
[Federal Register Volume 78, Number 99 (Wednesday, May 22, 2013)]
[Proposed Rules]
[Pages 30258-30266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12123]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 109

[Docket No. PHMSA-2012-0259 (HM-258B)]
RIN 2137-AE98


Hazardous Materials: Enhanced Enforcement Procedures--Resumption 
of Transportation

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA is proposing to address certain matters identified in 
the Hazardous Materials Transportation Safety Act of 2012 related to 
the Department's enhanced inspection, investigation, and enforcement 
authority. Specifically, we are proposing to amend the opening of 
packages provision to include requirements for perishable hazardous 
material; add a new notification section; and add a new equipment 
section to the Department's procedural regulations. For the mandates to 
address certain matters related to the Department's enhanced 
inspection, investigation, and enforcement authority, we are proposing 
no additional regulatory changes. We believe that the Department's 
current

[[Page 30259]]

rules that were previously established through notice and comment 
rulemaking and existing policies and operating procedures thoroughly 
address the hazmat transportation matters identified by Congress. These 
inspection and enforcement procedures will not change the current 
inspection procedures for DOT, but will augment DOT's existing 
enforcement procedures and allow the Department to respond immediately 
and effectively to conditions or practices that pose serious threats to 
life, property, or the environment. As this rule affects only agency 
enforcement procedures, it therefore results in no additional burden of 
compliance costs to industry.

DATES: Comments must be received by July 22, 2013. To the extent 
possible, PHMSA will consider late-filed comments as a final rule is 
developed.

ADDRESSES: You may submit comments by identification of the docket 
number (PHMSA-2012-0259 (HM-258B)) by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this notice at the beginning of the comment. All 
comments received will be posted without change to the Federal Docket 
Management System (FDMS), including any personal information.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://www.regulations.gov or DOT's Docket 
Operations Office (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Vincent Lopez or Shawn Wolsey, Office 
of Chief Counsel, Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE., Washington, DC 20590, at (202) 366-4400.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
III. Summary of Proposals in This NPRM
IV. Summary Review of Proposed Amendments
V. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866, 13563, and DOT Regulatory Policies and 
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulatory Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment
    J. Privacy Act
VI. List of Subjects

I. Executive Summary

    On July 6, 2012, the President signed the Moving Ahead for Progress 
in the 21st Century Act, or the MAP-21, which included the Hazardous 
Materials Transportation Safety Improvement Act of 2012 (HMTSIA) as 
Title III of the statute. Public Law 112-141, 126 Stat. 405, July 6, 
2012. Section 33009 of HMTSIA revised 49 U.S.C. 5121 to include a 
notification requirement. Congress also directed the Department to 
address certain hazmat transportation matters through rulemaking:
     The safe and expeditious resumption of transportation of 
perishable hazardous material, including radiopharmaceuticals and other 
medical products that may require timely delivery due to life-
threatening situations;
     The means by which non-compliant packages that present an 
imminent hazard are placed out-of-service until the condition is 
corrected;
     The means by which non-compliant packages that do not 
present a hazard are moved to their final destination;
     Appropriate training and equipment for inspectors; and
     The proper closure of packaging in accordance with the 
hazardous material regulations.
    We are proposing in this rulemaking, as described further below, to 
clarify the Department's position with respect to perishable hazardous 
material, by amending the opening of packages provision of the 
Department's hazardous materials procedural regulations for the opening 
of packages, emergency orders, and emergency recalls. The amendment 
recognizes the special characteristics and handling requirements of 
perishable hazardous material by clarifying that an agent will stop or 
open a package containing a perishable hazardous material only after 
the agent has utilized appropriate alternatives. We are also proposing 
to codify the statutory notification requirement in HMTSIA by 
incorporating into the regulations the Department's current 
notification procedures from the operations manual. Finally, we are 
proposing to add a new provision to address appropriate equipment for 
inspectors. For the remaining mandates to address certain matters 
related to the Department's enhanced inspection, investigation, and 
enforcement authority, we are proposing no additional regulatory 
changes. We believe that the Department's current rules that were 
previously established through notice and comment rulemaking and 
existing policies and operating procedures thoroughly address the 
hazmat transportation matters identified by Congress as requiring 
additional regulations. For instance, in a prior rulemaking, the 
Department established, in Part 109, procedural regulations for opening 
packages, removing packages from transportation, and closing packages. 
These regulations include the definition of key terms, including 
perishable hazardous material. The regulations address how the 
Department's agents will handle non-compliant packages that present an 
imminent hazard and those that do not. Moreover, the rules address when 
and how the Department's agents will open a package. And, if an agent 
opens a package, there are procedural rules for closing the package and 
ensuring its safe resumption of transportation, if applicable. In 
addition, the Department developed an internal operations manual for 
training and use by its hazmat inspectors and investigators across all 
modes of transportation. The operations manual's guidance is intended 
to target and manage the use of the enhanced inspection and enforcement 
authority in a uniform and consistent manner within the Department. At 
this time, we do not have any data or other information that indicate 
the rules, policies, and operating procedures currently in place are 
inadequate or that additional regulations are necessary.

II. Background

    On March 2, 2011, we issued a final rule under Docket No. PHMSA-
2005-22356 (PHM-7), ``Hazardous Materials: Enhanced Enforcement 
Procedures.'' 76 FR 11570. The final rule became effective on May 2, 
2011. The rule implemented enhanced inspection, investigation, and 
enforcement authority conferred on the Secretary of Transportation 
(Secretary) by the

[[Page 30260]]

Hazardous Materials Transportation Safety and Security Reauthorization 
Act of 2005 (HMTSSRA). The final rule established procedures for 
issuance of emergency orders (restrictions, prohibitions, recalls, and 
out-of-service orders) to address unsafe conditions or practices posing 
an imminent hazard; opening of packages to identify undeclared or non-
compliant shipments, when the person in possession of the package 
refuses a request to open it; and the temporary detention and 
inspection of potentially non-compliant packages. 76 FR 11570 (codified 
at 49 CFR, Part 109). In conjunction with the final rule, the 
Department of Transportation (Department or DOT) developed an internal 
operations manual for training and use by its inspectors and 
investigators (collectively agents). The operations manual is a joint 
document created by the operating administrations that enforce the 
Hazardous Materials Regulations, 49 CFR parts 171-180 (HMR) \1\, to 
provide guidance to agents who, in the course of conducting 
inspections, determine that they need to open a package, remove a 
package from transportation, or perform any other authorized function 
in Part 109. The manual seeks to establish baseline conditions that 
will ensure consistent application of the authorities exercised under 
49 CFR part 109 at a minimum threshold. The guidance is intended to 
target and manage the use of enhanced inspection and enforcement 
authority in a manner that minimizes burdens on the transportation 
system while, at the same time, meets the overriding mission of 
transportation safety. The operations manual was made available to the 
public on the PHMSA Web site, http://www.phmsa.dot.gov.
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    \1\ Under authority delegated by the Secretary of 
Transportation, four agencies within DOT enforce the Hazardous 
Materials Regulations, 49 CFR Parts 171-180 and other regulations, 
approvals, special permits, and orders issued under Federal 
Hazardous Materials Transportation Law, 49 U.S.C. Sec. Sec.  5101 et 
seq.: (1) Federal Aviation Administration, 49 CFR 1.83(d)(1); (2) 
Federal Railroad Administration, 49 CFR 1.89(j); (3) Federal Motor 
Carrier Safety Administration, 49 CFR 1.87(d)(1); and (4) The 
Pipeline and Hazardous Materials Safety Administration, 49 CFR 
1.97(b). The secretary has delegated authority to each respective 
operating administration to exercise the enhanced inspection and 
enforcement authority conferred by HMTSSRA. 71 FR 52751, 52753 
(Sept. 7, 2006). The United States Coast Guard is authorized to 
enforce the Hazardous Materials Regulations in connection with 
certain transportation or shipment of hazardous materials by water 
but does not have Congressional/delegated authority to carry out the 
enhanced inspection, investigation, and enforcement authority.
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    On July 6, 2012, the President signed the Moving Ahead for Progress 
in the 21st Century Act, or the MAP-21, which included the Hazardous 
Materials Transportation Safety Improvement Act of 2012 (HMTSIA) as 
Title III of the statute. Public Law 112-141, 126 Stat. 405, July 6, 
2012. Section 33008 of HMTSIA created a mandate for the Department to 
develop uniform performance standards for hazmat inspectors and 
investigators:

    (a) In General--Not later than 18 months after the date of 
enactment of this Act, the Secretary shall develop uniform 
performance standards for training hazardous material inspectors and 
investigators on--
    (1) how to collect, analyze, and publish findings from 
inspections and investigations of accidents or incidents involving 
the transportation of hazardous material; and
    (2) how to identify noncompliance with regulations issued under 
chapter 51 of title 49, United States Code, and take appropriate 
enforcement action.
    (b) Standards and Guidelines--The Secretary may develop--
    (1) guidelines for hazardous material inspector and investigator 
qualifications;
    (2) best practices and standards for hazardous material 
inspector and investigator training programs; and
    (3) standard protocols to coordinate investigation efforts among 
Federal, State, and local jurisdictions on accidents or incidents 
involving the transportation of hazardous material.
    (c) Availability--The standards, protocols, and guidelines 
established under this section--
    (1) shall be mandatory for--
    (A) the Department of Transportation's multimodal personnel 
conducting hazardous material enforcement inspections or 
investigations; and
    (B) State employees who conduct federally funded compliance 
reviews, inspections, or investigations; and
    (2) shall be made available to Federal, State, and local 
hazardous material safety enforcement personnel.

126 Stat. at 836.

    Section 33009 of HMTSIA revised 49 U.S.C. 5121, to include a 
notification requirement. Congress also directed the Department to 
address certain hazmat transportation matters through rulemaking:

    (a) Notice of Enforcement Measures--Section 5121(c)(1) is 
amended--
    (1) in subparagraph (E), by striking ``and'' at the end;
    (2) in subparagraph (F), by striking the period at the end and 
inserting ``; and''; and
    (3) by adding at the end the following:
    ``(G) shall provide to the affected offeror, carrier, packaging 
manufacturer or tester, or other person responsible for the package 
reasonable notice of--
    ``(i) his or her decision to exercise his or her authority under 
paragraph (1);
    ``(ii) any findings made; and
    ``(iii) any actions being taken as a result of a finding of 
noncompliance.''.
    (b) Regulations--
    (1) Matters To Be Addressed--Section 5121(e) is amended by 
adding at the end the following:
    ``(3) Matters To Be Addressed--The regulations issued under this 
subsection shall address--
    ``(A) the safe and expeditious resumption of transportation of 
perishable hazardous material, including radiopharmaceuticals and 
other medical products, that may require timely delivery due to 
life-threatening situations;
    ``(B) the means by which--
    ``(i) noncompliant packages that present an imminent hazard are 
placed out-of-service until the condition is corrected; and
    ``(ii) noncompliant packages that do not present a hazard are 
moved to their final destination;
    ``(C) appropriate training and equipment for inspectors; and
    ``(D) the proper closure of packaging in accordance with the 
hazardous material regulations.''.
    (2) Finalizing Regulations--In accordance with section 
5103(b)(2) of title 49, United States Code, not later than 1 year 
after the date of enactment of this Act, the Secretary shall take 
all actions necessary to finalize a regulation under paragraph (1) 
of this subsection.
* * * * *
126 Stat. at 836-7.

    As described further below, we believe that the Department's 
current rules that were previously established through notice and 
comment rulemaking and existing policies and operating procedures 
thoroughly address the congressional mandates to address certain hazmat 
transportation matters. In PHM-7, the Department established procedural 
regulations for opening packages, removing packages from 
transportation, and closing packages. These regulations include the 
definition of key terms, including perishable hazardous material. The 
regulations address how the Department's agents will handle non-
compliant packages that present an imminent hazard and those that do 
not. Moreover, the rules address when and how the Department's agents 
will open a package. And, if an agent opens a package, there are 
procedural rules for closing the package and ensuring its safe 
resumption of transportation, if applicable. In addition, the 
Department developed an internal operations manual for training and use 
by its hazmat inspectors and investigators across all modes of 
transportation. The operations manual's guidance is intended to target 
and manage the use of the enhanced inspection and enforcement authority 
in a uniform and consistent manner within the Department. At this time, 
we do not have any data or other information that indicate the rules, 
policies, and

[[Page 30261]]

operating procedures currently in place are inadequate or that 
additional regulations are necessary.

III. Summary of Proposals in This NPRM

    In MAP-21 Congress directed the Secretary to address certain 
transportation matters related to the Department's enhanced inspection, 
investigation, and enforcement authority. The relevant MAP-21 mandates 
for this rulemaking are:
     Notice of enforcement measures;
     The safe and expeditious resumption of transportation of 
perishable hazardous material, including radiopharmaceuticals and other 
medical products that may require timely delivery due to life-
threatening situations;
     The means by which non-compliant packages that present an 
imminent hazard are placed out-of- service until the condition is 
corrected;
     The means by which non-compliant packages that do not 
present a hazard are moved to their final destination;
     Appropriate training and equipment for inspectors; and
     The proper closure of packaging in accordance with the 
hazardous material regulations.
    We are proposing in this rulemaking, as described further below, to 
clarify the Department's position with respect to perishable hazardous 
material, by amending the opening of packages provision of the 
Department's hazardous materials procedural regulations for the opening 
of packages, emergency orders, and emergency recalls. The amendment 
recognizes the special characteristics and handling requirements of 
perishable hazardous material by clarifying that an agent will stop or 
open a package containing a perishable hazardous material only after 
the agent has utilized appropriate alternatives. We are also proposing 
to codify the statutory notification requirement in HMTSIA by 
incorporating into the regulations the Department's current 
notification procedures from the operations manual that was developed 
in conjunction with the PHM-7 final rule. Finally, we are proposing to 
add a new provision to address appropriate equipment for inspectors.
    For the remaining mandates to address certain matters related to 
the Department's enhanced inspection, investigation, and enforcement 
authority, we are proposing no additional regulatory changes. We 
believe that the Department's current rules that were previously 
established through notice and comment rulemaking and existing policies 
and operating procedures thoroughly address the hazmat transportation 
matters identified by Congress. For instance, in a prior rulemaking, 
the Department established, in Part 109, procedural regulations for 
opening packages, removing packages from transportation, and closing 
packages. These regulations include the definition of key terms, 
including perishable hazardous material. The regulations address how 
the Department's agents will handle non-compliant packages that present 
an imminent hazard and those that do not. Moreover, the rules address 
when and how the Department's agents will open a package. And, if an 
agent opens a package, there are procedural rules for closing the 
package and ensuring its safe resumption of transportation, if 
applicable. In addition, the Department developed an internal 
operations manual for training and use by its hazmat inspectors and 
investigators across all modes of transportation. The operations 
manual's guidance is intended to target and manage within the 
Department the use of the enhanced inspection and enforcement authority 
in a uniform and consistent manner. At this time, we do not have any 
data or other information that indicate the rules, policies, and 
operating procedures currently in place are inadequate or that 
additional rulemaking is necessary.

Notice of Enforcement Measures

    In PHM-7, we established procedures to implement the enhanced 
inspection, investigation, and enforcement authority conferred on the 
Secretary through HMTSSRA. In the NPRM for that rule, in response to 
commenters' concerns about notifying offerors and consignees about a 
possible delay in arrival, we agreed that all parties responsible for a 
shipment that is opened or removed from transportation need to be 
notified of the action taken. We said that ``DOT inspectors will be 
required to communicate the findings made and enforcement measures 
taken to the appropriate offeror, recipient, and carrier of the package 
. . .''. 73 FR 57288. In the final rule, we outlined how we would 
notify affected parties when an agent exercises one of the new 
authorities. 76 FR 11580. In the preamble to the final rule, we 
explained that the notification procedures would be incorporated into 
the Department's joint operations manual. Id. The notification 
procedures that we developed for the joint operations manual address 
situations where an agent may exercise a 49 CFR Part 109 authority for 
a package that is in transit. In this case, the person in possession of 
the package, such as a carrier, may not be the person responsible for 
the package, i.e. the offeror. Therefore, we set out separate 
procedures for immediately notifying the person in possession and the 
original offeror. Generally, the agent will verbally notify the person 
in possession. If the person in possession is not the original offeror, 
the agent will also take reasonable measures to notify the original 
offeror.
    In MAP-21 Congress added a notification requirement to the 
Department's inspection and investigation authority. Specifically, 
Section 5121(c)(1) was amended to include new subparagraph (G). Section 
5121(c)(1) now reads:

    ``(c) Inspections and investigations.--
    (1) In general.--A designated officer, employee, or agent of the 
Secretary--

* * * * *
    (G) shall provide to the affected offeror, carrier, packaging 
manufacturer or tester, other person responsible for the package 
reasonable notice of--
    (i) his or her decision to exercise his or her authority under 
paragraph (1);
    (ii) any findings made; and
    (iii) any actions being taken as a result of a finding of 
noncompliance.

126 Stat. at 836-7.

    We are proposing in this rulemaking to codify this statutory 
notification requirement by incorporating into the regulations the 
Department's current notification procedures from the joint operations 
manual. As discussed above, the joint operations manual includes 
procedures and guidance to agents for providing notice of enforcement 
measures taken under 49 CFR part 109. The procedures in the manual are 
comprehensive and comport with the statutory mandate. As such, under 
this proposal, a new notification section will be added to part 109, 
subpart B of 49 CFR. It will require that an agent, after exercising a 
49 CFR part 109 inspection or investigation authority, immediately take 
reasonable measures to notify the appropriate person of the reason for 
the action being taken, the results of any preliminary investigation 
including apparent violations of the HMR, and any further action that 
may be warranted.

The Safe and Expeditious Resumption of Transportation of Perishable 
Hazardous Material

    We addressed the opening, reclosing, and resumption of 
transportation of perishable hazardous material in a previous 
rulemaking. In PHM-7, we defined ``perishable hazardous material'' as 
``a hazardous material that is subject to significant risk of speedy 
decay, deterioration, or spoilage, or

[[Page 30262]]

hazardous materials consigned for medical use, in the prevention, 
treatment, or cure of a disease or condition in human beings or animals 
where expeditious shipment and delivery meets a critical medical 
need.'' 76 FR 11592 (codified at 49 CFR Sec.  109.1). Further, we 
established procedures for reclosing a package containing a perishable 
hazardous material and its safe and expeditious resumption of 
transportation. Section 109.13 contains the requirements for the 
closing of packages and the safe resumption of transportation, 
including a specific requirement pertaining to perishable hazardous 
material.
    We believe the definition of perishable hazardous material and the 
rules, current procedures, and guidance already developed for reclosing 
packages, sufficiently address Congress' concern and the need for 
expeditious treatment of these types of materials. We also note that in 
the Department's joint operations manual, we have significantly 
restricted an agent's ability to handle or open a package containing 
perishable hazardous material. For example, an agent must have been 
trained in the handling of the specific material and may only open a 
perishable hazardous material package in a designated facility, if 
required, and have all safety equipment, handling equipment, and 
materials to properly close the package. Notwithstanding, in order to 
clarify the Department's position with respect to perishable hazardous 
material, we are proposing to amend the opening of packages provision 
of the Department's hazardous materials procedural regulations for the 
opening of packages, emergency orders, and emergency recalls. The 
amendment recognizes the special characteristics and handling 
requirements of perishable hazardous material by clarifying that an 
agent will stop or open a package containing a perishable hazardous 
material only after the agent has utilized appropriate alternatives.
    In consideration of the special characteristics and handling 
requirements of perishable hazardous material, we are proposing to 
establish a Department policy that its agents will not intentionally 
open packages containing perishable hazardous material unless a 
compelling safety need exists. However, in accordance with our current 
procedures, an agent may stop, remove, or have a package containing 
these types of materials transported to a facility for further 
examination and analysis. We solicit comments from the public whether 
excluding these types of materials is appropriate.

Handling of non-compliant packages

    In MAP-21 Congress mandated that the Department take all actions 
necessary to finalize a regulation addressing the means by which non-
compliant packages are processed when an agent exercises an authority 
under Part 109. Specifically, Section 5121(e) was amended to include 
new paragraph (3). The relevant amendment to Section 5121(e) includes 
the following language:

* * * * *
    (3) Matters to be addressed.--The regulations issued under this 
subsection shall address--
* * * * *
    (B) the means by which--
    (i) noncompliant packages that present an imminent hazard are 
placed out-of-service until the condition is corrected; and
    (ii) noncompliant packages that do not present a hazard are 
moved to their final destination.

* * * * *

126 Stat. at 837.

    The Department's procedural rules for opening of packages, 
emergency orders, and emergency recalls are in 49 CFR part 109. These 
procedures address the means by which a non-compliant package that is 
found to be an imminent hazard is placed out-of-service. Specifically, 
in Sec.  109.13, if an imminent hazard is found to exist after an agent 
opens a package, the operating administration's authorized official may 
issue an out-of-service order prohibiting the movement of the package. 
49 CFR 109.13(b). The package must be removed from transportation until 
it is brought into compliance. Id. An out-of-service order is a type of 
emergency order. In 49 CFR, subpart C of part 109 contains the 
procedural regulations for issuing an out-of-service emergency order, 
including procedures for administrative review, reconsideration, and 
appellate review of an emergency order. Furthermore, the joint 
operations manual provides inspection personnel with step-by-step 
procedures and additional guidance for issuing an out-of-service order. 
For example, at least two levels of review and consultation with the 
operating administration's legal office is required before an emergency 
order can be issued. Moreover, the operations manual addresses 
documentation requirements, notification, service, publication, and 
termination requirements.
    Regarding non-compliant packages that do not present a hazard, it 
is important to note that a non-compliant package may not continue in 
transportation until all identified non-compliant issues are resolved. 
49 CFR 109.13(d). In the PHM-7 final rule where we established the 
enhanced enforcement procedures, we stated that for a non-compliant 
package, the agent would not close the package and that there is no 
obligation to bring that package into compliance. 76 FR 11587. Further, 
we stated, ``[t]he Department's operating administrations will not be 
responsible for bringing an otherwise non-compliant package into 
compliance and resuming its movement in commerce.'' Id. We reasoned 
that if the package does not conform to the HMR at the time of 
inspection, the act that a DOT official opened it in the course of an 
inspection or investigation will not make DOT or its agent responsible 
for bringing the package into compliance. Id.
    In light of the above, we have already fulfilled the applicable 
mandate for the handling of non-compliant packages and no further 
action is required.

Appropriate Training and Equipment for Inspectors

    Congress recognized that ``[t]here is currently no uniform training 
standard for hazardous materials (`hazmat') inspectors and 
investigators.'' H. Conf. Rep. No. 112-557 at 610 (2012). To address 
this problem, it mandated in MAP-21 that the Secretary establish 
uniform performance standards for training hazmat inspectors and 
investigators no later than eighteen months from the date of enactment 
of the Act. 126 Stat. at 836. The mandate authorizes the development of 
guidelines for hazmat inspector and investigator qualifications; best 
practices and standards for hazmat inspector and investigator training 
programs; and standard protocols to coordinate investigation efforts 
among Federal, State, and local jurisdictions on accidents or incidents 
involving the transportation of hazardous material. In order to achieve 
a uniform hazmat training standard, Congress required that the 
standards, protocols, and guidelines developed would be mandatory to 
the Department's multimodal personnel conducting hazmat enforcement 
inspections and investigations.
    Additionally, Congress mandated that the Department take all 
actions necessary to finalize a regulation, no later than one year from 
the date of enactment of the Act, addressing appropriate training and 
equipment for inspectors when exercising an authority under 49 CFR Part 
109. Specifically, Section 5121(e) was amended to include new paragraph 
(3). The relevant

[[Page 30263]]

amendment to Section 5121(e) includes the following language:

* * * * *
    (3) Matters to be addressed.--The regulations issued under this 
subsection shall address--
* * * * *
    (C) appropriate training and equipment for inspectors; and

* * * * *

126 Stat. at 837

    Although the MAP-21 mandates here are training related, it is 
evident that the development of a uniform training scheme is essential 
because it will establish the foundation upon which future training for 
hazmat inspectors and investigators is expected to follow. As such, it 
is premature to require the Department to promulgate enforcement 
procedural regulations for hazmat training and equipment before the 
Department has had the opportunity to develop uniform performance 
training standards. This approach does not appear to be the best way to 
meet Congress' objective to ensure that all hazmat inspectors and 
investigations receive uniform and standardized training. It would be 
more appropriate for the Department to establish the uniform 
performance training standards, best practices, and protocols before it 
develops additional training regulations for its hazmat personnel. This 
would ensure that new training rules are consistent with the uniform 
training scheme.
    Notwithstanding, we understand that proper training of inspectors 
and investigators is essential to ensure that the enhanced enforcement 
authority is used effectively and judiciously. In the NPRM for PHM-7, 
we explained that the operating administrations responsible for 
enforcement of the HMR--PHMSA, FMCSA, FAA, and FRA--worked together to 
develop the rule and a joint operations manual. 73 FR 57285. We further 
explained that the proposed regulations set out a framework for the 
procedures the operating administrations will employ when conducting 
inspections or investigations, thus ensuring consistency in approaches 
and enforcement measures among modes of transportation. Moreover, we 
stated that the final rule, implemented with the guidance of an 
operational manual, would ensure that this authority was properly used. 
Id. We expressed our confidence in this approach because with the 
cooperation of the operating administrations in the development of the 
rule, and the accompanying operations manual, it meant that all 
Department inspectors and investigators would have the same general 
training and modal specific instruction. 73 FR 57288.
    Regarding equipment, we are proposing to add a new provision to 
address appropriate equipment for inspectors when they exercise a Part 
109 authority. Under this proposal, a new equipment section will be 
added to new Subpart D--Equipment, requiring an agent to use the 
appropriate safety, handling, and other equipment authorized by his or 
her operating administration's equipment requirements for hazardous 
material inspectors and investigators.
    Consequently, we do not believe that we should develop rules for 
appropriate training in this rulemaking. Instead, we advocate 
addressing any performance standards as part of the larger hazardous 
materials performance standard development activity currently underway. 
In the meantime, we believe the existing rules in 49 CFR Part 109 and 
the attendant operational procedures in the joint operations manual, as 
well as each operating administration's specific guidance for its 
enforcement staff, sufficiently address the training concern identified 
by Congress in the MAP-21 directive. Therefore, PHMSA does not believe 
that further action is necessary at this time.

The Proper Closure of Packaging in Accordance With HMR

    In MAP-21 Congress mandated that the Department take all actions 
necessary to finalize a regulation addressing ``the proper closure of 
packaging in accordance with the hazardous material regulations.'' 126 
Stat. at 837.
    In PHM-7 we addressed reclosing of packages opened under the 
enhanced inspection, investigation, and enforcement authority. In 
several of the comments that we received about that rulemaking, the 
regulated community raised concerns about how we were going to reclose 
packages after they have been opened under the new authority. In the 
NPRM, we responded by stating that the Department was developing 
internal operational procedures and guidance to address the proper 
closure of packaging in accordance with the HMR. We also solicited 
further comment from the public on the factors that should be 
considered in the development of these procedures and guidance. 73 FR 
57286. However, we also stated that an agent's obligation to reclose a 
package only arose if, after opening the package, an imminent hazard 
was found not to exist and the package otherwise complied with the HMR. 
76 FR 11587. More importantly, we also said that the Department's 
operating administrations would not be responsible for bringing an 
otherwise non-specification or non-compliant package into compliance 
and resuming its movement in commerce. Id. If the package did not 
comply with the HMR the fact that a DOT official opened it in the 
course of an inspection or investigation would not make DOT or its 
inspector responsible for bringing the package into compliance. Id. In 
the final rule, we significantly revised the new rule for closing 
packages to cover each possible re-closure scenario: no imminent hazard 
found; imminent hazard found; package does not contain a hazardous 
material; and package contains a hazardous material not in compliance 
with the HMR. Id. Further, we stated that the inspector would only be 
required to reclose a package in accordance with the packaging 
manufacturer's closure instructions or other appropriate method when a 
package was opened and no imminent hazard was found. Id. In the joint 
operations manual we developed procedures for properly closing a 
package. These procedures include steps for reclosing a package. It 
also includes additional requirements and procedures to complete the 
re-closure process, including methods to thoroughly document the 
activities performed.
    In light of the above, we believe the existing requirements in 49 
CFR Part 109 for closing opened packages (Section 109.13) and the 
attendant operational procedures in the joint operations manual 
sufficiently address the matter identified by Congress in the MAP-21 
directive. Therefore, no further action is necessary.

IV. Summary Review of Proposed Amendments

    We are proposing to amend the opening of packages provision of the 
Department's hazardous materials procedural regulations for the opening 
of packages, emergency orders, and emergency recalls. The amendment 
recognizes the special characteristics and handling requirements of 
perishable hazardous material by clarifying that an agent will stop or 
open a package containing a perishable hazardous material only after 
the agent has utilized appropriate alternatives. We are also proposing 
to add a notification provision to 49 CFR under Part 109 Subpart B--
Inspections and Investigations. The provision will provide for the 
immediate and reasonable notification of enforcement action taken by an 
inspector or

[[Page 30264]]

investigator whenever he or she exercises one of the inspection and 
investigation authorities under 49 CFR Part 109, Subpart B, which 
includes the opening of packages; removing a package and related 
packages in a shipment from transportation; directing a package to be 
transported to a facility for examination and analysis; and authorizing 
properly qualified personnel to assist in activities conducted under 
Subpart B. The notice will include the reason for the action being 
taken, the results of any preliminary investigation including apparent 
violations of the HMR, and any further action that may be warranted. 
Finally, we are proposing to add a new provision to address appropriate 
equipment for inspectors when they exercise a Part 109 authority. The 
new equipment section will be added to 49 CFR under new Subpart D--
Equipment. The provision will require an agent to use the appropriate 
safety, handling, and other equipment authorized by his or her 
operating administration's equipment requirements for hazardous 
material inspectors and investigators.

V. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This notice of proposed rulemaking (NPRM) is published under the 
authority of the Federal Hazardous Materials Transportation Law, 49 
U.S.C. Sec.  5101 et seq. Section 5103(b) authorizes the Secretary to 
prescribe regulations for the safe transportation, including security, 
of hazardous material in intrastate, interstate, and foreign commerce. 
This NPRM would revise PHMSA's procedural regulations for opening of 
packages, emergency orders, and emergency recalls to address certain 
matters identified in the Hazardous Materials Transportation Safety Act 
of 2012 related to Department's enhanced inspection, investigation, and 
enforcement authority. The NPRM carries out the statutory mandate and 
clarifies DOT's role and responsibilities in ensuring that hazardous 
materials are being safely transported and promoting the regulated 
community's understanding and compliance with regulatory requirements 
applicable to specific situations and operations.

B. Executive Order 13610, Executive Order 13563, Executive Order 12866, 
and DOT Regulatory Policies and Procedures

    This NPRM is not considered a significant regulatory action under 
section 3(f) Executive Order 12866 and, therefore, was not reviewed by 
the Office of Management and Budget (OMB). The proposed rule is not 
considered a significant rule under the Regulatory Policies and 
Procedures order issued by the U.S. Department of Transportation (44 FR 
11034).
    Executive Order 13563 is supplemental to and reaffirms the 
principles, structures, and definitions governing regulatory review 
that were established in Executive Order 12866 Regulatory Planning and 
Review of September 30, 1993. Executive Order 13563, issued January 18, 
2011, notes that our nation's current regulatory system must not only 
protect public health, welfare, safety, and our environment but also 
promote economic growth, innovation, competitiveness, and job 
creation.\2\ Further, this executive order urges government agencies to 
consider regulatory approaches that reduce burdens and maintain 
flexibility and freedom of choice for the public. In addition, federal 
agencies are asked to periodically review existing significant 
regulations, retrospectively analyze rules that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and modify, 
streamline, expand, or repeal regulatory requirements in accordance 
with what has been learned.
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    \2\ See http://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulatory-review-executive-order
---------------------------------------------------------------------------

    Executive Order 13610, issued May 10, 2012, urges agencies to 
conduct retrospective analyses of existing rules to examine whether 
they remain justified and whether they should be modified or 
streamlined in light of changed circumstances, including the rise of 
new technologies.\3\
---------------------------------------------------------------------------

    \3\ See http://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf
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    By building off of each other, these three Executive Orders require 
agencies to regulate in the ``most cost-effective manner,'' to make a 
``reasoned determination that the benefits of the intended regulation 
justify its costs,'' and to develop regulations that ``impose the least 
burden on society.''
    This proposed rule revises 49 CFR part 109, which contains 
regulations on DOT inspection and investigation procedures. These 
regulations are not part of the HMR, which govern the transportation of 
hazmat, thus they do not carry any additional compliance requirements 
or costs for entities that must comply with the HMR. It is possible, 
however, that some carriers or shippers, who in the absence of this 
rule would have refused to open a package when requested, may 
experience delays that they would not have otherwise faced. DOT is not 
aware of any cases of shippers or carriers refusing to open packages 
and so anticipates that these costs will be minimal.

C. Executive Order 13132

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

D. Executive Order 13175

    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this NPRM does 
not significantly or uniquely affect the communities of the Indian 
tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have 
significant impact on a substantial number of small entities. I hereby 
certify that the proposed rule will not have a significant economic 
impact on a substantial number of small entities. This proposed rule 
applies to offerors and carriers of hazardous materials, some of which 
are small entities; however, there will not be any economic impact on 
any person who complies with Federal hazardous materials law and the 
regulations and orders issued under that law.
    Potentially affected small entities. The provisions in this 
proposed rule will apply to persons who perform, or cause to be 
performed, functions related to the transportation of hazardous 
materials in transportation in commerce. This includes offerors of 
hazardous materials and persons in physical control of a hazardous 
material during transportation in commerce. Such

[[Page 30265]]

persons may primarily include motor carriers, air carriers, vessel 
operators, rail carriers, temporary storage facilities, and intermodal 
transfer facilities. Unless alternative definitions have been 
established by the agency in consultation with the Small Business 
Administration, the definition of ``small business'' has the same 
meaning as under the Small Business Act (15 CFR parts 631-657c). 
Therefore, since no such special definition has been established, PHMSA 
employs the thresholds (published in 13 CFR 121.201) of 1,500 employees 
for air carriers (NAICS Subgroup 481), 500 employees for rail carriers 
(NAICS Subgroup 482), 500 employees for vessel operators (NAICS 
Subgroup 483), $18.5 million in revenues for motor carriers (NAICS 
Subgroup 484), and $18.5 million in revenues for warehousing and 
storage companies (NAICS Subgroup 493). Of the approximately 116,000 
entities to which this proposed rule would apply (104,000 of which are 
motor carriers), we estimate that about 90 percent are small entities.
    Potential cost impacts. This proposed rule revises 49 CFR Part 109, 
which contains regulations on DOT inspection and investigation 
procedures. These regulations are not part of the HMR, which govern the 
transportation of hazmat, thus they do not carry any additional 
compliance requirements or costs for entities that must comply with the 
HMR. It is possible, however, that some carriers or shippers, who in 
the absence of this rule would have refused to open a package when 
requested, may experience delays that they would not have otherwise 
faced. DOT is not aware of any cases of shippers or carriers refusing 
to open packages and so anticipates that these costs will be minimal.
    Alternate proposals for small business. Because this proposed rule 
addresses a Congressional mandate, we have limited latitude in defining 
alternative courses of action. The option of taking no action would be 
both inconsistent with Congress' direction and undesirable from the 
standpoint of safety and enforcement. Failure to implement the new 
authority will perpetuate the problem of undeclared hazardous material 
shipments and resulting incidents or releases. It will also leave PHMSA 
and other operating administrations without an effective plan to abate 
an imminent safety hazard.

 F. Paperwork Reduction Act

    PHMSA has analyzed this final rule in accordance with the Paperwork 
Reduction Act of 1995 (PRA). The PRA requires Federal agencies to 
minimize the paperwork burden imposed on the American public by 
ensuring maximum utility and quality of federal information, ensuring 
the use of information technology to improve government performance, 
and improving the federal government's accountability for managing 
information collection activities. This final rule contains no new 
information collection requirements subject to the PRA.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

H. Unfunded Mandates Reform Act of 1995

    This proposed rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$141.3 million or more to either state, local or tribal governments, in 
the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), and implementing regulations by the Council on 
Environmental Quality (40 CFR part 1500) require Federal agencies to 
consider the consequences of Federal actions and prepare a detailed 
statement on actions that significantly affect the quality of the human 
environment.
    The purpose of this rulemaking is to amend the Department's 
existing enforcement procedures to (1) to clarify the Department's 
position with respect to perishable hazardous material, by amending the 
opening of packages provision; (2) provide notice of enforcement 
measures to affected parties; and (3) address appropriate equipment for 
inspectors. Because this NPRM addresses Congressional mandates, we have 
limited latitude in defining alternative courses of action. The option 
of taking no action would be both inconsistent with Congress' direction 
and undesirable from the standpoint of safety and enforcement. These 
inspection and enforcement procedures will not change the current 
inspection procedures for DOT, but will augment DOT's existing 
enforcement procedures and allow the Department to respond immediately 
and effectively to conditions or practices that pose serious threat to 
life, property, or the environment. PHMSA has initially determined that 
the implementation of the proposed rule will not have any significant 
impact on the quality of the human environment. PHMSA, however, invites 
comments about environmental impacts that the proposed rule might pose.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) which may be 
viewed at: http://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.

List of Subjects in 49 CFR Part 109

    Inspections and investigations. Equipment.

    In consideration of the foregoing, 49 CFR Chapter I is proposed to 
be amended as follows:

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

0
1. The authority citation for part 109 is revised to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Sec.  4 
(28 U.S.C. 2461 note); Pub. L. 104-121 Sec. Sec.  212-213; Pub. L. 
104-134 Sec.  31001; 49 CFR 1.81, 1.97.

0
2. In Sec.  109.5, a new paragraph (b) is added to read as follows:


Sec.  109.5  Opening of packages.

* * * * *
    (b) Perishable hazardous material. To ensure the expeditious 
transportation of a package containing a perishable hazardous material, 
an agent will utilize appropriate alternatives before exercising an 
authority under paragraph (a).
0
3. Section 109.16 is added to read as follows:


Sec.  109.16  Notification of Enforcement Measures.

    In addition to the notification requirements in Sec.  109.7, an 
agent, after exercising an authority under this

[[Page 30266]]

Subpart, will immediately take reasonable measures to notify the 
offeror and the person in possession of the package, providing the 
reason for the action being taken, the results of any preliminary 
investigation including apparent violations of subchapter C of this 
chapter, and any further action that may be warranted.
0
4. Subpart D is added to read as follows:

Subpart D--Equipment


Sec.  109.25  Equipment.

    When an agent exercises an authority under Subpart B, the agent 
shall use the appropriate safety, handling, and other equipment 
authorized by his or her operating administration's equipment 
requirements for hazardous material inspectors and investigators.

    Issued in Washington, DC, on May 13, 2013, under authority 
delegated in 49 CFR Part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration.
[FR Doc. 2013-12123 Filed 5-21-13; 8:45 am]
BILLING CODE 4910-60-P


