PHMSA Reaffirms Right of Its Inspectors To Open Suspicious Hazardous Shipments

This story appears in the Oct. 14 print edition of Transport Topics.

The Pipeline and Hazardous Materials Safety Administration has issued a rule reaffirming that agency inspectors have the right to open in-transit hazardous materials packages they suspect are noncompliant or present a potential safety hazard.

Although the agency said it will require inspectors to make attempts not to interrupt the flow of commerce, the amended final rule notes that safety must be the top concern.

The rule “is intended to target and manage the use of enhanced inspection and enforcement authority in a manner that minimizes burdens on the transportation system, while at the same time meets the overriding mission of transportation safety,” PHMSA said in an Oct. 2 Federal Register posting.

A PHMSA spokeswoman was not available for comment last week because of the partial shutdown of the federal government. PHMSA has furloughed 274 of its 441 workers, although inspectors and pipeline investigators are still on the job, according to the U.S. Department of Transportation.

The rule, which takes effect Nov. 1, specifically addresses a provision that details procedures for an agent to open packages of perishable hazardous materials and for notification to shippers and carriers that an agent has exercised safety inspection or investigation authority.

The authority applies to PHMSA agents but not state or federal roadside enforcement officials.

The rule also states that “a noncompliant package that does not present a hazard may not continue in transportation until all identified noncompliant issues are resolved.”

Crafted as part of last year’s transportation law known as MAP-21, the rule said that if an imminent hazard is found to exist after an agent opens a package, the agent may issue an out-of-service order.

“The package must be removed from transportation until it is brought into compliance,” the rule stated.

In earlier written comments to PHMSA, American Trucking Associations said it believed the agency should be responsible for “curing” losses incurred by the carrier related to late deliveries of inspected packages or other unrelated packages that are part of the same load.

But PHMSA said it should not bear financial responsibility for private costs related to the exercise of its regulatory authority.

ATA also said it is “too risky” for an agent to open hazmat packages during transport.

“Fundamentally, ATA believes that opening hazardous materials packages should only occur in a controlled environment . . . and performed only by trained and certified federal agents wearing the appropriate personal protective equipment and without any involvement of the motor carrier’s driver,” the trucking federation said.

PHMSA said it already has restricted an agent’s ability to handle or open a package containing perishable hazardous material.

“For example, an agent must have been trained in the handling of the specific material and may only open a perishable hazardous material package in a designated facility, if required, and have all safety equipment, handling equipment and materials to properly close the package,” PHMSA said.