[Federal Register Volume 73, Number 192 (Thursday, October 2, 2008)]
[Proposed Rules]
[Pages 57281-57297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23248]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 109

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


Hazardous Materials: Enhanced Enforcement Authority Procedures

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA is 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. The proposed rules 
would establish procedures for: (1) The inspection and opening of 
packages to identify undeclared or non-compliant shipments; (2) the 
temporary detention and inspection of suspicious packages; and (3) the 
issuance of emergency orders (restrictions, prohibitions, recalls, and 
out-of-service orders) to address unsafe conditions or practices posing 
an imminent hazard. These new inspection and enforcement procedures 
will enhance DOT's ability to respond immediately and effectively to 
conditions or practices that pose serious threats to life, property, or 
the environment.

DATES: Comments must be received by December 1, 2008.

ADDRESSES: You may submit comments by any of the following methods:
    <bullet> U.S. Government Regulations.gov Web site: http://www.regulations.gov. Use the search tools to find this rulemaking and 
follow the instructions for submitting comments.
    <bullet> U.S. Mail or private delivery service: Docket Operations, 
U.S. Department of Transportation, West Building, Ground Floor, Room 
W12-140, Routing Symbol M-30, 1200 New Jersey Avenue, SE., W12-140, 
Washington, DC 20590-0001.
    <bullet> Fax: 1-202-493-2251.
    <bullet> Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays:
    Instructions: You must include the agency name and docket number, 
PHMSA-05-22356 or the Regulatory Identification Number (RIN) for this 
rulemaking at the beginning of your comment. Note that all comments 
received will be posted without change to the U.S. Government 
Regulations.gov Web site: http://www.regulations.gov., including any 
personal information provided. Please see the Privacy Act section of 
this document.

FOR FURTHER INFORMATION CONTACT: Jackie K. Cho or Vincent M. Lopez, 
Office of Chief Counsel, (202) 366-4400, Pipeline and Hazardous 
Materials Safety Administration.

SUPPLEMENTARY INFORMATION: 

I. Background

    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 
Material Transportation Law (Hazmat Law), 49 U.S.C. 5101 et seq.; the 
Federal Aviation Administration (FAA), 49 CFR 1.47(j)(1); Federal 
Railroad Administration (FRA), 49 CFR 1.49(s)(1); Federal Motor Carrier 
Safety Administration (FMCSA), 49 CFR 1.73(d)(1); and Pipeline and 
Hazardous Materials Safety Administration (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 the Hazardous Materials Transportation Safety 
and Security Reauthorization Act of 2005 (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. DHS Delegation No. 0170.1(2)(103) & 2(104); 
see also 6 U.S.C. 458(b), 551(d)(2). The USCG inspects portable tanks 
and freight containers primarily under two laws: the Safe Container Act 
46 U.S.C. 80501 et seq. with its implementing regulations found in 46 
CFR 450-453, and 49 U.S.C Chapter 51 Transportation of Hazardous 
Material as it relates to waterborne transportation. DOT will 
coordinate its inspections, investigations, and enforcements aboard 
vessels and waterfront facilities, as defined in 33 CFR 126.3, with the 
USCG to avoid duplicative or conflicting efforts. Moreover, nothing 
proposed herein would affect 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 DOT-mandated safety standards, 
including suitable packaging and handling, nearly all of these 
shipments move through the system safely and without incident. When 
incidents do occur, DOT-mandated labels and other forms of hazard 
communication provide transportation employees and emergency responders 
the information necessary to mitigate the consequences. Together, these 
risk controls provide a high degree of protection. Yet 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, we have 
long considered undeclared shipments of hazardous materials to be a 
serious safety issue. The HMR define

[[Page 57282]]

``undeclared hazardous material'' as a material ``offered for 
transportation in commerce without any visible indication to the person 
accepting the hazardous material for transportation that a hazardous 
material is present, on either an accompanying shipping document, or 
the outside of a transport vehicle, freight container, or package'' 
that is subject to the hazardous materials communication standards. 49 
CFR 171.8.
    Approximately 1.2 million hazardous materials shipments are 
transported daily; of those, approximately 800,000 involve 
consolidations, intermodal, or intramodal transfers and in-transit 
storage. 68 FR at 67751 (Dec. 3, 2003). These figures do not include 
the unknown numbers of hazardous materials shipments that are 
undeclared and, accordingly, less readily accounted for. To detect and 
deter hidden shipments of hazardous materials, PHMSA's predecessor 
agency amended the HMR in 2004 to require persons who discover 
shipments of undeclared hazardous materials to report these incidents 
to the agency. 49 CFR 171.16(a)(4). These requirements were intended, 
in part, to ``define the extent of the problem, establish trends, and 
help gauge the effectiveness of efforts to reduce undeclared 
shipments.'' 68 FR 67746, 67754. In 2005, offerors and carriers 
reported about 1,000 incidents of undeclared hazardous materials, 70 of 
which involved shipments entering the United States from abroad. GAO 
Report at 28.
    FAA enforcement statistics show that undeclared hazardous materials 
are a frequent and persistent problem. In 1993, FAA reported 420 
enforcement cases involving undeclared hazardous materials shipments. 
Seven years later, the number of such enforcement cases rose to 1,716.
    Hidden hazardous materials pose a significant threat to 
transportation workers, emergency responders, and the general public. 
By definition, an undeclared shipment does not include markings or 
documentation designed to communicate the material's hazards in the 
event of an accidental release. And 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 will move those materials as 
hidden shipments. Accordingly, although the presence of undeclared 
hazardous materials by no means demonstrates wrongful intent, we 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 by expanding our inspection 
authority to permit an enforcement officer to open and examine packages 
suspected to contain hazardous materials. This expanded enforcement 
authority would also provide us with a tool to identify declared 
hazardous materials shipments that nonetheless may not have been 
prepared in accordance with the HMR requirements.
    DOT's experience enforcing Federal hazmat law and the HMR also 
suggests a need for expedited procedures to address imminent safety 
hazards. 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. Under current statutory law, DOT 
may 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 seeking such relief must coordinate with the 
Department of Justice (DOJ) to file a civil action against the 
offending party, and seek and obtain a restraining order or preliminary 
injunction. As a practical matter, judicial relief could rarely be 
obtained before the hazardous transportation movement is 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 Hazardous Materials Transportation 
Safety and Security Reauthorization Act of 2005 (HMTSSRA) as Title VII 
of the statute, 119 Stat. 1891. Section 7118 of HMTSSRA revised 49 
U.S.C. 5121 to read:

    --In paragraph (c)(1) that a designated officer, employee, or 
agent of the Secretary of Transportation:
    (A) May inspect and investigate, at a reasonable time and in a 
reasonable manner, records and property relating to a function 
described in section 5103(b)(1);
    (B) Except in the case of packaging immediately adjacent to its 
hazardous material contents, may gain access to, open, and examine a 
package offered for, or in, transportation when the officer, 
employee, or agent has an objectively reasonable and articulable 
belief that the package may contain a hazardous material;
    (C) May remove from transportation a package or related packages 
in a shipment offered for or in transportation for which--
    (i) Such officer, employee, or agent has an objectively 
reasonable and articulable belief that the package may pose an 
imminent hazard; and
    (ii) Such officer, employee, or agent contemporaneously 
documents such belief in accordance with procedures set forth in 
guidance or regulations prescribed under subsection (e);
    (D) May gather information from the offeror, carrier, packaging 
manufacturer or tester, or other person responsible for the package, 
to ascertain the nature and hazards of the contents of the package;
    (E) 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; and
    (F) When safety might otherwise be compromised, may authorize 
properly qualified personnel to assist in the activities conducted 
under this subsection.
    --In paragraph (c)(3) that, in instances when, as a result of an 
inspection or investigation under this subsection, an imminent 
hazard is not found to exist, the Secretary, in accordance with 
procedures set forth in regulations prescribed under subsection (e), 
shall assist--
    (A) In the safe and prompt resumption of transportation of the 
package concerned; or
    (B) In any case in which the hazardous material being 
transported is perishable, in the safe and expeditious resumption of 
transportation of the perishable hazardous material.
    --In subsection (d) that,
    (1) In General.--If, upon inspection, investigation, testing, or 
research, the Secretary determines that a violation of a provision 
of this chapter, or a regulation prescribed under this chapter, or 
an unsafe condition or practice, constitutes or is causing an 
imminent hazard, the Secretary may issue or impose emergency 
restrictions, prohibitions, recalls, or out-of-service orders [as 
defined in paragraph (d)(5)], without notice or an opportunity for a 
hearing, but only to the extent necessary to abate the imminent 
hazard.
    (2) Written Orders.-The action of the Secretary under paragraph 
(1) shall be in a written emergency order that-
    (A) Describes the violation, condition, or practice that 
constitutes or is causing the imminent hazard;
    (B) States the restrictions, prohibitions, recalls, or out-of-
service orders issued or imposed; and
    (C) Describes the standards and procedures for obtaining relief 
from the order.
    (3) Opportunity for Review.--After taking action under paragraph 
(1), the Secretary shall provide for review of the action under

[[Page 57283]]

section 554 of title 5 if a petition for review is filed within 20 
calendar days of the date of issuance of the order for the action.
    (4) Expiration of Effectiveness of Order.--If a petition for 
review of an action is filed under paragraph (3) and the review 
under that paragraph is not completed by the end of the 30-day 
period beginning on the date the petition is filed, the action shall 
cease to be effective at the end of such period unless the Secretary 
determines, in writing, that the imminent hazard providing a basis 
for the action continues to exist.

119 Stat. at 1902-1905.
    Congress enacted HMTSSRA in part to combat the problem of 
undeclared hazardous materials shipments. While section 7118 of HMTSSRA 
(Section 7118), which amended 49 U.S.C. 5121, enhances DOT's authority 
to discover undeclared hazardous materials shipments, the application 
of this enforcement 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, 
law enforcement and inspection personnel * * * 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 access, open and examine a package (except for the 
packaging that is immediately adjacent to the suspected hazardous 
material's contents) that was 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, 
remove the package from transportation when the shipment may pose an 
imminent hazard, order the shipment to be transported, opened, and 
tested at an appropriate facility, as necessary, and permit the 
shipment to resume its transportation when an inspection does not 
identify an imminent hazard.
    Following enactment of HMTSSRA, several interested parties 
recommended that PHMSA issue regulations that adopt the traditional 
notice and comment rulemaking procedure rather than the temporary 
regulations prescribed by statute. PHMSA agrees that the traditional 
notice and comment rulemaking is necessary. As described further below, 
this rulemaking presents several critical factual and policy issues 
warranting public comment and development of an administrative record.

II. Summary of Proposals in This NPRM

    This NPRM proposes procedures to implement the expanded enforcement 
authority conferred in HMTSSRA. These procedures would apply to 
hazardous materials safety compliance and enforcement activities 
conducted by PHMSA, FAA, FRA, and FMCSA inspection personnel. 
Specifically, we are proposing procedures to enable DOT inspectors 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, we are proposing 
procedures for issuing emergency orders to address imminent hazards. As 
proposed, these procedures will apply in a number of contexts and 
circumstances:
    <bullet> We are proposing procedures under which an inspector may 
open a package to determine whether it contains an undeclared hazardous 
material or otherwise does not comply with applicable regulatory 
requirements. These procedures apply to the opening of an overpack, 
outer packaging, freight container, or other packaging component not 
immediately adjacent to the hazardous material. Inspectors will not 
open single packagings (such as cylinders, portable tanks, cargo tanks, 
or rail tank cars) nor will inspectors open the innermost receptacle of 
a combination packaging.
    <bullet> We are proposing procedures under which an inspector may 
temporarily remove a package or shipment from transportation when the 
inspector believes that the package or shipment poses 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. As proposed, the 
inspector may remove a package or shipment from transportation on his 
or her own authority provided he records his belief in writing. An 
inspector may temporarily remove any type of package or shipment from 
transportation if he or she has a ``reasonable and articulable belief'' 
that the package poses an imminent hazard.
    <bullet> We are proposing procedures under which an inspector 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 inspector may issue such an order for any 
type of package or shipment, not merely those packages for which 
package opening is authorized. As proposed, the inspector may issue 
this order on his own authority provided he documents his reasoning.
    <bullet> We are proposing procedures under which an inspector 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 inspector will 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.
    <bullet> We are proposing 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 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 OOS order may be issued for any type of packaging or 
shipment. For example, in the case of motor carriers, DOT will apply 
the Commercial Vehicle Safety Alliance (CVSA) OOS criteria for 
hazardous materials in identifying an imminent hazard for which an OOS 
order may be issued.
    <bullet> We are proposing procedures for the issuance of an 
emergency order when PHMSA, FAA, FMCSA, or FRA determines that a non-
compliant shipment or an unsafe condition or practice is causing an 
imminent hazard. As proposed, the PHMSA, FAA, FMCSA, or FRA 
Administrator may issue an emergency order without advance notice or 
opportunity for a hearing. The emergency order may be issued in 
conjunction with or in place of an OOS order. The emergency order may 
impose emergency restrictions, prohibitions, or recalls and may be 
issued for any type of shipment and for any unsafe condition posing an 
imminent hazard, not merely unsafe conditions related to packaging.

[[Page 57284]]

III. Summary of Comments

    PHMSA published a notice on January 25, 2006 (71 FR 4207), inviting 
interested persons to participate in a series of public meetings to 
comment on the agency's implementation of section 7118. The notice 
identified 11 possible topics on which PHMSA would begin a discussion 
at the public meetings. The topics were:

    (1) The types of outer packagings that could be opened by an 
inspector, if the person in possession of the package does not agree 
to open the package himself.
    (2) Whether the legal standard for opening an outer packaging--
i.e., an objectively reasonable and articulable belief that the 
package may pose an imminent hazard--needs further explanation in 
the regulations.
    (3) The locations at which a package would be observed and the 
relevance of this fact to the manner of opening the outer packaging 
and, if no imminent hazard is found, the manner of reclosing the 
package for further transportation in compliance with the HMR.
    (4) The amount of time required to open an outer packaging, 
examine the inner container(s) or receptacle(s) and, if no imminent 
hazard is found, reclose the package for further transportation in 
compliance with the HMR.
    (5) The circumstances under which a person would be required to 
have a package transported, opened, and the contents examined and 
analyzed, at an appropriate facility.
    (6) The time and cost for the facility to examine and analyze 
the contents of a package which would be examined and analyzed at an 
appropriate facility.
    (7) The value of the contents of a package which would be 
examined and analyzed at an appropriate facility.
    (8) The effect upon offeror or transporter subject to an 
emergency action or order, including removing a package from 
transportation or ordering a restriction, prohibition, recall, or 
OOS order to abate an imminent hazard.
    (9) Conditions that would be appropriate for including in an 
emergency restriction, prohibition, recall, or OOS order, such as 
allowing a vehicle to be moved to a safe location for inspection or 
vehicle repairs.
    (10) The time and cost of preparing a petition for review of an 
emergency action or order.
    (11) The criteria necessary to seek relief from the issuance of 
an emergency action or order.

71 FR at 4208 (Jan. 25, 2006).
    PHMSA convened public meetings on February 21, 2006, in Dallas, 
Texas; March 8, 2006, in Washington, DC; and March 15, 2006, in 
Seattle, Washington; in which the agency invited interested persons to 
comment on the agency's implementation of section 7118 within the 
context of the above 11 topics and any other issues of interest. The 
material comments both oral and written elicited from these meetings 
are summarized below. (Transcripts of these meetings are available on 
the U.S. Government Regulations.gov Web site at http://www.regulations.gov.)

(1) Types of Outer Packagings That Could Be Opened By an Inspector

    Several participants (Brumbaugh, Jackson, McElhoe, Rinehart, 
Roberts, Surovi, Tobin, Association of Hazmat Shippers (AHS), Alaska 
Airlines, Boeing Company, Dangerous Goods Advisory Council (DGAC) and 
Tyco Healthcare (Tyco)) expressed concern about how DOT intends to 
exercise its new enforcement authority, i.e., identifying undeclared 
shipments or non-compliant shipments and the procedures DOT would 
follow when opening such packages during an inspection. Additionally, 
the International Vessel Operators Hazardous Materials Association 
(VOHMA) and Council on Safe Transportation of Hazardous Articles 
(COSTHA) questioned the manner in which section 7118 would apply to 
carriers given that carriers may not open packages that they do not 
own. Others suggested that DOT should limit the exercise of its 
enhanced inspection and enforcement authority to an offeror's facility 
to minimize the risk of a hazardous material release during 
transportation and to direct enforcement effort toward the parties most 
responsible for ensuring proper packaging and certification.
    PHMSA Response: As discussed above, the primary objectives of DOT's 
enhanced inspection and enforcement authority are to discover and 
prevent undeclared shipments of hazardous materials that would 
otherwise pose imminent hazards in transportation. This authority, 
however, is not limited to undeclared hazardous material shipments. If 
a shipment, whether or not it is a declared hazardous material, is 
found to be leaking; is improperly marked, labeled or packaged; or the 
shipping paper indicates a potential problem, a DOT inspector may 
invoke this authority to open and examine the shipment to determine the 
scope of the problem and potential hazard. In addition, if the shipment 
poses an imminent hazard, the inspector may remove it from 
transportation. The procedures governing such inspections are 
enumerated under proposed section 109.3(b) and discussed in the 
section-by-section analysis below. In other words, PHMSA intends for 
DOT inspectors to use their enhanced inspection authority to verify 
that hazardous materials shipments are packaged, marked, and labeled in 
compliance with DOT requirements.
    The package opening authority, however, applies only to an 
overpack, outer packaging, freight container, or other packaging 
component that is not immediately adjacent to the hazardous material it 
contains. Thus, as proposed, DOT inspectors will not open packagings 
that serve as the primary means of containment (such as cargo tanks, 
portable tanks, railroad tank cars, or cylinders) and will not open 
inner packagings of combination packages (such as the bottles inside a 
fiberboard box or test tubes inside an infectious substances triple 
packaging). In any case, this proposed rule in no way limits the 
Department's general inspection and investigation authority under 49 
U.S.C. 5103(b)(1). The final rule will authorize certain additional 
investigatory techniques and remedies, without limiting DOT's existing 
authority with respect to the safe transportation, including security, 
of hazardous materials in intrastate, interstate, and foreign commerce. 
Section 5103(b) also grants the Secretary regulatory authority with 
respect to security in the transportation of hazardous materials. 
Therefore, the authority to issue emergency orders is not limited to 
safety; rather, it is foreseeable that this authority may be invoked in 
a case of national emergency to address potential security violations 
involving the transportation of hazardous materials.
    PHMSA foresees that DOT hazardous materials inspections will 
continue at offeror or carrier fixed facilities or terminals. But we 
note that inspections may be conducted at other locations within the 
Department's jurisdiction, consistent with the authority conveyed by 
section 7118, depending upon the relevant circumstances and as 
necessary to promote the interest of public safety. PHMSA recognizes 
that detaining a shipment may impact a commercial transaction involving 
the package in transit and will make every effort to avoid unnecessary 
delays and interruptions.
    The instances in which this authority may be invoked are heavily 
fact-specific and situation-dependent. Thus, it would not serve the 
interest of public safety to limit the context in which this authority 
may be exercised. Though we will make every effort to avoid unnecessary 
delays and shipment interruptions, the authority granted in SAFETEA-LU 
is sufficiently specific and particularized, authorizing designated DOT 
agents to open a package in transportation if that agent has an 
objectively reasonable and articulable belief that the package may 
contain a hazardous material, irrespective of the location at which the 
package is identified.

[[Page 57285]]

    With respect to comments regarding carriers' ability to open 
packages, we do not intend this rulemaking to affect contractual or 
other legal rights or obligations surrounding the carrier-shipper 
relationship. Although carriers and shippers may wish to clarify or 
address their contractual arrangements, the regulatory procedures we 
are proposing do not depend on carriers' consent or assistance in 
opening packages. Should a carrier refuse consent, section 7118 
authorizes an agent of the Secretary to open the package himself or 
herself or to order the package to be transported to an appropriate 
facility at which it may be opened and examined. In any case, we 
consider contract negotiations among private entities beyond the scope 
of this rulemaking.
    The operating administrations responsible for enforcement of the 
HMR--PHMSA, FMCSA, FAA, and FRA--all worked together under PHMSA's 
leadership to develop this proposed rule. This NPRM proposes 
regulations that establish a clear, basic outline of the procedures all 
four operating administrations will use to implement DOT's new 
enforcement authority. To provide for uniformity across modes of 
transportation and separate enforcement staffs, the regulations 
proposed in this NPRM must be broad and provide a common framework. The 
operating administrations are also developing a joint operations manual 
to address issues particular to a specific mode of transportation or 
regulated industry. It is our intent that the joint operations manual 
will be publically available on PHMSA's Web site at the time of 
issuance of the Final Rule. The proposed regulations set out a 
framework for the procedures PHMSA, FMCSA, FAA, and FRA will employ 
when conducting inspections or investigations, thus ensuring 
consistency in approaches and enforcement measures among modes of 
transportation. A Final Rule, implemented with the guidance of an 
operational manual, will ensure that this authority, especially a 
finding of an imminent hazard, is used effectively yet judiciously. It 
will focus and direct an informed enforcement effort to address 
problems with undeclared shipments of hazardous material and other 
packaging communication requirements while preventing the additional 
authority from being misused as an exploratory tool or without reasoned 
deliberation.

(2) The Meaning and Application of Objectively Reasonable and 
Articulable Belief That a Package May Pose an Imminent Hazard

    Commenters raised two critical questions regarding the legal 
standards that determine whether DOT may open a shipment and detain and 
remove it from transportation. The American Trucking Association (ATA), 
COSTHA, DaRuBa Enterprises (DaRuBa), Arrowhead Industrial Services, 
DGAC, VOHMA, and Tyco contend that the operative term ``objectively 
reasonable and articulable belief'' requires further explanation. AHS, 
COSTHA, and VOHMA also requested clarification on what the term 
``imminent hazard'' means. Finally, several interested persons, 
including DGAC, ATA, and the Institute of Makers of Explosives (IME) 
questioned how PHMSA would define these terms in the regulatory text.
    PHMSA Response: The proposed rule defines ``objectively reasonable 
and articulable belief'' as ``a belief based on particularized and 
identifiable facts that provide an objective basis to believe or 
suspect.'' See proposed Sec.  109.1. The proposed rule defines 
``imminent hazard'' as ``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.'' See proposed 
Sec.  109.1. This proposed definition of ``imminent hazard'' is 
consistent with the statutory definition of the term found in 49 U.S.C. 
5102(5). Both of these terms determine whether the Department may 
detain, open, and examine a suspect shipment for the presence of 
hazardous material in its contents and/or remove the package from 
transportation in commerce.
    PHMSA starts with the premise that an offeror that places articles 
in a closed and opaque container has a legitimate expectation of 
privacy and retains a possessory interest in those items when they are 
being transported in commerce. Jacobsen, 466 U.S. at 113, 114; U.S. v. 
Villarreal, 963 F.2d at 773. The hazardous materials transportation 
industry, however, is closely regulated, meaning that a person engaging 
in this industry has 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). DOT therefore is authorized 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 Hazmat Law and HMR under the ``administrative search'' 
doctrine. Id. at 913.
    When the government asserts control of the shipment and its 
contents, e.g., by detaining the package from further transportation, 
it has conducted a seizure subject to the Fourth Amendment. Jacobsen, 
466 U.S. at 120. Nevertheless, brief investigative detentions are 
authorized, provided there is a reasonable articulable suspicion that 
the shipment does not comply with regulatory requirements. V-1 Oil 
Company v. Means, 94 F.3d 1420, 1424 (10th Cir. 1996). Known as a 
``Terry'' stop after the landmark decision, Terry v. Ohio, 392 U.S. 1 
(1968), such an investigative stop is permitted when an inspector can 
``point to specific and articulable facts which, taken together with 
rational inferences from those facts, reasonably warrant'' the 
detention. Terry, 392 U.S. at 21. The inspector must have 
particularized and identifiable facts, i.e., some articulable basis, to 
believe that a Federal statute or regulation has been violated. See 
Brierley v. Schoenfeld, 781 F.2d 838, 841 (10th Cir. 1986). Terry 
employs a ``less demanding standard than probable cause and requires a 
showing considerably less than preponderance of the evidence.'' 
Illinois v. Wardlow, 528 U.S. 119, 123 (2000). (In contrast, probable 
cause means ``a fair probability that contraband or evidence of a crime 
will be found.'' Alabama v. White, 496 U.S. 325, 330 (1990)). In short, 
DOT need only establish a ``minimal level of objective justification'' 
to detain, open, and inspect a shipment that may have hidden or 
undeclared hazardous materials. See U.S. v. Sokolow, 490 U.S. 1, 7 
(1989).
    Accordingly, an inspector would need to produce facts establishing 
that the official reasonably believed that a noncomplying condition 
existed. U.S. v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006). An 
inchoate hunch or guess would be insufficient: an inspector is required 
to set out evidence supporting the detention. Alabama, 496 U.S. at 329-
30; see also 59 FR 7448, 7454 (Feb. 15, 1994) (FRA ``reasonable cause'' 
testing standard requires reasonable suspicion). The information relied 
upon may come from a variety of sources, including but not limited to 
the following: package appearance, identity of offeror or carrier, an 
odor emanating from a container, and anonymous tips. U.S. v. Wheat, 278 
F.3d 722, 726 (8th Cir. 2001), cert. denied, 537 U.S. 850 (2002). The 
basis for reasonable

[[Page 57286]]

suspicion would center on the totality of circumstances experienced by 
the inspector and the official's skill and experience in determining 
whether an investigative stop would be justified. Brierley, 781 F.2d at 
841. The Department therefore would afford its inspectors reasonable 
discretion in making reasonable suspicion findings in light of the 
flexible nature of Terry and its progeny.
    While this proposed regulation implements the Department of 
Transportation's enforcement authority, it does not in any way affect 
Department of Homeland Security (DHS) agents exercising their statutory 
authority at points of entry. Therefore, DOT's standards for the 
inspection and detention of packagings, vehicles or persons, including 
a requirement of an objectively reasonable and articulable belief that 
a package may contain a hazardous material, do not apply to DHS, which 
operates under separate statutory and regulatory authorities.
    Finally, Department officials would exercise reasonable, intrusive 
means when stopping a shipment from continuing in transportation in 
commerce. An inspector would be authorized to hold a package at a 
terminal or depot until qualified personnel or shipping papers arrived 
to ascertain its contents. The inspector also would be permitted to 
order the shipment to be moved to an appropriate facility when 
necessary to safely conduct an inspection. See Means, 94 F.3d at 1427. 
The inspector would release the shipment for transportation when the 
underlying objectives of the detention had been met.
    The term imminent hazard has been defined in the hazmat law for 
many years (49 U.S.C. 5102(5)) and PHMSA proposes to retain that 
definition without change. An imminent hazard exists when an unsafe 
condition or practice, or a combination thereof, causes, or is causing, 
a situation that is likely to result in serious injury or death, or 
significant property or environmental damage if not discontinued 
immediately. The proposed rule would authorize a designated DOT 
inspector to remove a package from transportation if the inspector has 
an objectively reasonable and articulable belief that the package may 
pose an imminent hazard, provided that he contemporaneously documents 
such belief in accordance with the regulations issued under section 
7118(e).
    In summary, this proposed rule would provide three new enhanced 
enforcement tools. First, a Department inspector would be permitted to 
stop, open, and examine a shipment when he or she has a reasonable 
suspicion that the package contains a hazardous material. Depending on 
the circumstances, a package may be suspicious even if it bears no 
mark, label, or shipping paper indicating the presence of a hazardous 
material. In other cases, a package could be marked or labeled 
incorrectly, thus causing the inspector to believe that the package 
contains hazardous material. Misidentification of the package contents 
can have serious safety implications, well justifying use of the 
package opening authority to inspect HMR compliance. Listing of an 
incorrect UN identification number, for example, could result in 
improper segregation, handling, and/or response measures. Likewise, the 
inspector could elect to open a package that is properly marked and 
labeled but that appears not to comply with other regulatory 
requirements or otherwise presents an imminent hazard.
    Second, the Department inspector or delegated official would be 
authorized to remove the package and related packages in the shipment 
from transportation in commerce and order their delivery to an 
appropriate facility for testing and analysis when he or she has 
determined that an imminent hazard may exist. A finding of imminent 
hazard is not a prerequisite to the detention, opening and examination 
of a package suspected of containing a hazardous material. Third, upon 
further investigation, PHMSA on its own initiative, or after advice and 
recommendation from the other modal officials, may issue a recall of an 
entire packaging design if it presents an imminent hazard.

(3) Reclosing Packages

    Several commenters expressed concern about the reclosing of 
packages after they have been opened. Allergan, COSTHA, Delta Airlines, 
and Rykos expressed concern about preserving the integrity of a package 
after it has been opened and found not to contain an undeclared 
hazardous material. The regulated community also was interested in 
learning about the manner in which DOT intends to reclose certain 
packagings that have been opened in transit, including specification 
packaging; refrigeration packaging; specific-mode packaging; 
pharmaceutical manufacturing and healthcare products packaging; 
overnight or express delivery packaging; and packages containing 
expensive, valuable, or perishable products. American President Lines 
(APL), the Association of American Railroads, Nuclear Energy Institute, 
and Rykos inquired about reclosing packagings that require specialized 
seals, and the ATA suggested that DOT develop a seal or tape to 
identify that a package has been opened to ensure against rejection 
upon delivery. Finally, American Eagle Airlines, Brookwarehousing 
Corporation, COSTHA, DGAC, International Warehouse Logistics 
Association (IWLA), United Parcel Service, and VOHMA advised that PHMSA 
should consider whether small businesses or carrier terminals are 
properly equipped to reclose a package that is already in transit at 
the time DOT conducts an inspection.
    PHMSA Response: The Department is developing internal operational 
procedures to address the proper closure of packaging in accordance 
with the HMR. As part of these procedures, we are considering affixing 
a DOT-specific tape over the packaging that identifies the agency and 
the inspector who opened the package in question. These procedures will 
be covered within the joint operations manual discussed above in the 
section entitled ``Types of Outer Packages that could be Opened by 
Inspectors.''
    We are sensitive to concerns about reclosing shipments that are 
opened during a hazardous materials inspection. The availability of 
qualified personnel, equipment, accessibility, and other capabilities 
are factors we are considering for the guidelines on reclosing 
shipments after conducting inspections. PHMSA thus solicits further 
comments from the public on these and other factors in reclosing 
packages and the manner and materials available to prevent release of 
hazardous materials.

(4) Amount of Time Required To Open and Examine an Outer Packaging

    The ATA and VOHMA expressed concern that enhanced inspections may 
delay their business operations and questioned whether exercising this 
authority may impact carriers' other existing regulatory requirements. 
For example, ATA expressed concern that the amount of time required to 
open and examine a package may potentially affect a carrier's 
obligation to comply with hours of service requirements under the 
Federal Motor Carrier Safety Regulations. Moreover, VOHMA stated that 
if a package is opened in accordance with this enhanced authority, 
inspectors may not be able to restore every package in accordance with 
the manufacturer's instructions, and thus the package could become 
noncompliant with other regulatory

[[Page 57287]]

requirements or be refused by the consignee.
    PHMSA Response: We believe that the package opening authority can 
be exercised without undue interference with business operations. DOT 
will take reasonable measures to narrow the scope of an enhanced 
inspection to determine compliance with the HMR and will remove a 
shipment from transportation only when there is a reasonable basis for 
suspecting that the package may pose an imminent hazard. 
Correspondingly, the Department will limit the time of such inspections 
to minimize transportation delays when we can do so without 
compromising transportation safety. We request comments relating to any 
time-sensitive standards or consignment contracts mandated by law that 
may be affected by a final rule.
    The implementation of this enhanced authority will not waive or 
supersede any other regulatory requirements. The packages must be 
reclosed and shipped in accordance with the HMR. An inspector who 
exercises this enhanced authority will take action to facilitate the 
resumption of transportation in commerce if the package is found to be 
in compliance with the HMR. If the package is not in compliance, the 
package will not be returned to the stream of commerce until the 
package is brought into conformance with the HMR.

(5) When a Package Must Be Transported and Analyzed at an Appropriate 
Facility

    The ATA and DGAC inquired about which entity would transport a 
hazardous material package to an offsite facility, pay to transport, 
and test the material subject to this authority.
    PHMSA Response: 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 would be taken into 
consideration at the time any civil penalty is assessed against the 
party responsible for the violation (usually the offeror). Furthermore, 
nothing herein is intended to relieve any entity or person of hazmat 
clean-up costs under Federal, State, or local laws as enforced by other 
Federal government agencies (e.g., Environmental Protection Agency, 
Bureau of Alcohol Tobacco, Firearms, and Explosives, and Occupational 
Safety and Health Administration).

(6) Effect on Offeror or Transporter Subject to an Emergency Action or 
Order

    Commenters addressed the issue of the impact that an emergency 
order may have on an offeror or transporter that is subject to its 
requirements. Their primary concern was the effect that an emergency 
order may have on commercial operations relating to pre-transportation 
and transportation functions that are regulated by the HMR.
    PHMSA Response: PHMSA understands that an emergency order may 
affect commercial operations of offerors or transporters that perform 
regulated activities. Indeed, because issuance of an emergency order 
does not require a finding of noncompliance, it is possible that such 
an order could require a regulated entity to alter or amend otherwise 
lawful practices or transactions. The circumstances warranting such 
extraordinary action are necessarily fact-specific and, in all 
likelihood, rarely encountered. In any case, DOT intends to tailor the 
remedy to the imminent hazard present, issuing only the appropriate 
restriction, prohibition, recall, or out-of-service order necessary to 
abate the condition. We will use this enforcement tool judiciously, as 
a means of addressing imminent hazards and not as a substitute for 
rulemaking or other measures for addressing emergent risks.

(7) Liability

    Commenters also raised the issue of whether DOT or its operating 
administrations would be liable for any damages to business operations 
when an inspector conducts an enhanced inspection or when a modal 
administration issues an emergency order. In particular, the interested 
persons asked whether the Federal government would be responsible for 
compensatory, consequential, or incidental damages incurred by any 
regulated entity that had its shipments contaminated, damaged, delayed, 
destroyed, or removed from service as a result of an enhanced 
inspection or emergency order.
    PHMSA Response: PHMSA acknowledges that the exercise of enhanced 
inspection and enforcement authority occasionally may result in the 
breach of packages and/or delay of shipments that have been offered and 
transported in full compliance with regulatory requirements. Although 
we will strive to minimize such effects, we believe the public benefits 
to be gained through enhanced inspection and enforcement measures 
justify the increased burdens. The exercise of enhanced inspection and 
enforcement authority in accordance with the proposed rule will protect 
life, property, and the environment, and improve the performance of the 
transportation system by reducing risks posed by undeclared and other 
noncompliant hazardous materials shipments.
    To minimize burdens on the transportation system, the Department 
will take measures to target and manage its exercise of enhanced 
inspection and enforcement remedies. Such measures include training its 
inspectors to exercise appropriate discretion while carrying out their 
inspection tasks consistently with HMTSSRA and a final rule. In any 
case, we do not expect DOT to bear financial responsibility for private 
costs related to our 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 or operating administration based on such activities. See 28 
U.S.C. 2680(a); United States v. S.A. Empresa de Viacao Aerea Rio 
Grandense, 467 U.S. 797, 809-10 (1984) (``Varig Airlines'') 
(discretionary function exemption was intended to exempt claims 
stemming from Federal agencies' regulatory activities); Hylin v. U.S., 
755 F.2d 551, 553 (7th Cir. 1985) (discretionary function exception 
prohibits tort claims against government for inspection and enforcement 
activities requiring exercise of discretion); Mid-South Holding Co. v. 
United States, 225 F.3d 1201, 1206 (11th Cir. 2000) (discretionary 
function exception applies to any discretionary act irrespective of 
``administrative level at which it is authorized or taken''); Wells v. 
United States, 655 F. Supp. 715, 720 (D.D.C. 1987) (government's 
discretionary acts in regulating private conduct ``are presumptively 
exempt from liability''), aff'd, 851 F.2d 1471 (D.C. Cir. 1988), cert. 
denied, 488 U.S. 1029 (1989); cf., Roundtree v. United States, 40 F.3d 
1036 (9th Cir. 1994) (FAA not liable in suspending operating 
certificate under FTCA's discretionary function exception).

(8) Training of Inspectors

    APL and DGAC recommended that DOT properly train the inspectors who 
will exercise the enhanced inspection and enforcement authority in the 
field. They contend training is essential to ensure that well-defined 
inspections are conducted, enforcement actions are measured, and the 
public (and the inspectors themselves) are protected.
    PHMSA Response: PHMSA agrees that the DOT inspectors conducting

[[Page 57288]]

enhanced inspections will need to be trained on carrying out such 
inspections. Inspectors will also be trained on utilizing an 
enforcement remedy commensurate with the non-complying condition or 
imminent hazard identified and having the requisite knowledge in 
repackaging shipments that have been opened. The inspectors also will 
need to be trained on various scenarios in which they will need to 
order a shipment to be transferred to an appropriate facility for 
testing and analysis. Because all Department inspectors will have the 
same general training and modal specific instruction (as discussed 
above in the section on ``Types of Outer Packages that could be Opened 
by Inspectors''), PHMSA is confident that inspectors will be proficient 
in applying the enhanced inspection and enforcement regulations to 
inspections conducted at offeror or carrier facilities.

(9) State Participation in the Federal Hazardous Materials Inspection 
Program

    APL, ATA, IME, and Prezant Consulting cautioned that DOT and State 
inspectors conducting hazardous materials inspections need to be 
consistent in carrying out the regulations implementing the enhanced 
inspection and enforcement authority.
    PHMSA Response: The proposed rule is limited in scope to authorized 
Federal enforcement employees of PHMSA, FRA, FAA, and FMCSA. The 
proposed regulations and underlying statutory authority are Federal; 
they would not empower State officials to exercise the enhanced 
inspection and enforcement authority. All emergency orders under this 
enhanced enforcement authority will be issued solely by the Federal 
government, not State participants. These proposed regulations are not 
intended to be part of the Motor Carrier Safety Assistance Program 
(MCSAP) or the Rail Safety State participation program. However, the 
proposed regulations would not limit the States from passing similar 
statutes or from promulgating similar regulations for their hazardous 
materials transportation enforcement officials.

(10) Communications/Notification to Parties

    APL, IWLA, DaRuBa, and Tyco expressed concern about notifying 
offerors and consignees about a possible delay in arrival because DOT 
intended to open a package for inspection.
    PHMSA Response: PHMSA believes that all parties responsible for a 
shipment that is opened or removed from transportation need to be 
notified of the action taken. DOT inspectors will be required to 
communicate the findings made and enforcement measures taken to the 
appropriate offeror, recipient, and carrier of the package, and the 
expected delay or detention based on the condition of the shipment, 
location of the inspection, and need and availability of personnel, 
equipment, and other resources to reclose the package to safely resume 
its transportation.

(11) Assumption of Control of Detained Shipment

    Commenters questioned who would assume control of a package when an 
inspection found undeclared hazardous material or determined that the 
shipment may pose an imminent hazard, and when such control would 
commence.
    PHMSA Response: The offeror tendering the package or the carrier 
transporting the shipment retains custody of the shipment until the 
government asserts or exercises dominion or control over the package 
and its contents. Jacobsen, 466 U.S. at 120. Once an inspector opens 
the package to continue the inspection or detain or remove the shipment 
from transportation, the Department will become the responsible 
custodian for the package. If a package is opened but does not pose an 
imminent hazard, and is otherwise in compliance with the HMR, the 
inspector will assist in reclosing the package, at which point custody 
will revert to the offeror or carrier, and reenter the transportation 
stream. If a package is non-compliant before it is opened, and it is 
later found not to pose an imminent hazard, the offeror or carrier will 
resume custody of the package at the conclusion of the investigation. 
It is the ultimate responsibility of the offeror to bring any such 
package into compliance.
    This proposed rule contemplates DOT informing the private party of 
the government's intent to assert and relinquish control of the 
shipment and the measures it will take to safeguard and reclose the 
package until it is safe to resume its movement in transportation. 
PHMSA welcomes comments on the parties' expectations when the 
government exercises control of a package and whether further 
clarification of possessory interest is necessary.

Section-by-Section Analysis

    PHMSA proposes to add part 109 to Title 49, Code of Federal 
Regulations, prescribing standards and procedures governing exercise of 
enhanced inspection and enforcement authority by DOT operating 
administrations. Below is an analysis of the proposed regulatory 
provisions.

Section 109.1 Definitions

    This section contains a comprehensive set of definitions. PHMSA 
proposes to promulgate these definitions in order 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. Other terms 
defined in this rule are borrowed from the Hazmat Law at 49 U.S.C. 5102 
and are used in their statutory meaning.
    Administrator and Agent of the Secretary or agent are proposed to 
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 carry out this rule. Likewise, 
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 Hazmat Law and HMR.
    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. (The term ``out-of-
service order'' is defined below.) As proposed, an Administrator, and 
in the case of an OOS order, an agent of the Secretary would be 
authorized to impose an equitable remedy restricting, prohibiting, 
recalling, or removing from service a package that contains a hazardous 
material. An emergency order is the type of extraordinary relief 
available to address imminent hazard circumstances.
    Freight container is defined as it is defined in 49 CFR 171.8 and 
has been included in this section for clarity and ease of referral.
    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.

[[Page 57289]]

    As defined by statute, imminent hazard means ``the existence of a 
condition that presents a substantial likelihood that death, serious 
illness, severe personal injury, or a substantial endangerment to 
health, property, or the environment may occur before the reasonably 
foreseeable completion date of a formal proceeding begun to lessen the 
risk of that death, illness, injury, or endangerment.'' 49 U.S.C. 
5102(5). Restated, an imminent hazard exists when any condition is 
likely to result in serious injury or death, or significant property or 
environmental damage if not discontinued immediately. Cf. Sen. Rep. No. 
98-424, at 12 (1984), reprinted in 1984 U.S.C.C.A.N. 4785, 4796 
(definition of ``imminent hazard'' under the Motor Carrier Safety Act).
    Objectively reasonable and articulable belief is defined in this 
proposed rule 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 term, which is discussed above in the 
context of DOT inspections of hazardous materials shipments, codifies 
the temporary stop and detention principle often referred to as a 
``Terry'' stop, referring to Terry v. Ohio, 392 U.S. 1 (1968). The 
reasonable suspicion standard must be more than an ``inchoate and 
unparticularized suspicion or `hunch[,]' '' id. at 27, meaning that a 
reasonable person possessing the same information as the inspector had 
must have believed that the action taken was appropriate. Id. at 21-22. 
In determining whether an officer or agent had such a reasonable 
suspicion, courts consider the ``totality of the circumstances.'' See 
Schneckloth v. Bustamonte, 412 U.S. 218 (1973). At its core, the term 
refers to an investigatory stop in which there is particularized 
suspicion based on observations made, inferences drawn, and deductions 
made that the shipment does not comply with the Hazmat Law or HMR. See 
generally, U.S. v. Cortez, 449 U.S. 411, 417-18 (1981).
    The brief investigative detention enables the inspectors to conduct 
a more thorough inspection to determine the level of compliance with 
the Hazmat Law or HMR and is reasonably related in scope to the 
circumstances justifying the detention. See Means, 94 F.3d at 1424; 
U.S. v. McSwain, 29 F.3d 558, 561 (10th Cir. 1994). This legal standard 
authorizes minimally intrusive conduct to detain a shipment for a short 
duration when articulable facts and circumstances suggest that a 
package contains undeclared hazardous materials. See McSwain, 29 F.3d 
at 561. The agency notes that the standard authorizes inspectors to 
employ reasonable intrusive means, but not the least intrusive means, 
to conduct an inspection, meaning that safety and security measures may 
justify moving a package to another site when necessary to carry out an 
inspection. See Means, 94 F.3d at 1427.
    Out-of-service (OOS) order is defined as a written requirement 
issued by an agent of the Secretary prohibiting further movement or 
operation of an aircraft, vessel, motor vehicle, train, railcar, 
locomotive, transport vehicle, or 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. 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 as defined in this part is more expansive than the 
definition provided at 49 CFR 171.8. In this part, proposed Sec.  109, 
the term includes a freight container, intermediate bulk container, 
overpack, or trailer as a receptacle to contain a hazardous material. 
As proposed, the regulatory text would authorize DOT inspectors to 
open, detain, and remove from transportation such container or 
enclosure units when circumstances warrant.
    Perishable refers to a hazardous material that may experience 
accelerated decay, deterioration, or spoilage. PHMSA envisions 
etiologic agents, such as biological products, infectious substances, 
medical waste, and toxins as perishable commodities that will require 
special handling.
    Properly qualified personnel means a company, partnership, 
proprietorship, or individual who is qualified to inspect, examine, 
open, remove, test, or transport hazmat shipments.
    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 inspector has an objectively reasonable and 
articulable belief that a package may pose an imminent hazard, that 
inspector is authorized to stop, detain, and prevent the further 
transportation in commerce of that package until the imminent hazard is 
abated.
    Safe and expeditious refers to appropriate measures or procedures 
available to minimize any delays in resuming the movement of a 
perishable hazardous material.
    Trailer is added to set out the contours of another type of package 
that is subject to this rule. Although a trailer and freight container 
perform the same function, a trailer has a chassis, hitch, and tires 
attached to the unit, enabling it to travel as a cargo unit attached to 
a tractor.

Section 109.3 Inspections and Investigations

    Proposed Sec.  109.3 sets out the inspections and investigations 
that agents of the Secretary (e.g., DOT inspectors) would be authorized 
to conduct in implementing the HMTSSRA. Of significance, this section 
would implement section 7118 by enabling inspectors to open, detain, 
and remove a hazardous material shipment from transportation in 
commerce, and order the package to be transported to a facility that 
can analyze its contents.
    Paragraph (a) of Sec.  109.3 reiterates the authority to initiate 
inspections and investigations as provided by 49 U.S.C. 5121(a), which 
has been delegated to the operating administrations and redelegated to 
the inspectors by internal delegation. The operating administrations 
focus their inspection resources on the mode of transportation that 
they oversee. See 49 CFR 1.47(j)(1) (FAA), 1.49(s)(1) (FRA), 1.53(b)(1) 
(PHMSA), and 1.73(d)(1) (FMCSA). Nevertheless, operating 
administrations may ``use their resources for DOT-wide purposes, such 
as inspections of shippers by all modes of transportation.'' 65 FR 
49763, 49764 (Aug. 15, 2000). DOT believes that broad delegation 
authority is necessary to address cross-modal and intermodal issues to 
combat undeclared hazardous materials shipments. Id. at 49763. 
Accordingly, DOT inspectors would be authorized to carry out the 
enhanced inspection and enforcement authority rule across different 
modes of transportation.
    Proposed Sec.  109.3(b) sets out the enhanced inspection process 
when conducting hazardous materials inspections. Inspectors must 
present their credentials for examination upon request under 49 U.S.C. 
5121(c)(2) and may gather information by interviewing,

[[Page 57290]]

photocopying, photographing, and audio and video recording during 
inspections or investigations. 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 believes 
``reasonable manner'' means 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. See generally 
H.R. Rep. No. 96-1025, at 14 (1980), reprinted in 1980 U.S.C.C.A.N. 
3830, 3839. DOT also may 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 
would serve the subpoena in accordance with its own regulations. See 14 
CFR 13.3 (FAA), 49 CFR 105.45-.55 (PHMSA), 49 CFR 209.7 (FRA), and 49 
CFR 386.53 (FMCSA). PHMSA believes that this provision would enable 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 would 
promote communication and cooperation by all concerned parties and 
enable the Department to detect and deter undeclared hazardous material 
shipments.
    Proposed Sec.  109.3(b)(4) implements the authority conferred by 49 
U.S.C. 5121(c)(1) to enable DOT inspectors to take enhanced inspection 
and enforcement action. Under Sec.  109.3(b)(4)(i), inspectors may 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 that the officials have an 
objectively reasonable and articulable belief that the shipment 
contains hazardous material. (Please see above for PHMSA's discussion 
of the meaning and application of ``objectively reasonable and 
articulable belief.'') Therefore, shipments such as plastic bottles or 
drums, which are in direct contact with a hazardous material, will not 
be opened pursuant to this authority. PHMSA expects DOT inspectors to 
exercise this enhanced authority at locations through which hazardous 
materials are shipped and transported, including port facilities, weigh 
stations, international border crossings, interchange points, 
intermodal facilities, and terminals to identify undeclared hazardous 
material shipments or other noncompliant shipments that are offered for 
transportation, or being transported, in commerce.
    The enhanced inspection authority builds on the existing authority 
to conduct warrantless inspections. Under the administrative search 
doctrine, a company engaged in a closely regulated activity, such as 
hazardous materials transportation, has no Fourth Amendment protection 
against unannounced compliance inspections. See V-1 Oil, 63 F.3d at 913 
(FRA's warrantless and unannounced inspection of a hazardous materials 
transportation facility is constitutional); see also U.S. v. Burger, 
482 U.S. 691 (1987); Skinner, 489 U.S. at 625 (railroad industry is 
pervasively regulated to ensure safety); U.S. v. Mendoza-Gonzalez, 363 
F.3d 788, 794 (8th Cir. 2004) (commercial trucking is a closely 
regulated industry); Means, 94 F.3d at 1426 (motor carrier industry is 
closely regulated); Suburban O'Hare Com'n v. Dole, 787 F.2d 186, 188 
(7th Cir.) (aviation industry is closely regulated), cert. denied, 479 
U.S. 847 (1986). The proposed rule would enable inspectors who already 
have unconditional access to property relating to hazardous material 
transportation to more closely examine certain shipments. In all cases, 
DOT inspections are limited by time, place, and manner in which a 
package may be opened. The statute (49 U.S.C. 5121) limits the 
discretion of the inspectors, delineating the scope of inspections and 
defining the objective circumstances in which the package opening 
authority may be exercised. These limitations promote uniform 
application of the enhanced inspection authority, while leaving 
inspectors sufficient discretion to respond effectively to 
circumstances encountered in the field. We note that DOT's use of 
unannounced, warrantless inspections has survived legal and 
constitutional challenge, as reflected in the cases cited above. 
Although evidence gathered in hazmat inspections or investigations 
could later serve as the basis for criminal prosecution, our use of 
warrantless inspections serves a legitimate and lawful purpose: 
detecting and deterring undeclared hazardous material shipments. See 
Skinner, 489 U.S. at 620-21 n.5 (1989) (FRA inspection program served 
lawful purpose and was not a pretext to collect evidence for criminal 
law enforcement purposes).
    Proposed Sec.  109.3(b)(4)(ii) implements 49 U.S.C. 5121(c)(1)(C) 
by permitting a DOT inspector to remove from transportation in commerce 
a package (including a freight container) when the inspector has an 
objectively reasonable and articulable belief that the package contains 
a hazardous material and 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. See S. Rep. No. 
101-444, at 10 (1990), reprinted in 1990 U.S.C.C.A.N. 4595, 4604. 
Should this condition exist, the inspector must document the basis for 
removing the package from transportation as soon as practicable, 
including the findings that the shipment contained a hazardous material 
and the imminent hazard identified. 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 inspector must limit 
this removal to a reasonable duration of time in order to determine 
whether the package may pose an imminent hazard.
    Section 109.3(b)(4)(iii), which implements 49 U.S.C. 5121(c)(1)(E), 
proposes that an agent of the Secretary 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 it is not practicable to examine the contents of a package 
at the time of the stop. This provision would enable DOT to facilitate 
learning about the nature of the product inside the shipment by 
permitting delivery of the shipment to a facility that is capable of 
identifying the contents. PHMSA intends for DOT to employ this remedy 
only when an on-site inspection is inadequate or a facility has the 
sophisticated personnel, equipment, and information technology to 
assist in the inspection or investigation. Qualified personnel may be 
asked to assist DOT when the inspectors open,

[[Page 57291]]

detain, or remove a shipment, if it is possible that a package may 
experience a leak, spill, or release. Proposed Sec.  109.3(b)(4)(iv) 
provides this authorization.
    Under proposed Sec.  109.3(b)(5), an inspector would make a 
reasonable effort to assist in preparing a shipment to reenter 
transportation after opening or detaining the package if the shipment 
does not pose an imminent hazard and reentry in transportation is 
otherwise practicable. The inspector or a designee would reclose the 
package in accordance with the packaging manufacturer's instructions or 
other procedures approved by PHMSA's Associate Administrator for 
Hazardous Materials Safety. The inspector would then mark and certify 
that the shipment was opened and reclosed, and return the shipment for 
transportation, as quickly as practicable. Additionally, the inspector 
would assist in the safe and expeditious movement of a shipment that 
contains a perishable material once it is determined that the package 
does not present an imminent hazard. These measures, of course, presume 
that the package otherwise complies with the HMR. The Department's 
operating administrations would not be responsible for bringing an 
otherwise non-specification or non-compliant package into compliance 
and resuming its movement in commerce. If the package did not comply 
with the HMR, the fact that a DOT official opened it in the course of 
an inspection or investigation would not make DOT or its inspector 
responsible for bringing the package into compliance.
    At this juncture, PHMSA is soliciting comments from interested 
parties about appropriate closure measures that would reseal opened 
packages. In particular, we seek comments from manufacturers of 
receptacles, containers, or other units that perform a containment 
function for hazardous material and hope to learn of equipment, 
instruments, and types of resealment that may be used to reclose a 
shipment. PHMSA is further requesting comments or suggestions from 
manufacturers, packaging companies, offerors, and carriers about the 
appropriate manner of reclosing a shipment containing a perishable 
material, including medical material such as radiopharmaceuticals and 
radionuclides, for prompt re-transportation. PHMSA also is 
contemplating using a special tape that would identify that the package 
was opened by a DOT inspector. The agency requests comments on whether 
tape or another adhesive would provide adequate notice that a DOT 
inspector opened a shipment.
    Proposed Sec.  109.3(b)(6) addresses the situation in which a 
package is found to present an imminent hazard. This section would 
authorize 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 inspector 
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 paragraph (b)(6)(i) 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. Proposed 
paragraph (b)(6)(ii) would require 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 paragraph (b)(6)(iii) provides an appeal process for a 
recipient of an OOS order to challenge the issuance of the order. The 
appeal process proposed for OOS orders is consistent with the appeal 
process proposed for other types of emergency orders set forth in 
proposed Sec.  109.5(e)-(h), discussed below.
    Section 109.3(c) proposes that the operating administration would 
close the investigative file and inform the subject party of the 
decision when the agency determines that no further action is 
necessary. This provision clarifies when an investigation concludes and 
states that DOT will notify respondent that the file has been closed 
without prejudice to further investigation.

Section 109.5 Emergency Orders

    Proposed Sec.  109.5, which implements 49 U.S.C. 5121(d) authorizes 
DOT operating administrations to issue emergency orders to remove 
hazardous materials shipments from transportation in commerce without 
advance notice or an opportunity for a hearing. This section governs 
the issuance of emergency restrictions, prohibitions, OOS orders, and 
recalls, all of which fit within the purview of an emergency order. 
(See above for PHMSA's meaning and application of the term ``emergency 
order.'')
    The predicate for issuing an emergency order is a violation of the 
Hazmat Law or 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. See House Conf. Rep. No. 
109-203 at 1080, 2005 U.S.C.C.A.N. at 714; see generally H.R. Rep. No. 
96-1025, at 12, reprinted in 1980 U.S.C.C.A.N. 3830, 3837 (``purpose of 
the emergency powers provision is to vest administrative discretion in 
the Secretary to protect the public safety''). The order must 
articulate a sufficient factual basis that addresses the emergency 
situation warranting prompt prohibitive action. As proposed, the 
operating administrations would be conferred authority to take 
immediate measures to address a particular safety or security threat.
    Proposed paragraph (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

[[Page 57292]]

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 would have 20 calendar days to file the petition 
after the emergency order is issued. See 49 U.S.C. 5121(d)(3). (The 
time period that would apply is proposed at paragraph (a)(4), which 
adopts, in pertinent part, Fed. R. Civ. P. 6(a)). The proposed 
provision would ensure 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.
    PHMSA proposes providing a party with administrative due process 
rights to seek redress of an emergency order, and thus, proposed 
paragraph (b) sets forth requirements for filing a petition for 
administrative review of an emergency order. The petition: (1) Must be 
in writing; (2) specifically state which part of the emergency order is 
being appealed; (3) include all information and arguments in support 
thereof; and (4) indicate whether a formal administrative hearing is 
requested. Should a petitioner request a hearing, the party must detail 
the material facts in dispute giving rise to the hearing request. The 
petition also must be addressed to PHMSA's CSO with a copy transmitted 
to the Chief Counsel of the operating administration issuing the 
emergency order. Proposed paragraph (c) 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 proposes this 
short turnaround 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).
    Under proposed paragraph (d), the CSO would 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 
would constitute 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 would assign the petition to DOT's 
Office of Hearings. PHMSA thus proposes designating the CSO as the 
first line of review of emergency orders. It is possible that the CSO 
would amend, affirm, lift, modify, stay, or vacate the emergency order 
upon review.
    PHMSA believes that the 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 leading safety authority in PHMSA, which is 
the agency that issues the HMR, interprets the Hazmat Law and its 
implementing regulations, and oversees DOT's hazardous materials 
transportation program.
    Proposed paragraphs (e) through (h) set out the administrative 
hearing procedures that the Department's Office of Hearings would 
employ. Upon receiving the petition from the CSO, the Chief 
Administrative Law Judge would assign it to an Administrative Law Judge 
(ALJ), who would 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.
    Paragraph (e) 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.
    Paragraph (f) 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. Paragraph (g) 
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. 
The agency will also publish a notice of the emergency order in the 
Federal Register as soon as practicable after the order's issuance.
    Paragraph (h) proposes requiring 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. Critically, the decision must be 
issued within 25 days after the CSO receives the petition. Under 
paragraph (i), 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 would 
remain in effect pending the disposition of the petition unless stayed 
or modified by the Administrator. PHMSA maintains that this provision 
is necessary to ensure that the order is extended to abate the imminent 
hazard.
    Paragraph (j) would provide that an aggrieved party may file a 
petition for reconsideration of the ALJ's report and recommendation 
within one day of the issuance of the decision. 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 would have 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 would 
constitute final agency action.
    Paragraph (k) would enable 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. Judicial review would 
be 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.
    Paragraph (l) would specify the computation of time in the 
adjudications process.

Section 109.7 Emergency Recalls

    Section 109.7 implements 49 U.S.C. 5121(d). Generally, PHMSA 
received

[[Page 57293]]

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 
proposes to implement the authority to 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.

Section 109.9 Remedies Generally

    In addition to seeking relief in Federal court with respect to an 
imminent hazard, this proposed section defines the need for general 
remedies available through litigation. As such, an Administrator may 
also request the Attorney General 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 Sec.  109.11 would authorize 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.

Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This NPRM 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). If adopted as proposed, 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 proposed 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 NPRM carries out the statutory mandate and 
clarifies DOT's role and responsibility 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 Order 12866 and DOT Regulatory Policies and Procedures

    This NPRM is a significant regulatory action under section 3(f) of 
Executive Order 12866 and, therefore, was reviewed by the Office of 
Management and Budget. This rule is also significant under the 
Regulatory Policies and Procedures of the DOT (44 FR 11034). A copy of 
the regulatory evaluation is available for review in the docket.

C. Executive Orders 13132 and 13084

    This NPRM 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 proposed 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 NPRM 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 proposed 
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 preliminary regulatory evaluation I hereby 
certify that, while the proposed rule will affect a substantial number 
of small businesses, there will be no significant economic impact. This 
proposal 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 proposals in this NPRM 
will apply to persons who perform, or cause to be performed, functions 
related to the transportation of hazardous materials in transportation 
in commerce. This includes offerors of hazardous materials and persons 
in physical control of a hazardous material during transportation in 
commerce. Such persons may primarily include motor carriers, air 
carriers, vessel operators, rail carriers, temporary storage 
facilities, and intermodal transfer facilities. Unless alternative 
definitions have been established by the agency in consultation with 
the Small Business Administration, the definition of ``small business'' 
has the same meaning as under the Small Business Act (15 CFR parts 631-
657c). Therefore, since no such special definition has been 
established, PHMSA employs the thresholds (published in 13 CFR 121.201) 
of 1,500 employees for air carriers (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 the proposals in this NPRM 
would apply (104,000 of which are motor carriers), we estimate that 
about 90 percent are small entities.
    Potential cost impacts. The NPRM proposal to implement the enhanced 
enforcement and investigation authority applies to all persons subject 
to the HMR. We expect the exercise of this authority will produce a 
deterrent effect far beyond the number of packages actually detained, 
opened, or removed from transportation. Over a ten-year period, we 
estimate the proposed rule would result in the reduction of 40,299,701 
undeclared shipments of hazardous material across three modes of 
transportation (air, rail, and highway), and the avoidance of 63 
serious incidents and 2,104 non-serious incidents. The estimated costs 
to industry are fairly minimal; we estimate $45,997 in total cost to 
the industry over ten years.
    Potential costs savings. Although the potential cost of 
implementing this enhanced enforcement authority could total $2,307,897 
for the four operating administrations, the potential benefit

[[Page 57294]]

from avoiding incidents total $9,697,748 over a ten-year period.
    Alternate proposals for small business. In accordance with the 
Regulatory Flexibility Act, we also considered whether special 
standards should be developed to minimize the regulatory burden on 
small businesses. In the case of compliance standards, it is sometimes 
possible to establish exceptions or different requirements for small 
businesses without compromising the overall objectives of the rule. 
However, we have concluded that such relief is not appropriate for the 
rules at issue here, pertaining to inspection procedures and safety 
remedies. Although DOT may well consider companies' relative sizes in 
deciding how to allocate inspection resources, once an inspection or 
investigation is underway, the size of an individual entity has no 
proper bearing on the exercise of enhanced inspection and enforcement 
authority. In the case of a suspicious package, for instance, the risk 
to public safety and need for enforcement action does not depend on the 
size of the company responsible for the hazard.

E. Paperwork Reduction Act

    PHMSA has analyzed this proposed rulemaking in accordance with the 
Paperwork Reduction Act of 1995 (PRA). The PRA requires Federal 
agencies to minimize 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 proposal contains no new 
information collection requirements subject to the PRA as the 
requirements applicable to all collections of information conducted or 
sponsored by a federal agency do not apply to a collection of 
information ``during the conduct of a civil action to which the United 
States or any official or agency thereof is apart, or during the 
conduct of an administrative action, investigation, or audit involving 
an agency against specific individuals or entities'' (5 CFR 1320.4).

F. Unfunded Mandates Reform Act of 1995

    The proposal in this NPRM would not impose unfunded mandates under 
the Unfunded Mandates Act of 1995. The proposed rule would not result 
in annual costs of $100 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 that Federal agencies 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 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 NPRM, supra.
2. Alternatives
    Because this NPRM 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 would perpetuate the problem of 
undeclared hazardous material shipments and resulting incidents or 
releases. It would 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 NPRM, we held a series of public meetings and 
invited all interested persons to offer comments on topics related to 
this proposed rule. 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 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.

The Rule

    In consideration of the foregoing, PHMSA proposes to add a new part 
109 to Title 49, Subtitle B, Chapter 1, Subchapter A to read as 
follows:

PART 109--INSPECTION AND INVESTIGATION PROCEDURES

Sec.
109.1 Definitions.
109.3 Inspections and investigations.
109.5 Emergency orders.
109.7 Emergency recalls.

[[Page 57295]]

109.9 Remedies generally.

    Authority: 49 U.S.C. 5101-5127, 44701; Pub. L. 101-410 Sec.  4 
(28 U.S.C. 2461 note); Pub. L. 104-121 Sec. Sec.  212-213; Pub. L. 
104-134 Sec.  31001; 49 CFR 1.45, 1.53.


Sec.  109.1  Definitions.

    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 an 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-of-service order.
    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.
    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 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. For radioactive materials 
packaging, see Sec.  173.403 of this subchapter.
    Perishable hazardous material means a hazardous material that is 
subject to significant risk of speedy decay, deterioration, or 
spoilage.
    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.
    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.
    Trailer means a non-powered motor vehicle designed for transporting 
freight that is drawn by a motor carrier, motor carrier tractor, or 
locomotive.


Sec.  109.3  Inspections and investigations.

    (a) General. 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:
    (1) Administer oaths and receive affirmations in any matter under 
investigation.
    (2) Gather information by any reasonable means, including, but not 
limited to, interviewing, photocopying, photographing, and video- and 
audio-recording 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 CFR 386.53 (Federal Motor Carrier Safety 
Administration), and 49 CFR 105.45-105.55 (Pipeline and Hazardous 
Materials Safety Administration).
    (4) 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, the agent may:
    (i) Stop movement of the package in transportation and gather 
information from any person to learn the nature and contents of the 
package;
    (ii) 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;
    (iii) 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;
    (iv) Order the person in possession of, or responsible for, the 
package to have the package transported to, opened, and the contents 
examined and analyzed by, a facility capable of conducting such 
examination and analysis; and,
    (iv) Authorize qualified personnel to assist in the activities 
conducted under this paragraph (b)(4).
    (5) If, after an agent exercises an authority under paragraph 
(b)(4), 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

[[Page 57296]]

closure instructions or an alternate closure method approved by PHMSA's 
Associate Administrator for Hazardous Materials Safety; marking and 
certifying the reclosed package to indicate that it was opened and 
reclosed in accordance with this paragraph (b)(5); and returning the 
package to the person from whom the inspector obtained it, as soon as 
practicable. For a package containing a perishable 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.
    (6) If, after an inspector exercises an authority under paragraph 
(b)(4), 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, or responsible for, the package shall remove the package 
from transportation until it is brought into compliance:
    (i) 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.
    (ii) The recipient of the out-of-service order shall notify the 
operating administration that issued the order when the package is 
brought into compliance.
    (iii) 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 Sec.  109.5(b), and the procedures set forth 
in Sec.  109.5(c)-(h) apply.
    (c) Termination. When the facts disclosed by an investigation 
indicate that further action is not necessary at that time, the 
Administrator will close the investigative file without prejudice to 
further investigation and notify the person being investigated of the 
decision.


Sec.  109.5  Emergency orders.

    (a) Determination of imminent hazard. When an Administrator 
determines that a violation of a provision of the Federal hazardous 
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 Sec.  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 it may request review of the 
emergency order by filing a petition for review with PHMSA's Chief 
Safety Officer within 20 calendar days of the date the order is issued.
    (b) 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. The petition must specifically state the material facts 
in dispute giving rise to the request for a hearing; and,
    (4) Be addressed to: Chief Safety Officer (ATTN: Office of Chief 
Counsel, PHC-10), Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue, SE., East Building, Washington, DC 20590, with a copy 
transmitted to the Chief Counsel of the operating administration 
issuing the emergency order. The petition for review may be hand 
delivered or sent by first-class mail, facsimile (202-366-7041), or 
electronically (<a href="/cdn-cgi/l/email-protection#c5958d889684868d8c8083868a908b96808985a1aab1eba2aab3"><span class="__cf_email__" data-cfemail="17475f5a4456545f5e52515458425944525b5773786339707861">[email protected]</span></a>). A signed original and one 
copy of any petition for review must be personally delivered or mailed 
to: Docket Operations, U.S. Department of Transportation, West 
Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (c) 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 a response, including appropriate pleadings, 
with the Chief Safety Officer within five calendar days of receipt of 
the petition by the Chief Counsel of the operating administration 
issuing the emergency order.
    (d) Chief Safety Officer Responsibilities: Upon receipt of a 
petition for review of an emergency order, the Chief Safety Officer 
shall immediately assign the petition for review to the Office of 
Hearings when the petition requests a formal hearing and states 
material facts in dispute. The Chief Safety Officer shall issue an 
administrative decision on the merits within 30 days of receipt of the 
petition when it does not request a formal hearing or fails to state 
material facts in dispute. In this case, the Chief Safety Officer's 
decision constitutes final agency action.
    (e) 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, 49 CFR 386.53; 
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.
    (f) 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.
    (g) Service.
    (1) Each petition, pleading, motion, notice, order, or other 
document required to be served under this section shall be served 
personally, by registered or certified mail, or electronically by e-
mail or facsimile, except as otherwise provided herein. The emergency 
order shall identify the list of persons, including the Department's 
Docket Management System, to be served and may be updated as necessary. 
The emergency order shall also be published

[[Page 57297]]

in the Federal Register as soon as practicable after its issuance.
    (2) 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.
    (3) The emergency order shall be served by ``hand delivery,'' 
unless such delivery is not practicable.
    (4) Service upon a person's duly authorized representative 
constitutes service upon that person.
    (h) 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.
    (i) 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.
    (j) 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 issuance of the report and 
recommendation. The opposing party may file a response to the petition 
within one calendar day.
    (2) The Chief Safety Officer shall issue a final agency decision 
within three calendar days, 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.
    (k) 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.
    (l) 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.


Sec.  109.7  Emergency 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 
Sec.  109.5(b).


Sec.  109.9  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 September 26, 2008 under authority 
delegated in 49 CFR part 1.
David K. Lehman,
Acting Associate Administrator for Hazardous Materials Safety.
 [FR Doc. E8-23248 Filed 10-1-08; 8:45 am]
BILLING CODE 4910-60-P


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