[Federal Register Volume 78, Number 191 (Wednesday, October 2, 2013)]
[Rules and Regulations]
[Pages 60755-60763]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23894]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 109

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


Hazardous Materials: Enhanced Enforcement Procedures--Resumption 
of Transportation

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

ACTION: Final rule.

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SUMMARY: PHMSA is addressing certain matters identified in the 
Hazardous Materials Transportation Safety Improvement Act of 2012 
related to the Department's enhanced inspection, investigation, and 
enforcement authority. Specifically, PHMSA is amending the package 
opening provision to include procedures for an agent of the Secretary 
of Transportation to open packages of perishable hazardous materials 
and to provide notification to the responsible party that an agent has 
exercised a safety inspection or investigation authority. In addition, 
we are establishing equipment requirements for agents. The Department's 
enhanced inspection, investigation, and enforcement procedures were 
previously established through notice and comment rulemaking and 
thoroughly address the hazardous material transportation matters 
identified by Congress. This final rule is required to codify changes 
to Federal hazardous materials transportation law and to ensure 
transparency and consistency for hazardous materials inspectors across 
all modes of transportation. As it affects only agency enforcement 
procedures, there are no additional compliance costs to industry 
associated with this final rule.

DATES: This Final rule is effective November 1, 2013.

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

SUPPLEMENTARY INFORMATION:

Table of Contents of Supplementary Information

I. Executive Summary
II. Background
III. Discussion of the Comments on the NPRM
IV. Summary of MAP-21 and Final Rule
V. Summary Review of Amendments
VI. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Orders 12866, 13563, 13610, and DOT Regulatory 
Policies and Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulatory Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment
    J. Privacy Act

[[Page 60756]]

I. Executive Summary

    On July 6, 2012, the President signed the Moving Ahead for Progress 
in the 21st Century Act, or the MAP-21, which included the Hazardous 
Materials Transportation Safety Improvement Act of 2012 (HMTSIA) as 
Title III of Division C of the statute. Public Law 112-141, 126 Stat. 
405, July 6, 2012. Section 33009 of HMTSIA revised 49 U.S.C. 5121 to 
include a notification requirement. Congress also directed the 
Department to address certain hazardous material (hazmat) 
transportation matters through rulemaking:
     The safe and expeditious resumption of transportation of 
perishable hazardous material, including radiopharmaceuticals and other 
medical products that may require timely delivery due to life-
threatening situations;
     The means by which non-compliant packages that present an 
imminent hazard are placed out-of-service until the condition is 
corrected;
     The means by which non-compliant packages that do not 
present a hazard are moved to their final destination;
     Appropriate training and equipment for inspectors; and
     The proper closure of packaging in accordance with the 
hazardous material regulations.
    We are clarifying in this rulemaking, as described further below, 
the Department's position with respect to perishable hazardous 
material, by amending the opening of packages provision of the 
Department's hazardous materials procedural regulations for the opening 
of packages, for emergency orders, and for emergency recalls. 49 CFR 
109.5. The amendment recognizes the special characteristics and 
handling requirements of perishable hazardous material by clarifying 
that an agent will stop or open a package containing a perishable 
hazardous material only after the agent has utilized appropriate 
alternatives. We are also codifying the statutory notification 
requirement in HMTSIA by incorporating into the regulations the 
Department's current notification procedures from the operations 
manual. Finally, we are adding a new provision to address appropriate 
equipment for inspectors.
    For the remaining mandates to address certain matters related to 
the Department's enhanced inspection, investigation, and enforcement 
authority, no additional regulatory changes will be made. We believe 
that the Department's current rules that were previously established 
through notice and comment rulemaking and existing policies and 
operating procedures thoroughly address the hazmat transportation 
matters identified by Congress as requiring additional regulations. For 
instance, in a prior rulemaking, the Department established procedural 
regulations for opening packages, removing packages from 
transportation, and closing packages in part 109 of title 49, Code of 
Federal Regulations (CFR). These regulations include the definition of 
key terms, including ``perishable hazardous material.'' The regulations 
address how the Department's agents will handle non-compliant packages 
that present an imminent hazard and those that do not. Moreover, the 
rules address when and how the Department's agents will open a package. 
And, if an agent opens a package, there are procedural rules for 
closing the package and ensuring its safe resumption of transportation, 
if applicable. Specifically, under 49 CFR 109.13, if an imminent hazard 
is found to exist after an agent opens a package, the operating 
administration's authorized official may issue an out-of-service order 
prohibiting the movement of the package. The package must be removed 
from transportation until it is brought into compliance. An out-of-
service order is a type of emergency order. The procedural regulations 
also include procedures for administrative review, reconsideration, and 
appellate review of an out-of-service order. In addition, the 
Department developed an internal operations manual for training and use 
by its hazmat inspectors and investigators across all modes of 
transportation. The operations manual's guidance is intended to target 
and manage the use of the enhanced inspection and enforcement authority 
in a uniform and consistent manner within the Department. At this time, 
we do not have any data or other information that indicate the rules, 
policies, and operating procedures currently in place are inadequate or 
that additional regulations are necessary.

II. Background

    On March 2, 2011, we issued a final rule under Docket No. PHMSA-
2005-22356 (PHM-7), ``Hazardous Materials: Enhanced Enforcement 
Procedures.'' 76 FR 11570. The final rule became effective on May 2, 
2011. The rule implemented enhanced inspection, investigation, and 
enforcement authority conferred on the Secretary of Transportation 
(Secretary) by the Hazardous Materials Transportation Safety and 
Security Reauthorization Act of 2005 (HMTSSRA). The final rule 
established procedures for issuance of emergency orders (restrictions, 
prohibitions, recalls, and out-of-service orders) to address unsafe 
conditions or practices posing an imminent hazard; opening of packages 
to identify undeclared or non-compliant shipments, when the person in 
possession of the package refuses a request to open it; and the 
temporary detention and inspection of potentially non-compliant 
packages. 76 FR 11570 (codified at 49 CFR part 109). In conjunction 
with the final rule, the Department of Transportation (Department or 
DOT) developed an internal operations manual for training and use by 
its inspectors and investigators (collectively agents). The operations 
manual is a joint document created by the operating administrations 
that enforce the Hazardous Materials Regulations, 49 CFR parts 171-180 
(HMR),\1\ to provide guidance to agents who, in the course of 
conducting inspections, determine that they need to open a package, 
remove a package from transportation, or perform any other function 
authorized in part 109. The manual seeks to establish baseline 
conditions that will ensure consistent application of the authorities 
exercised under 49 CFR part 109 at a minimum threshold. The guidance is 
intended to target and manage the use of enhanced inspection and 
enforcement authority in a manner that minimizes burdens on the 
transportation system while, at the same time, meets the overriding 
mission of transportation safety. The operations manual was made 
available to the public on the PHMSA Web site, http://www.phmsa.dot.gov.
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    \1\ Under authority delegated by the Secretary, the 
Administrators of four agencies within DOT enforce the Hazardous 
Materials Regulations, 49 CFR parts 171-180 and other regulations, 
approvals, special permits, and orders issued under Federal 
hazardous materials transportation law, 49 U.S.C. 5101 et seq.: (1) 
Federal Aviation Administration, 49 CFR 1.83(d)(1); (2) Federal 
Railroad Administration, 49 CFR 1.89(j); (3) Federal Motor Carrier 
Safety Administration, 49 CFR 1.87(d)(1); and (4) Pipeline and 
Hazardous Materials Safety Administration, 49 CFR 1.97(b). The 
Secretary has delegated authority to the Administrator of each 
respective operating administration to exercise the enhanced 
inspection and enforcement authority conferred by HMTSSRA. 71 FR 
52751, 52753 (Sept. 7, 2006). The United States Coast Guard is 
authorized to enforce the Hazardous Materials Regulations in 
connection with certain transportation or shipment of hazardous 
materials by water but does not have Congressional/delegated 
authority to carry out the enhanced inspection, investigation, and 
enforcement authority.
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    On July 6, 2012, the President signed the MAP-21, which included 
the HMTSIA as Title III of Division C of the statute. Section 33008 of 
HMTSIA created a mandate for the Department to develop uniform 
performance standards for hazmat inspectors and investigators. The 
standards shall be established as

[[Page 60757]]

mandatory training guidelines in the following areas:
     The collection, analysis, and publication of findings from 
hazmat accidents or incidents; and
     The identification of noncompliance with the HMR, and the 
initiation of appropriate enforcement action.

See 126 Stat. at 836

    Section 33009 of HMTSIA revised 49 U.S.C. 5121, to include a 
notification requirement. Congress also directed the Department to 
address certain hazmat transportation matters through rulemaking:
     The safe and expeditious resumption of transportation of 
perishable hazardous material, including radiopharmaceuticals and other 
medical products that may require timely delivery due to life-
threatening situations;
     The means by which non-compliant packages that present an 
imminent hazard are placed out-of-service until the condition is 
corrected;
     The means by which non-compliant packages that do not 
present a hazard are moved to their final destination;
     Appropriate training and equipment for inspectors; and
     The proper closure of packaging in accordance with the 
hazardous material regulations.

See 126 Stat. at 836-7.

    As described further below, we believe that the Department's 
current rules that were previously established through notice and 
comment rulemaking and existing policies and operating procedures 
thoroughly address the congressional mandates to address certain hazmat 
transportation matters.

III. Discussion of Comments on the NPRM

    On May 22, 2013, we published a notice of proposed rulemaking 
(NPRM) dealing with these statutory mandates. 78 FR 30258. We received 
comments from the National Association of Chemical Distributors (NACD) 
and the American Trucking Associations (ATA). In this section we 
summarize and discuss the NACD and ATA comments. You may access the 
docket and the comments and other documents in this rulemaking by 
visiting the Federal eRulemaking Portal at http://www.regulations.gov, 
under Docket No. PHMSA-2012-0259.

National Association of Chemical Distributors (NACD)

    NACD expressed its overall support for the proposed rule's focus on 
clarifying the procedures related to the Department's hazardous 
materials procedural regulations for the opening of packages, for 
emergency orders, and for emergency recalls. NACD believes we should 
use this authority sparingly, and as such, it supports our proposal to 
establish a policy that Departmental agents will not intentionally open 
packages containing perishable hazardous material unless a compelling 
safety need exists. Furthermore, NACD recommends that we extend the 
rule's proposed procedures to include temperature-sensitive materials. 
NACD asserts that its members frequently transport materials that, 
although they may not be completely perishable, are temperature-
sensitive. According to NACD, the materials' properties may change and 
make the product less effective if delayed and exposed to extreme 
temperatures for a period of time. This could result in substantial 
negative impacts for its members and their customers.
    When we developed the definition for ``perishable hazardous 
material,'' we envisioned etiological agents, such as biological 
products, infectious substances, medical waste, and toxins as 
perishable commodities that will require special handling. In response 
to comments received during the PHM-7 rulemaking, we modified the 
definition to include ``hazardous materials consigned for medical 
use.'' We adopted the modified definition because we believed it was 
broad enough to capture the types of hazardous material requiring 
expedited handling as prescribed by the statute. In MAP-21, Congress 
reinforced that we had correctly defined the term when it identified 
``radiopharmaceuticals and other medical products'' as the types of 
perishable hazardous materials requiring special handling.
    We note that the current definition of ``perishable hazardous 
material'' includes a ``hazardous material that is subject to 
significant risk of speedy decay, deterioration, or spoilage.'' NACD, 
in its comments, provided only general information regarding 
temperature-sensitive materials, indicating they may not be completely 
perishable. Moreover, it did not identify specific materials of concern 
nor did it provide any information on the rate of decay, deterioration, 
or spoilage of any temperature-sensitive materials. Based on this 
limited information, it appears the materials contemplated in NACD's 
comments are beyond the scope of this rulemaking.
    Nevertheless, we are mindful of the concerns of NACD, and other 
industry stakeholders, about unnecessary delays that may occur when an 
agent exercises one of the enhanced inspection, investigation, and 
enforcement authorities. It is important to note that properly prepared 
packages will not be opened by DOT agents because in the final rule we 
have limited the scope of the authority to open packages, to guard 
against unwarranted opening and delay and the unnecessary disruption of 
commerce. Moreover, we believe the definition of ``perishable hazardous 
material'' and the rules, current procedures, and guidance already 
developed are adequate safeguards. However, for additional clarity, we 
are amending the opening of packages provision of the Department's 
hazardous materials procedural regulations for the opening of packages, 
for emergency orders, and for emergency recalls as proposed. The 
amendment recognizes the special characteristics and handling 
requirements of perishable hazardous material by clarifying that an 
agent will stop or open a package containing a perishable hazardous 
material only after the agent has utilized appropriate alternatives.

American Trucking Associations (ATA)

    ATA expressed its overall support of our mission to safeguard the 
transportation of hazardous materials and indicated that it has a 
favorable view our proposals for the handling of perishable hazardous 
materials and notice of enforcement measures. However, ATA also made it 
clear that it did not support our prior rulemaking, PHM-7, in which we 
implemented the enhanced inspection and investigation, and enforcement 
authority. Moreover, ATA believes the current rulemaking suffers from 
many of the same perceived deficiencies that it identified in the 
comments it filed in the PHM-7 rulemaking. As such, ATA encourages us 
to reconsider its previous comments in the context of this rulemaking. 
Further, ATA expresses a number of concerns and recommendations. As a 
preliminary matter, it is important to note that we previously 
addressed the significant concerns reiterated here by ATA in the final 
rule in PHM-7. In that rulemaking, we provided our analysis of the 
comments received on the topics presented by the commenters. We 
therefore recommend that ATA, other interested parties, and the public, 
reexamine the PHM-7 final rule and our comprehensive discussion of the 
comments and our responses.
    ATA presented numerous areas for our consideration in its most 
recent comments. However, as discussed earlier, we have, in a previous 
rulemaking, already addressed the

[[Page 60758]]

significant concerns raised again by ATA in its comments to this 
rulemaking. Nevertheless, we feel it is important to summarize the 
agency's positions on the significant concerns raised, which include 
the scope of the rule, liability for delays and injuries, and the 
opening of packages.
    The Scope of the Rule. ATA contends that the enhanced inspection, 
investigation, and enforcement authority applies only to undeclared 
hazmat shipments. However, as we explained in our response to this 
concern in the PHM-7 final rule, the Department interprets the statute 
broadly because the plain language of the statute does not limit the 
Department's authority to undeclared shipments. Moreover, the 
legislative history indicates that Congress intended to promote the 
Department's authority to ensure that hazardous materials shipments are 
made in accordance with the HMR. Still, in consideration of commenters' 
concerns regarding the package opening authority, we narrowed the scope 
of this authority by limiting its use to only packages that may contain 
hazardous material and are not in compliance with the HMR or Federal 
hazmat law. We said that limiting this authority to packages that may 
be non-compliant will guard against unwarranted opening or delay of 
declared packages that are in compliance with the HMR. At this time, we 
are unaware of any instances of unwarranted package opening or delays.
    Liability for Delays and Injuries. ATA believes that the agency 
should be responsible for curing any losses incurred by the carrier 
related to late deliveries of inspected packages or other non-related 
packages that are part of the same load. Further, ATA advocates motor 
carrier liability protection from damages that could result from 
injuries sustained in opening packages. As we noted it the PHM-7 final 
rule, liability for delays is a contractual matter between the motor 
carrier and the shipper. As a Federal agency charged with a safety 
mission, PHMSA does not endeavor to regulate private contractual 
matters between carriers and shippers. Moreover, we do not expect the 
Department to bear financial responsibility for private costs related 
to our exercise of these authorities. Under the discretionary function 
exception, the Federal Tort Claims Act (FTCA) would bar any common law 
tort action against the Department or operating administration based on 
such activities. See 28 U.S.C. 2680(a). For a more information on this 
issue and the FTCA, see our detailed discussion in the PHM-7 NPRM. 73 
FR 57287.
    The Opening of Packages. ATA believes that opening packages during 
transport is too risky. Although ATA's primary concern is presented in 
the context of the packaging opening authority, its comments implicate 
all of the part 109 authorities, including the removal from 
transportation, the transportation for examination and analysis, the 
assistance of properly qualified personnel, the closing of packages, 
and the safe resumption of transportation. Fundamentally, ATA believes 
that opening hazardous materials packages should only occur in a 
controlled environment, preferably at the consignor's or consignee's 
facility, and performed only by trained and certified Federal agents 
wearing the appropriate personal protective equipment, and without any 
involvement of the motor carrier's driver. ATA also suggests an 
alternative inspection process with components addressing these issues. 
For the following reasons, we respectfully disagree with ATA's view of 
the package opening authority.
    First, we agree with ATA's premise that transporting hazardous 
materials is inherently risky. And, as we stated in the PHM-7 final 
rule, we agreed that moving the inspection to the consignor/consignee's 
facility, if practicable, may be beneficial if it can be accomplished 
safely. Also, it is worth reiterating that, in practice, the location 
of inspections has not changed since we implemented this authority. All 
enforcement activities have continued to proceed as they have in the 
past. The package opening authority is merely an extra compliance 
inspection tool for DOT agents, but the premise for conducting 
inspections, the locations at which they are conducted, and the 
regulations under which the industry must comply remained unchanged. 
Additionally, we note that the proposed changes in the current 
rulemaking align with ATA's other concerns and recommendations, which 
include appropriate equipment for inspectors and notice of enforcement 
measures to affected parties.
    Next, we again point to our discussion of the comments we received 
in the PHM-7 rulemaking. For example, in the PHM-7 final rule, we 
provided detailed explanations of each of the part 109 authorities and 
the issues raised by the commenters, and our responses. During that 
rulemaking, many commenters expressed many of the same concerns 
regarding the package opening authority that ATA has expressed here. 
Accordingly, we took measures to implement the enhanced inspection and 
investigation, and enforcement authority with appropriate safeguards 
that control risk and minimize burdens on the transportation system, 
while at the same time, meeting the Department's overriding mission of 
transportation safety.
    Last, the safety standards mandated by the Department and the HMR 
are risk controls that provide a high degree of protection. We believe 
the enhanced inspection, investigation, and enforcement authority and 
the procedures being codified by this final rule are necessary risk 
controls. At this time, we do not have any data or other information 
that indicate the rules, policies, and operating procedures currently 
in place are inadequate or that addition regulations, other than those 
proposed here, are necessary.
    In light of the above, we intend to proceed with the amendments and 
additions to the Department's hazardous materials procedural 
regulations for the opening of packages, for emergency orders, and for 
emergency recalls, as proposed in the NPRM.

IV. Summary of MAP-21 and Final Rule

    In MAP-21 Congress directed the Secretary to address certain 
transportation matters related to the Department's enhanced inspection, 
investigation, and enforcement authority. The relevant MAP-21 mandates 
for this rulemaking are:
     Notice of enforcement measures;
     The safe and expeditious resumption of transportation of 
perishable hazardous material, including radiopharmaceuticals and other 
medical products that may require timely delivery due to life-
threatening situations;
     The means by which non-compliant packages that present an 
imminent hazard are placed out-of-service until the condition is 
corrected;
     The means by which non-compliant packages that do not 
present a hazard are moved to their final destination;
     Appropriate training and equipment for inspectors; and
     The proper closure of packaging in accordance with the 
hazardous material regulations.
    We are clarifying in this rulemaking, as described further below, 
the Department's position with respect to perishable hazardous 
material, by amending the opening of packages provision of the 
Department's hazardous materials procedural regulations for the opening 
of packages, for emergency orders, and for emergency recalls. The 
amendment recognizes the special characteristics and handling 
requirements of perishable hazardous material by clarifying that an 
agent will

[[Page 60759]]

stop or open a package containing a perishable hazardous material only 
after the agent has utilized appropriate alternatives. We are also 
codifying the statutory notification requirement in HMTSIA by 
incorporating into the regulations the Department's current 
notification procedures from the operations manual that was developed 
in conjunction with the PHM-7 final rule. Finally, we are adding a new 
provision to address appropriate equipment for inspectors.
    For the remaining mandates to address certain matters related to 
the Department's enhanced inspection, investigation, and enforcement 
authority, no additional regulatory changes will be made. We believe 
that the Department's current rules that were previously established 
through notice and comment rulemaking and existing policies and 
operating procedures thoroughly address the hazmat transportation 
matters identified by Congress. In PHM-7, the Department established 
regulations in part 109 to provide procedures for opening packages, 
removing packages from transportation, and closing packages. These 
regulations include the definition of key terms, including perishable 
hazardous material. The regulations address how the Department's agents 
will handle non-compliant packages that present an imminent hazard and 
those that do not. Moreover, the rules address when and how the 
Department's agents will open a package. And, if an agent opens a 
package, there are procedural rules for closing the package and 
ensuring its safe resumption of transportation, if applicable. In 
addition, the Department developed an internal operations manual for 
training and use by its hazmat inspectors and investigators across all 
modes of transportation. The operations manual's guidance is intended 
to target and manage within the Department the use of the enhanced 
inspection and enforcement authority in a uniform and consistent 
manner. At this time, we do not have any data or other information that 
indicate the rules, policies, and operating procedures currently in 
place are inadequate or that additional rulemaking is necessary.

Notice of Enforcement Measures

    In PHM-7, we established procedures to implement the enhanced 
inspection, investigation, and enforcement authority conferred on the 
Secretary through HMTSSRA. In the NPRM for that rule, in response to 
commenters' concerns about notifying offerors and consignees about a 
possible delay in arrival, we agreed that all parties responsible for a 
shipment that is opened or removed from transportation need to be 
notified of the action taken. We said that ``DOT inspectors will be 
required to communicate the findings made and enforcement measures 
taken to the appropriate offeror, recipient, and carrier of the package 
* * *''. 73 FR 57288. In the final rule, we outlined how we would 
notify affected parties when an agent exercises one of the new 
authorities. 76 FR 11580. In the preamble to the final rule, we 
explained that the notification procedures would be incorporated into 
the Department's joint operations manual. Id. The notification 
procedures that we developed for the joint operations manual address 
situations where an agent may exercise a 49 CFR part 109 authority for 
a package that is in transit. In this case, the person in possession of 
the package, such as a carrier, may not be the person responsible for 
the package, i.e., the offeror. Therefore, we set out separate 
procedures for immediately notifying the person in possession and the 
original offeror. Generally, the agent will verbally notify the person 
in possession. If the person in possession is not the original offeror, 
the agent will also take reasonable measures to notify the original 
offeror.
    In MAP-21 Congress added a notification requirement to the 
Department's inspection and investigation authority. Under this 
mandate, an agent shall provide to the affected person reasonable 
notice of the agent's exercise of authority, any findings made, and any 
actions being taken for noncompliance. See 126 Stat. at 836-7.
    We are codifying in this final rule the statutory notification 
requirement by incorporating into the regulations the Department's 
current notification procedures from the joint operations manual. As 
discussed above, the joint operations manual includes procedures and 
guidance to agents for providing notice of enforcement measures taken 
under 49 CFR part 109. The procedures in the manual are comprehensive 
and comport with the statutory mandate. As such, a new notification 
section will be added to part 109, subpart B of 49 CFR. It will require 
that an agent, after exercising a 49 CFR part 109 inspection or 
investigation authority, immediately take reasonable measures to notify 
the appropriate person of the reason for the action being taken, the 
results of any preliminary investigation including apparent violations 
of the HMR, and any further action that may be warranted.

The Safe and Expeditious Resumption of Transportation of Perishable 
Hazardous Material

    We addressed the opening, reclosing, and resumption of 
transportation of perishable hazardous material in a previous 
rulemaking. In PHM-7, we defined ``perishable hazardous material'' as 
``a hazardous material that is subject to significant risk of speedy 
decay, deterioration, or spoilage, or hazardous materials consigned for 
medical use, in the prevention, treatment, or cure of a disease or 
condition in human beings or animals where expeditious shipment and 
delivery meets a critical medical need.'' 76 FR 11592 (codified at 49 
CFR 109.1). Further, we established procedures for reclosing a package 
containing a perishable hazardous material and its safe and expeditious 
resumption of transportation. Section 109.13 contains the requirements 
for the closing of packages and the safe resumption of transportation, 
including a specific requirement pertaining to perishable hazardous 
material.
    We believe the definition of ``perishable hazardous material'' and 
the rules, current procedures, and guidance already developed for 
reclosing packages, sufficiently address Congress' concern and the need 
for expeditious treatment of these types of materials. We also note 
that in the Department's joint operations manual, we have significantly 
restricted an agent's ability to handle or open a package containing 
perishable hazardous material. For example, an agent must have been 
trained in the handling of the specific material and may only open a 
perishable hazardous material package in a designated facility, if 
required, and have all safety equipment, handling equipment, and 
materials to properly close the package. Notwithstanding these 
restrictions, in order to clarify the Department's position with 
respect to perishable hazardous materials, we are amending the opening 
of packages provision of the Department's hazardous materials 
procedural regulations for the opening of packages, for emergency 
orders, and for emergency recalls. The amendment recognizes the special 
characteristics and handling requirements of perishable hazardous 
material by clarifying that an agent will stop or open a package 
containing a perishable hazardous material only after the agent has 
utilized appropriate alternatives.

Handling of Non-Compliant Packages

    In MAP-21 Congress mandated that the Department take all actions

[[Page 60760]]

necessary to finalize a regulation addressing the means by which non-
compliant packages are processed when an agent exercises an authority 
under part 109. Per 126 Stat. 837, the matters to be addressed include 
how packages that present an imminent hazard are placed out-of-service, 
until corrected, and the means by which noncompliant packages that do 
not present a hazard are moved to their final destination.
    The Department's procedural rules for opening of packages, for 
emergency orders, and for emergency recalls are in 49 CFR part 109. 
These procedures address the means by which a non-compliant package 
that is found to be an imminent hazard is placed out-of-service. 
Specifically, in 49 CFR 109.13, if an imminent hazard is found to exist 
after an agent opens a package, the operating administration's 
authorized official may issue an out-of-service order prohibiting the 
movement of the package. 49 CFR 109.13(b). The package must be removed 
from transportation until it is brought into compliance. Id. An out-of-
service order is a type of emergency order. 49 CFR 109.1. Subpart C of 
part 109 contains the procedural regulations for issuing an out-of-
service order and procedures for administrative review, 
reconsideration, and appellate review of an emergency order. For 
example, a recipient of an out-of-service order may appeal the order to 
PHMSA's Chief Safety Officer, under 49 CFR 109.17(b)(4), pursuant to 
procedures in 49 CFR 109.19. Furthermore, the joint operations manual 
provides inspection personnel with step-by-step procedures and 
additional guidance for issuing an out-of-service order. For example, 
at least two levels of review and consultation with the operating 
administration's legal office is required before an emergency order may 
be issued. Moreover, the operations manual addresses documentation 
requirements, notification, service, publication, and termination 
requirements.
    It is important to note that a non-compliant package that does not 
present a hazard may not continue in transportation until all 
identified non-compliant issues are resolved. 49 CFR 109.13(d). In the 
PHM-7 final rule where we established the enhanced enforcement 
procedures, we stated that for a non-compliant package, the agent would 
not close the package and that there is no obligation to bring that 
package into compliance. 76 FR 11587. Further, we stated, ``[t]he 
Department's operating administrations will not be responsible for 
bringing an otherwise non-compliant package into compliance and 
resuming its movement in commerce.'' Id. We reasoned that if the 
package does not conform to the HMR at the time of inspection, the fact 
that a DOT official opened it in the course of an inspection or 
investigation will not make DOT or its agent responsible for bringing 
the package into compliance. Id.
    In light of the above, we have already fulfilled the applicable 
mandate for the handling of non-compliant packages and no further 
action is required.

Appropriate Training and Equipment for Inspectors

    Congress recognized that ``[t]here is currently no uniform training 
standard for hazardous materials (`hazmat') inspectors and 
investigators.'' H. Conf. Rep. No. 112-557 at 610 (2012). To address 
this problem, it mandated in MAP-21 that the Secretary establish 
uniform performance standards for training hazmat inspectors and 
investigators no later than eighteen months from the date of enactment 
of the Act. 126 Stat. at 836. The mandate authorizes the development of 
guidelines for hazmat inspector and investigator qualifications; best 
practices and standards for hazmat inspector and investigator training 
programs; and standard protocols to coordinate investigation efforts 
among Federal, State, and local jurisdictions on accidents or incidents 
involving the transportation of hazardous material. In order to achieve 
a uniform hazmat training standard, Congress required that the 
standards, protocols, and guidelines developed would be mandatory to 
the Department's multimodal personnel conducting hazmat enforcement 
inspections and investigations.
    Additionally, Congress mandated that the Department take all 
actions necessary to finalize a regulation, no later than one year from 
the date of enactment of the Act, addressing appropriate training and 
equipment for inspectors when exercising an authority under 49 CFR part 
109. See 126 Stat. at 837.
    Although the MAP-21 mandates here are training related, it is 
evident that the development of a uniform training scheme is essential 
because it will establish the foundation upon which future training for 
hazmat inspectors and investigators is based. As such, it is premature 
to require the Department to promulgate enforcement procedural 
regulations for hazmat training and equipment before the Department has 
had the opportunity to develop uniform performance training standards. 
This approach does not appear to be the best way to meet Congress' 
objective to ensure that all hazmat inspectors and investigations 
receive uniform and standardized training. It would be more appropriate 
for the Department to establish the uniform performance training 
standards, best practices, and protocols before it develops additional 
training regulations for its hazmat personnel. This would ensure that 
new training rules are consistent with the uniform training scheme.
    Notwithstanding the discussion above, we understand that proper 
training of inspectors and investigators is essential to ensure that 
the enhanced enforcement authority is used effectively and judiciously. 
In the NPRM for PHM-7, we explained that the operating administrations 
responsible for enforcement of the HMR--PHMSA, FMCSA, FAA, and FRA--
worked together to develop the rule and a joint operations manual. 73 
FR 57285. We further explained that the proposed regulations set out a 
framework for the procedures the operating administrations will employ 
when conducting inspections or investigations, thus ensuring 
consistency in approaches and enforcement measures among modes of 
transportation. Moreover, we stated that the final rule, implemented 
with the guidance of an operational manual, would ensure that this 
authority was properly used. Id. We expressed our confidence in this 
approach because with the cooperation of the operating administrations 
in the development of the rule, and the accompanying operations manual, 
it meant that all Department inspectors and investigators would have 
the same general training and modal specific instruction. 73 FR 57288.
    Regarding equipment, we are adding a new provision to address 
appropriate equipment for inspectors when they exercise a part 109 
authority. A new equipment section will be added to new Subpart D--
Equipment, requiring an agent to use the appropriate safety, handling, 
and other equipment authorized by his or her operating administration's 
equipment requirements for hazardous material inspectors and 
investigators.
    Consequently, we do not believe that we should develop rules for 
appropriate training in this rulemaking. Instead, we advocate 
addressing any performance standards as part of the larger hazardous 
materials performance standard development activity currently underway. 
In the meantime, we believe the existing rules in 49 CFR part 109 and 
the attendant operational procedures in the joint operations manual, as 
well as each operating

[[Page 60761]]

administration's specific guidance for its enforcement staff, 
sufficiently address the training concern identified by Congress in the 
MAP-21 directive. Therefore, PHMSA does not believe that further action 
is necessary at this time.

The Proper Closure of Packaging in Accordance With HMR

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

V. Summary Review of Amendments

    In this final rule we are amending the opening of packages 
provision of the Department's hazardous materials procedural 
regulations for the opening of packages, for emergency orders, and for 
emergency recalls. The amendment recognizes the special characteristics 
and handling requirements of perishable hazardous material by 
clarifying that an agent will stop or open a package containing a 
perishable hazardous material only after the agent has utilized 
appropriate alternatives. We are also adding a notification provision 
to part 109, Subpart B--Inspections and Investigations. The provision 
will provide for the immediate and reasonable notification of 
enforcement action taken by an inspector or investigator whenever he or 
she exercises one of the inspection and investigation authorities under 
part 109, subpart B, which includes the opening of packages; removing a 
package and related packages in a shipment from transportation; 
directing a package to be transported to a facility for examination and 
analysis; and authorizing properly qualified personnel to assist in 
activities conducted under subpart B. The notice will include the 
reason for the action being taken, the results of any preliminary 
investigation including apparent violations of the HMR, and any further 
action that may be warranted. Finally, we are adding a new provision to 
address appropriate equipment for inspectors when they exercise a part 
109 authority. The new equipment section will be added to part 109 
under new Subpart D--Equipment. The provision will require an agent to 
use the appropriate safety, handling, and other equipment authorized by 
his or her operating administration's equipment requirements for 
hazardous material inspectors and investigators.

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

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

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

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget (OMB). The final rule 
is not considered a significant rule under the Regulatory Policies and 
Procedures order issued by the U.S. Department of Transportation (44 FR 
11034, February 26, 1979).
    Executive Order 13563 is supplemental to and reaffirms the 
principles, structures, and definitions governing regulatory review 
that were established in Executive Order 12866 Regulatory Planning and 
Review of September 30, 1993. Executive Order 13563, issued January 18, 
2011, notes that our nation's current regulatory system must not only 
protect public health, welfare, safety, and our environment but also 
promote economic growth, innovation, competitiveness, and job creation 
(76 FR 3821, January 21, 2011). Further, this executive order urges 
government agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public. 
In addition, Federal agencies are asked to periodically review existing 
significant regulations, retrospectively analyze rules that may be 
outmoded, ineffective, insufficient, or excessively burdensome, and 
modify, streamline, expand, or

[[Page 60762]]

repeal regulatory requirements in accordance with what has been 
learned.
    Executive Order 13610, issued May 10, 2012, urges agencies to 
conduct retrospective analyses of existing rules to examine whether 
they remain justified and whether they should be modified or 
streamlined in light of changed circumstances, including the rise of 
new technologies (77 FR 28469, May 14, 2012).
    By building off of each other, these three Executive Orders require 
agencies to regulate in the ``most cost-effective manner,'' to make a 
``reasoned determination that the benefits of the intended regulation 
justify its costs,'' and to develop regulations that ``impose the least 
burden on society.''
    This final rule augments 49 CFR part 109, which contains 
regulations on DOT inspection and investigation procedures. These 
regulations are not part of the HMR, which governs the transportation 
of hazardous materials, thus they do not carry any additional 
compliance requirements or costs for entities that must comply with the 
HMR. The benefits of the rule are that the procedures being 
incorporated are transparent to the regulated community, and ensure 
that the shipper is notified of an enforcement action. This will 
eliminate any suspicion of malice on the part of the agency or any 
specific inspector, and provide information to the shipper that could 
be used to modify any remaining defective operations that led to the 
removal. Also, the operations manual ensures that DOT's procedures are 
consistent across all modes.

C. Executive Order 13132

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

D. Executive Order 13175

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

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

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have 
significant impact on a substantial number of small entities. I hereby 
certify that the final rule will not have a significant economic impact 
on a substantial number of small entities. This final rule applies to 
offerors and carriers of hazardous materials, some of which are small 
entities; however, there will not be any economic impact on any person 
who complies with Federal hazardous materials law and the regulations 
and orders issued under that law.
    Potentially affected small entities. The provisions in this final 
rule will apply to persons who perform, or cause to be performed, 
functions related to the transportation of hazardous materials in 
transportation in commerce. This includes offerors of hazardous 
materials and persons in physical control of a hazardous material 
during transportation in commerce. Such persons may primarily include 
motor carriers, air carriers, vessel operators, rail carriers, 
temporary storage facilities, and intermodal transfer facilities. 
Unless alternative definitions have been established by the agency in 
consultation with the Small Business Administration, the definition of 
``small business'' has the same meaning as under the Small Business Act 
(15 CFR parts 631-657c). Therefore, since no such special definition 
has been established, PHMSA employs the thresholds (published in 13 CFR 
121.201) of 1,500 employees for air carriers (North American Industry 
Classification System [NAICS] Subgroup 481), 500 employees for rail 
carriers (NAICS Subgroup 482), 500 employees for vessel operators 
(NAICS Subgroup 483), $18.5 million in revenues for motor carriers 
(NAICS Subgroup 484), and $18.5 million in revenues for warehousing and 
storage companies (NAICS Subgroup 493). Of the approximately 116,000 
entities to which this final rule applies (104,000 of which are motor 
carriers), we estimate that about 90 percent are small entities.
    Potential cost impacts. This final rule revises 49 CFR part 109, 
which contains regulations on DOT inspection and investigation 
procedures. These regulations are not part of the HMR, which govern the 
transportation of hazmat, thus they do not carry any additional 
compliance requirements or costs for entities that must comply with the 
HMR.
    Alternate proposals for small business. Because this final rule 
addresses a Congressional mandate, we have limited latitude in defining 
alternative courses of action. The option of taking no action would be 
both inconsistent with Congress' direction and undesirable from the 
standpoint of safety and enforcement. Failure to implement these 
amendments will perpetuate the problem of undeclared hazardous material 
shipments and resulting incidents or releases. It will also leave PHMSA 
and other operating administrations without an effective plan to abate 
an imminent safety hazard.

F. Paperwork Reduction Act

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

G. Regulatory Identifier Number (RIN)

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

H. Unfunded Mandates Reform Act of 1995

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

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), and implementing regulations by the Council on 
Environmental Quality (40 CFR part

[[Page 60763]]

1500) require Federal agencies to consider the consequences of Federal 
actions and prepare a detailed statement on actions that significantly 
affect the quality of the human environment.
    The purpose of this rulemaking is to amend the Department's 
existing enforcement procedures to (1) to clarify the Department's 
position with respect to perishable hazardous material, by amending the 
opening of packages provision; (2) provide notice of enforcement 
measures to affected parties; and (3) address appropriate equipment for 
inspectors. Because this final rule addresses Congressional mandates, 
we have limited latitude in defining alternative courses of action. The 
option of taking no action would be both inconsistent with Congress' 
direction and undesirable from the standpoint of safety and 
enforcement.
    PHMSA sought comment on the environmental assessment in the NPRM. 
PHMSA did not receive any comments regarding the environmental 
assessment contained in that rulemaking. This action has been 
thoroughly reviewed by PHMSA. Given that the inspection and enforcement 
procedures in this final rule will not change the current inspection 
procedures for DOT, but will provide transparency into our existing 
operations and procedures, PHMSA concludes that the rule will not 
result in significant environmental impacts.

J. Privacy Act

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

List of Subjects in 49 CFR Part 109

    Equipment, Inspections and investigations.

The Final Rule

    In consideration of the foregoing, part 109 of chapter I, subtitle 
B of title 49 of the Code of Federal Regulations is amended as follows:

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

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

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

0
2. In Sec.  109.5, paragraph (a) introductory text is revised, and 
paragraph (b) is added to read as follows:


Sec.  109.5  Opening of packages.

    (a) In general. Except as provided in paragraph (b):
* * * * *
    (b) Perishable hazardous material. To ensure the expeditious 
transportation of a package containing a perishable hazardous material, 
an agent will utilize appropriate alternatives before exercising an 
authority under paragraph (a) of this section.


0
3. Add Sec.  109.16 to subpart B as follows:


Sec.  109.16  Notification of enforcement measures.

    In addition to complying with the notification requirements in 
Sec.  109.7 of this part, an agent, after exercising an authority under 
this Subpart, will immediately take reasonable measures to notify the 
offeror and the person in possession of the package, providing the 
reason for the action being taken, the results of any preliminary 
investigation including apparent violations of subchapter C of this 
chapter, and any further action that may be warranted.


0
4. Add subpart D, consisting of Sec.  109.25, to read as follows:

Subpart D--Equipment


Sec.  109.25  Equipment.

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

    Issued in Washington, DC, on September 26, 2013 under authority 
delegated in 49 CFR 1.97.
Timothy P. Butters,
Deputy Administrator, Pipeline and Hazardous Materials Safety 
Administration.
[FR Doc. 2013-23894 Filed 10-1-13; 8:45 am]
BILLING CODE 4910-60-P