[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Rules and Regulations]
[Pages 11570-11595]
[FR Doc No: 2011-4270]

Vol. 76

Wednesday,

No. 41

March 2, 2011

Part II

Department of Transportation

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Pipeline and Hazardous Materials Safety Administration

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49 CFR Part 109

Hazardous Materials: Enhanced Enforcement Authority Procedures; Rule

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

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 109

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

Hazardous Materials: Enhanced Enforcement Authority Procedures

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

ACTION: Final rule.

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

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

FOR FURTHER INFORMATION CONTACT: Vincent M. Lopez, Office of Chief
Counsel,<PHONE_NUMBER>, Pipeline and Hazardous Materials Safety
Administration.

SUPPLEMENTARY INFORMATION:

I. Background

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

A. Need for Enhanced Enforcement Authority

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

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

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

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

II. Notice of Proposed Rulemaking

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

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

III. Summary of the Final Rule

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

IV. Discussion of Comments on the NPRM

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

A. Scope of the Rule

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

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

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

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

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

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

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

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

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

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

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

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

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

E. Opening and Reclosing Outer Packagings as Proposed

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

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

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

F. Ordering the Transportation of a Package for Further Examination

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

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

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

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

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

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

H. Comments Particular to Motor Carrier Industry

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

I. Drafting Corrections

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

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

J. Proposed Sec.  109.5--Emergency Orders

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

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

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

L. Miscellaneous Comments

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

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

V. Section-by-Section Analysis

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

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

initiate inspections and investigations as provided by 49 U.S.C.
5121(a), which has been delegated to the operating administrations. The
operating administrations focus their inspection resources on the mode
of transportation that they oversee. See 49 CFR 1.47(j)(1) (FAA),
1.49(s)(1) (FRA), 1.53(b)(1) (PHMSA), and 1.73(d)(1) (FMCSA).
Nevertheless, operating administrations may ``use their resources for
DOT-wide purposes, such as inspections of shippers by all modes of
transportation.'' 65 FR 49763, 49764 (Aug. 15, 2000). DOT believes that
broad delegation authority is necessary to address cross-modal and
intermodal issues to combat undeclared hazardous materials shipments.
Id. at 49763. Accordingly, DOT inspectors are authorized to carry out
the enhanced inspection and enforcement authority rule across different
modes of transportation.
    Section 109.3(b) is identical to PHMSA's proposal with the
exception of the following language added to Sec.  109.3(b)(2) (in
italics): ``Inspections and investigations are conducted by designated
agents of the Secretary who will, upon [a person's] request, present
their credentials for examinations. Such an agent is authorized to * *
* [g]ather information by any reasonable means, including, but not
limited to, gaining access to records and property (including packages)
* * *.'' In addition to interviewing, photocopying, photographing, and
audio and video recording during inspections or investigations, this
language was included to specify what seems implicit in the
Department's general authority--the ability to gather evidence and
information through records and property, including access to the
packages subject to inspection, and otherwise gather information to
support enforcement activity. This is existing general authority under
49 U.S.C. 5121(a)-(b).
    The inspections or investigations may be conducted at any pre-
transportation or transportation facility wherever a hazardous material
is offered, transported, loaded or unloaded, or stored incidental to
the hazardous material movement, provided they are performed ``at a
reasonable time and in a reasonable manner.'' See 49 U.S.C.
5121(c)(1)(A); 49 CFR 171.1. PHMSA interprets ``reasonable time'' to
mean an entity's regular business hours. PHMSA interprets ``reasonable
manner'' to mean that DOT inspectors may gather information from any
entity or source that is related to the transportation of hazardous
materials in commerce whenever hazardous material operations or work
connected to such operations are being performed. Although a new
provision to DOT's statutory authority, Sec.  5121(c)(1)(A) specifies
DOT's ability to inspect records and property under its existing
regulatory authority under Sec.  5103(b)(1). Aside from Sec.
5121(c)(1)(A), DOT continues to have authority to issue and serve
administrative subpoenas for documents or other tangible things when
such evidence is necessary to assist an inspection or investigation.
Each operating administration will serve the subpoena in accordance
with its own existing statutory or regulatory authority. See 14 CFR
13.3 (FAA), 49 CFR 105.45-.55 (PHMSA), 49 CFR 209.7 (FRA), and 49
U.S.C. 502(d), 5121, and 31133(a)(4) (FMCSA). PHMSA believes that this
provision enables DOT to gather information from any source, including
the offeror, carrier, packaging manufacturer or tester responsible for
the shipment, to learn about the nature of the contents of the package.
This process promotes communication and cooperation by all concerned
parties and enables the Department to detect and deter undeclared
hazardous material shipments and declared shipments that are not in
compliance with the Federal hazmat law or the HMR.
Sec.  109.5 Opening of Packages
    What was proposed as Sec.  109.3(b)(4) in the NPRM is now located
at Sec.  109.5, Opening of packages. This provision implements the
authority conferred by 49 U.S.C. 5121(c)(1) to enable DOT agents to
take enhanced inspection and enforcement action. The most significant
revision since the publication of the NPRM is the addition of a second
criterion to justify the opening of a package. Section 109.5(a)
requires, in addition to the requirement in the NPRM, that an agent
have an objectively reasonable and articulable belief that a package
may contain hazardous material, that an agent also have an objectively
reasonable and articulable reason to believe that the package does not
otherwise comply with the Federal hazmat law. If such facts exist, then
an agent may stop the movement of the package in transportation to
gather more information; or he may open the outer packaging of the
package that is not immediately in contact with the hazardous material.