otherwise made safe 
for transportation and returned to the stream of commerce. If the 
package is found not to contain hazardous material, it will not require 
the same specified closures as a hazmat package, but will be closed as 
securely as possible and returned to the stream of commerce.
    If a packaging was correctly manufactured, reconditioned, or 
distributed, there should be no further issues and there would likely 
be no reason for it to be opened, or subject to an emergency 
restriction, prohibition, or recall. However, if the package itself 
fails to contain the hazardous materials

[[Page 11582]]

as prescribed by the HMR, and there is a subsequent release, 
responsibility for the cause of the failure will have to be determined 
based upon all available information. We cannot, and must not, grant 
preemptive exemptions from responsibility to any party under the HMR, 
least of all in the abstract.

H. Comments Particular to Motor Carrier Industry

    NACD expressed concern that enhanced inspections under this rule 
could result in FMCSA hours-of-service issues for drivers if these 
inspections take too long.
    PHMSA Response:
    We are mindful of hours-of-service considerations and will make 
every effort to ensure these inspections and investigations will cause 
a minimal interruption of time. As inspections generally occur at fixed 
facilities, the delay to one package should not delay any others, 
because it can be removed from the rest of the shipment, so there 
should be no effect on hours of service from exercising any authority 
under this rule. There is a negligible additional time added to 
inspections as a result of this rule, because agents always ask for 
packages to be opened and are rarely, if ever, refused. Additional time 
to open if refused will be only seconds.
    ATA supports PHMSA's ability to issue out-of-service (``OOS'') 
orders that prohibit the movement of a package that poses an imminent 
hazard until that package has been rendered safe for continued 
transportation. ATA also requests that any OOS orders should not be 
factored into a motor carrier's safety rating, nor should it be 
included in the motor carrier's hazardous materials OOS rate, which is 
used to determine a motor carrier's ability to obtain a federal 
hazardous materials safety permit under 49 CFR Part 385.
    PHMSA Response:
    Out-of-service orders (OOS) issued under this imminent hazard 
authority may affect a motor carrier's safety rating or its ability to 
obtain or renew a hazardous material safety permit under FMCSA's Safety 
Fitness Procedures (49 CFR Part 385). Violations that result in an OOS 
order are considered under FMCSA's current safety rating methodology 
and are also used to calculate OOS rates that are a qualifying factor 
for obtaining a hazardous material safety permit. See 49 CFR 385.7 
(safety rating factors), 49 CFR part 385, App. B (Explanation of Safety 
Rating Process), and 49 CFR 385.407(a)(2)(iii) (What conditions must a 
motor carrier satisfy for FMCSA to issue a safety permit?). Any single 
OOS order issued under this rule would not, alone, affect a carrier's 
safety rating or safety permit issuance. OOS orders issued under this 
rule, however, would be considered along with any other type of OOS 
order that the Agency or its State partners might issue for a serious 
safety violation committed by a motor carrier. The commenters seek to 
have OOS orders issued under authority of the final rule excluded from 
consideration. DOT's position is that these OOS orders should be 
considered in the same manner that FMCSA currently considers these 
types of serious violations. This regulation would not change the 
manner in which a motor carrier's HM OOS rate is calculated. Note that 
such OOS rates currently are examined only when a motor carrier is 
undergoing a compliance review or applying for an initial or renewed 
safety permit. Only carriers transporting certain types and amounts of 
HM must obtain an HM safety permit, which must be renewed every two 
years. 49 CFR 385.403; 49 CFR 385.419.
    Objections to the consideration of these OOS criteria under the 
relevant FMCSA regulations are outside the scope of this rulemaking.
Former Sec.  109.3(b)(4)(v)--Qualified Personnel To Assist (Sec.  
109.11 Assistance of Properly Qualified Personnel)
    ATA expresses concern regarding the possibility that an agent may 
``authorize qualified personnel to assist'' in the opening of packages 
and their removal from transportation. ATA states that considering the 
scope of the training provided to motor carrier employees and the lack 
of appropriate personal protective equipment, motor carrier employees 
are not qualified to assist in such activities.
    PHMSA Response:
    As defined in Sec.  109.1, ``properly qualified personnel'' refers 
to entities who are technically qualified to perform designated tasks 
necessary to assist in the opening, removing, testing, or transporting 
of packages. We agree, as a general matter, that many motor carrier 
employees would not be considered properly qualified personnel and 
would not be required to assist the agent in the above situations.

I. Drafting Corrections

    UPS and DGAC point out that throughout most of the proposed 
regulatory text, we used the defined term ``agent,'' however, in two 
places the terminology changes to ``inspector.'' First, the commenters 
note that proposed Sec.  109.3(b)(5) refers to an ``inspector'' 
returning a package found not to pose an imminent hazard and similarly, 
Sec.  109.3(b)(6) references an ``inspector'' exercising an authority 
under paragraph (b)(4).
    PHMSA Response:
    We agree that cited references to the term ``inspector'' should be 
changed. For consistency, the term ``inspector'' has been replaced with 
the term ``agent'' throughout the final rule.
    Noting the definitions of the terms ``movement'' and 
``transportation'' in 49 CFR 171.8, DGAC comments that Sec.  
109.3(b)(6) ``correctly cites `movement' early in the text, and later 
cites `transportation' which, if retained, would create an 
impossibility.''
    PHMSA Response:
    The provision formerly located at proposed Sec.  109.3(b)(6) is now 
Sec.  109.13(b), Imminent hazard found. The HMR define ``movement'' as 
``the physical transfer of a hazardous material from one geographic 
location to another by rail car, aircraft, motor vehicle, or vessel.'' 
49 CFR 171.8. The HMR define ``transportation'' as ``the movement of 
property and loading, unloading, or storage incidental to that 
movement.'' Id. Further, the HMR provide that ``[t]ransportation in 
commerce begins when a carrier takes physical possession of the 
hazardous material for the purpose of transporting it and continues 
[with certain exceptions] until the package containing the hazardous 
material is delivered to the destination indicated on a shipping 
document, package marking, or other medium.'' Id. at 171.1(c). The HMR 
also define ``transportation'' to include movement, as well as loading, 
unloading, and storage incidental to movement. Id. In other words, 
``movement'' is actually one subset of actions or activities that 
comprise ``transportation'' and accordingly, the two terms as utilized 
in proposed Sec.  109.3(b)(6) do not conflict.
    If an imminent hazard is found to exist, pursuant to Sec.  
109.13(b), the Administrator may issue an out-of-service order 
prohibiting the ``movement'' of the package until the package has been 
brought into compliance. In other words, the immediate effect of an OOS 
order is to stop the further movement of the package (i.e., stop the 
physical transfer of a package from one geographic location to 
another). The same paragraph further provides that upon receipt of the 
out-of-service order, the person in possession of, or responsible for, 
the package shall remove the package from ``transportation'' until it 
is brought into compliance. In other words, the package may not be 
moved, loaded, unloaded or stored incidental to transportation, or 
otherwise reenter the stream of commerce until it is brought into 
compliance. We also note that the

[[Page 11583]]

language of Sec.  109.13(b) is consistent with the language of 49 
U.S.C. 5121(c)(3) (providing for the safe and prompt ``resumption of 
transportation'' of a package found not to present an imminent hazard). 
Therefore, PHMSA believes the terminology used in the section is an 
accurate summation of how an OOS order should operate when this 
regulation goes into effect.

J. Proposed Sec.  109.5--Emergency Orders

Who Issues Emergency Orders
    DGAC expresses concern that DOT agencies may have differing views 
on the meaning and application of imminent hazard criteria and 
inspection procedures. Therefore, DGAC supports the concept of one 
place to appeal an emergency order. In addition, DGAC suggests there be 
an emergency contact available at the agency to address immediate 
issues related to emergency orders.
    PHMSA Response:
    The joint operations manual will provide guidance to address 
consistency in enforcement. Moreover, each operating administration 
will provide emergency contact information in conjunction with the 
issuance of emergency orders issued under Part 109.
Internal Agency Review of Decisions To Issue Emergency Orders
    RSCC and AHS request more details about the internal system of 
review by DOT management and counsel before an emergency order is 
issued. In particular, AHS states that in the NPRM, an 
``Administrator'' is defined to include ``any person within an 
operating administration to whom an Administrator has delegated 
authority to carry out this part,'' which leads them to conclude that 
emergency order authority may be delegated down to the agent/inspector 
level without further review.
    PHMSA Response:
    Although each operating administration may make minor adjustments 
to the delegations to its enforcement personnel, there will always be 
at least two levels of review above an agent before an emergency order 
may be issued. Therefore, an agent who observes that a package may 
present an imminent hazard will document such a belief in writing. At 
the same time, he will be in contact with his first line supervisor. 
That first line supervisor will then contact the headquarters 
enforcement manager and the modal administration's Chief Counsel's 
office for consultation on whether an emergency order should be issued. 
At a minimum, there will be two levels of review above the agent's 
level before an emergency order is issued under this rule, and always 
in consultation with the appropriate Chief Counsel's office. The time 
it takes to issue an emergency order may vary by operating 
administration and the type of emergency order sought. For a leaking 
package, issuance of an emergency order may be issued nearly 
contemporaneously with the inspection. For more complicated situations, 
such as a recall of defective packaging, it may take several hours or 
days for DOT to complete the required due diligence to confirm an 
imminent hazard determination and authorize an emergency order.
    There is also a defined appeal process in Sec. Sec.  109.17 and 
109.19 to ensure that the emergency order was not issued in error, and 
to present a respondent with the opportunity to challenge the agency's 
action once the emergency has been abated.

K. Out-of-Service Orders and Notification of the Agent

    Proposed Sec.  109.3(b)(6)(i), the substance of which is now 
located at Sec.  109.17(b), provides that a package subject to an out-
of-service order may be moved from the place where it was found to 
present an imminent hazard to the nearest location where it can be 
brought into compliance as long as the carrier notifies the agent who 
issued the OOS order. This is not a new regulatory requirement; rather, 
it gives the carrier the option of moving a package to the nearest 
location where it can be brought into compliance. DGAC proposes that 
this notification should be available anytime on a 24-hour basis.
    PHMSA Response:
    PHMSA agrees with this suggestion and has revised Sec.  109.17(b) 
to reflect that an agent may be notified on a 24-hour basis before a 
package subject to an OOS order is moved. In imminent hazard 
situations, timeliness is of the utmost importance and the process of 
bringing an offending package to a location where the imminent hazard 
can be abated should not be unduly delayed. Accordingly, all parties 
should act expeditiously with respect to the offending package.

L. Miscellaneous Comments

Training
    Ameriflight asks how the industry will be compensated for the 
extensive training that will be needed for operators and contract 
ground personnel to comply with this rule.
    PHMSA Response:
    It is unclear what Ameriflight envisions as additional training 
under the HMR for carriers when this rule becomes effective. We 
reiterate that this regulation creates no new regulatory requirements 
for carriers, offerors, and any other person subject to the HMR. 
Carriers will continue to be subject to training requirements under 49 
CFR Sec.  172.700 for operators and contract ground personnel 
performing hazmat functions, but this rule imposes no additional 
training requirement on persons subject to the HMR.
Limited Use of Enhanced Authority
    NACD urges DOT to use this authority as sparingly as possible. If 
packages are properly marked, inspections to search for non-compliance 
inside should be limited as much as possible to prevent disruption. 
NACD also suggests that this authority only be exercised by certain 
operating administrations, such as FAA because many undeclared 
shipments are transported by air.
    PHMSA Response:
    PHMSA agrees with NACD that packages that are accompanied with 
shipping papers, properly marked, labeled, and packaged may raise no 
further concern and would likely not be opened to search for non-
compliance. As stated previously, only when there are observable 
indications that the package may not be compliant (package appearance, 
conflicting information between the shipping papers and the markings on 
the package, identity of offeror or carrier, an odor emanating from a 
container, and anonymous tips) will it be subject to opening.
    With the additional safeguard of a reasonable and articulable 
belief that a package does not comply with the regulations, only 
packages suspected of non-compliance may be opened. As stated 
previously, DOT generally operates under the assumption that it already 
possesses the implicit authority, by virtue of our enforcement 
authority, to open packages that the person in possession refuses to 
open without the passage of HMTSSRA. The statutory authority 
implemented in this final rule explicitly grants that authority. 
However, it is the experience of most enforcement programs that when 
asked to open a package, the regulated industry generally opens it 
voluntarily. Therefore, it appears that package opening component of 
this statutory authority will be used only rarely.
    The procedures adopted in this final rule are intended to ensure 
that this enhanced enforcement authority is exercised judiciously and 
under carefully defined and controlled conditions. The rule makes clear 
that wholesale opening of packages is not allowed. DOT agents cannot 
and should

[[Page 11584]]

not open everything, as inspections would take much longer to conduct 
if this were the case. The statute limits opening to combination 
packagings only. This is primarily for the safety of the agent and 
those present during an inspection, as it could be dangerous to have 
individuals exposed to potentially unknown hazardous materials if 
allowed to open outer packaging right down to the material itself, such 
as opening a 55-gallon drum full of chemicals. By only opening packages 
that may contain hazardous materials and believed to be non-compliant, 
DOT is able to make better use of its enforcement staff while 
preserving the safety of all involved.
    With respect to NACD's suggestion that the use of this authority be 
limited to certain operating administrations, PHMSA respectfully 
disagrees. The agency would not be serving the public interest by 
isolating this authority to certain modes of transportation while not 
remaining vigilant in all of them. Moreover, this would create an 
inequitable disparity in enforcement among the transportation industry.
Preemption
    Some commenters (DGAC, ATA, IME, COSTHA) express concern that state 
entities may begin implementing this authority and believe that DOT 
should preempt state and local enforcement authority.
    PHMSA Response:
    As stated previously in the NPRM, the statute does not provide 
preemption authority. This enhanced enforcement authority under the 
statute is granted only to Federal agents.
Contractual Issues
    ATA expressed concern that the rule does not address how 
contractual issues between motor carrier and shipper should be resolved 
in the event that freight is damaged or delayed during an enhanced 
inspection, or later refused by the offeror after such an inspection. 
ATA also suggests an alternate inspection process, moving the 
inspection to the consignor/consignee's facility.
    PHMSA Response:
    As a Federal agency charged with a safety mission, DOT does not 
endeavor to regulate private contractual matters between carriers and 
shippers. To the extent it is practicable, we agree that moving the 
inspection to the consignor/consignee's facility may be beneficial and 
will be attempted if practicable and if it may be accomplished without 
compromising the safety of those involved. The location of inspections 
will not change as a result of this regulation. All enforcement 
activities will continue to proceed as they do now. DOT agents will now 
have an extra tool to inspect compliance with the HMR, but the premise 
for conducting inspections (enforcement authority under 49 U.S.C. 
5121), the locations at which they are conducted (generally fixed 
facilities), and the regulations under which the industry must comply 
(HMR), remained unchanged by this regulation.
    Agents will continue to follow current operational procedures to 
conduct investigations and inspections. Although it is generally not a 
common practice for an agent to open a package during an investigation 
or inspection, this authority will allow them to do so, as necessary. 
Currently, most inspections are conducted at fixed facilities and do 
not involve disruption of a shipment while in transit; we do not 
foresee changes to this practice. Also, certain rule limitations and 
procedures such as opening only non-complaint packages; notification 
requirements and the 48 hour rule; and removal procedures allowing for 
a shipment to continue in transportation will effectively limit where 
and when a package will be opened. Again, the intention of this 
enhanced authority is not to unduly delay commerce without cause; 
rather, it is a calculated effort to detect non-compliant shipments 
that could potentially harm people, property or the environment.

V. Section-by-Section Analysis

    In this final rule, PHMSA adds Part 109 to Title 49, Code of 
Federal Regulations, prescribing standards and procedures governing the 
exercise of enhanced inspection and enforcement authority by DOT 
operating administrations. Below is an analysis of the regulatory 
provisions.
Section 109.1 Definitions
    This section contains a comprehensive set of definitions. PHMSA 
includes these definitions to clarify the meaning of important terms as 
they are used in the text of this proposed rule. Several terms 
introduce concepts new to the HMR. These definitions require further 
discussion as set forth below. As explained below, other terms defined 
in this rule are taken from the Federal hazmat law at 49 U.S.C. 5102 
and are used with their statutory meaning.
    Administrator and Agent of the Secretary or agent identify the 
parties authorized by delegation from the Secretary to carry out the 
functions of the proposed rule. Administrator is defined as the head 
official of each operating administration within DOT to whom the 
Secretary has delegated authority under 49 CFR part 1 and any person 
employed by an operating administration to whom the Administrator has 
delegated authority to implement this rule. Similarly, Agent of the 
Secretary or agent means a Federal officer or employee, including an 
inspector, investigator, or specialist authorized by the Secretary or 
Administrator to conduct inspections or investigations under the 
Federal hazmat law and HMR. Thus, the rule does not apply to state 
personnel.
    Chief Safety Officer or CSO refers to the Assistant Administrator 
for PHMSA who is appointed in competitive service by the agency's 
Administrator. See 49 U.S.C. 108(e).
    Emergency order is defined as an emergency restriction, 
prohibition, recall, or out-of-service (OOS) order set forth in 
writing. (The term ``out-of-service order'' is defined below.) An 
emergency order provides extraordinary relief to address imminent 
hazard circumstances, including the agency's ability to order a company 
to immediately discontinue any or all operations related to an unsafe 
condition or practice causing an imminent hazard.
    Freight container is defined as it is defined in 49 CFR 171.8 with 
one minor modification--we have preceded the Sec.  171.8 definition 
with the phrase ``a package configured as''--to indicate that freight 
containers are considered packages within the scope of this regulation. 
It has been included in this section for clarity and ease of referral.
    This final rule defines the new term immediately adjacent to the 
hazardous material contained in the package means a packaging that is 
in direct contact with the hazardous material, or otherwise serves as 
the primary means of containment of the hazardous material.
    As defined by 49 U.S.C. 5102(5) imminent hazard means ``the 
existence of a condition that presents a substantial likelihood that 
death, serious illness, severe personal injury, or a substantial 
endangerment to health, property, or the environment may occur before 
the reasonably foreseeable completion date of a formal proceeding begun 
to lessen the risk of that death, illness, injury, or endangerment.'' 
49 U.S.C. 5102(5). Restated, an imminent hazard exists when any 
condition is likely to result in serious injury or death, or 
significant property or environmental damage if not discontinued 
immediately. Cf. Sen. Rep. No. 98-424, at 12 (1984), reprinted in 1984 
U.S.C.C.A.N. 4785, 4796

[[Page 11585]]

(definition of ``imminent hazard'' under the Motor Carrier Safety Act).
    In writing is defined as the written expression of any actions 
related to this part, rendered in paper or digital format, and 
delivered in person; via facsimile, commercial delivery, U.S. Mail, or 
electronically. Given the expedited schedule of actions in the 
implementation of this regulation, all parties must be given 
flexibility in the rendering of documentation.
    This final rule includes the new term objectively reasonable and 
articulable belief and defines it as a belief based on discrete facts 
or indicia that provide a reasonable basis to believe or suspect that a 
shipment may contain a hazardous material. The NPRM includes a detailed 
discussion of the case law background and parameters of this standard, 
73 FR 57285.
    Out-of-service (OOS) order is defined as a written order issued by 
an agent of the Secretary prohibiting further movement or operation of 
an aircraft, vessel, motor vehicle, train, railcar, locomotive, 
transport vehicle, freight container, portable tank, or other package 
until certain conditions have been satisfied. An order is similar in 
concept and application to a special notice for repairs that FRA issues 
for freight cars, locomotives, passenger equipment, and track segments. 
See 49 CFR Part 216. OOS orders will essentially operate in the same 
way as FRA special notices in that an activity will be prohibited until 
all conditions for compliance are met. Similar to the OOS order 
provided for in this rule, FRA's regulations provide an appeal process 
for any party to whom a Special Notice for Repairs is issued to 
challenge the decision of the Inspector who issued the notice. See 49 
CFR 216.17.
    The definition covers transport vehicles and packages that are 
unsafe for further movement, requiring that the equipment be removed 
from transportation until repairs are made or safety conditions are 
met. PHMSA believes that an OOS order is appropriate when equipment or 
a shipment is unsafe for further service or presents an unreasonable or 
unacceptable risk to safety, creating an imminent hazard at a given 
instant.
    Packaging means a receptacle and any other components or materials 
necessary for the receptacle to perform its containment function in 
conformance with the minimum packing requirements of this subchapter. 
PHMSA has reconsidered the necessity of retaining a definition 
inconsistent with 49 CFR 171.8, and for purposes of clarity and 
consistency, the definition of ``packaging'' in this final rule is the 
same as the definition provided in 49 CFR 171.8.
    Perishable hazardous material refers to a hazardous material that 
may experience accelerated decay, deterioration, or spoilage. We 
envision etiologic agents, such as biological products, infectious 
substances, medical waste, and toxins as perishable commodities that 
will require special handling; however, in response to comments 
requesting the expansion of the definition to include other hazardous 
materials relevant to the medical industry, the definition was modified 
from the proposed definition to include packages consigned for medical 
use in the prevention, treatment, or cure of a disease or condition in 
human beings or animals where expeditious shipment and delivery meet a 
critical medical need. We believe the definition remains broad enough 
to capture the types of hazardous material requiring expedited handling 
as prescribed by statute (49 U.S.C. 5121(c)(3)).
    Properly qualified personnel means a company, partnership, 
proprietorship, or individual who is technically qualified to perform 
designated tasks necessary to assist an agent in inspecting, examining, 
opening, removing, testing, or transporting packages. A carrier would 
not be considered ``properly qualified personnel'' to assist in Sec.  
109.11; e.g., a truck driver, an airline pilot, a railroad engineer, or 
a warehouse fork-lift operator would not be required to assist the 
agent in his capacity.
    Remove means to keep a package from entering into the stream of 
transportation in commerce; to take a package out of the stream of 
transportation in commerce by physically detaining a package that was 
offered for transportation in commerce; or stopping a package from 
continuing in transportation in commerce. The term is defined to make 
clear that if a DOT agent has an objectively reasonable and articulable 
belief that a package may pose an imminent hazard, that agent is 
authorized to stop, detain, and prevent the further transportation in 
commerce of that package until the imminent hazard is abated. The basis 
for reasonable suspicion would center on the totality of circumstances 
experienced by the agent and the official's skill and experience in 
determining whether an investigative stop would be justified. Brierley, 
781 F.2d at 841. As is currently the case, the information relied upon 
may come from a variety of sources, including but not limited to the 
following: Package appearance, conflicting information between the 
shipping papers and the markings on the package, identity of offeror or 
carrier, an odor emanating from a container, and anonymous tips.
    Safe and expeditious refers to appropriate measures or procedures 
available to minimize any delays in resuming the movement of a 
perishable hazardous material.
    The definition of Trailer was removed from this section in response 
to a comment citing its inconsistency with the definition of 
``trailer'' in the FMCSRs.
Sec.  109.3 Inspections and Investigations
    The regulatory provisions originally located in Sec.  109.3(a)-(c) 
of the NPRM have now been reorganized into the following separate 
provisions: Sec.  109.5 Opening of packages; Sec.  109.7 Removal from 
transportation; Sec.  109.9 Transportation for examination and 
analysis; Sec.  109.11 Assistance of properly qualified personnel; 
Sec.  109.13 Closing packages/safe resumption of transportation; Sec.  
109.15 Termination. As PHMSA reviewed the comments received in response 
to the NPRM, it became evident that the regulatory provisions needed 
further clarification. For clarity and ease of referral, most of the 
content proposed as Sec.  109.3 and Sec.  109.5 has been restructured 
into separate sections based on each action taken. Reorganizing the 
provisions of Sec.  109.3 into several sections helps clarify the 
substance of the regulations, providing more details as to how each 
part of the authority will be implemented, the principles that may 
guide its execution, and the limitations that are required in using it. 
Although the regulatory text derived almost entirely from the statutory 
language, it was necessary to provide additional detail and guidance as 
to how this authority will be used. Therefore, each significant action 
under this authority is housed in its own section. For example, Sec.  
109.5 Opening of packages, provides the standard under which an agent 
may open a package: Reasonable and articulable belief that a packaged 
offered for or in transportation may contain a hazardous material and a 
reasonable and articulable belief that such a package does not comply 
with this Chapter. Under this standard an agent may stop the movement 
of a package in transportation to gather information and learn the 
nature and contents of the package, and if necessary, the agent may 
open and examine any component of the package that is not immediately 
in contact with the hazardous materials.
    Section 109.3(a) remains unchanged from PHMSA's proposal; it states 
the Department's general authority to

[[Page 11586]]

initiate inspections and investigations as provided by 49 U.S.C. 
5121(a), which has been delegated to the operating administrations. The 
operating administrations focus their inspection resources on the mode 
of transportation that they oversee. See 49 CFR 1.47(j)(1) (FAA), 
1.49(s)(1) (FRA), 1.53(b)(1) (PHMSA), and 1.73(d)(1) (FMCSA). 
Nevertheless, operating administrations may ``use their resources for 
DOT-wide purposes, such as inspections of shippers by all modes of 
transportation.'' 65 FR 49763, 49764 (Aug. 15, 2000). DOT believes that 
broad delegation authority is necessary to address cross-modal and 
intermodal issues to combat undeclared hazardous materials shipments. 
Id. at 49763. Accordingly, DOT inspectors are authorized to carry out 
the enhanced inspection and enforcement authority rule across different 
modes of transportation.
    Section 109.3(b) is identical to PHMSA's proposal with the 
exception of the following language added to Sec.  109.3(b)(2) (in 
italics): ``Inspections and investigations are conducted by designated 
agents of the Secretary who will, upon [a person's] request, present 
their credentials for examinations. Such an agent is authorized to * * 
* [g]ather information by any reasonable means, including, but not 
limited to, gaining access to records and property (including packages) 
* * *.'' In addition to interviewing, photocopying, photographing, and 
audio and video recording during inspections or investigations, this 
language was included to specify what seems implicit in the 
Department's general authority--the ability to gather evidence and 
information through records and property, including access to the 
packages subject to inspection, and otherwise gather information to 
support enforcement activity. This is existing general authority under 
49 U.S.C. 5121(a)-(b).
    The inspections or investigations may be conducted at any pre-
transportation or transportation facility wherever a hazardous material 
is offered, transported, loaded or unloaded, or stored incidental to 
the hazardous material movement, provided they are performed ``at a 
reasonable time and in a reasonable manner.'' See 49 U.S.C. 
5121(c)(1)(A); 49 CFR 171.1. PHMSA interprets ``reasonable time'' to 
mean an entity's regular business hours. PHMSA interprets ``reasonable 
manner'' to mean that DOT inspectors may gather information from any 
entity or source that is related to the transportation of hazardous 
materials in commerce whenever hazardous material operations or work 
connected to such operations are being performed. Although a new 
provision to DOT's statutory authority, Sec.  5121(c)(1)(A) specifies 
DOT's ability to inspect records and property under its existing 
regulatory authority under Sec.  5103(b)(1). Aside from Sec.  
5121(c)(1)(A), DOT continues to have authority to issue and serve 
administrative subpoenas for documents or other tangible things when 
such evidence is necessary to assist an inspection or investigation. 
Each operating administration will serve the subpoena in accordance 
with its own existing statutory or regulatory authority. See 14 CFR 
13.3 (FAA), 49 CFR 105.45-.55 (PHMSA), 49 CFR 209.7 (FRA), and 49 
U.S.C. 502(d), 5121, and 31133(a)(4) (FMCSA). PHMSA believes that this 
provision enables DOT to gather information from any source, including 
the offeror, carrier, packaging manufacturer or tester responsible for 
the shipment, to learn about the nature of the contents of the package. 
This process promotes communication and cooperation by all concerned 
parties and enables the Department to detect and deter undeclared 
hazardous material shipments and declared shipments that are not in 
compliance with the Federal hazmat law or the HMR.
Sec.  109.5 Opening of Packages
    What was proposed as Sec.  109.3(b)(4) in the NPRM is now located 
at Sec.  109.5, Opening of packages. This provision implements the 
authority conferred by 49 U.S.C. 5121(c)(1) to enable DOT agents to 
take enhanced inspection and enforcement action. The most significant 
revision since the publication of the NPRM is the addition of a second 
criterion to justify the opening of a package. Section 109.5(a) 
requires, in addition to the requirement in the NPRM, that an agent 
have an objectively reasonable and articulable belief that a package 
may contain hazardous material, that an agent also have an objectively 
reasonable and articulable reason to believe that the package does not 
otherwise comply with the Federal hazmat law. If such facts exist, then 
an agent may stop the movement of the package in transportation to 
gather more information; or he may open the outer packaging of the 
package that is not immediately in contact with the hazardous material. 
Shipments such as plastic bottles or drums that are in direct contact 
with a hazardous material will not be opened pursuant to this 
authority.
    Proposed Sec.  109.3(b)(4)(iii) stated that an agent may remove the 
package and related packages in a shipment or a freight container from 
transportation in commerce when the agent has an objectively reasonable 
and articulable belief that the package may pose an imminent hazard, 
provided the agent records this belief in writing as soon as 
practicable. The substance of this provision is now located in its 
separate section at Sec.  109.7, Removal from transportation. This 
section implements 49 U.S.C. 5121(c)(1)(C) by permitting a DOT agent to 
remove from transportation in commerce a package (including a freight 
container) or related packages when the agent has an objectively 
reasonable and articulable belief that the package may pose an imminent 
hazard. PHMSA intends to employ this remedy when necessary to suspend 
or restrict the transportation of a shipment that is deemed unsafe. 
Should this condition exist, the agent must document for his or her 
supervising official the basis for removing the package from 
transportation as soon as practicable, including the findings that the 
shipment contained a hazardous material and the identified imminent 
hazard. The documentation requirement safeguards the inspection and 
enforcement process by requiring DOT to specifically describe the 
hazard present and substantiate the need to remove the shipment from 
the stream of commerce. The documentation will chronicle the activities 
and events culminating in removing the package from transportation. The 
documentation must provide sufficient justification to pursue further 
investigation into the contents of a package. This section further 
provides that an agent must limit this removal to a maximum 48-hour 
period in order to determine whether the package may pose an imminent 
hazard. The 48-hour window begins when the written order is issued to 
the person with custody and control of the package. This limitation was 
added in response to a comment regarding the delay of packages subject 
to OOS orders. Dow states that packages that are taken out of service, 
opened and inspected, and then later found compliant will result in 
shipment delay and shutdown of customer processes. DGAC expresses 
similar concern about extended delays that may result from each 
instance where a package is removed or goods are stopped in transit, 
because the package is effectively placed out of service. PHMSA agrees 
that a removal under these circumstances should be limited in time in 
order to provide carriers with a date certain as to when packages may 
resume transportation if brought into compliance. Forty-eight hours 
serves as

[[Page 11587]]

a workable timeframe for terms of an OOS order to be addressed, or 
enough time for an imminent hazard investigation to be completed.
    In addition, agents must present written notification stating the 
reason for removal to the person in possession of the package to be 
removed. A notification provision was added because the removal of a 
package from transportation due to an imminent hazard is inherently an 
emergency situation. Accordingly, the affected party must be promptly 
informed about the action taken so that it may begin to take immediate 
corrective action.
Sec.  109.9 Transportation for Examination and Analysis
    Proposed Sec.  109.3(b)(4)(iv) stated that an agent may order the 
person in possession of, or responsible for, the package to have it 
transported to, opened, and the contents examined and analyzed by, a 
facility capable of conducting such examination and analysis. The 
substance of this provision is now located at Sec.  109.9, 
Transportation for examination and analysis. This section has been 
revised in response to comments requesting greater detail as to how and 
when a package may be ordered to be transported for further examination 
and analysis. As stated in Sec.  109.9(a), a package may be ordered to 
be transported to an appropriate facility if it requires further 
examination, presents conflicting information, or if additional 
investigation is not possible on the immediate premises.
    This section implements 49 U.S.C. 5121(c)(1)(E), which provides 
that under terms and conditions specified by the Secretary, an agent 
may order the party in possession of the package, or otherwise 
responsible for the shipment, to have it transported to, opened, and 
examined at an appropriate facility if the agent determines that it is 
not practicable to examine the contents of a package at the time and 
location of the stop. This provision enables DOT to facilitate learning 
about the nature of the product inside the shipment by permitting 
delivery of the shipment to a facility where its contents can be 
identified. PHMSA intends for DOT to employ this remedy only when an 
on-site inspection is inadequate or a facility has the sophisticated 
personnel, equipment, and information technology to assist in the 
inspection or investigation. Although removal of a package for further 
analysis is new authority provided by statute to work in conjunction 
with package opening, this provision is a simply new method to enforce 
existing statutory authority, which is to ensure the safe 
transportation of hazardous materials.
    Under proposed Sec.  109.3(b)(4)(v), properly qualified personnel 
may be asked to assist DOT when the agents open, detain, or remove a 
shipment, if it is possible that a package may experience a leak, 
spill, or release. There was an error in the NPRM with regard to Sec.  
109.4(b)(iv); the last subparagraph of Sec.  109.3(b) was identified as 
(iv) when it should have been (v). This provision is now located at 
Sec.  109.11, Assistance of properly qualified personnel, and also 
states that if an agent is not properly qualified to perform a 
function, or if safety might be compromised, an agent may authorize the 
assistance of properly qualified personnel. This section was revised in 
response to a comment requesting further clarification regarding the 
circumstances in which properly qualified personnel would be asked to 
assist.
Sec.  109.13 Closing Packages and Safe Resumption of Transportation
    Closure of opened packages and their return to transportation 
remained an issue of great interest among commenters. Many commenters 
had questions as to how packages would be reclosed, who would reclose 
them, and how the packages would reenter the stream of commerce. In 
formulating responses to these comments, the agency decided that a 
significant revision of this provision was necessary.
    Proposed Sec.  109.3(b)(5)-(6) attempted to cover the reclosing 
process and the resumption of transportation, but without much success. 
Details were lacking and all possible scenarios were not addressed. The 
content of these two sections were parsed out in what is now Sec.  
109.13, Closing packages and safe resumption of transportation. The 
first provision, Sec.  109.13(a), entitled No imminent hazard found, 
addresses what happens if no imminent hazard is found and the package 
contains hazardous material that is otherwise found to be compliant. If 
an imminent hazard is not found, an agent will assist in reclosing the 
package in accordance with the packaging manufacturer's closure 
instructions or other appropriate method; mark and certify the package 
as opened by an identified Federal agent and reclosed under this part; 
and return the package from whom it was obtained. Packages containing 
perishable hazardous material will be given expeditious treatment after 
it is determined there is no imminent hazard.
    Section 109.13(b), entitled Imminent hazard found, addresses the 
situation in which an imminent hazard is found. In the event of an 
imminent hazard, an out-of-service order will be issued, prohibiting 
the movement of the package until it has been brought into compliance. 
The package will not be reclosed by a DOT agent because a non-compliant 
package posing an imminent hazard will not be permitted to enter into, 
or continue in, transportation. Moreover, DOT is not obligated to bring 
an offeror's package into compliance, as it is the offeror's 
responsibility to maintain compliance for its shipments. The recipient 
of the OOS order must remove the package from transportation until it 
is brought into compliance. Although this was implicit in the operation 
of emergency orders, it was necessary to articulate the possibility 
nonetheless. This language did not exist in the NPRM, but upon 
reconsideration of this section, it was added for clarity.
    Section 109.13(c), entitled Package does not contain hazardous 
material, addresses the situation in which a package is opened and does 
not contain hazardous material. The agent will securely close the 
package, mark and certify its opening and closing by a Federal agent, 
and return the package to transportation. Because there is no hazardous 
material at issue, there would be no further packaging or reclosing 
obligations and the package may continue in transportation.
    Section 109.13(d), entitled Package contains hazardous materials 
not in compliance with this Chapter, presents the final possibility 
when a package is opened: If a package contains hazardous material not 
in compliance with Federal hazmat law or the HMR. If the opening of a 
package reveals noncompliant hazmat that does not pose an imminent 
hazard, the agent will not close the package as there is no obligation 
to bring that package into compliance.
    The Department's operating administrations will not be responsible 
for bringing an otherwise non-compliant package into compliance and 
resuming its movement in commerce. If the package does not conform to 
the HMR at the time of inspection, the fact 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.
    Section 109.15 Termination, (former Sec.  109.3(c)) states that the 
operating administration will close the investigative file and inform 
the subject party of the decision when the agency determines that no 
further action is necessary, and that DOT will notify respondent that 
the file has been closed without prejudice to further investigation. 
The substance of this

[[Page 11588]]

provision is now located at Sec.  109.15, Termination, and includes 
language that reserves civil enforcement at a later time as is 
necessary to carry out the Federal hazmat law.
Sec.  109.17 Emergency Orders
    Proposed Sec.  109.5 Emergency orders, which implements 49 U.S.C. 
5121(d), authorizes DOT operating administrations to issue or impose 
emergency restrictions, prohibitions, OOS orders, and recalls. The 
predicate for issuing an emergency order is a violation of Federal 
hazmat law or the HMR, or an unsafe condition or practice, whether or 
not it violates an existing statutory or regulatory requirement, which 
amounts to or is causing an imminent hazard. PHMSA believes that such 
an extraordinary remedy is necessary to address emergency situations or 
circumstances involving a hazard of death, illness, or injury to 
persons affected by an imminent hazard. Cf. United Transp. Union v. 
Lewis, 699 F.2d 1109, 1113 (11th Cir. 1983) (FRA emergency order 
authority is necessary to abate unsafe conditions or practices that 
extend to hazard of death or injury to persons); 49 U.S.C. 46105(c) 
(FAA is authorized to issue orders to meet existing emergency relating 
to safety in air commerce); 49 U.S.C. 521(b)(5) (FMCSA permitted to 
order a motor carrier OOS when vehicle or operation constitutes an 
imminent hazard to safety, i.e., ``substantially increases the 
likelihood of serious injury or death if not discontinued 
immediately'').
    The Department intends that each operating administration issue an 
emergency order only after an inspection, investigation, testing, or 
research determines that an imminent hazard exists that requires 
exercising this enforcement tool to eliminate the particular hazard and 
protect public safety. The order must articulate a sufficient factual 
basis that addresses the emergency situation warranting prompt 
prohibitive action. The operating administrations will have authority 
to take immediate measures to address a particular safety or security 
threat.
    As proposed, the provisions addressing emergency orders were 
located at Sec.  109.5 as well as in Sec.  109.3(b)(6). In the final 
rule, PHMSA has decided to bring all matters regarding emergency orders 
into the same location, Sec.  109.17 Emergency Orders. Proposed Sec.  
109.3(b)(6), now located at Sec.  109.17(a), addresses the general 
criteria for when an Administrator may issue or impose emergency 
restrictions, prohibitions, recalls, or out-of-service orders when an 
imminent hazard is present. Under this authority, the agency may order 
a company to immediately discontinue any or all operations based on any 
unsafe condition or practice causing an imminent hazard. An emergency 
order identifying the terms and conditions of such a restriction or 
prohibition may also prescribe necessary actions to abate the imminent 
hazard before operations may be resumed.
    In the NPRM, the procedures for an OOS order were located at 
proposed Sec.  109.3(b)(6), following the package opening authority, in 
the section under inspection and investigation. This provision is now 
located at Sec.  109.17(b), where it makes better sense to have OOS 
orders organized as a subtopic of emergency orders. Section 109.17(b) 
authorizes the Administrator of each operating administration, or his/
her designee, to issue an OOS order prohibiting the movement of a 
package until the imminent hazard is abated and the package has been 
brought into compliance with the HMR. Consequently, if an agent 
determines that a package presents an imminent hazard, the carrier or 
other person in possession of, or responsible for, the package must 
remove the package from transportation until it is brought into 
compliance with the HMR. OOS orders ensure that if a package presents 
an imminent hazard, immediate action is taken to abate that hazard. 
ProposedSec.  109.3(b)(6)(i), now located at Sec.  109.17(b)(2), 
provides that a package subject to an OOS order may be moved from the 
place where it is first discovered to present an imminent hazard to the 
nearest location where remedial action can be taken to abate the hazard 
and bring the package into compliance with the HMR, provided that 
before the move, the agent issuing the OOS order is notified of the 
planned move on a 24-hour basis.
    Proposed Sec.  109.3(b)(6)(ii), now located at Sec.  109.17(b)(3), 
requires that the recipient of an OOS order notify the agent who issued 
the order when the package is brought into compliance with the HMR.
    Proposed Sec.  109.3 (b)(6)(iii), now located at Sec.  
109.17(b)(4), provides an appeal process for a recipient of an OOS 
order to challenge the issuance of the order. The appeal process for 
OOS orders is consistent with the appeal process proposed for other 
types of emergency orders set forth in Sec.  109.17, discussed below.
    Proposed Sec.  109.5(a), now located at Sec.  109.17(a), outlines 
the critical elements that must be established before an agency may 
issue an emergency order. Principally, the order must be in writing and 
describe the violation, condition or practice that is causing the 
imminent hazard; enumerate the terms and conditions of the order; be 
circumscribed to abate the imminent hazard; and inform the recipient 
that it may seek administrative review of the order by filing a 
petition with PHMSA's CSO. In other words, the order must be narrowly 
tailored to the discrete and specific safety hazard and identify the 
corrective action available to remedy the hazard. Due to the urgent 
nature of the action, a petitioner will have 20 calendar days to file 
the petition after the emergency order is issued. See 49 U.S.C. 
5121(d)(3). This provision ensures that the operating administrations 
employ uniform procedures and standards when issuing emergency orders 
and provides a degree of certainty and predictability to the regulated 
community about the requisite elements to establish a prima facie 
emergency order.
    Proposed Sec.  109.5(a)(4), now located at Sec.  109.17(a)(4), was 
revised to provide notice regarding a formal hearing request in 
accordance with 5 U.S.C. 554. A recipient must provide the material 
facts in dispute giving rise to the request for a hearing. PHMSA has 
also added Sec.  109.17(a)(5) in the final regulatory text, which 
references Sec.  109.19(f) for filing and service requirements. All 
documents related to a petition for review must be filed with DOT 
Docket Operations and served on all relevant parties, as detailed in 
Sec.  109.19(f).
    Proposed Sec.  109.7, Emergency Recalls, is now located at Sec.  
109.17(c) so that the procedures for all agency actions addressing 
emergency situations may be found in the same section. This provision 
implements 49 U.S.C. 5121(d). Generally, PHMSA received new recall 
authority in HMSSTRA to work hand-in-hand with our previous authority 
under 49 U.S.C. 5103(b)(1)(A)(iii) to prescribe regulations for the 
safe transportation, including security, of hazardous materials in 
intrastate, interstate, and foreign commerce. Specifically, PHMSA, in 
consultation with relevant operating administrations, will recall 
packagings, containers, or package components which were improperly 
designed, manufactured, fabricated, inspected, marked, maintained, 
reconditioned, repaired, or tested but sold as qualified DOT packages, 
containers, or packaging components for use in the transportation of 
hazardous materials in commerce.

[[Page 11589]]

Sec.  109.19 Petitions for Review of Emergency Orders
    PHMSA provides a party with administrative due process rights to 
seek redress of an emergency order, and thus, proposed Sec.  109.5(b), 
now located at Sec.  109.19 Petitions for review of emergency orders, 
sets forth requirements for filing a petition for administrative review 
of an emergency order. The petition must: (1) Be in writing; (2) 
specifically state which part of the emergency order is being appealed; 
and (3) indicate whether a formal administrative hearing is requested. 
If a petitioner requests a hearing, the party must detail the material 
facts in dispute giving rise to the hearing request. In this final 
rule, Sec.  109.19(a)(4) (which was proposed as Sec.  109.5(b)(4) in 
the NPRM), now references the service and filing requirements of Sec.  
109.19(f) instead of providing separate instructions in this paragraph 
as originally proposed.
    Proposed Sec.  109.5(c), now located at Sec.  109.19(b), provides 
that the Office of Chief Counsel of the operating administration that 
issued the emergency order may file a response, including appropriate 
pleadings, with the CSO within five days after receiving the petition. 
PHMSA believes this short turnaround is adequate to enable the issuing 
operating administration to present evidence and argument supporting 
the emergency order. PHMSA notes that Congress mandated that DOT must 
resolve the petition within 30 days of its receipt unless the operating 
administration issues a subsequent order extending the original order, 
pending review of the petition. See 49 U.S.C. 5121(d)(4).
    Proposed Sec.  109.5(d), now located at Sec.  109.19(c), provides 
that the PHMSA CSO will review the petition and response and issue a 
decision within 30 days upon receipt of the petition if the petitioner 
does not request a formal hearing or the petition fails to assert 
material facts in dispute. The CSO's decision constitutes final agency 
action in this instance. Alternatively, if the petition contains a 
request for a formal hearing and states material facts in dispute, the 
CSO will assign the petition to DOT's Office of Hearings. PHMSA thus 
designates its CSO as the first line of review of emergency orders. It 
is possible that the PHMSA CSO may amend, affirm, lift, modify, stay, 
or vacate the emergency order upon review. An additional provision was 
added in the final regulatory text in Sec.  109.19(c)(1) under the 
CSO's responsibilities for cases in which a hearing is requested. 
Unless the CSO issues an order determining no material facts are in 
dispute and will be decided on the merits, a formal hearing request 
will be deemed assigned to the Office of Hearings three calendar days 
after the CSO receives it. This internal mechanism will ensure that the 
Office of Hearings has sufficient time to complete the hearing process 
and aid the agency in meeting the statutory requirement of 30 days to 
act on a petition for review.
    PHMSA believes that its CSO should serve as the primary adjudicator 
of petitions. Designating a single decision maker to handle all 
petitions will promote consistency in the application of review 
standards. The CSO is the lead safety authority in PHMSA, which is the 
agency that issues the HMR, interprets the Federal hazmat law and its 
implementing regulations, and oversees DOT's hazardous materials 
transportation program.
    Proposed Sec. Sec.  109.5(e)-(h), now located at Sec. Sec.  
109.19(d)-(g) set out the administrative hearing procedures that the 
Department's Office of Hearings will employ. Upon receiving the 
petition from the CSO, the Chief Administrative Law Judge will assign 
it to an Administrative Law Judge (ALJ), who will schedule and conduct 
an ``on the record'' hearing under 5 U.S.C. 554, 556, and 557. PHMSA 
believes that a petitioner should be afforded a formal hearing that 
addresses the merits of a petition to ensure that a record is created 
in a proceeding that will form the basis for final agency action and 
judicial review, if necessary. The ALJ process is not new; DOT 
currently utilizes it for enforcement proceedings. The timeline for 
which the ALJ proceedings must begin and conclude are new, however, as 
49 U.S.C. 5121(d)(4) mandates petitions for review must be adjudicated 
within 30 days of filing. Thus, the ALJ must issue a report and 
recommendation within 25 days after receipt of the petition for review 
by the Chief Safety Officer.
    Proposed Sec.  109.5(g), entitled ``Service,'' is now located at 
Sec.  109.19(f) and entitled ``Filing and service.'' This section also 
provides that all documents must be filed with DOT Docket Operations, 
and identifies the parties which must be served. PHMSA believes one 
location for filing and service requirements of all documents makes the 
regulatory text more consistent and easier to understand.
    Proposed Sec.  109.5(e), now located at Sec.  109.19(d), provides 
that an ALJ may administer oaths and affirmations, issue subpoenas as 
authorized by each operating administration's regulations, enable the 
parties to engage in discovery, and conduct settlement conferences and 
hearings to resolve disputed factual issues. PHMSA expects ALJs to 
conduct efficient and expeditious proceedings, including controlling 
discovery actions, to enable the parties to obtain relevant information 
and present material arguments at a hearing within the time parameters 
established. Proposed Sec.  109.5(f), now located at Sec.  109.19(e), 
permits a petitioner to appear in person or through an authorized 
representative. The representative need not be an attorney. The 
operating administration, however, would be represented by an attorney 
from its Office of Chief Counsel. Proposed Sec.  109.5(g), now located 
at Sec.  109.19(f), delineates the service rules governing the 
emergency order and review process. Generally, parties may effect 
service by electronic transmission via e-mail (with the pertinent 
document in Adobe PDF format attached) or facsimile, certified or 
registered mail, or personal delivery. Additionally, the operating 
administration that issued the emergency order must identify the list 
of persons, including the Department's docket management system, to 
receive the order and serve it by ``hand delivery,'' unless such 
delivery is not practicable.
    Proposed Sec.  109.5(h), now located at Sec.  109.19(g), requires 
the ALJ to issue a report and recommendation when the record is closed. 
The decision must contain factual findings and legal conclusions based 
on legal authorities and evidence presented on the record, which is 
part of an ALJ's existing authority. Critically, the decision must be 
issued within 25 days after the CSO receives the petition, which is a 
new requirement under the statute. Under proposed Sec.  109.5(i), now 
located at Sec.  109.19(h), which codifies 49 U.S.C. 5121(d)(4), the 
emergency order will no longer be effective if the ALJ or CSO has not 
ruled on the petition within 30 days of the CSO's receipt of the 
petition, unless the Administrator who issued the emergency order 
determines in writing that the imminent hazard continues to exist. The 
order then remains in effect pending the disposition of the petition 
unless stayed or modified by the Administrator. PHMSA maintains that 
this provision implementing new regulatory authority to issue emergency 
orders on the basis of an imminent hazard is necessary to ensure that 
the order is extended to abate the imminent hazard.
    Proposed Sec.  109.5(j), now located at Sec.  109.19(i), provides 
that an aggrieved party may file a petition for reconsideration of the 
ALJ's report and

[[Page 11590]]

recommendation within one day of the issuance of the decision. This is 
an existing provision of DOT regulations for parties seeking 
reconsideration of agency action. The CSO then must issue a final 
agency decision no later than 30 days from the receipt of the petition 
for review, unless a subsequent emergency order is issued. In that 
case, the CSO has three calendar days to render the decision after 
receiving the petition for reconsideration. The CSO's decision on the 
merits of a petition for reconsideration constitutes final agency 
action.
    Proposed Sec.  109.5(k), now located at Sec.  109.19(j) enables an 
aggrieved party to seek judicial review of either the CSO's 
administrative decision or the CSO's adoption of the ALJ's report and 
recommendation (final agency action). Consistent with existing 
remedies, judicial review is available in an appropriate U.S. Court of 
Appeals under 49 U.S.C. 5127, 49 U.S.C. 20114(c), 28 U.S.C. 2342, and 5 
U.S.C. 701-706. All parties should note that the filing of a petition 
will not stay or modify the force and effect of final agency action 
unless otherwise ordered by the appropriate U.S. Court of Appeals.
    Proposed Sec.  109.5(l), now located at Sec.  109.19(k), specifies 
the computation of time in the adjudications process.
Sec.  109.21 Remedies Generally
    In addition to seeking relief in Federal court with respect to an 
imminent hazard, this section defines the need for general remedies 
available through litigation. An Administrator may request the Attorney 
General to bring an action in the appropriate U.S. district court for 
all other necessary or appropriate relief, including, but not limited 
to, injunctive relief, punitive damages, and assessment of civil 
penalties as provided by 49 U.S.C. 5122(a). Proposed Sec.  109.9, now 
located at Sec.  109.21, authorizes an Administrator to request DOJ to 
bring a cause of action in the appropriate U.S. district court seeking 
legal and equitable relief, including civil penalties, punitive 
damages, temporary restraining orders, and preliminary and permanent 
injunctions, to enforce the Hazmat Law, HMR, or an order, special 
permit, or approval issued. DOT's ability to request DOJ's assistance 
to petition for injunctive relief in district court to enforce the 
Federal hazmat law is an existing remedy.

Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of 49 U.S.C. 
5103(b) which authorizes the Secretary to prescribe regulations for the 
safe transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce and under the authority of 
49 U.S.C. 5121(e). The final rule would revise PHMSA's inspection and 
enforcement procedures in PHMSA's regulations to implement 49 U.S.C. 
5121(c) and (d), as amended by HMTSSRA. Specifically, this final rule 
implements the enhanced inspection and enforcement authority mandated 
by Section 7118 by enabling DOT to open, detain, and remove packages 
from transportation where appropriate, and issue emergency orders 
limiting or restricting packages from transportation. The final rule 
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 Orders 12866, 13563, and DOT Regulatory Policies and 
Procedures

    This final rule is a significant regulatory action under section 
3(f) of Executive Order 12866 and, therefore, was reviewed by the 
Office of Management and Budget consistent with Executive Orders 12866 
and 13563. This rule is also significant under the Regulatory Policies 
and Procedures of the DOT (44 FR 11034). We completed a final 
regulatory evaluation and placed it in the docket for this rulemaking. 
This final rule finalizes 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 Orders 13132 and 13084

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). As 
amended by HMTSSRA, 49 U.S.C. 5125(i) provides that the preemption 
provisions in Federal hazardous material transportation law do ``not 
apply to any procedure * * * utilized by a State, or Indian tribe to 
enforce a requirement applicable to the transportation of hazardous 
material.'' Accordingly, this final rule has no preemptive effect on 
State, local, or Indian tribe enforcement procedures and penalties, and 
preparation of a federalism assessment is not warranted.
    This final rule has also been analyzed in accordance with the 
principles and criteria contained in Executive Order 13084 
(``Consultation and Coordination with Indian Tribal Governments''). 
Because this final rule 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 13084 do not apply.

D. Regulatory Flexibility Act

    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. Based on 
the assessment in the regulatory evaluation I hereby certify that the 
final rule will not have a significant economic impact on a substantial 
number of small entities. This final 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 final 
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 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

[[Page 11591]]

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 
final rule would apply (104,000 of which are motor carriers), we 
estimate that about 90 percent are small entities.
    Potential cost impacts. This final rule finalizes 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 final 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.

E. 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.

F. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. The final rule will not result in 
annual costs of $141.3 million or more, in the aggregate, to any of the 
following: State, local, or Indian tribal governments, or the private 
sector, and is the least burdensome alternative to achieve the 
objective of the proposed rule.

G. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375, 
requires Federal agencies to analyze proposed actions to determine 
whether an action will have a significant impact on the human 
environment. The Council on Environmental Quality (CEQ) regulations 
order Federal agencies to conduct an environmental review considering 
(1) the need for the proposed action; (2) alternatives to the proposed 
action; (3) probable environmental impacts of the proposed action and 
alternatives; and (4) the agencies and persons consulted during the 
consideration process. 40 CFR 1508.9(b).
1. Purpose and Need
    Congress enacted HMTSSRA in part to combat the problem of 
undeclared hazardous materials shipments. The broader authority of 
HMTSSRA allows the Department to identify hazardous materials shipments 
and to determine whether those shipments are made in accordance with 
the HMR. Congress determined that this authority would equip DOT 
officials, law enforcement, and inspection personnel with the necessary 
tools to accurately determine whether hazardous materials are being 
transported safely and in accordance with the relevant law and 
regulations. See Background section of the preamble to this final rule, 
supra.
2. Alternatives
    Because this final 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.
3. Analysis of Environmental Impacts
    The selected alternative could result in decreasing the likelihood 
of an incident, or a release of hazardous material, e.g., explosives, 
flammables, or corrosives. These hazardous materials could ignite, 
leak, or react with other material, thereby causing fires and 
explosions in confined spaces such as aircraft or vessels. If such 
incidents occurred while an aircraft or vessel is in transportation, 
the consequences would likely threaten human health and the 
environment. If hazardous material shipments are not properly marked, 
labeled, packaged, and handled, every person who comes into contact 
with the shipment could be at risk. Emergency responders would not be 
able to extinguish a fire in the most effective and timely manner 
because an undeclared shipment would not contain the correct hazard 
communications, thus possibly exacerbating the situation or prolonging 
the public's exposure to a release.
4. Consultations and Public Comment
    Before preparing this final rule, we invited all interested persons 
to offer comments on topics related to this final rule at public 
meetings and in response to the published NPRM. We received no comments 
regarding environmental concerns.

H. 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 
spring and fall of each year. The RIN contained in the heading of this 
document, RIN 2137-AE13, can be used to cross-reference this action 
with the Unified Agenda.

I. 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) or you may visit 
http://www.regulations.gov.

List of Subjects in 49 CFR Part 109

    Definitions, Inspections and investigations, Emergency orders, 
Imminent hazards, Remedies generally.

[[Page 11592]]

The Rule

[squf] In consideration of the foregoing, PHMSA adds a new part 109 to 
Title 49, Subtitle B, Chapter 1, Subchapter A to read as follows:

PART 109--DEPARTMENT OF TRANSPORTATION HAZARDOUS MATERIALS 
PROCEDURAL REGULATIONS FOR OPENING OF PACKAGES, EMERGENCY ORDERS, 
AND EMERGENCY RECALLS

Subpart A--Definitions
Sec.
109.1 Definitions.
Subpart B--Inspections and investigations
109.3 Inspections and investigations.
109.5 Opening of packages.
109.7 Removal from transportation.
109.9 Transportation for examination and analysis.
109.11 Assistance of properly qualified personnel.
109.13 Closing packages/safe resumption of transportation.
109.15 Termination.
Subpart C--Emergency Orders
109.17 Emergency orders.
109.19 Petitions for review of emergency orders.
109.21 Remedies generally.

    Authority:  49 U.S.C. Sec. Sec.  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 1.45, 1.53.

Subpart A--Definitions


Sec.  109.1  Definitions.

    For purposes of this part, all terms defined in 49 U.S.C. 5102 are 
used in their statutory meaning. Other terms used in this part are 
defined as follows:
    Administrator means the head of any operating administration within 
the Department of Transportation, and includes the Administrators of 
the Federal Aviation Administration, Federal Motor Carrier Safety 
Administration, Federal Railroad Administration, and Pipeline and 
Hazardous Materials Safety Administration, to whom the Secretary has 
delegated authority in part 1 of this title, and any person within an 
operating administration to whom an Administrator has delegated 
authority to carry out this part.
    Agent of the Secretary or agent means a Federal officer, employee, 
or agent authorized by the Secretary to conduct inspections or 
investigations under the Federal hazardous material transportation law.
    Chief Safety Officer or CSO means the Assistant Administrator of 
the Pipeline and Hazardous Materials Safety Administration.
    Emergency order means an emergency restriction, prohibition, 
recall, or out-of-service order set forth in writing.
    Freight container means a package configured as a reusable 
container that has a volume of 64 cubic feet or more, designed and 
constructed to permit being lifted with its contents intact and 
intended primarily for containment of smaller packages (in unit form) 
during transportation.
    Immediately adjacent means a packaging that is in direct contact 
with the hazardous material or is otherwise the primary means of 
containment of the hazardous material.
    Imminent hazard means the existence of a condition relating to 
hazardous material that presents a substantial likelihood that death, 
serious illness, severe personal injury, or a substantial endangerment 
to health, property, or the environment may occur before the reasonably 
foreseeable completion date of a formal proceeding begun to lessen the 
risk of that death, illness, injury, or endangerment.
    In writing means unless otherwise specified, the written expression 
of any actions related to this part, rendered in paper or digital 
format, and delivered in person; via facsimile, commercial delivery, 
U.S. Mail; or electronically.
    Objectively reasonable and articulable belief means a belief based 
on particularized and identifiable facts that provide an objective 
basis to believe or suspect that a package may contain a hazardous 
material.
    Out-of-service order means a written requirement issued by the 
Secretary, or a designee, that an aircraft, vessel, motor vehicle, 
train, railcar, locomotive, other vehicle, transport unit, transport 
vehicle, freight container, portable tank, or other package not be 
moved or cease operations until specified conditions have been met.
    Packaging means a receptacle and any other components or materials 
necessary for the receptacle to perform its containment function in 
conformance with the minimum packing requirements of this subchapter. 
For radioactive materials packaging, see Sec.  173.403 of subchapter C 
of this chapter.
    Perishable hazardous material means a hazardous material that is 
subject to significant risk of speedy decay, deterioration, or 
spoilage, or hazardous materials consigned for medical use, in the 
prevention, treatment, or cure of a disease or condition in human 
beings or animals where expeditious shipment and delivery meets a 
critical medical need.
    Properly qualified personnel means a company, partnership, 
proprietorship, or individual who is technically qualified to perform 
designated tasks necessary to assist an agent in inspecting, examining, 
opening, removing, testing, or transporting packages.
    Related packages means any packages in a shipment, series or group 
of packages that can be traced to a common nexus of facts, including, 
but not limited to: The same offeror or packaging manufacturer; the 
same hazard communications information (marking, labeling, shipping 
documentation); or other reasonable and articulable facts that may lead 
an agent to believe such packages are related to a package that may 
pose an imminent hazard. Packages that are located within the same 
trailer, freight container, unit load device, etc. as a package removed 
subject to this enhanced authority without additional facts to 
substantiate its nexus to an imminent hazard are not ``related 
packages'' for purposes of removal. The related packages must also 
demonstrate that they may pose an imminent hazard. They must exhibit a 
commonality or nexus of origin, which may include, but are not limited 
to, a common offeror, package manufacturer, marking, labeling, shipping 
documentation, hazard communications, etc.
    Remove means to keep a package from entering the stream of 
transportation in commerce; to take a package out of the stream of 
transportation in commerce by physically detaining a package that was 
offered for transportation in commerce; or stopping a package from 
continuing in transportation in commerce.
    Safe and expeditious means prudent measures or procedures designed 
to minimize delay.

Subpart B--Inspections and Investigations


Sec.  109.3  Inspections and Investigations.

    (a) General authority. An Administrator may initiate an inspection 
or investigation to determine compliance with Federal hazardous 
material transportation law, or a regulation, order, special permit, or 
approval prescribed or issued under the Federal hazardous material 
transportation law, or any court decree or order relating thereto.
    (b) Inspections and investigations. Inspections and investigations 
are conducted by designated agents of the Secretary who will, upon 
request, present their credentials for examination. Such an agent is 
authorized to:

[[Page 11593]]

    (1) Administer oaths and receive affirmations in any matter under 
investigation.
    (2) Gather information by any reasonable means, including, but not 
limited to, gaining access to records and property (including 
packages), interviewing, photocopying, photographing, and video- and 
audio-recording in a reasonable manner.
    (3) Serve subpoenas for the production of documents or other 
tangible evidence if, on the basis of information available to the 
agent, the evidence is relevant to a determination of compliance with 
the Federal hazardous material transportation law, regulation, order, 
special permit, or approval prescribed or issued under the Federal 
hazardous material transportation law, or any court decree or order 
relating thereto. Service of a subpoena shall be in accordance with the 
requirements of the agent's operating administration as set forth in 14 
CFR 13.3 (Federal Aviation Administration); 49 CFR 209.7 (Federal 
Railroad Administration), 49 U.S.C. 502(d), 5121(a) (Federal Motor 
Carrier Safety Administration), and 49 CFR 105.45-105.55 (Pipeline and 
Hazardous Materials Safety Administration).


Sec.  109.5  Opening of packages.

    (a) When an agent has an objectively reasonable and articulable 
belief that a package offered for or in transportation in commerce may 
contain a hazardous material and that such a package does not otherwise 
comply with this chapter, the agent may--
    (1) Stop movement of the package in transportation and gather 
information from any person to learn the nature and contents of the 
package;
    (2) Open any overpack, outer packaging, or other component of the 
package that is not immediately adjacent to the hazardous materials 
contained in the package and examine the inner packaging(s) or 
packaging components.


Sec.  109.7  Removal from transportation.

    An agent may remove a package and related packages in a shipment or 
a freight container from transportation in commerce for up to forty-
eight (48) hours when the agent has an objectively reasonable and 
articulable belief that the packages may pose an imminent hazard. The 
agent must record this belief in writing as soon as practicable and 
provide written notification stating the reason for removal to the 
person in possession.


Sec.  109.9  Transportation for examination and analysis.

    (a) An agent may direct a package to be transported to a facility 
for examination and analysis when the agent determines that:
    (1) Further examination of the package is necessary to evaluate 
whether the package conforms to subchapter C of this chapter;
    (2) Conflicting information concerning the package exists; or
    (3) Additional investigation is not possible on the immediate 
premises.
    (b) In the event of a determination in accordance with paragraph 
(a) of this section, an agent may:
    (1) Direct the offeror of the package, or other person responsible 
for the package, to have the package transported to a facility where 
the material may be examined and analyzed;
    (2) Direct the packaging manufacturer or tester of the packaging to 
have the package transported to a facility where the packaging may be 
tested in accordance with the HMR; or
    (3) Direct the carrier to transport the package to a facility 
capable of conducting such examination and analysis.
    (c) The 48-hour removal period provided in Sec.  109.7 may be 
extended in writing by the Administrator pending the conclusion of 
examination and analysis under this section.


Sec.  109.11  Assistance of properly qualified personnel.

    An agent may authorize properly qualified personnel to assist in 
the activities conducted under this part if the agent is not properly 
qualified to perform a function that is essential to the agent's 
exercise of authority under this part or when safety might otherwise be 
compromised by the agent's performance of such a function.


Sec.  109.13  Closing packages and safe resumption of transportation.

    (a) No imminent hazard found. If, after an agent exercises an 
authority under Sec.  109.5, the agent finds that no imminent hazard 
exists, and the package otherwise conforms to applicable requirements 
in subchapter C of this chapter, the agent will:
    (1) Assist in preparing the package for safe and prompt 
transportation, when practicable, by reclosing the package in 
accordance with the packaging manufacturer's closure instructions or 
other appropriate closure method;
    (2) Mark and certify the reclosed package to indicate that it was 
opened and reclosed in accordance with this part;
    (3) Return the package to the person from whom the agent obtained 
it, as soon as practicable; and
    (4) For a package containing a perishable hazardous material, 
assist in resuming the safe and expeditious transportation of the 
package as soon as practicable after determining that the package 
presents no imminent hazard.
    (b) Imminent hazard found. If an imminent hazard is found to exist 
after an agent exercises an authority under Sec.  109.5, the 
Administrator or his/her designee may issue an out-of-service order 
prohibiting the movement of the package until the package has been 
brought into compliance with subchapter C of this chapter. Upon receipt 
of the out-of-service order, the person in possession of, or 
responsible for, the package must remove the package from 
transportation until it is brought into compliance.
    (c) Package does not contain hazardous material. If, after an agent 
exercises an authority under Sec.  109.5, the agent finds that a 
package does not contain a hazardous material, the agent shall securely 
close the package, mark and certify the reclosed package to indicate 
that it was opened and reclosed, and return the package to 
transportation.
    (d) Non-compliant package. If, after an agent exercises an 
authority under Sec.  109.5, the agent finds that a package contains 
hazardous material and does not conform to requirements in subchapter C 
of this chapter, but does not present an imminent hazard, the agent 
will return the package to the person in possession of the package at 
the time the non-compliance is discovered for appropriate corrective 
action. A non-compliant package may not continue in transportation 
until all identified non-compliance issues are resolved.


Sec.  109.15  Termination.

    When the facts disclosed by an investigation indicate that further 
action is not warranted under this Part at the time, the Administrator 
will close the investigation without prejudice to further investigation 
and notify the person being investigated of the decision. Nothing 
herein precludes civil enforcement action at a later time related to 
the findings of the investigation.

Subpart C--Emergency Orders


Sec.  109.17  Emergency Orders.

    (a) Determination of imminent hazard. When an Administrator 
determines that a violation of a provision of the Federal hazardous

[[Page 11594]]

material transportation law, or a regulation or order prescribed under 
that law, or an unsafe condition or practice, constitutes or is causing 
an imminent hazard, as defined in Sec.  109.1, the Administrator may 
issue or impose emergency restrictions, prohibitions, recalls, or out-
of-service orders, without advance notice or an opportunity for a 
hearing. The basis for any action taken under this section shall be set 
forth in writing which must--
    (1) Describe the violation, condition, or practice that constitutes 
or is causing the imminent hazard;
    (2) Set forth the terms and conditions of the emergency order;
    (3) Be limited to the extent necessary to abate the imminent 
hazard; and,
    (4) Advise the recipient that, within 20 calendar days of the date 
the order is issued, recipient may request review; and that any request 
for a formal hearing in accordance with 5 U.S.C. 554 must set forth the 
material facts in dispute giving rise to the request for a hearing; and
    (5) Set forth the filing and service requirements contained in 
Sec.  109.19(f), including the address of DOT Docket Operations and of 
all persons to be served with the petition for review.
    (b) Out-of-service order. An out-of-service order is issued to 
prohibit the movement of an aircraft, vessel, motor vehicle, train, 
railcar, locomotive, transport unit, transport vehicle, or other 
vehicle, or a freight container, portable tank, or other package until 
specified conditions of the out-of-service order have been met.
    (1) Upon receipt of an out-of-service order, the person in 
possession of, or responsible for, the package must remove the package 
from transportation until it is brought into compliance with the out-
of-service order.
    (2) A package subject to an out-of-service order may be moved from 
the place where it was found to present an imminent hazard to the 
nearest location where the package can be brought into compliance, 
provided that the agent who issued the out-of-service order is notified 
before the move.
    (3) The recipient of the out-of-service order must notify the 
operating administration that issued the order when the package is 
brought into compliance.
    (4) Upon receipt of an out-of-service order, a recipient may appeal 
the decision of the agent issuing the order to PHMSA's Chief Safety 
Officer. A petition for review of an out-of-service order must meet the 
requirements of Sec.  109.19.
    (c) Recalls. PHMSA's Associate Administrator, Office of Hazardous 
Materials Safety, may issue an emergency order mandating the immediate 
recall of any packaging, packaging component, or container certified, 
represented, marked, or sold as qualified for use in the transportation 
of hazardous materials in commerce when the continued use of such item 
would constitute an imminent hazard. All petitions for review of such 
an emergency order will be governed by the procedures set forth at 
Sec.  109.19.


Sec.  109.19  Petitions for review of emergency orders.

    (a) Petitions for review. A petition for review must--
    (1) Be in writing;
    (2) State with particularity each part of the emergency order that 
is sought to be amended or rescinded and include all information, 
evidence and arguments in support thereof;
    (3) State whether a formal hearing in accordance with 5 U.S.C. 554 
is requested, and, if so, the material facts in dispute giving rise to 
the request for a hearing; and,
    (4) Be filed and served in accordance with Sec.  109.19(f).
    (b) Response to the petition for review. An attorney designated by 
the Office of Chief Counsel of the operating administration issuing the 
emergency order may file and serve, in accordance with Sec.  109.19(f), 
a response, including appropriate pleadings, within five calendar days 
of receipt of the petition by the Chief Counsel of the operating 
administration issuing the emergency order.
    (c) Chief Safety Officer Responsibilities.
    (1) Hearing requested. Upon receipt of a petition for review of an 
emergency order that includes a formal hearing request and states 
material facts in dispute, the Chief Safety Officer shall immediately 
assign the petition to the Office of Hearings. Unless the Chief Safety 
Officer issues an order stating that the petition fails to set forth 
material facts in dispute and will be decided under paragraph (c)(2) of 
this section, a petition for review including a formal hearing request 
will be deemed assigned to the Office of Hearings three calendar days 
after the Chief Safety Officer receives it.
    (2) No hearing requested. For a petition for review of an emergency 
order that does not include a formal hearing request or fails to state 
material facts in dispute, the Chief Safety Officer shall issue an 
administrative decision on the merits within 30 days of receipt of the 
petition. The Chief Safety Officer's decision constitutes final agency 
action.
    (d) Hearings. Formal hearings shall be conducted by an 
Administrative Law Judge assigned by the Chief Administrative Law Judge 
of the Office of Hearings. The Administrative Law Judge may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided by the appropriate agency 
regulations (49 CFR 209.7, 49 CFR 105.45, 14 CFR 13.3, and 49 U.S.C. 
502 and 31133);
    (3) Adopt the relevant Federal Rules of Civil Procedure for the 
United States District Courts for the procedures governing the hearings 
when appropriate;
    (4) Adopt the relevant Federal Rules of Evidence for United States 
Courts and Magistrates for the submission of evidence when appropriate;
    (5) Take or cause depositions to be taken;
    (6) Examine witnesses at the hearing;
    (7) Rule on offers of proof and receive relevant evidence;
    (8) Convene, recess, adjourn or otherwise regulate the course of 
the hearing;
    (9) Hold conferences for settlement, simplification of the issues, 
or any other proper purpose; and,
    (10) Take any other action authorized by or consistent with the 
provisions of this part and permitted by law that may expedite the 
hearing or aid in the disposition of an issue raised therein.
    (e) Parties. The petitioner may appear and be heard in person or by 
an authorized representative. The operating administration issuing the 
emergency order shall be represented by an attorney designated by its 
respective Office of Chief Counsel.
    (f) Filing and service. (1) Each petition, pleading, motion, 
notice, order, or other document submitted in connection with an order 
issued under this subpart must be filed (commercially delivered or 
submitted electronically) with: U.S. Department of Transportation, 
Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 
New Jersey Avenue, SE., Washington, DC 20590. All documents filed will 
be published on the Department's docket management Web site, http://www.regulations.gov. The emergency order shall state the above filing 
requirements and the address of DOT Docket Operations.
    (2) Service. Each document filed in accordance with paragraph 
(f)(1) of this section must be concurrently served upon the following 
persons:
    (i) Chief Safety Officer (Attn: Office of Chief Counsel, PHC), 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, 1200 New Jersey

[[Page 11595]]

Avenue, SE., East Building, Washington, DC 20590 (facsimile: 202-366-
7041) (electronic mail: PHMSAChiefCounsel@dot.gov);
    (ii) The Chief Counsel of the operating administration issuing the 
emergency order;
    (iii) If the petition for review requests a formal hearing, the 
Chief Administrative Law Judge, U.S. Department of Transportation, 
Office of Hearings, M-20, Room E12-320, 1200 New Jersey Avenue, SE., 
Washington, DC 20590 (facsimile: 202-366-7536).
    (iv) Service shall be made personally, by commercial delivery 
service, or by electronic means if consented to in writing by the party 
to be served, except as otherwise provided herein. The emergency order 
shall state all relevant service requirements and list the persons to 
be served and may be updated as necessary. The emergency order shall 
also be published in the Federal Register as soon as practicable after 
its issuance.
    (3) Certificate of service. Each order, pleading, motion, notice, 
or other document shall be accompanied by a certificate of service 
specifying the manner in which and the date on which service was made.
    (4) The emergency order shall be served by ``hand delivery,'' 
unless such delivery is not practicable, or by electronic means if 
consented to in writing by the party to be served.
    (5) Service upon a person's duly authorized representative, agent 
for service, or an organization's president constitutes service upon 
that person.
    (g) Report and recommendation. The Administrative Law Judge shall 
issue a report and recommendation at the close of the record. The 
report and recommendation shall:
    (1) Contain findings of fact and conclusions of law and the grounds 
for the decision based on the material issues of fact or law presented 
on the record;
    (2) Be served on the parties to the proceeding; and
    (3) Be issued no later than 25 days after receipt of the petition 
for review by the Chief Safety Officer.
    (h) Expiration of order. If the Chief Safety Officer, or the 
Administrative Law Judge, where appropriate, has not disposed of the 
petition for review within 30 days of receipt, the emergency order 
shall cease to be effective unless the Administrator issuing the 
emergency order determines, in writing, that the imminent hazard 
providing a basis for the emergency order continues to exist. The 
requirements of such an extension shall remain in full force and effect 
pending decision on a petition for review unless stayed or modified by 
the Administrator.
    (i) Reconsideration.
    (1) A party aggrieved by the Administrative Law Judge's report and 
recommendation may file a petition for reconsideration with the Chief 
Safety Officer within one calendar day of service of the report and 
recommendation. The opposing party may file a response to the petition 
within one calendar day of service of a petition for reconsideration.
    (2) The Chief Safety Officer shall issue a final agency decision 
within three calendar days of service of the final pleading, but no 
later than 30 days after receipt of the original petition for review.
    (3) The Chief Safety Officer's decision on the merits of a petition 
for reconsideration constitutes final agency action.
    (j) Appellate review. A person aggrieved by the final agency action 
may petition for review of the final decision in the appropriate Court 
of Appeals for the United States as provided in 49 U.S.C. 5127. The 
filing of the petition for review does not stay or modify the force and 
effect of the final agency.
    (k) Time. In computing any period of time prescribed by this part 
or by an order issued by the Administrative Law Judge, the day of 
filing of the petition for review or of any other act, event, or 
default from which the designated period of time begins to run shall 
not be included. The last day of the period so computed shall be 
included, unless it is a Saturday, Sunday, or Federal holiday, in which 
event the period runs until the end of the next day which is not one of 
the aforementioned days.


Sec.  109.21  Remedies generally.

    An Administrator may request the Attorney General to bring an 
action in the appropriate United States district court seeking 
temporary or permanent injunctive relief, punitive damages, assessment 
of civil penalties as provided by 49 U.S.C. 5122(a), and any other 
appropriate relief to enforce the Federal hazardous material 
transportation law, regulation, order, special permit, or approval 
prescribed or issued under the Federal hazardous material 
transportation law.

    Issued in Washington, DC, on February 17, 2011 under authority 
delegated in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2011-4270 Filed 3-1-11; 8:45 am]
BILLING CODE 4910-60-P


