Wednesday, October 8, 2008

More on Opening Packages in Transit

As I noted in an earlier blog (see: “Opening Packages of Potentially Undeclared Hazmat Shipments”) PHMSA recently posted a NPRM in the Federal Register. The proposed rule would give the ‘operating agencies’ of DOT ‘enhanced enforcement’ powers under the HMR to open containers or packagings in transit in order to detect ‘undisclosed’ or unsafe hazmat packagings.


Indentifying Hazmat


In that earlier blog I noted the hazards that DOT inspectors might face when opening packages, even though the proposed regulations specifically state that they would only be opening “an overpack, outer packaging, freight container, or other packaging component that is not immediately adjacent to the hazardous material it contains” (page 57284). The idea is that by looking at the label and markings on the container actually holding the suspected hazmat, DOT inspectors will be able to ascertain the hazmat status of the material.


This idea presupposes that an offeror that failed to mark the outer packaging or prepare hazmat documentation for the shipment would adequately mark the inner most container. There will be businesses that would do so because they are ignorant of the hazmat regulations, not because they are deliberately trying to avoid the extra costs associated with those shipments. Those offerors that are knowingly flaunting the HMR are unlikely to mark the inner container in such a way that would incriminate them. This would seem to make these proposed regulations ineffective.


Analyzing Contents


There is an interesting provision of the NPRM that might overcome this problem. We can see this in § 190.3(b)(4) of the actual legislation. The previously described authority is listed in sub-paragraph (ii) which authorizes the DOT inspector to:


“Open any overpack, outer packaging, freight container, or other component of the package that is not immediately adjacent to the hazardous materials contained in the package and examine the inner packaging(s) or packaging components;”


Then sub-paragraph (iv) give the inspector the authority to:


“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;”


Additionally, sub-paragraph (v) provides that the inspector may “(a)uthorize qualified personnel to assist in the activities conducted under this paragraph (b)(4)”. The authority in sub-paragraph (ii) is limited by the phrase ‘not immediately adjacent to the hazardous materials’, but that limitation is not included in sub-paragraph (iv). It would seem that this would authorize DOT to conduct testing of the actual material being shipped to determine if it is hazmat.


Providing Teeth to the NPRM


This reading of the NPRM is supported in the ‘Section-by-Section Analysis’ discussion in the NPRM. In explaining sub-paragraph (iv) the NPRM states that (pages 57290-1):


  • “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 (emphasis added).”

This authority would be the key to insuring the success of this proposed regulation. We cannot tell how many shipments this would affect. It is clear that without the ability to test material to see if it is, in fact, hazmat, this actions under the rule would not be able to detect all of the undisclosed hazmat shipments suspected by DOT inspectors.

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