HAZMAT Enhanced Enforcement Rule Comments – 12-05-08

A week has passed since the comment period ended on the Pipeline and Hazardous Materials Safety Agency and the comments are still rolling into the Regulations.Gov web site. Since the last blog reviewing comment submissions (see: “HAZMAT Enhanced Enforcement Rule Comments – 11-28-08”) there have been nine corporate comments and 12 comments supporting the comments made by National Association of Retail Ship Centers. The corporate comments were made by: Association of HazMat Shippers Eco-Lab Radiopharmaceutical Shippers & Carriers Conference The Dow Chemical Company National Association of Chemical Distributors American Trucking Association FedEx Express Council on Safe Transportation of Hazardous Articles, Inc Institute of Makers of Explosives The following mail center operators made comments in support of the position of the NARSC. None of these submissions provided any new data or information; they continued the form letter submission pattern seen in the last two reviews. There have now been a total of 35 such submissions. Craig Paige Aim Mail Centers Rod and Marie Spencer Constance K. Fowle Collyn and Melinda Goddard Raymond J. Esce Anita Wood Penni Morris Duane Beaver John Nugent Farzeen Orakzai Diane C. Fulton Association of HazMat Shippers Comments The AHS believes that the extension of this rule to include opening declared hazmat packages to ensure compliance with packaging requirements is an unwarranted extension of the authority provided in the legislation requiring these rules. They also do not believe that the current rule adequately explains or delineates who will have the authority to authorize the opening of a declared hazmat packaging. Eco-Lab Comments Eco-Lab has a number of questions about the rule. Is DOT going to be responsible for the package in place of the original offeror once it is replaced in transit? Is DOT going to re-test each reclosure in accordance with DOT Letter of Interpretation 06-0019? How will new seal numbers be communicated from DOT to the original offeror and consignee? Are DOT inspectors going to be trained in accordance with 29 CFR part 1960 and be provided with appropriate protective equipment to open hazmat packages? How can the inspector come to an objectively reasonable or articulable belief that there is an undeclared hazardous materials on board in the case of sealed freight containers? If a declared hazmat package is opened and found in compliance will the DOT inspector sign the verification that the reclosed package is ‘properly packaged, marked and labeled’? If an overpack is used to return a package to transportation will DOT notify the consignee that the overpack does not signal a leaking or damaged package? Radiopharmaceutical Shippers & Carriers Conference Comments The RSCC was surprised to see that the authority to open packages was extended in this rule to packages that were properly marked and documented. The RSCC notes that opening even the outer packaging of sterile medical shipments could effectively destroy the usefulness of those materials. The RSCC disagrees with allowing the Administrator to delegate the authority to initiate recalls or remove goods from transportation. The RSCC would like the definition of ‘perishable hazardous material’ extended to include packages consigned for medical use. The Dow Chemical Company Comments Dow believes that the terms "objectively reasonable" and "articulable belief” need clearer definitions to avoid inconsistent application of the rule. Dow believes that many issues related to opening and reclosing outer packagings are inadequately addressed. Responsibility of packages leaking subsequent to re-packing, responsibility for appropriate seals and communication of seal identification, and the responsibility for the economic effects of delayed shipments of conforming packagings all need to addressed. Dow also believes that there should be a communication protocol established in the rule for notification of shipper and consignee when a DOT inspector initiates a package opening. National Association of Chemical Distributors Comments The NACD is concerned about the broad interpretation of the term “objectively reasonable and articulate belief” embodied in the rule. The NACD notes that delays of shipments to open and inspect trucks could result in severe economic consequences. Receivers of pharmaceutical shipments that have the shipper’s seals broken are likely to refuse the shipment and may be required to do so by FDA regulations. Delays of truck shipments for the purpose of inspection could lead to violations of FMCSA hours-of-service rules. The NACD believes that the DOT inspector should be responsible for the shipment from the time that it is detained and diverted for inspection. The NACD notes that stopping and inspecting a truck in transit makes it a stationary target for potential terrorist attack. American Trucking Association Comments The ATA believes that PHMSA has exceeded the legislative authorization upon which this rule is based in extending the enhanced authority to open and inspect packagings of properly declared hazardous materials. The ATA also has numerous concerns about the safety, liability and economic affects opening packages suspected of containing hazardous materials. The ATA proposes an alternate procedure to use; inspecting packages at the offeror’s or consignee’s facility instead of opening the package enroute. Where a package is suspected of presenting an imminent hazard ATA suggests that it should be removed from transport by the DOT inspector and then moved to a properly equipped facility in appropriate transportation. FedEx Express Comments FedEx completely endorses the comments made by the American Trucking Association and the Council on the Safe Transportation of Hazardous Materials. FedEx believes that DOT should assume all responsibility for a package once it removes it from the transportation stream to effect an enhanced authority inspection. That responsibility includes liability for injuries associated with opening the package. FedEx does not believe that its employees are adequately trained or equipped to assist an inspector in opening or reclosing a package. Council on Safe Transportation of Hazardous Articles, Inc The COSTHA believes that PHMSA has exceeded the legislative authority for enhanced enforcement by extending it to declared hazmat shipments. COSTHA has questions about the training and procedures for opening packages and objects to the joint operations manual being proposed by PHMSA not being subject to review and comments before the effective date of this rule. COSTHA would prefer to see PHMSA exert Federal Preemption to prevent states from enforcing similar rules with state and local law enforcement personnel. COSTHA notes that truck carrier personnel are not equipped with the appropriate personal protective equipment to assist a DOT inspector with opening an undeclared hazmat package. COSTHA believes that PHMSA has grossly underestimated the industry costs associated with implementation of this rule. They note that shipment delay penalties for a single truck could exceed the PHMSA estimate for the annual expenditures of the entire trucking industry. Those costs would greatly escalate if there were a hazmat release associated with opening a package and any injuries resulted. Institute of Makers of Explosives Comments The IME is concerned that the wording of the rule would allow inspectors to open properly declared hazmat packages without any expectation of finding them to be non-compliant. The IME believes the motor carrier industry is going to be the most adversely affected by this rule as the other modes of transportation cannot be stopped enroute for inspections. The IME is concerned that PHMSA has not addressed the issues of how “to protect compliant freight from damage due to extra handling, how to reclose compliant packages, lack of safe storage for non-compliant freight, re-blocking and bracing”. They are particularly concerned about the storage and protection of explosives removed from transport by these procedures. Additionally, explosives that are received late and obviously opened would be an immediate and grave security concern for the consignees. They note that there are no provisions made for shipments destined for consignees in other countries whose authorities are under no legal obligation to recognize DOT repackaging as being legal or adequate. The IME is concerned about the wording in the preamble about preemption issues, feeling that it may in fact prompt states from enacting similar rules, further aggravating all of the previously identified problems. My Comments on Comments Well, the industry heavy weights have certainly weighed in on the issues raised in this NPRM. All of the corporate commenters agree on the basic need for identifying undeclared hazardous materials. The shippers have all had to deal with the problem of finding such packages under the worst circumstances when the packaging failed. There is substantial concern among the commenters about how this rule is written and there is almost unanimous agreement on the areas of concern. Those areas include:

The extension of the rule to cover opening properly declared hazmat shipments, The vague definition of the standards to be used to identify packages for enhanced enforcement actions, The failure to address the financial consequences of delaying shipments while the inspection process proceeds, The failure to submit the inspector guidance document to the review/comment process, The failure to address the safety issues surrounding opening hazmat packages, The failure of DOT to accept responsibility for the safety of non-governmental personnel when opening hazmat packages, and The failure to address the consequences for inadequate re-closure of compliant packages.

This is already an overly long blog posting, so I will not take a lot of time addressing these issues in any detail; I will save that for a later blog. Needless to say, there are many legitimate issues raised in these comments and PHMSA will have to take them into account while proceeding with the rule making process. This rule will provide the incoming Obama Administration with a very good chance to show how it will deal with the rule making process. With the substantial concerns raised in these comments, it is not beyond the bounds of reasonable expectations for the new administration to re-write these rules and re-issue the notice of proposed rule making. After all, it has already been three and a half years since the authorizing legislation was signed into law. What is a couple of more months going to mean if that’s what it takes to get it right?