Final Rule on PHMSA, FAA, FMCSA, FRA Enhanced Inspection & Enforcement Procedures for Hazmats

PHMSA Says Final Rule Enhances Inspection & Enforcement Procedures

The final rule adds new 49 CFR Part 109 to establish procedures for:

• the issuance of emergency orders (restrictions, prohibitions, recalls, and out-of-service orders) to address unsafe conditions or practices posing an imminent hazard;
• opening packages to identify undeclared or non-compliant shipments, when the person in possession of the package refuses a request to open it; and
• the temporary detention and inspection of potentially non-compliant packages.

PHMSA states that these inspection and enforcement procedures will not change the current inspection procedures for PHMSA, the Federal Motor Carrier Safety Administration (FMCSA), the Federal Aviation Administration (FAA), and the Federal Railroad Administration (FRA), but will enhance their existing enforcement authority.

PHMSA Establishing Procedures for Emergency Orders, Agent Inspections

In its final rule, PHMSA is establishing procedures for issuing emergency orders to address imminent hazards and implementing enforcement authority for DOT agents conducting inspections. These procedures will apply in a number of contexts and circumstances:

Open packages to see if non-compliant. An agent may open a package to determine whether it contains non-compliant shipments of hazmats when the agent has reason to believe that the package does not comply with regulatory requirements. These procedures apply to the opening of any packaging component not immediately adjacent to the hazardous material. Agents will not open single packagings (such as cylinders, portable tanks, cargo tanks, or rail tank cars) nor will agents open the innermost receptacle of a combination packaging. An agent will only open a package with cause and if the person in possession of the package refuses to open it.

Temporarily remove package or shipment from transport. An agent may temporarily remove a package or shipment from transportation, or prevent its entering transportation, when the agent believes that the package or shipment may pose an imminent hazard. Such a belief may arise from a compliance problem identified as a result of opening the package or from conditions observed through an inspection that does not include opening the package. The agent may remove a package or related packages from transportation for up to 48 hours on his or her own authority provided he records in writing the basis for his belief that the package or related packages may pose an imminent hazard.

Order person responsible for package to transport it for analysis. An agent may order the person in possession of or responsible for the package to transport the package and its contents to a facility that will examine and analyze its contents. An agent may issue such an order for any type of package. The agent may issue this order on his own authority provided he documents his reasoning and provides written notification for the reasons for removal.

Agents to assist in preparing examined packages for transport. An agent will assist in preparing a package for safe and prompt transportation if, after a complete examination of a package initially thought to pose an imminent hazard, no imminent hazard is found. If the package has been opened, the agent will assist in reclosing the package in accordance with the packaging manufacturer’s closure instructions marking the package to indicate that it was opened and reclosed in accordance with DOT procedures, and returning it to the person from whom it was obtained.

Our-of-service order may be issued. An out-of-service (OOS) order will be issued if, after complete examination of any package, an imminent hazard is indeed found to exist. The OOS order effects the permanent removal of the package from transportation by prohibiting its movement until it has been brought into compliance with all applicable regulatory requirements. An emergency order will be issued when DOT determines that a non-compliant shipment or an unsafe condition or practice is causing an imminent hazard.

Comments and PHMSA Responses on Scope of Final Rule, Definitions, Etc.

PHMSA issued its proposed rule in October 2008 and accepted comments until December 2008. The following are highlights of the some of the comments received and PHMSA responses in the final rule:

Rule covers more than undeclared shipments. Several commenters (including the American Trucking Associations (ATA)) raised concerns with the scope of the rule and several practical aspects of the proposal. They expressed the view that DOT should limit the use of its enhanced authority to discover undeclared shipments of hazmats. According to the commenters, the enhanced authority should not apply to shipments of hazmats that are declared but otherwise may not conform to requirements in the Hazardous Materials Regulations (HMR).

PHMSA states that the commenters cite legislative history as evidence that this authority should apply only to undeclared shipments; however, DOT interprets the statute more broadly. The plain language of the statute does not limit DOT’s authority to undeclared shipments.

Definition of agent revised. UPS expressed concern that despite the proposed rule’s explanation that the scope of the rule is limited to personnel of designated U.S. DOT agencies, the definition of "agent" was not specific enough and could be read expansively by state enforcement personnel as an authorization for them to engage in the opening of packages, since it is customary to refer to State enforcement personnel as "duly authorized representatives of the Department."

PHMSA agreed with UPS and revised the definition of “Agent of the Secretary or agent” to read: “a Federal officer, employee, or agent authorized by the Secretary to conduct inspections and investigations under the Federal hazardous material transportation law.”

Chart listing who has custody of packages during inspection. FedEx, the National Association of Chemical Distributors (NACD), and others questioned who the responsible person would be at each step of the inspection process.

To answer their question, PHMSA created a chart listing who has custody during each potential stage of the inspection process. See PHMSA’s final rule for this chart.

Ordering transport of hazmats for further examination. ATA expressed concern that authorizing, under certain circumstances, an agent to order the transportation of a package to a facility to be opened and examined, will lead to agents ordering motor carriers to transport undeclared hazmat shipments, or otherwise ordering motor carriers to move packages that are out of compliance with the HMR.

PHMSA responded by stating that the rule does not state, nor does it imply, that an agent will direct an undeclared hazmat shipment or a non-compliant hazardous material shipment to be transported. Only if the agent cannot determine the contents of the package, or if it would be more feasible to have the package contents analyzed elsewhere and to avoid further delays, would the package be transported to a facility capable of such further examination. If an imminent hazard is found to exist, a package will not be transported any further by anyone. It will be ordered out of service immediately. If the package posing an imminent hazard has been removed from a larger shipment, the remainder of the otherwise compliant shipment may continue in transportation.

Notice to offeror if package opened/detained. Several commenters (ATA, Dow, Fed Ex, etc.) suggested that shippers and recipients should be notified immediately each time their packages are detained and/or opened.

PHMSA agreed that notice should be given to the offeror and this type of provision has been incorporated into the operations manual that it has developed for training and use by its agents. The operating administration will take every reasonable effort to immediately notify the recipient that the order has been issued and provide a copy of the order (without attachments) by facsimile or electronic mail.

(The PHMSA operations manual will be available to the public on its website: http://www.phmsa.dot.gov/)

Rule should not affect HOS. NACD expressed concern that enhanced inspections under this rule could result in FMCSA hours-of-service issues for drivers if these inspections take too long.

PHMSA states that it is mindful of HOS considerations and will make every effort to ensure these inspections and investigations will cause a minimal interruption of time. As inspections generally occur at fixed facilities, the delay to one package should not delay any others, because it can be removed from the rest of the shipment, so there should be no effect on HOS from exercising any authority under this rule. There is a negligible additional time added to inspections as a result of this rule, because agents always ask for packages to be opened and are rarely, if ever, refused. Additional time to open if refused will be only seconds.

¹This rulemaking is pursuant to the authority granted to the Department of Transportation by the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005.

(See ITT’s Online Archives or 10/15/08 news, 08101525, for BP summary of the proposed rule.)

PHMSA contact- Vincent Lopez (202) 366-4400

PHMSA press release is available here.

PHMSA final rule (FR Pub 03/02/11, D/N PHMSA-2005-22356) is available here.