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Federal hazardous materials transport inspectors will be allowed to open, detain, remove, and divert suspicious packages in transit for further investigation, under a final rule published March 2 by the Department of Transportation (76 Fed. Reg. 11,570).
The rule is aimed at reducing the number of shipments of undeclared hazardous materials and the number of shipments that do not meet hazardous materials regulations.
In a Federal Register notice, DOT's Pipeline and Hazardous Materials Safety Administration specified procedures under which inspectors will gain access to open and examine a package offered for or in transportation if they have “reason to believe” that the package contained hazardous material.
The inspectors also are authorized to detain a shipment for up to 48 hours if they believe the package might pose an imminent hazard and to have that package diverted to a facility for further analysis. If that package is found to pose an imminent hazard, then the inspector has the authority under the rule to render that shipment “out of service.”
The rule, which takes effect May 2, was proposed Oct. 2 and applies to all modes of transportation. It amends 49 C.F.R. Part 109 by allowing DOT inspectors to exercise the expanded authority to inspect, open, and detain packages conferred by the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005 (Pub. L. No. 109-59) (32 CRR 970, 10/6/08).
The need for expanded DOT authority is aimed at not only reducing undeclared shipments of hazardous materials but also curtailing shipments of improperly packaged and labeled hazardous materials.
Undeclared shipments are those that are not marked, labeled, and accompanied by shipping papers or otherwise identified as hazardous materials. PHMSA said such shipments pose a significant threat to transportation workers, emergency responders, and the general public.
According to DOT, each year about 3 billion tons of hazardous materials are transported in the United States without safety incidents, following packaging and labeling protocols spelled out in the hazardous materials regulations. But, PHMSA said, “when a package containing hazardous materials is placed in transportation without regard to hazardous materials regulations, the effectiveness of all risk controls is compromised.”
The final rule would allow inspectors to open outer packagings, freight containers, or other packaging components not immediately adjacent to the hazardous material. Inspectors would not open single packagings, such as cylinders, portable tanks, cargo tanks, or rail tank cars, and they also would not open the innermost receptacle of a combination packaging.
The rule also outlines procedures inspectors would follow to remove a package or shipment from transportation if they believe the shipment poses an imminent hazard or to allow the package to be transported if no imminent hazard is found. For instance, the rule will allow inspectors to detain packages for up to 48 hours if they can provide a written rationale for why they believe a package might pose an imminent hazard.
Imminent hazards are those that 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.
Finally, the rule gives inspectors the ability to order the package to be taken to a facility for examination, where if deemed hazardous the package can be taken out of service until it complies with hazardous materials regulations. It would also allow PHMSA, the FAA, the Federal Motor Carrier Safety Administration, or the Federal Railroad Administration to issue an emergency order if they determine that a noncompliant shipment is causing an imminent hazard. The order could be issued in conjunction with or in place of an out-of-service order.
Currently, DOT must coordinate with the Department of Justice to file a civil action seeking a restraining order or preliminary injunction against a shipper or offeror committing a hazmat safety violation.
PHMSA's final rule says there will be no cost on the regulated industry because the rule expands DOT's enforcement authority. The American Trucking Associations, which still is evaluating the specifics of the rule, disagreed with PHMSA's assertion that the industry would not incur any costs.
“How can there not be a cost when you order a trucking company to deliver something that is not on the route? If a box is put out of service, then do we just pull away and leave the box on the side or do we have to sit with the box until the customer retrieves it?,” asked Richard Moskowitz, ATA's vice president and regulatory affairs counsel.
Moreover, Moskowitz asked what happens to the costs incurred by carriers for not delivering the rest of the freight on time.
PHMSA needs to distinguish between conditions that are created by the shipper of hazardous materials versus those created by the carrier, Moskowitz said. The shipper, not the carrier, should be penalized for improperly packaging and labeling a hazardous material shipment, he added.
The PHMSA final rule is available at http://www.gpo.gov/fdsys/pkg/FR-2011-03-02/pdf/2011-4270.pdf.
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