11570 Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 

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. 

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 noncompliant 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, (202) 366–4400, 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. 

§§ 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. §§ 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 

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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 

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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 noncompliant 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 

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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 noncompliant. 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 noncompliant will guard against 

unwarranted opening or delay of 

declared compliant packages. 

Accordingly, this final rule includes a 

separate provision, § 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 noncompliant 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 

§ 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 § 109.1. We have 

corrected this drafting error in the 

applicable regulatory provision, 

§ 109.13(a)(4), to be consistent with the 

term as defined in § 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 

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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 § 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 § 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 § 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 § 109.5. 

PHMSA Response: 

Proposed § 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-ofservice 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 § 109.1. 

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‘‘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 § 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 § 109.3(b)(4) 

(now § 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 

§ 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 

§ 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 

§ 109.3(a)–(c) of the NPRM have been 

reorganized into the following separate 

provisions: § 109.5 Opening of packages; 

§ 109.7 Removal from transportation; 

§ 109.9 Transportation for examination 

and analysis; § 109.11 Assistance of 

properly qualified personnel; § 109.13 

Closing packages/safe resumption of 

transportation; and § 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, 

§ 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 § 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 

§ 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 § 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 

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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 § 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 § 109.3. 

For example, if a DOT agent removes a 

package and related packages from 

transportation in accordance with 

proposed § 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 

§ 109.3(b)(4) (now located at §§ 109.5– 

109.13) and determined who has 

custody during each potential stage of 

the inspection process. 

Regulatory provision Enforcement action Who has custody? 

§ 109.5(a)(1) .................. When an agent has an objectively reasonable and 

articulable belief that a package 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; 

Person in possession, as this step is only information 

gathering. 

§ 109.5(a)(2) .................. Open any overpack, 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. 

DOT. 

§ 109.7 .......................... An agent may remove 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. 

DOT. 

§ 109.9 .......................... When an agent determines that further examination of a 

package is necessary; if conflicting information exists; 

or to otherwise determine that a package is in compliance with 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. 

Person in possession (carrier) if carrier is transporting to 

the facility; once the carrier is done transporting package, it is the responsibility of the offeror since it is its 

package. 

§ 109.11 ........................ 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. 

Person in possession (carrier) if carrier is transporting to 

the facility; once the carrier has transported the package, it is the responsibility of the offeror since it is its 

package. 

§ 109.13(a)(1)–(2) ......... No imminent hazard found. If, after an agent exercises an 

authority under § 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; 

DOT. 

§ 109.13(a)(3) ................ Return the package to the person from whom the agent 

obtained it, as soon as practicable; and 

Custody of person in possession at the time of the enhanced inspection. 

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Regulatory provision Enforcement action Who has custody? 

§ 109.13(a)(4) ................ 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. 

DOT (during repackaging until it is returned). 

§ 109.13(b) .................... If, after an agent exercises an authority under § 109.5, 

and 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. 

Person in possession (carrier) or person responsible for 

the package (offeror). 

§ 109.13(c) .................... 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 the 

package can be brought into compliance, provided that 

the agent that issued the out-of-service order is notified 

before the move. 

Person transporting. 

§ 109.13(d) .................... Noncompliant package. If, after an agent exercises an authority under § 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. 

Person in possession (carrier) or person responsible for 

the package (offeror). 

E. Opening and Reclosing Outer 

Packagings as Proposed 

Inner vs. Outer Packaging 

In accordance with Section 7118, in 

§ 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 § 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. 

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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 

§ 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 PHMSAapproved 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 

§ 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 § 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, § 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 reclosing 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 

§ 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 

§ 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 

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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 

§ 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 

§ 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 noncompliant 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 § 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 § 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 § 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 

§ 109.3(b)(4)(iv) necessarily precedes 

(v). However, these regulatory 

provisions are not mutually inclusive. 

The purpose of § 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 § 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 § 109.3(b)(4)(v) (now § 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 

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determined if a package is ordered to be 

transported and analyzed at another 

facility pursuant to § 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 § 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 NonCompliant Shipments Identified 

Through § 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 noncompliant 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. 

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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 

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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 § 109.3(b)(4)(v)—Qualified 

Personnel To Assist (§ 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 § 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 § 109.3(b)(5) refers to an 

‘‘inspector’’ returning a package found 

not to pose an imminent hazard and 

similarly, § 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 

§ 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 § 109.3(b)(6) is now 

§ 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 § 109.3(b)(6) do not conflict. 

If an imminent hazard is found to 

exist, pursuant to § 109.13(b), the 

Administrator may issue an out-ofservice 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 

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language of § 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 § 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 §§ 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 § 109.3(b)(6)(i), the 

substance of which is now located at 

§ 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 § 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 

§ 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 

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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 noncomplaint 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-ofservice 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 

§ 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 

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(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 § 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. 

§ 109.3 Inspections and Investigations 

The regulatory provisions originally 

located in § 109.3(a)–(c) of the NPRM 

have now been reorganized into the 

following separate provisions: § 109.5 

Opening of packages; § 109.7 Removal 

from transportation; § 109.9 

Transportation for examination and 

analysis; § 109.11 Assistance of properly 

qualified personnel; § 109.13 Closing 

packages/safe resumption of 

transportation; § 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 § 109.3 and 

§ 109.5 has been restructured into 

separate sections based on each action 

taken. Reorganizing the provisions of 

§ 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, 

§ 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 

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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 crossmodal 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 

§ 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, 

§ 5121(c)(1)(A) specifies DOT’s ability to 

inspect records and property under its 

existing regulatory authority under 

§ 5103(b)(1). Aside from § 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. 

§ 109.5 Opening of Packages 

What was proposed as § 109.3(b)(4) in 

the NPRM is now located at § 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. Shipments such as 

plastic bottles or drums that are in 

direct contact with a hazardous material 

will not be opened pursuant to this 

authority. 

Proposed § 109.3(b)(4)(iii) stated that 

an agent may remove the package and 

related packages in a shipment or a 

freight container from transportation in 

commerce when the agent has an 

objectively reasonable and articulable 

belief that the package may pose an 

imminent hazard, provided the agent 

records this belief in writing as soon as 

practicable. The substance of this 

provision is now located in its separate 

section at § 109.7, Removal from 

transportation. This section implements 

49 U.S.C. 5121(c)(1)(C) by permitting a 

DOT agent to remove from 

transportation in commerce a package 

(including a freight container) or related 

packages when the agent has an 

objectively reasonable and articulable 

belief that the package may pose an 

imminent hazard. PHMSA intends to 

employ this remedy when necessary to 

suspend or restrict the transportation of 

a shipment that is deemed unsafe. 

Should this condition exist, the agent 

must document for his or her 

supervising official the basis for 

removing the package from 

transportation as soon as practicable, 

including the findings that the shipment 

contained a hazardous material and the 

identified imminent hazard. The 

documentation requirement safeguards 

the inspection and enforcement process 

by requiring DOT to specifically 

describe the hazard present and 

substantiate the need to remove the 

shipment from the stream of commerce. 

The documentation will chronicle the 

activities and events culminating in 

removing the package from 

transportation. The documentation must 

provide sufficient justification to pursue 

further investigation into the contents of 

a package. This section further provides 

that an agent must limit this removal to 

a maximum 48-hour period in order to 

determine whether the package may 

pose an imminent hazard. The 48-hour 

window begins when the written order 

is issued to the person with custody and 

control of the package. This limitation 

was added in response to a comment 

regarding the delay of packages subject 

to OOS orders. Dow states that packages 

that are taken out of service, opened and 

inspected, and then later found 

compliant will result in shipment delay 

and shutdown of customer processes. 

DGAC expresses similar concern about 

extended delays that may result from 

each instance where a package is 

removed or goods are stopped in transit, 

because the package is effectively 

placed out of service. PHMSA agrees 

that a removal under these 

circumstances should be limited in time 

in order to provide carriers with a date 

certain as to when packages may resume 

transportation if brought into 

compliance. Forty-eight hours serves as 

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a workable timeframe for terms of an 

OOS order to be addressed, or enough 

time for an imminent hazard 

investigation to be completed. 

In addition, agents must present 

written notification stating the reason 

for removal to the person in possession 

of the package to be removed. A 

notification provision was added 

because the removal of a package from 

transportation due to an imminent 

hazard is inherently an emergency 

situation. Accordingly, the affected 

party must be promptly informed about 

the action taken so that it may begin to 

take immediate corrective action. 

§ 109.9 Transportation for 

Examination and Analysis 

Proposed § 109.3(b)(4)(iv) stated that 

an agent may order the person in 

possession of, or responsible for, the 

package to have it transported to, 

opened, and the contents examined and 

analyzed by, a facility capable of 

conducting such examination and 

analysis. The substance of this provision 

is now located at § 109.9, Transportation 

for examination and analysis. This 

section has been revised in response to 

comments requesting greater detail as to 

how and when a package may be 

ordered to be transported for further 

examination and analysis. As stated in 

§ 109.9(a), a package may be ordered to 

be transported to an appropriate facility 

if it requires further examination, 

presents conflicting information, or if 

additional investigation is not possible 

on the immediate premises. 

This section implements 49 U.S.C. 

5121(c)(1)(E), which provides that under 

terms and conditions specified by the 

Secretary, an agent may order the party 

in possession of the package, or 

otherwise responsible for the shipment, 

to have it transported to, opened, and 

examined at an appropriate facility if 

the agent determines that it is not 

practicable to examine the contents of a 

package at the time and location of the 

stop. This provision enables DOT to 

facilitate learning about the nature of 

the product inside the shipment by 

permitting delivery of the shipment to a 

facility where its contents can be 

identified. PHMSA intends for DOT to 

employ this remedy only when an onsite inspection is inadequate or a facility 

has the sophisticated personnel, 

equipment, and information technology 

to assist in the inspection or 

investigation. Although removal of a 

package for further analysis is new 

authority provided by statute to work in 

conjunction with package opening, this 

provision is a simply new method to 

enforce existing statutory authority, 

which is to ensure the safe 

transportation of hazardous materials. 

Under proposed § 109.3(b)(4)(v), 

properly qualified personnel may be 

asked to assist DOT when the agents 

open, detain, or remove a shipment, if 

it is possible that a package may 

experience a leak, spill, or release. 

There was an error in the NPRM with 

regard to § 109.4(b)(iv); the last 

subparagraph of § 109.3(b) was 

identified as (iv) when it should have 

been (v). This provision is now located 

at § 109.11, Assistance of properly 

qualified personnel, and also states that 

if an agent is not properly qualified to 

perform a function, or if safety might be 

compromised, an agent may authorize 

the assistance of properly qualified 

personnel. This section was revised in 

response to a comment requesting 

further clarification regarding the 

circumstances in which properly 

qualified personnel would be asked to 

assist. 

§ 109.13 Closing Packages and Safe 

Resumption of Transportation 

Closure of opened packages and their 

return to transportation remained an 

issue of great interest among 

commenters. Many commenters had 

questions as to how packages would be 

reclosed, who would reclose them, and 

how the packages would reenter the 

stream of commerce. In formulating 

responses to these comments, the 

agency decided that a significant 

revision of this provision was necessary. 

Proposed § 109.3(b)(5)–(6) attempted 

to cover the reclosing process and the 

resumption of transportation, but 

without much success. Details were 

lacking and all possible scenarios were 

not addressed. The content of these two 

sections were parsed out in what is now 

§ 109.13, Closing packages and safe 

resumption of transportation. The first 

provision, § 109.13(a), entitled No 

imminent hazard found, addresses what 

happens if no imminent hazard is found 

and the package contains hazardous 

material that is otherwise found to be 

compliant. If an imminent hazard is not 

found, an agent will assist in reclosing 

the package in accordance with the 

packaging manufacturer’s closure 

instructions or other appropriate 

method; mark and certify the package as 

opened by an identified Federal agent 

and reclosed under this part; and return 

the package from whom it was obtained. 

Packages containing perishable 

hazardous material will be given 

expeditious treatment after it is 

determined there is no imminent 

hazard. 

Section 109.13(b), entitled Imminent 

hazard found, addresses the situation in 

which an imminent hazard is found. In 

the event of an imminent hazard, an 

out-of-service order will be issued, 

prohibiting the movement of the 

package until it has been brought into 

compliance. The package will not be 

reclosed by a DOT agent because a noncompliant package posing an imminent 

hazard will not be permitted to enter 

into, or continue in, transportation. 

Moreover, DOT is not obligated to bring 

an offeror’s package into compliance, as 

it is the offeror’s responsibility to 

maintain compliance for its shipments. 

The recipient of the OOS order must 

remove the package from transportation 

until it is brought into compliance. 

Although this was implicit in the 

operation of emergency orders, it was 

necessary to articulate the possibility 

nonetheless. This language did not exist 

in the NPRM, but upon reconsideration 

of this section, it was added for clarity. 

Section 109.13(c), entitled Package 

does not contain hazardous material, 

addresses the situation in which a 

package is opened and does not contain 

hazardous material. The agent will 

securely close the package, mark and 

certify its opening and closing by a 

Federal agent, and return the package to 

transportation. Because there is no 

hazardous material at issue, there would 

be no further packaging or reclosing 

obligations and the package may 

continue in transportation. 

Section 109.13(d), entitled Package 

contains hazardous materials not in 

compliance with this Chapter, presents 

the final possibility when a package is 

opened: If a package contains hazardous 

material not in compliance with Federal 

hazmat law or the HMR. If the opening 

of a package reveals noncompliant 

hazmat that does not pose an imminent 

hazard, the agent will not close the 

package as there is no obligation to 

bring that package into compliance. 

The Department’s operating 

administrations will not be responsible 

for bringing an otherwise non-compliant 

package into compliance and resuming 

its movement in commerce. 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. 

Section 109.15 Termination, (former 

§ 109.3(c)) states that the operating 

administration will close the 

investigative file and inform the subject 

party of the decision when the agency 

determines that no further action is 

necessary, and that DOT will notify 

respondent that the file has been closed 

without prejudice to further 

investigation. The substance of this 

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provision is now located at § 109.15, 

Termination, and includes language that 

reserves civil enforcement at a later time 

as is necessary to carry out the Federal 

hazmat law. 

§ 109.17 Emergency Orders 

Proposed § 109.5 Emergency orders, 

which implements 49 U.S.C. 5121(d), 

authorizes DOT operating 

administrations to issue or impose 

emergency restrictions, prohibitions, 

OOS orders, and recalls. The predicate 

for issuing an emergency order is a 

violation of Federal hazmat law or the 

HMR, or an unsafe condition or 

practice, whether or not it violates an 

existing statutory or regulatory 

requirement, which amounts to or is 

causing an imminent hazard. PHMSA 

believes that such an extraordinary 

remedy is necessary to address 

emergency situations or circumstances 

involving a hazard of death, illness, or 

injury to persons affected by an 

imminent hazard. Cf. United Transp. 

Union v. Lewis, 699 F.2d 1109, 1113 

(11th Cir. 1983) (FRA emergency order 

authority is necessary to abate unsafe 

conditions or practices that extend to 

hazard of death or injury to persons); 49 

U.S.C. 46105(c) (FAA is authorized to 

issue orders to meet existing emergency 

relating to safety in air commerce); 49 

U.S.C. 521(b)(5) (FMCSA permitted to 

order a motor carrier OOS when vehicle 

or operation constitutes an imminent 

hazard to safety, i.e., ‘‘substantially 

increases the likelihood of serious 

injury or death if not discontinued 

immediately’’). 

The Department intends that each 

operating administration issue an 

emergency order only after an 

inspection, investigation, testing, or 

research determines that an imminent 

hazard exists that requires exercising 

this enforcement tool to eliminate the 

particular hazard and protect public 

safety. The order must articulate a 

sufficient factual basis that addresses 

the emergency situation warranting 

prompt prohibitive action. The 

operating administrations will have 

authority to take immediate measures to 

address a particular safety or security 

threat. 

As proposed, the provisions 

addressing emergency orders were 

located at § 109.5 as well as in 

§ 109.3(b)(6). In the final rule, PHMSA 

has decided to bring all matters 

regarding emergency orders into the 

same location, § 109.17 Emergency 

Orders. Proposed § 109.3(b)(6), now 

located at § 109.17(a), addresses the 

general criteria for when an 

Administrator may issue or impose 

emergency restrictions, prohibitions, 

recalls, or out-of-service orders when an 

imminent hazard is present. Under this 

authority, the agency may order a 

company to immediately discontinue 

any or all operations based on any 

unsafe condition or practice causing an 

imminent hazard. An emergency order 

identifying the terms and conditions of 

such a restriction or prohibition may 

also prescribe necessary actions to abate 

the imminent hazard before operations 

may be resumed. 

In the NPRM, the procedures for an 

OOS order were located at proposed 

§ 109.3(b)(6), following the package 

opening authority, in the section under 

inspection and investigation. This 

provision is now located at § 109.17(b), 

where it makes better sense to have OOS 

orders organized as a subtopic of 

emergency orders. Section 109.17(b) 

authorizes the Administrator of each 

operating administration, or his/her 

designee, to issue an OOS order 

prohibiting the movement of a package 

until the imminent hazard is abated and 

the package has been brought into 

compliance with the HMR. 

Consequently, if an agent determines 

that a package presents an imminent 

hazard, the carrier or other person in 

possession of, or responsible for, the 

package must remove the package from 

transportation until it is brought into 

compliance with the HMR. OOS orders 

ensure that if a package presents an 

imminent hazard, immediate action is 

taken to abate that hazard. 

Proposed§ 109.3(b)(6)(i), now located at 

§ 109.17(b)(2), provides that a package 

subject to an OOS order may be moved 

from the place where it is first 

discovered to present an imminent 

hazard to the nearest location where 

remedial action can be taken to abate 

the hazard and bring the package into 

compliance with the HMR, provided 

that before the move, the agent issuing 

the OOS order is notified of the planned 

move on a 24-hour basis. 

Proposed § 109.3(b)(6)(ii), now 

located at § 109.17(b)(3), requires that 

the recipient of an OOS order notify the 

agent who issued the order when the 

package is brought into compliance with 

the HMR. 

Proposed § 109.3 (b)(6)(iii), now 

located at § 109.17(b)(4), provides an 

appeal process for a recipient of an OOS 

order to challenge the issuance of the 

order. The appeal process for OOS 

orders is consistent with the appeal 

process proposed for other types of 

emergency orders set forth in § 109.17, 

discussed below. 

Proposed § 109.5(a), now located at 

§ 109.17(a), outlines the critical 

elements that must be established before 

an agency may issue an emergency 

order. Principally, the order must be in 

writing and describe the violation, 

condition or practice that is causing the 

imminent hazard; enumerate the terms 

and conditions of the order; be 

circumscribed to abate the imminent 

hazard; and inform the recipient that it 

may seek administrative review of the 

order by filing a petition with PHMSA’s 

CSO. In other words, the order must be 

narrowly tailored to the discrete and 

specific safety hazard and identify the 

corrective action available to remedy the 

hazard. Due to the urgent nature of the 

action, a petitioner will have 20 

calendar days to file the petition after 

the emergency order is issued. See 49 

U.S.C. 5121(d)(3). This provision 

ensures that the operating 

administrations employ uniform 

procedures and standards when issuing 

emergency orders and provides a degree 

of certainty and predictability to the 

regulated community about the requisite 

elements to establish a prima facie 

emergency order. 

Proposed § 109.5(a)(4), now located at 

§ 109.17(a)(4), was revised to provide 

notice regarding a formal hearing 

request in accordance with 5 U.S.C. 554. 

A recipient must provide the material 

facts in dispute giving rise to the request 

for a hearing. PHMSA has also added 

§ 109.17(a)(5) in the final regulatory 

text, which references § 109.19(f) for 

filing and service requirements. All 

documents related to a petition for 

review must be filed with DOT Docket 

Operations and served on all relevant 

parties, as detailed in § 109.19(f). 

Proposed § 109.7, Emergency Recalls, 

is now located at § 109.17(c) so that the 

procedures for all agency actions 

addressing emergency situations may be 

found in the same section. This 

provision implements 49 U.S.C. 

5121(d). Generally, PHMSA received 

new recall authority in HMSSTRA to 

work hand-in-hand with our previous 

authority under 49 U.S.C. 

5103(b)(1)(A)(iii) to prescribe 

regulations for the safe transportation, 

including security, of hazardous 

materials in intrastate, interstate, and 

foreign commerce. Specifically, 

PHMSA, in consultation with relevant 

operating administrations, will recall 

packagings, containers, or package 

components which were improperly 

designed, manufactured, fabricated, 

inspected, marked, maintained, 

reconditioned, repaired, or tested but 

sold as qualified DOT packages, 

containers, or packaging components for 

use in the transportation of hazardous 

materials in commerce. 

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§ 109.19 Petitions for Review of 

Emergency Orders 

PHMSA provides a party with 

administrative due process rights to 

seek redress of an emergency order, and 

thus, proposed § 109.5(b), now located 

at § 109.19 Petitions for review of 

emergency orders, sets forth 

requirements for filing a petition for 

administrative review of an emergency 

order. The petition must: (1) Be in 

writing; (2) specifically state which part 

of the emergency order is being 

appealed; and (3) indicate whether a 

formal administrative hearing is 

requested. If a petitioner requests a 

hearing, the party must detail the 

material facts in dispute giving rise to 

the hearing request. In this final rule, 

§ 109.19(a)(4) (which was proposed as 

§ 109.5(b)(4) in the NPRM), now 

references the service and filing 

requirements of § 109.19(f) instead of 

providing separate instructions in this 

paragraph as originally proposed. 

Proposed § 109.5(c), now located at 

§ 109.19(b), provides that the Office of 

Chief Counsel of the operating 

administration that issued the 

emergency order may file a response, 

including appropriate pleadings, with 

the CSO within five days after receiving 

the petition. PHMSA believes this short 

turnaround is adequate to enable the 

issuing operating administration to 

present evidence and argument 

supporting the emergency order. 

PHMSA notes that Congress mandated 

that DOT must resolve the petition 

within 30 days of its receipt unless the 

operating administration issues a 

subsequent order extending the original 

order, pending review of the petition. 

See 49 U.S.C. 5121(d)(4). 

Proposed § 109.5(d), now located at 

§ 109.19(c), provides that the PHMSA 

CSO will review the petition and 

response and issue a decision within 30 

days upon receipt of the petition if the 

petitioner does not request a formal 

hearing or the petition fails to assert 

material facts in dispute. The CSO’s 

decision constitutes final agency action 

in this instance. Alternatively, if the 

petition contains a request for a formal 

hearing and states material facts in 

dispute, the CSO will assign the petition 

to DOT’s Office of Hearings. PHMSA 

thus designates its CSO as the first line 

of review of emergency orders. It is 

possible that the PHMSA CSO may 

amend, affirm, lift, modify, stay, or 

vacate the emergency order upon 

review. An additional provision was 

added in the final regulatory text in 

§ 109.19(c)(1) under the CSO’s 

responsibilities for cases in which a 

hearing is requested. Unless the CSO 

issues an order determining no material 

facts are in dispute and will be decided 

on the merits, a formal hearing request 

will be deemed assigned to the Office of 

Hearings three calendar days after the 

CSO receives it. This internal 

mechanism will ensure that the Office 

of Hearings has sufficient time to 

complete the hearing process and aid 

the agency in meeting the statutory 

requirement of 30 days to act on a 

petition for review. 

PHMSA believes that its CSO should 

serve as the primary adjudicator of 

petitions. Designating a single decision 

maker to handle all petitions will 

promote consistency in the application 

of review standards. The CSO is the lead 

safety authority in PHMSA, which is the 

agency that issues the HMR, interprets 

the Federal hazmat law and its 

implementing regulations, and oversees 

DOT’s hazardous materials 

transportation program. 

Proposed §§ 109.5(e)–(h), now located 

at §§ 109.19(d)–(g) set out the 

administrative hearing procedures that 

the Department’s Office of Hearings will 

employ. Upon receiving the petition 

from the CSO, the Chief Administrative 

Law Judge will assign it to an 

Administrative Law Judge (ALJ), who 

will schedule and conduct an ‘‘on the 

record’’ hearing under 5 U.S.C. 554, 556, 

and 557. PHMSA believes that a 

petitioner should be afforded a formal 

hearing that addresses the merits of a 

petition to ensure that a record is 

created in a proceeding that will form 

the basis for final agency action and 

judicial review, if necessary. The ALJ 

process is not new; DOT currently 

utilizes it for enforcement proceedings. 

The timeline for which the ALJ 

proceedings must begin and conclude 

are new, however, as 49 U.S.C. 

5121(d)(4) mandates petitions for review 

must be adjudicated within 30 days of 

filing. Thus, the ALJ must issue a report 

and recommendation within 25 days 

after receipt of the petition for review by 

the Chief Safety Officer. 

Proposed § 109.5(g), entitled 

‘‘Service,’’ is now located at § 109.19(f) 

and entitled ‘‘Filing and service.’’ This 

section also provides that all documents 

must be filed with DOT Docket 

Operations, and identifies the parties 

which must be served. PHMSA believes 

one location for filing and service 

requirements of all documents makes 

the regulatory text more consistent and 

easier to understand. 

Proposed § 109.5(e), now located at 

§ 109.19(d), provides that an ALJ may 

administer oaths and affirmations, issue 

subpoenas as authorized by each 

operating administration’s regulations, 

enable the parties to engage in 

discovery, and conduct settlement 

conferences and hearings to resolve 

disputed factual issues. PHMSA expects 

ALJs to conduct efficient and 

expeditious proceedings, including 

controlling discovery actions, to enable 

the parties to obtain relevant 

information and present material 

arguments at a hearing within the time 

parameters established. Proposed 

§ 109.5(f), now located at § 109.19(e), 

permits a petitioner to appear in person 

or through an authorized representative. 

The representative need not be an 

attorney. The operating administration, 

however, would be represented by an 

attorney from its Office of Chief 

Counsel. Proposed § 109.5(g), now 

located at § 109.19(f), delineates the 

service rules governing the emergency 

order and review process. Generally, 

parties may effect service by electronic 

transmission via e-mail (with the 

pertinent document in Adobe PDF 

format attached) or facsimile, certified 

or registered mail, or personal delivery. 

Additionally, the operating 

administration that issued the 

emergency order must identify the list 

of persons, including the Department’s 

docket management system, to receive 

the order and serve it by ‘‘hand 

delivery,’’ unless such delivery is not 

practicable. 

Proposed § 109.5(h), now located at 

§ 109.19(g), requires the ALJ to issue a 

report and recommendation when the 

record is closed. The decision must 

contain factual findings and legal 

conclusions based on legal authorities 

and evidence presented on the record, 

which is part of an ALJ’s existing 

authority. Critically, the decision must 

be issued within 25 days after the CSO 

receives the petition, which is a new 

requirement under the statute. Under 

proposed § 109.5(i), now located at 

§ 109.19(h), which codifies 49 U.S.C. 

5121(d)(4), the emergency order will no 

longer be effective if the ALJ or CSO has 

not ruled on the petition within 30 days 

of the CSO’s receipt of the petition, 

unless the Administrator who issued the 

emergency order determines in writing 

that the imminent hazard continues to 

exist. The order then remains in effect 

pending the disposition of the petition 

unless stayed or modified by the 

Administrator. PHMSA maintains that 

this provision implementing new 

regulatory authority to issue emergency 

orders on the basis of an imminent 

hazard is necessary to ensure that the 

order is extended to abate the imminent 

hazard. 

Proposed § 109.5(j), now located at 

§ 109.19(i), provides that an aggrieved 

party may file a petition for 

reconsideration of the ALJ’s report and 

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recommendation within one day of the 

issuance of the decision. This is an 

existing provision of DOT regulations 

for parties seeking reconsideration of 

agency action. The CSO then must issue 

a final agency decision no later than 30 

days from the receipt of the petition for 

review, unless a subsequent emergency 

order is issued. In that case, the CSO has 

three calendar days to render the 

decision after receiving the petition for 

reconsideration. The CSO’s decision on 

the merits of a petition for 

reconsideration constitutes final agency 

action. 

Proposed § 109.5(k), now located at 

§ 109.19(j) enables an aggrieved party to 

seek judicial review of either the CSO’s 

administrative decision or the CSO’s 

adoption of the ALJ’s report and 

recommendation (final agency action). 

Consistent with existing remedies, 

judicial review is available in an 

appropriate U.S. Court of Appeals under 

49 U.S.C. 5127, 49 U.S.C. 20114(c), 28 

U.S.C. 2342, and 5 U.S.C. 701–706. All 

parties should note that the filing of a 

petition will not stay or modify the force 

and effect of final agency action unless 

otherwise ordered by the appropriate 

U.S. Court of Appeals. 

Proposed § 109.5(l), now located at 

§ 109.19(k), specifies the computation of 

time in the adjudications process. 

§ 109.21 Remedies Generally 

In addition to seeking relief in Federal 

court with respect to an imminent 

hazard, this section defines the need for 

general remedies available through 

litigation. An Administrator may 

request the Attorney General to bring an 

action in the appropriate U.S. district 

court for all other necessary or 

appropriate relief, including, but not 

limited to, injunctive relief, punitive 

damages, and assessment of civil 

penalties as provided by 49 U.S.C. 

5122(a). Proposed § 109.9, now located 

at § 109.21, authorizes an Administrator 

to request DOJ to bring a cause of action 

in the appropriate U.S. district court 

seeking legal and equitable relief, 

including civil penalties, punitive 

damages, temporary restraining orders, 

and preliminary and permanent 

injunctions, to enforce the Hazmat Law, 

HMR, or an order, special permit, or 

approval issued. DOT’s ability to 

request DOJ’s assistance to petition for 

injunctive relief in district court to 

enforce the Federal hazmat law is an 

existing remedy. 

Rulemaking Analyses and Notices 

A. Statutory/Legal Authority for This 

Rulemaking 

This final rule is published under the 

authority of 49 U.S.C. 5103(b) which 

authorizes the Secretary to prescribe 

regulations for the safe transportation, 

including security, of hazardous 

material in intrastate, interstate, and 

foreign commerce and under the 

authority of 49 U.S.C. 5121(e). The final 

rule would revise PHMSA’s inspection 

and enforcement procedures in 

PHMSA’s regulations to implement 49 

U.S.C. 5121(c) and (d), as amended by 

HMTSSRA. Specifically, this final rule 

implements the enhanced inspection 

and enforcement authority mandated by 

Section 7118 by enabling DOT to open, 

detain, and remove packages from 

transportation where appropriate, and 

issue emergency orders limiting or 

restricting packages from transportation. 

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, and 

DOT Regulatory Policies and Procedures 

This final rule is a significant 

regulatory action under section 3(f) of 

Executive Order 12866 and, therefore, 

was reviewed by the Office of 

Management and Budget consistent 

with Executive Orders 12866 and 13563. 

This rule is also significant under the 

Regulatory Policies and Procedures of 

the DOT (44 FR 11034). We completed 

a final regulatory evaluation and placed 

it in the docket for this rulemaking. This 

final rule finalizes 49 CFR Part 109, 

which contains regulations on DOT 

inspection and investigation 

procedures. These regulations are not 

part of the HMR, which govern the 

transportation of hazmat, thus they do 

not carry any additional compliance 

requirements or costs for entities that 

must comply with the HMR. It is 

possible, however, that some carriers or 

shippers, who in the absence of this rule 

would have refused to open a package 

when requested, may experience delays 

that they would not have otherwise 

faced. DOT is not aware of any cases of 

shippers or carriers refusing to open 

packages and so anticipates that these 

costs will be minimal. 

C. Executive Orders 13132 and 13084 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). As amended by 

HMTSSRA, 49 U.S.C. 5125(i) provides 

that the preemption provisions in 

Federal hazardous material 

transportation law do ‘‘not apply to any 

procedure * * * utilized by 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, and 

preparation of a federalism assessment 

is not warranted. 

This final rule has also been analyzed 

in accordance with the principles and 

criteria contained in Executive Order 

13084 (‘‘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 13084 do not apply. 

D. Regulatory Flexibility Act 

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. Based on the 

assessment in the regulatory evaluation 

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 

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such special definition has been 

established, PHMSA employs the 

thresholds (published in 13 CFR 

121.201) of 1,500 employees for air 

carriers (NAICS Subgroup 481), 500 

employees for rail carriers (NAICS 

Subgroup 482), 500 employees for 

vessel operators (NAICS Subgroup 483), 

$18.5 million in revenues for motor 

carriers (NAICS Subgroup 484), and 

$18.5 million in revenues for 

warehousing and storage companies 

(NAICS Subgroup 493). Of the 

approximately 116,000 entities to which 

this final rule would apply (104,000 of 

which are motor carriers), we estimate 

that about 90 percent are small entities. 

Potential cost impacts. This final rule 

finalizes 49 CFR part 109, which 

contains regulations on DOT inspection 

and investigation procedures. These 

regulations are not part of the HMR, 

which govern the transportation of 

hazmat, thus they do not carry any 

additional compliance requirements or 

costs for entities that must comply with 

the HMR. It is possible, however, that 

some carriers or shippers, who in the 

absence of this rule would have refused 

to open a package when requested, may 

experience delays that they would not 

have otherwise faced. DOT is not aware 

of any cases of shippers or carriers 

refusing to open packages and so 

anticipates that these costs will be 

minimal. 

Alternate proposals for small 

business. Because this 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 the new authority will 

perpetuate the problem of undeclared 

hazardous material shipments and 

resulting incidents or releases. It will 

also leave PHMSA and other operating 

administrations without an effective 

plan to abate an imminent safety hazard. 

E. 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. 

F. Unfunded Mandates Reform Act of 

1995 

This final rule does not impose 

unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. The final rule will not result in 

annual costs of $141.3 million or more, 

in the aggregate, to any of the following: 

State, local, or Indian tribal 

governments, or the private sector, and 

is the least burdensome alternative to 

achieve the objective of the proposed 

rule. 

G. Environmental Assessment 

The National Environmental Policy 

Act, 42 U.S.C. 4321–4375, requires 

Federal agencies to analyze proposed 

actions to determine whether an action 

will have a significant impact on the 

human environment. The Council on 

Environmental Quality (CEQ) 

regulations order Federal agencies to 

conduct an environmental review 

considering (1) the need for the 

proposed action; (2) alternatives to the 

proposed action; (3) probable 

environmental impacts of the proposed 

action and alternatives; and (4) the 

agencies and persons consulted during 

the consideration process. 40 CFR 

1508.9(b). 

1. Purpose and Need 

Congress enacted HMTSSRA in part 

to combat the problem of undeclared 

hazardous materials shipments. The 

broader authority of HMTSSRA allows 

the Department to identify hazardous 

materials shipments and to determine 

whether those shipments are made in 

accordance with the HMR. Congress 

determined that this authority would 

equip DOT officials, law enforcement, 

and inspection personnel with the 

necessary tools to accurately determine 

whether hazardous materials are being 

transported safely and in accordance 

with the relevant law and regulations. 

See Background section of the preamble 

to this final rule, supra. 

2. Alternatives 

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 the 

new authority will perpetuate the 

problem of undeclared hazardous 

material shipments and resulting 

incidents or releases. It will also leave 

PHMSA and other operating 

administrations without an effective 

plan to abate an imminent safety hazard. 

3. Analysis of Environmental Impacts 

The selected alternative could result 

in decreasing the likelihood of an 

incident, or a release of hazardous 

material, e.g., explosives, flammables, or 

corrosives. These hazardous materials 

could ignite, leak, or react with other 

material, thereby causing fires and 

explosions in confined spaces such as 

aircraft or vessels. If such incidents 

occurred while an aircraft or vessel is in 

transportation, the consequences would 

likely threaten human health and the 

environment. If hazardous material 

shipments are not properly marked, 

labeled, packaged, and handled, every 

person who comes into contact with the 

shipment could be at risk. Emergency 

responders would not be able to 

extinguish a fire in the most effective 

and timely manner because an 

undeclared shipment would not contain 

the correct hazard communications, 

thus possibly exacerbating the situation 

or prolonging the public’s exposure to a 

release. 

4. Consultations and Public Comment 

Before preparing this final rule, we 

invited all interested persons to offer 

comments on topics related to this final 

rule at public meetings and in response 

to the published NPRM. We received no 

comments regarding environmental 

concerns. 

H. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in spring and fall of each year. 

The RIN contained in the heading of 

this document, RIN 2137–AE13, can be 

used to cross-reference this action with 

the Unified Agenda. 

I. 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) or you 

may visit http://www.regulations.gov. 

List of Subjects in 49 CFR Part 109 

Definitions, Inspections and 

investigations, Emergency orders, 

Imminent hazards, Remedies generally. 

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The Rule 

■ In consideration of the foregoing, 

PHMSA adds a new part 109 to Title 49, 

Subtitle B, Chapter 1, Subchapter A to 

read as follows: 

PART 109—DEPARTMENT OF 

TRANSPORTATION HAZARDOUS 

MATERIALS PROCEDURAL 

REGULATIONS FOR OPENING OF 

PACKAGES, EMERGENCY ORDERS, 

AND EMERGENCY RECALLS 

Subpart A—Definitions 

Sec. 

109.1 Definitions. 

Subpart B—Inspections and investigations 

109.3 Inspections and investigations. 

109.5 Opening of packages. 

109.7 Removal from transportation. 

109.9 Transportation for examination and 

analysis. 

109.11 Assistance of properly qualified 

personnel. 

109.13 Closing packages/safe resumption 

of transportation. 

109.15 Termination. 

Subpart C—Emergency Orders 

109.17 Emergency orders. 

109.19 Petitions for review of emergency 

orders. 

109.21 Remedies generally. 

Authority: 49 U.S.C. §§ 5101–5128, 44701; 

Pub. L. 101–410 § 4 (28 U.S.C. 2461 note); 

Pub. L. 104–121 §§ 212–213; Pub. L. 104–134 

§ 31001; 49 CFR 1.45, 1.53. 

Subpart A—Definitions 

§ 109.1 Definitions. 

For purposes of this part, all terms 

defined in 49 U.S.C. 5102 are used in 

their statutory meaning. Other terms 

used in this part are defined as follows: 

Administrator means the head of any 

operating administration within the 

Department of Transportation, and 

includes the Administrators of the 

Federal Aviation Administration, 

Federal Motor Carrier Safety 

Administration, Federal Railroad 

Administration, and Pipeline and 

Hazardous Materials Safety 

Administration, to whom the Secretary 

has delegated authority in part 1 of this 

title, and any person within an 

operating administration to whom an 

Administrator has delegated authority to 

carry out this part. 

Agent of the Secretary or agent means 

a Federal officer, employee, or agent 

authorized by the Secretary to conduct 

inspections or investigations under the 

Federal hazardous material 

transportation law. 

Chief Safety Officer or CSO means the 

Assistant Administrator of the Pipeline 

and Hazardous Materials Safety 

Administration. 

Emergency order means an emergency 

restriction, prohibition, recall, or out-ofservice order set forth in writing. 

Freight container means 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. 

Immediately adjacent means a 

packaging that is in direct contact with 

the hazardous material or is otherwise 

the primary means of containment of 

the hazardous material. 

Imminent hazard means the existence 

of a condition relating to hazardous 

material 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. 

In writing means unless otherwise 

specified, 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. 

Objectively reasonable and articulable 

belief means a belief based on 

particularized and identifiable facts that 

provide an objective basis to believe or 

suspect that a package may contain a 

hazardous material. 

Out-of-service order means a written 

requirement issued by the Secretary, or 

a designee, that an aircraft, vessel, motor 

vehicle, train, railcar, locomotive, other 

vehicle, transport unit, transport 

vehicle, freight container, portable tank, 

or other package not be moved or cease 

operations until specified conditions 

have been met. 

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. For radioactive materials 

packaging, see § 173.403 of subchapter C 

of this chapter. 

Perishable hazardous material means 

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. 

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. 

Related packages means 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); or other reasonable and 

articulable facts that may lead an agent 

to believe such packages are related to 

a package that 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. 

Remove means to keep a package from 

entering 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. 

Safe and expeditious means prudent 

measures or procedures designed to 

minimize delay. 

Subpart B—Inspections and 

Investigations 

§ 109.3 Inspections and Investigations. 

(a) General authority. An 

Administrator may initiate an 

inspection or investigation to determine 

compliance with Federal hazardous 

material transportation law, or a 

regulation, order, special permit, or 

approval prescribed or issued under the 

Federal hazardous material 

transportation law, or any court decree 

or order relating thereto. 

(b) Inspections and investigations. 

Inspections and investigations are 

conducted by designated agents of the 

Secretary who will, upon request, 

present their credentials for 

examination. Such an agent is 

authorized to: 

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(1) Administer oaths and receive 

affirmations in any matter under 

investigation. 

(2) Gather information by any 

reasonable means, including, but not 

limited to, gaining access to records and 

property (including packages), 

interviewing, photocopying, 

photographing, and video- and audiorecording in a reasonable manner. 

(3) Serve subpoenas for the 

production of documents or other 

tangible evidence if, on the basis of 

information available to the agent, the 

evidence is relevant to a determination 

of compliance with the Federal 

hazardous material transportation law, 

regulation, order, special permit, or 

approval prescribed or issued under the 

Federal hazardous material 

transportation law, or any court decree 

or order relating thereto. Service of a 

subpoena shall be in accordance with 

the requirements of the agent’s 

operating administration as set forth in 

14 CFR 13.3 (Federal Aviation 

Administration); 49 CFR 209.7 (Federal 

Railroad Administration), 49 U.S.C. 

502(d), 5121(a) (Federal Motor Carrier 

Safety Administration), and 49 CFR 

105.45–105.55 (Pipeline and Hazardous 

Materials Safety Administration). 

§ 109.5 Opening of packages. 

(a) When an agent has an objectively 

reasonable and articulable belief that a 

package offered for or in transportation 

in commerce may contain a hazardous 

material and 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; 

(2) Open any overpack, 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. 

§ 109.7 Removal from transportation. 

An agent may remove 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. 

The agent must record this belief in 

writing as soon as practicable and 

provide written notification stating the 

reason for removal to the person in 

possession. 

§ 109.9 Transportation for examination 

and analysis. 

(a) An agent may direct a package to 

be transported to a facility for 

examination and analysis when the 

agent determines that: 

(1) Further examination of the 

package is necessary to evaluate 

whether the package conforms to 

subchapter C of this chapter; 

(2) Conflicting information 

concerning the package exists; or 

(3) Additional investigation is not 

possible on the immediate premises. 

(b) In the event of a determination in 

accordance with paragraph (a) of this 

section, an agent may: 

(1) Direct the offeror of the package, 

or other person responsible for the 

package, to have the package 

transported to a facility where the 

material may 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 may 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. 

(c) The 48-hour removal period 

provided in § 109.7 may be extended in 

writing by the Administrator pending 

the conclusion of examination and 

analysis under this section. 

§ 109.11 Assistance of properly qualified 

personnel. 

An agent may authorize properly 

qualified personnel to assist in the 

activities conducted under this part if 

the agent is not properly qualified to 

perform a function that is essential to 

the agent’s exercise of authority under 

this part or when safety might otherwise 

be compromised by the agent’s 

performance of such a function. 

§ 109.13 Closing packages and safe 

resumption of transportation. 

(a) No imminent hazard found. If, 

after an agent exercises an authority 

under § 109.5, the agent finds that no 

imminent hazard exists, and the 

package otherwise conforms to 

applicable requirements in subchapter C 

of this chapter, the agent will: 

(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 or 

other appropriate closure method; 

(2) Mark and certify the reclosed 

package to indicate that it was opened 

and reclosed in accordance with this 

part; 

(3) Return the package to the person 

from whom the agent obtained it, as 

soon as practicable; and 

(4) For a package containing a 

perishable hazardous material, assist in 

resuming the safe and expeditious 

transportation of the package as soon as 

practicable after determining that the 

package presents no imminent hazard. 

(b) Imminent hazard found. If an 

imminent hazard is found to exist after 

an agent exercises an authority under 

§ 109.5, 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 this chapter. Upon 

receipt of the out-of-service order, the 

person in possession of, or responsible 

for, the package must remove the 

package from transportation until it is 

brought into compliance. 

(c) Package does not contain 

hazardous material. If, after an agent 

exercises an authority under § 109.5, the 

agent finds that a package does not 

contain a hazardous material, the agent 

shall securely close the package, mark 

and certify the reclosed package to 

indicate that it was opened and 

reclosed, and return the package to 

transportation. 

(d) Non-compliant package. If, after 

an agent exercises an authority under 

§ 109.5, the agent finds that a package 

contains hazardous material and does 

not conform to requirements in 

subchapter C of this chapter, but does 

not present an imminent hazard, the 

agent will return the package to the 

person in possession of the package at 

the time the non-compliance is 

discovered for appropriate corrective 

action. A non-compliant package may 

not continue in transportation until all 

identified non-compliance issues are 

resolved. 

§ 109.15 Termination. 

When the facts disclosed by an 

investigation indicate that further action 

is not warranted under this Part at the 

time, the Administrator will close the 

investigation without prejudice to 

further investigation and notify the 

person being investigated of the 

decision. Nothing herein precludes civil 

enforcement action at a later time 

related to the findings of the 

investigation. 

Subpart C—Emergency Orders 

§ 109.17 Emergency Orders. 

(a) Determination of imminent 

hazard. When an Administrator 

determines that a violation of a 

provision of the Federal hazardous 

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material transportation law, or a 

regulation or order prescribed under 

that law, or an unsafe condition or 

practice, constitutes or is causing an 

imminent hazard, as defined in § 109.1, 

the Administrator may issue or impose 

emergency restrictions, prohibitions, 

recalls, or out-of-service orders, without 

advance notice or an opportunity for a 

hearing. The basis for any action taken 

under this section shall be set forth in 

writing which must— 

(1) Describe the violation, condition, 

or practice that constitutes or is causing 

the imminent hazard; 

(2) Set forth the terms and conditions 

of the emergency order; 

(3) Be limited to the extent necessary 

to abate the imminent hazard; and, 

(4) Advise the recipient that, within 

20 calendar days of the date the order 

is issued, recipient may request review; 

and that any request for a formal hearing 

in accordance with 5 U.S.C. 554 must 

set forth the material facts in dispute 

giving rise to the request for a hearing; 

and 

(5) Set forth the filing and service 

requirements contained in § 109.19(f), 

including the address of DOT Docket 

Operations and of all persons to be 

served with the petition for review. 

(b) Out-of-service order. An out-ofservice order is issued to prohibit the 

movement of an aircraft, vessel, motor 

vehicle, train, railcar, locomotive, 

transport unit, transport vehicle, or 

other vehicle, or a freight container, 

portable tank, or other package until 

specified conditions of the out-ofservice order have been met. 

(1) Upon receipt of an out-of-service 

order, the person in possession of, or 

responsible for, the package must 

remove the package from transportation 

until it is brought into compliance with 

the out-of-service order. 

(2) A package subject to an out-ofservice 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 

who issued the out-of-service order is 

notified before the move. 

(3) The recipient of the out-of-service 

order must notify the operating 

administration that issued the order 

when the package is brought into 

compliance. 

(4) Upon receipt of an out-of-service 

order, a recipient may appeal the 

decision of the agent issuing the order 

to PHMSA’s Chief Safety Officer. A 

petition for review of an out-of-service 

order must meet the requirements of 

§ 109.19. 

(c) Recalls. PHMSA’s Associate 

Administrator, Office of Hazardous 

Materials Safety, may issue an 

emergency order mandating the 

immediate recall of any packaging, 

packaging component, or container 

certified, represented, marked, or sold 

as qualified for use in the transportation 

of hazardous materials in commerce 

when the continued use of such item 

would constitute an imminent hazard. 

All petitions for review of such an 

emergency order will be governed by 

the procedures set forth at § 109.19. 

§ 109.19 Petitions for review of emergency 

orders. 

(a) Petitions for review. A petition for 

review must— 

(1) Be in writing; 

(2) State with particularity each part 

of the emergency order that is sought to 

be amended or rescinded and include 

all information, evidence and arguments 

in support thereof; 

(3) State whether a formal hearing in 

accordance with 5 U.S.C. 554 is 

requested, and, if so, the material facts 

in dispute giving rise to the request for 

a hearing; and, 

(4) Be filed and served in accordance 

with § 109.19(f). 

(b) Response to the petition for review. 

An attorney designated by the Office of 

Chief Counsel of the operating 

administration issuing the emergency 

order may file and serve, in accordance 

with § 109.19(f), a response, including 

appropriate pleadings, within five 

calendar days of receipt of the petition 

by the Chief Counsel of the operating 

administration issuing the emergency 

order. 

(c) Chief Safety Officer 

Responsibilities. 

(1) Hearing requested. Upon receipt of 

a petition for review of an emergency 

order that includes a formal hearing 

request and states material facts in 

dispute, the Chief Safety Officer shall 

immediately assign the petition to the 

Office of Hearings. Unless the Chief 

Safety Officer issues an order stating 

that the petition fails to set forth 

material facts in dispute and will be 

decided under paragraph (c)(2) of this 

section, a petition for review including 

a formal hearing request will be deemed 

assigned to the Office of Hearings three 

calendar days after the Chief Safety 

Officer receives it. 

(2) No hearing requested. For a 

petition for review of an emergency 

order that does not include a formal 

hearing request or fails to state material 

facts in dispute, the Chief Safety Officer 

shall issue an administrative decision 

on the merits within 30 days of receipt 

of the petition. The Chief Safety 

Officer’s decision constitutes final 

agency action. 

(d) Hearings. Formal hearings shall be 

conducted by an Administrative Law 

Judge assigned by the Chief 

Administrative Law Judge of the Office 

of Hearings. The Administrative Law 

Judge may: 

(1) Administer oaths and affirmations; 

(2) Issue subpoenas as provided by 

the appropriate agency regulations (49 

CFR 209.7, 49 CFR 105.45, 14 CFR 13.3, 

and 49 U.S.C. 502 and 31133); 

(3) Adopt the relevant Federal Rules 

of Civil Procedure for the United States 

District Courts for the procedures 

governing the hearings when 

appropriate; 

(4) Adopt the relevant Federal Rules 

of Evidence for United States Courts and 

Magistrates for the submission of 

evidence when appropriate; 

(5) Take or cause depositions to be 

taken; 

(6) Examine witnesses at the hearing; 

(7) Rule on offers of proof and receive 

relevant evidence; 

(8) Convene, recess, adjourn or 

otherwise regulate the course of the 

hearing; 

(9) Hold conferences for settlement, 

simplification of the issues, or any other 

proper purpose; and, 

(10) Take any other action authorized 

by or consistent with the provisions of 

this part and permitted by law that may 

expedite the hearing or aid in the 

disposition of an issue raised therein. 

(e) Parties. The petitioner may appear 

and be heard in person or by an 

authorized representative. The operating 

administration issuing the emergency 

order shall be represented by an 

attorney designated by its respective 

Office of Chief Counsel. 

(f) Filing and service. (1) Each 

petition, pleading, motion, notice, order, 

or other document submitted in 

connection with an order issued under 

this subpart must be filed (commercially 

delivered or submitted electronically) 

with: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. All 

documents filed will be published on 

the Department’s docket management 

Web site, http://www.regulations.gov. 

The emergency order shall state the 

above filing requirements and the 

address of DOT Docket Operations. 

(2) Service. Each document filed in 

accordance with paragraph (f)(1) of this 

section must be concurrently served 

upon the following persons: 

(i) Chief Safety Officer (Attn: Office of 

Chief Counsel, PHC), Pipeline and 

Hazardous Materials Safety 

Administration, U.S. Department of 

Transportation, 1200 New Jersey 

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Avenue, SE., East Building, Washington, 

DC 20590 (facsimile: 202–366–7041) 

(electronic mail: 

PHMSAChiefCounsel@dot.gov); 

(ii) The Chief Counsel of the operating 

administration issuing the emergency 

order; 

(iii) If the petition for review requests 

a formal hearing, the Chief 

Administrative Law Judge, U.S. 

Department of Transportation, Office of 

Hearings, M–20, Room E12–320, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590 (facsimile: 202–366–7536). 

(iv) Service shall be made personally, 

by commercial delivery service, or by 

electronic means if consented to in 

writing by the party to be served, except 

as otherwise provided herein. The 

emergency order shall state all relevant 

service requirements and list the 

persons to be served and may be 

updated as necessary. The emergency 

order shall also be published in the 

Federal Register as soon as practicable 

after its issuance. 

(3) Certificate of service. Each order, 

pleading, motion, notice, or other 

document shall be accompanied by a 

certificate of service specifying the 

manner in which and the date on which 

service was made. 

(4) The emergency order shall be 

served by ‘‘hand delivery,’’ unless such 

delivery is not practicable, or by 

electronic means if consented to in 

writing by the party to be served. 

(5) Service upon a person’s duly 

authorized representative, agent for 

service, or an organization’s president 

constitutes service upon that person. 

(g) Report and recommendation. The 

Administrative Law Judge shall issue a 

report and recommendation at the close 

of the record. The report and 

recommendation shall: 

(1) Contain findings of fact and 

conclusions of law and the grounds for 

the decision based on the material 

issues of fact or law presented on the 

record; 

(2) Be served on the parties to the 

proceeding; and 

(3) Be issued no later than 25 days 

after receipt of the petition for review by 

the Chief Safety Officer. 

(h) Expiration of order. If the Chief 

Safety Officer, or the Administrative 

Law Judge, where appropriate, has not 

disposed of the petition for review 

within 30 days of receipt, the emergency 

order shall cease to be effective unless 

the Administrator issuing the 

emergency order determines, in writing, 

that the imminent hazard providing a 

basis for the emergency order continues 

to exist. The requirements of such an 

extension shall remain in full force and 

effect pending decision on a petition for 

review unless stayed or modified by the 

Administrator. 

(i) Reconsideration. 

(1) A party aggrieved by the 

Administrative Law Judge’s report and 

recommendation may file a petition for 

reconsideration with the Chief Safety 

Officer within one calendar day of 

service of the report and 

recommendation. The opposing party 

may file a response to the petition 

within one calendar day of service of a 

petition for reconsideration. 

(2) The Chief Safety Officer shall issue 

a final agency decision within three 

calendar days of service of the final 

pleading, but no later than 30 days after 

receipt of the original petition for 

review. 

(3) The Chief Safety Officer’s decision 

on the merits of a petition for 

reconsideration constitutes final agency 

action. 

(j) Appellate review. A person 

aggrieved by the final agency action may 

petition for review of the final decision 

in the appropriate Court of Appeals for 

the United States as provided in 49 

U.S.C. 5127. The filing of the petition 

for review does not stay or modify the 

force and effect of the final agency. 

(k) Time. In computing any period of 

time prescribed by this part or by an 

order issued by the Administrative Law 

Judge, the day of filing of the petition 

for review or of any other act, event, or 

default from which the designated 

period of time begins to run shall not be 

included. The last day of the period so 

computed shall be included, unless it is 

a Saturday, Sunday, or Federal holiday, 

in which event the period runs until the 

end of the next day which is not one of 

the aforementioned days. 

§ 109.21 Remedies generally. 

An Administrator may request the 

Attorney General to bring an action in 

the appropriate United States district 

court seeking temporary or permanent 

injunctive relief, punitive damages, 

assessment of civil penalties as 

provided by 49 U.S.C. 5122(a), and any 

other appropriate relief to enforce the 

Federal hazardous material 

transportation law, regulation, order, 

special permit, or approval prescribed 

or issued under the Federal hazardous 

material transportation law. 

Issued in Washington, DC, on February 17, 

2011 under authority delegated in 49 CFR 

part 1. 

Cynthia L. Quarterman, 

Administrator, Pipeline and Hazardous 

Materials Safety Administration. 

[FR Doc. 2011–4270 Filed 3–1–11; 8:45 am] 

BILLING CODE 4910–60–P 

WReier-Aviles on DSKGBLS3C1PROD with RULES2