Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 57281 

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for Part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334 and 336. 

§ 73.202 [Amended] 

2. Section 73.202(b), the Table of FM 

Allotments under Indiana, is amended 

by adding Oolitic, Channel 231A. 

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division, Media 

Bureau. 

[FR Doc. E8–23158 Filed 10–1–08; 8:45 am] 

BILLING CODE 6712–01–P 

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). 

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: 

• 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. 

• 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. 

• Fax: 1–202–493–2251. 

• 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 

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57282 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 

‘‘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 

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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: 

• 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. 

• 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. 

• 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. 

• 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. 

• 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. 

• 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. 

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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 sectionby-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. 

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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 carriershipper 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 § 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 § 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 

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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 DOTspecific 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 

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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 pretransportation 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 

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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 noncomplying 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. 

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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 § 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 § 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 § 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 § 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, 

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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 § 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 

§ 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 § 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, 

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detain, or remove a shipment, if it is 

possible that a package may experience 

a leak, spill, or release. Proposed 

§ 109.3(b)(4)(iv) provides this 

authorization. 

Under proposed § 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 retransportation. 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 § 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 § 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 § 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 

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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 

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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 

§ 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 

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57294 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 

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 crossreference 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. 

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109.9 Remedies generally. 

Authority: 49 U.S.C. 5101–5127, 44701; 

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

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

§ 31001; 49 CFR 1.45, 1.53. 

§ 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-ofservice 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 

§ 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. 

§ 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 audiorecording in a reasonable manner. 

(3) Serve subpoenas for the 

production of documents or other 

tangible evidence if, on the basis of 

information available to the agent, the 

evidence is relevant to a determination 

of compliance with the Federal 

hazardous material transportation law, 

regulation, order, special permit, or 

approval prescribed or issued under the 

Federal hazardous material 

transportation law, or any court decree 

or order relating thereto. Service of a 

subpoena shall be in accordance with 

the requirements of the agent’s 

operating administration as set forth in 

14 CFR 13.3 (Federal Aviation 

Administration); 49 CFR 209.7 (Federal 

Railroad Administration), 49 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 

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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-ofservice order may be moved from the 

place where it was found to present an 

imminent hazard to the nearest location 

where the package can be brought into 

compliance, provided, that the agent 

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 

§ 109.5(b), and the procedures set forth 

in § 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. 

§ 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 § 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 

(PHMSACHIEFCOUNSEL@dot.gov). 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 email 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 

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Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Proposed Rules 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. 

§ 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 § 109.5(b). 

§ 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 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2008–0157] 

RIN 2127–AK15 

Federal Motor Vehicle Safety 

Standards; Motorcycle Helmets 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: NHTSA is proposing to 

amend several aspects of Federal Motor 

Vehicle Safety Standard (FMVSS) No. 

218, Motorcycle Helmets. Some of the 

amendments would help realize the full 

potential of compliant helmets by aiding 

state and local law enforcement officials 

in enforcing state helmet use laws, 

thereby increasing the percentage of 

motorcycle riders wearing helmets 

compliant with FMVSS No. 218. The 

amendments would do this by adopting 

additional requirements and revising 

existing requirements to reduce 

misleading labeling of novelty helmets 

that creates the impression that 

uncertified, noncompliant helmets have 

been properly certified as compliant. 

The other amendments would aid 

NHTSA in enforcing the standard by 

specifying a quasi-static load 

application rate for the helmet retention 

system; revising the impact attenuation 

test by specifying test velocity and 

tolerance limits and removing the drop 

height requirement; providing 

tolerances for the helmet conditioning 

specifications; revising requirements 

related to size labeling and location of 

the DOT symbol; correcting figures 7 

and 8 in the Standard; and updating the 

reference in S7.1.9 to SAE 

recommended practice J211. 

DATES: You should submit your 

comments early enough to ensure that 

Docket Management receives them not 

later than December 1, 2008. 

ADDRESSES: You may submit comments 

to the docket number identified in the 

heading of this document by any of the 

following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Mail: Docket Management Facility: 

U.S. Department of Transportation, 

1200 New Jersey Avenue, SE., West 

Building Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

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