[Federal Register Volume 78, Number 191 (Wednesday, October 2, 2013)]
[Rules and Regulations]
[Pages 60755-60763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23894]
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: PHMSA is addressing certain matters identified in the
Hazardous Materials Transportation Safety Improvement Act of 2012
related to the Department's enhanced inspection, investigation, and
enforcement authority. Specifically, PHMSA is amending the package
opening provision to include procedures for an agent of the Secretary
of Transportation to open packages of perishable hazardous materials
and to provide notification to the responsible party that an agent has
exercised a safety inspection or investigation authority. In addition,
we are establishing equipment requirements for agents. The Department's
enhanced inspection, investigation, and enforcement procedures were
previously established through notice and comment rulemaking and
thoroughly address the hazardous material transportation matters
identified by Congress. This final rule is required to codify changes
to Federal hazardous materials transportation law and to ensure
transparency and consistency for hazardous materials inspectors across
all modes of transportation. As it affects only agency enforcement
procedures, there are no additional compliance costs to industry
associated with this final rule.
DATES: This Final rule is effective November 1, 2013.
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 of Supplementary Information
I. Executive Summary
II. Background
III. Discussion of the Comments on the NPRM
IV. Summary of MAP-21 and Final Rule
V. Summary Review of Amendments
VI. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Orders 12866, 13563, 13610, 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
[[Page 60756]]
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 Division C 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 hazardous material (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 clarifying in this rulemaking, as described further below,
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, for emergency orders, and for emergency recalls. 49 CFR
109.5. 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 codifying the statutory notification
requirement in HMTSIA by incorporating into the regulations the
Department's current notification procedures from the operations
manual. Finally, we are adding 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, no additional regulatory changes will be made. 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 procedural
regulations for opening packages, removing packages from
transportation, and closing packages in part 109 of title 49, Code of
Federal Regulations (CFR). 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. Specifically, under 49 CFR 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. The package must be removed
from transportation until it is brought into compliance. An out-of-
service order is a type of emergency order. The procedural regulations
also include procedures for administrative review, reconsideration, and
appellate review of an out-of-service order. 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 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 function
authorized 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.
---------------------------------------------------------------------------
\1\ Under authority delegated by the Secretary, the
Administrators of four agencies within DOT enforce the Hazardous
Materials Regulations, 49 CFR parts 171-180 and other regulations,
approvals, special permits, and orders issued under Federal
hazardous materials transportation law, 49 U.S.C. 5101 et seq.: (1)
Federal Aviation Administration, 49 CFR 1.83(d)(1); (2) Federal
Railroad Administration, 49 CFR 1.89(j); (3) Federal Motor Carrier
Safety Administration, 49 CFR 1.87(d)(1); and (4) Pipeline and
Hazardous Materials Safety Administration, 49 CFR 1.97(b). The
Secretary has delegated authority to the Administrator of each
respective operating administration to exercise the enhanced
inspection and enforcement authority conferred by HMTSSRA. 71 FR
52751, 52753 (Sept. 7, 2006). The United States Coast Guard is
authorized to enforce the Hazardous Materials Regulations in
connection with certain transportation or shipment of hazardous
materials by water but does not have Congressional/delegated
authority to carry out the enhanced inspection, investigation, and
enforcement authority.
---------------------------------------------------------------------------
On July 6, 2012, the President signed the MAP-21, which included
the HMTSIA as Title III of Division C of the statute. Section 33008 of
HMTSIA created a mandate for the Department to develop uniform
performance standards for hazmat inspectors and investigators. The
standards shall be established as
[[Page 60757]]
mandatory training guidelines in the following areas:
The collection, analysis, and publication of findings from
hazmat accidents or incidents; and
The identification of noncompliance with the HMR, and the
initiation of appropriate enforcement action.
See 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:
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.
See 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.
III. Discussion of Comments on the NPRM
On May 22, 2013, we published a notice of proposed rulemaking
(NPRM) dealing with these statutory mandates. 78 FR 30258. We received
comments from the National Association of Chemical Distributors (NACD)
and the American Trucking Associations (ATA). In this section we
summarize and discuss the NACD and ATA comments. You may access the
docket and the comments and other documents in this rulemaking by
visiting the Federal eRulemaking Portal at http://www.regulations.gov,
under Docket No. PHMSA-2012-0259.
National Association of Chemical Distributors (NACD)
NACD expressed its overall support for the proposed rule's focus on
clarifying the procedures related to the Department's hazardous
materials procedural regulations for the opening of packages, for
emergency orders, and for emergency recalls. NACD believes we should
use this authority sparingly, and as such, it supports our proposal to
establish a policy that Departmental agents will not intentionally open
packages containing perishable hazardous material unless a compelling
safety need exists. Furthermore, NACD recommends that we extend the
rule's proposed procedures to include temperature-sensitive materials.
NACD asserts that its members frequently transport materials that,
although they may not be completely perishable, are temperature-
sensitive. According to NACD, the materials' properties may change and
make the product less effective if delayed and exposed to extreme
temperatures for a period of time. This could result in substantial
negative impacts for its members and their customers.
When we developed the definition for ``perishable hazardous
material,'' we envisioned etiological agents, such as biological
products, infectious substances, medical waste, and toxins as
perishable commodities that will require special handling. In response
to comments received during the PHM-7 rulemaking, we modified the
definition to include ``hazardous materials consigned for medical
use.'' We adopted the modified definition because we believed it was
broad enough to capture the types of hazardous material requiring
expedited handling as prescribed by the statute. In MAP-21, Congress
reinforced that we had correctly defined the term when it identified
``radiopharmaceuticals and other medical products'' as the types of
perishable hazardous materials requiring special handling.
We note that the current definition of ``perishable hazardous
material'' includes a ``hazardous material that is subject to
significant risk of speedy decay, deterioration, or spoilage.'' NACD,
in its comments, provided only general information regarding
temperature-sensitive materials, indicating they may not be completely
perishable. Moreover, it did not identify specific materials of concern
nor did it provide any information on the rate of decay, deterioration,
or spoilage of any temperature-sensitive materials. Based on this
limited information, it appears the materials contemplated in NACD's
comments are beyond the scope of this rulemaking.
Nevertheless, we are mindful of the concerns of NACD, and other
industry stakeholders, about unnecessary delays that may occur when an
agent exercises one of the enhanced inspection, investigation, and
enforcement authorities. It is important to note that properly prepared
packages will not be opened by DOT agents because in the final rule we
have limited the scope of the authority to open packages, to guard
against unwarranted opening and delay and the unnecessary disruption of
commerce. Moreover, we believe the definition of ``perishable hazardous
material'' and the rules, current procedures, and guidance already
developed are adequate safeguards. However, for additional clarity, we
are amending the opening of packages provision of the Department's
hazardous materials procedural regulations for the opening of packages,
for emergency orders, and for emergency recalls as proposed. 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.
American Trucking Associations (ATA)
ATA expressed its overall support of our mission to safeguard the
transportation of hazardous materials and indicated that it has a
favorable view our proposals for the handling of perishable hazardous
materials and notice of enforcement measures. However, ATA also made it
clear that it did not support our prior rulemaking, PHM-7, in which we
implemented the enhanced inspection and investigation, and enforcement
authority. Moreover, ATA believes the current rulemaking suffers from
many of the same perceived deficiencies that it identified in the
comments it filed in the PHM-7 rulemaking. As such, ATA encourages us
to reconsider its previous comments in the context of this rulemaking.
Further, ATA expresses a number of concerns and recommendations. As a
preliminary matter, it is important to note that we previously
addressed the significant concerns reiterated here by ATA in the final
rule in PHM-7. In that rulemaking, we provided our analysis of the
comments received on the topics presented by the commenters. We
therefore recommend that ATA, other interested parties, and the public,
reexamine the PHM-7 final rule and our comprehensive discussion of the
comments and our responses.
ATA presented numerous areas for our consideration in its most
recent comments. However, as discussed earlier, we have, in a previous
rulemaking, already addressed the
[[Page 60758]]
significant concerns raised again by ATA in its comments to this
rulemaking. Nevertheless, we feel it is important to summarize the
agency's positions on the significant concerns raised, which include
the scope of the rule, liability for delays and injuries, and the
opening of packages.
The Scope of the Rule. ATA contends that the enhanced inspection,
investigation, and enforcement authority applies only to undeclared
hazmat shipments. However, as we explained in our response to this
concern in the PHM-7 final rule, the Department interprets the statute
broadly because the plain language of the statute does not limit the
Department's authority to undeclared shipments. Moreover, the
legislative history indicates that Congress intended to promote the
Department's authority to ensure that hazardous materials shipments are
made in accordance with the HMR. Still, in consideration of commenters'
concerns regarding the package opening authority, we narrowed the scope
of this authority by limiting its use to only packages that may contain
hazardous material and are not in compliance with the HMR or Federal
hazmat law. We said that limiting this authority to packages that may
be non-compliant will guard against unwarranted opening or delay of
declared packages that are in compliance with the HMR. At this time, we
are unaware of any instances of unwarranted package opening or delays.
Liability for Delays and Injuries. ATA believes that the agency
should be responsible for curing any losses incurred by the carrier
related to late deliveries of inspected packages or other non-related
packages that are part of the same load. Further, ATA advocates motor
carrier liability protection from damages that could result from
injuries sustained in opening packages. As we noted it the PHM-7 final
rule, liability for delays is a contractual matter between the motor
carrier and the shipper. As a Federal agency charged with a safety
mission, PHMSA does not endeavor to regulate private contractual
matters between carriers and shippers. Moreover, we do not expect the
Department to bear financial responsibility for private costs related
to our exercise of these authorities. Under the discretionary function
exception, the Federal Tort Claims Act (FTCA) would bar any common law
tort action against the Department or operating administration based on
such activities. See 28 U.S.C. 2680(a). For a more information on this
issue and the FTCA, see our detailed discussion in the PHM-7 NPRM. 73
FR 57287.
The Opening of Packages. ATA believes that opening packages during
transport is too risky. Although ATA's primary concern is presented in
the context of the packaging opening authority, its comments implicate
all of the part 109 authorities, including the removal from
transportation, the transportation for examination and analysis, the
assistance of properly qualified personnel, the closing of packages,
and the safe resumption of transportation. Fundamentally, ATA believes
that opening hazardous materials packages should only occur in a
controlled environment, preferably at the consignor's or consignee's
facility, and performed only by trained and certified Federal agents
wearing the appropriate personal protective equipment, and without any
involvement of the motor carrier's driver. ATA also suggests an
alternative inspection process with components addressing these issues.
For the following reasons, we respectfully disagree with ATA's view of
the package opening authority.
First, we agree with ATA's premise that transporting hazardous
materials is inherently risky. And, as we stated in the PHM-7 final
rule, we agreed that moving the inspection to the consignor/consignee's
facility, if practicable, may be beneficial if it can be accomplished
safely. Also, it is worth reiterating that, in practice, the location
of inspections has not changed since we implemented this authority. All
enforcement activities have continued to proceed as they have in the
past. The package opening authority is merely an extra compliance
inspection tool for DOT agents, but the premise for conducting
inspections, the locations at which they are conducted, and the
regulations under which the industry must comply remained unchanged.
Additionally, we note that the proposed changes in the current
rulemaking align with ATA's other concerns and recommendations, which
include appropriate equipment for inspectors and notice of enforcement
measures to affected parties.
Next, we again point to our discussion of the comments we received
in the PHM-7 rulemaking. For example, in the PHM-7 final rule, we
provided detailed explanations of each of the part 109 authorities and
the issues raised by the commenters, and our responses. During that
rulemaking, many commenters expressed many of the same concerns
regarding the package opening authority that ATA has expressed here.
Accordingly, we took measures to implement the enhanced inspection and
investigation, and enforcement authority with appropriate safeguards
that control risk and minimize burdens on the transportation system,
while at the same time, meeting the Department's overriding mission of
transportation safety.
Last, the safety standards mandated by the Department and the HMR
are risk controls that provide a high degree of protection. We believe
the enhanced inspection, investigation, and enforcement authority and
the procedures being codified by this final rule are necessary risk
controls. 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 addition regulations, other than those
proposed here, are necessary.
In light of the above, we intend to proceed with the amendments and
additions to the Department's hazardous materials procedural
regulations for the opening of packages, for emergency orders, and for
emergency recalls, as proposed in the NPRM.
IV. Summary of MAP-21 and Final Rule
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 clarifying in this rulemaking, as described further below,
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, for emergency orders, and for emergency recalls. The
amendment recognizes the special characteristics and handling
requirements of perishable hazardous material by clarifying that an
agent will
[[Page 60759]]
stop or open a package containing a perishable hazardous material only
after the agent has utilized appropriate alternatives. We are also
codifying 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 adding 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, no additional regulatory changes will be made. 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. In PHM-7, the Department established
regulations in part 109 to provide procedures 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. Under this
mandate, an agent shall provide to the affected person reasonable
notice of the agent's exercise of authority, any findings made, and any
actions being taken for noncompliance. See 126 Stat. at 836-7.
We are codifying in this final rule the 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, 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 hazardous materials consigned for
medical use, in the prevention, treatment, or cure of a disease or
condition in human beings or animals where expeditious shipment and
delivery meets a critical medical need.'' 76 FR 11592 (codified at 49
CFR 109.1). Further, we established procedures for reclosing a package
containing a perishable hazardous material and its safe and expeditious
resumption of transportation. Section 109.13 contains the requirements
for the closing of packages and the safe resumption of transportation,
including a specific requirement pertaining to perishable hazardous
material.
We believe the definition of ``perishable hazardous material'' and
the rules, current procedures, and guidance already developed for
reclosing packages, sufficiently address Congress' concern and the need
for expeditious treatment of these types of materials. We also note
that in the Department's joint operations manual, we have significantly
restricted an agent's ability to handle or open a package containing
perishable hazardous material. For example, an agent must have been
trained in the handling of the specific material and may only open a
perishable hazardous material package in a designated facility, if
required, and have all safety equipment, handling equipment, and
materials to properly close the package. Notwithstanding these
restrictions, in order to clarify the Department's position with
respect to perishable hazardous materials, we are amending the opening
of packages provision of the Department's hazardous materials
procedural regulations for the opening of packages, for emergency
orders, and for 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.
Handling of Non-Compliant Packages
In MAP-21 Congress mandated that the Department take all actions
[[Page 60760]]
necessary to finalize a regulation addressing the means by which non-
compliant packages are processed when an agent exercises an authority
under part 109. Per 126 Stat. 837, the matters to be addressed include
how packages that present an imminent hazard are placed out-of-service,
until corrected, and the means by which noncompliant packages that do
not present a hazard are moved to their final destination.
The Department's procedural rules for opening of packages, for
emergency orders, and for 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 49 CFR 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. 49 CFR 109.1. Subpart C of
part 109 contains the procedural regulations for issuing an out-of-
service order and procedures for administrative review,
reconsideration, and appellate review of an emergency order. For
example, a recipient of an out-of-service order may appeal the order to
PHMSA's Chief Safety Officer, under 49 CFR 109.17(b)(4), pursuant to
procedures in 49 CFR 109.19. 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 may
be issued. Moreover, the operations manual addresses documentation
requirements, notification, service, publication, and termination
requirements.
It is important to note that a non-compliant package that does not
present a hazard 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 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. 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. See 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 based. 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 the discussion above, 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 adding a new provision to address
appropriate equipment for inspectors when they exercise a part 109
authority. 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
[[Page 60761]]
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 in response to that rulemaking, the regulated
community raised concerns about how we were going to reclose packages
after they have been opened under the new authority. 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 (Sec. 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.
V. Summary Review of Amendments
In this final rule we are amending the opening of packages
provision of the Department's hazardous materials procedural
regulations for the opening of packages, for emergency orders, and for
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 adding a notification provision
to 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 investigator whenever he or
she exercises one of the inspection and investigation authorities under
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 adding a new provision to
address appropriate equipment for inspectors when they exercise a part
109 authority. The new equipment section will be added to part 109
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.
VI. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule is published under the authority of the Federal
hazardous materials transportation law, 49 U.S.C. 5101 et seq. Section
5103(b) authorizes the Secretary to prescribe regulations for the safe
transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce. This final rule would
revise the Department's procedural regulations for opening of packages,
for emergency orders, and for 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 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, 13610, and DOT Regulatory Policies
and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget (OMB). The final 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, February 26, 1979).
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
(76 FR 3821, January 21, 2011). 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
[[Page 60762]]
repeal regulatory requirements in accordance with what has been
learned.
Executive Order 13610, issued May 10, 2012, urges agencies to
conduct retrospective analyses of existing rules to examine whether
they remain justified and whether they should be modified or
streamlined in light of changed circumstances, including the rise of
new technologies (77 FR 28469, May 14, 2012).
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 final rule augments 49 CFR part 109, which contains
regulations on DOT inspection and investigation procedures. These
regulations are not part of the HMR, which governs the transportation
of hazardous materials, thus they do not carry any additional
compliance requirements or costs for entities that must comply with the
HMR. The benefits of the rule are that the procedures being
incorporated are transparent to the regulated community, and ensure
that the shipper is notified of an enforcement action. This will
eliminate any suspicion of malice on the part of the agency or any
specific inspector, and provide information to the shipper that could
be used to modify any remaining defective operations that led to the
removal. Also, the operations manual ensures that DOT's procedures are
consistent across all modes.
C. Executive Order 13132
This final 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 final rule has no preemptive
effect on State, local, or Indian tribe enforcement procedures and
penalties.
D. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``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
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 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 such special definition
has been established, PHMSA employs the thresholds (published in 13 CFR
121.201) of 1,500 employees for air carriers (North American Industry
Classification System [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 applies (104,000 of which are motor
carriers), we estimate that about 90 percent are small entities.
Potential cost impacts. This final 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.
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 these
amendments 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. Regulatory Identifier Number (RIN)
A regulatory 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 final 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
[[Page 60763]]
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 final rule 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.
PHMSA sought comment on the environmental assessment in the NPRM.
PHMSA did not receive any comments regarding the environmental
assessment contained in that rulemaking. This action has been
thoroughly reviewed by PHMSA. Given that the inspection and enforcement
procedures in this final rule will not change the current inspection
procedures for DOT, but will provide transparency into our existing
operations and procedures, PHMSA concludes that the rule will not
result in significant environmental impacts.
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
Equipment, Inspections and investigations.
The Final Rule
In consideration of the foregoing, part 109 of chapter I, subtitle
B of title 49 of the Code of Federal Regulations is amended as follows:
PART 109--DEPARTMENT OF TRANSPORTATION HAZARDOUS MATERIALS
PROCEDURAL REGULATIONS FOR OPENING OF PACKAGES, FOR EMERGENCY
ORDERS, AND FOR 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 Secs. 212-213; Pub. L. 104-
134 Sec. 31001; 49 CFR 1.81, 1.97.
0
2. In Sec. 109.5, paragraph (a) introductory text is revised, and
paragraph (b) is added to read as follows:
Sec. 109.5 Opening of packages.
(a) In general. Except as provided in paragraph (b):
* * * * *
(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) of this section.
0
3. Add Sec. 109.16 to subpart B as follows:
Sec. 109.16 Notification of enforcement measures.
In addition to complying with the notification requirements in
Sec. 109.7 of this part, an agent, after exercising an authority under
this 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. Add subpart D, consisting of Sec. 109.25, to read as follows:
Subpart D--Equipment
Sec. 109.25 Equipment.
When an agent exercises an authority under subpart B of this part,
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 September 26, 2013 under authority
delegated in 49 CFR 1.97.
Timothy P. Butters,
Deputy Administrator, Pipeline and Hazardous Materials Safety
Administration.
[FR Doc. 2013-23894 Filed 10-1-13; 8:45 am]
BILLING CODE 4910-60-P