PHMSA Publishes Enhanced Enforcement Procedures Final Rule

Today the Pipeline and Hazardous Material Safety Administration (PHMSA) published a final rule in the Federal Register (78 FR 60755-60763) updating their enhanced enforcement procedures for the resumption of transportation to meet the congressional requirements from §33009 of MAP 21 (PL 112-141). The NPRM for this rule was published back in May of this year.

Public Comments on NPRM

PHMSA received two sets of comments on the earlier NPRM; one from the National Association of Chemical Distributors (NACD) and one from the American Trucking Associations (ATA). PHMSA has addressed those comments in the preamble to this rule. PHMSA’s responses are summarized below:

Perishable Hazardous Materials – PHMSA has made a clarifying amendment to the rule that “recognizes the special characteristics and handling requirements of perishable hazardous material by clarifying that an agent will stop or open a package containing a perishable hazardous material only after the agent has utilized appropriate alternatives”.

Authority Limited to Undeclared Shipments – PHMSA “narrowed the scope of this authority by limiting its use to only packages that may contain hazardous material and are not in compliance with the HMR or Federal hazmat law”.

Liability for Delays – PHMSA notes that “the discretionary function exception, [of] the Federal Tort Claims Act (FTCA) would bar any common law tort action against the Department or operating administration based on such activities”.

Opening of Packages is too Risky – PHMSA disagrees with the ATA comments and notes that it intends“ to proceed with the amendments and additions to the Department's hazardous materials procedural regulations for the opening of packages, for emergency orders, and for emergency recalls, as proposed in the NPRM”.

Effective Date

This final rule becomes effective on November 1^st, 2013.