PHMSA Issues Notice of Proposed Rulemaking Regarding Perishable Hazardous Materials and Notification of Enforcement Action
The Notice of Proposed Rulemaking (NPRM) issued by the Department of Transportation and the Pipeline and Hazardous Materials Safety Administration (PHMSA) on May 22, 2013, contains three proposed changes to federal regulations on the transport of hazardous materials. The first two changes would codify the existing Department of Transportation (DOT) policy contained in that organization’s Joint Operations Manual. Specifically, these proposed changes would add to the CFR a requirement for any DOT agent who inspected or removed a shipment from transportation to provide notice to both the carrier and offeror of the delayed shipment. Additionally, PHMSA proposes a rule that would codify the existing policy that prevents DOT agents from intentionally opening packages containing perishable hazardous material without the presence of a compelling risk to safety. Lastly, DOT and PHMSA are proposing the addition of a new subpart in the CFR, which would require agents to use proper equipment when inspecting hazardous material.
The enabling statute for these proposed changes is the Hazardous Materials Transportation Safety Act of 2012, a component of the Moving Ahead for Progress in the 21st Century Act (MAP-21). The proposed “inspection and enforcement procedures” contained in this notice “will not change the current inspection procedures for DOT, but will augment DOT’s existing enforcement procedures.” The three proposed changes to the CFR within this NPRM are detailed below.
Notice of Enforcement Measures: In MAP-21, a notification requirement was added to DOT’s inspection and investigation authority. In response to this requirement, PHMSA has proposed codifying this statutory requirement by placing the existing guidelines for notification from DOT’s joint operation manual into the CFR. The existing guidelines require any DOT agent to notify all parties responsible for a shipment that is inspected or removed from transportation. The agent is to provide notification to the the person in possession of the package, which may be the carrier, packaging manufacturer or tester, or another entity. The agent is to also notify the original offeror if the person in possession of the package is not the original offeror.
Since this proposed rule change simply codified existing DOT policy when it comes to notifying involved parties, PHMSA does not expect there to be any impact from its adoption into the CFR.
The Safe and Expeditious Resumption of Transportation of Perishable Hazardous Material: PHMSA proposes to amend the opening of packages procedural regulation to clarify situations in which agents may open packages. Specifically, the amendment provides that its agents will not intentionally open packages containing perishable hazardous material unless a compelling safety need exists. However, as established in the current DOT/PHMSA policy as contained in the Joint Operations Manual, its agents may stop, remove and transport these materials for further analysis.
This proposed rule change is a logical extension and clarification of PHMSA’s policy on perishable hazardous materials. By clarifying the policy is regarding perishable hazardous materials, this proposed rule change should help to ensure the timely delivery of such packages. However, it provides that if perishable hazardous materials are being shipped in a way that poses a risk to safety, the delivery of such packages may be delayed or halted.
Appropriate Training and Equipment for Inspectors: MAP-21 mandated uniform performance standards for training hazardous materials inspectors and investigators. PHMSA recognizes that a “uniform training scheme is essential”, however to noted that it was premature to promulgate enforcement procedural regulations before it had the opportunity to develop uniform performance training standards.
PHMSA does, however, propose Subpart D to 49 CFR Part 109 entitled “Equipment.” The proposed addition would require an agent to use the appropriate safety, handling, and other equipment authorized by his or her operating administration's equipment requirements for hazardous material inspectors and investigators.
In all, PHMSA takes the position that the proposed changes merely make official what has long been its policy. As a result, the impact on the hazardous transportation industry is likely minimal.
For more information on this Notice of Proposed Rulemaking or hazardous materials transportation, contact Ronce Almond at (202) 457-7790.
