49 CFR Part 109 — Department of Transportation Hazardous Material Procedural Regulations

PART 109—DEPARTMENT OF TRANSPORTATION HAZARDOUS MATERIAL PROCEDURAL REGULATIONS Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Sec. 4 (28 U.S.C. 2461 note); Pub. L. 104-121 Secs. 212-213; Pub. L. 104-134 Sec. 31001; 49 CFR 1.81, 1.97. Source: 76 FR 11592, Mar. 2, 2011, unless otherwise noted. Subpart A—Definitions § 109.1 Definitions. For purposes of this part, all terms defined in 49 U.S.C. 5102 are used in their statutory meaning. Other terms used in this part are defined as follows: Administrator Agent of the Secretary agent Chief Safety Officer CSO Emergency order Freight container Immediately adjacent Imminent hazard In writing Objectively reasonable and articulable belief Out-of-service order Packaging Perishable hazardous material Properly qualified personnel Related packages etc. etc. Remove Safe and expeditious Subpart B—Inspections and Investigations § 109.3 Inspections and Investigations. (a) General authority. (b) Inspections and investigations. (1) Administer oaths and receive affirmations in any matter under investigation. (2) Gather information by any reasonable means, including, but not limited to, gaining access to records and property (including packages), interviewing, photocopying, photographing, and video- and audio-recording in a reasonable manner. (3) Serve subpoenas for the production of documents or other tangible evidence if, on the basis of information available to the agent, the evidence is relevant to a determination of compliance with the Federal hazardous material transportation law, regulation, order, special permit, or approval prescribed or issued under the Federal hazardous material transportation law, or any court decree or order relating thereto. Service of a subpoena shall be in accordance with the requirements of the agent's operating administration as set forth in 14 CFR 13.3 (Federal Aviation Administration); 49 CFR 209.7 (Federal Railroad Administration), 49 U.S.C. 502(d), 5121(a) (Federal Motor Carrier Safety Administration), and 49 CFR 105.45-105.55 (Pipeline and Hazardous Materials Safety Administration). § 109.5 Opening of packages. (a) In general. (1) Stop movement of the package in transportation and gather information from any person to learn the nature and contents of the package; (2) Open any overpack, outer packaging, 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. (b) Perishable hazardous material. [76 FR 11592, Mar. 2, 2011, as amended at 78 FR 60763, Oct. 2, 2013] § 109.7 Removal from transportation. An agent may remove a package and related packages in a shipment or a freight container from transportation in commerce for up to forty-eight (48) hours when the agent has an objectively reasonable and articulable belief that the packages may pose an imminent hazard. The agent must record this belief in writing as soon as practicable and provide written notification stating the reason for removal to the person in possession. § 109.9 Transportation for examination and analysis. (a) An agent may direct a package to be transported to a facility for examination and analysis when the agent determines that: (1) Further examination of the package is necessary to evaluate whether the package conforms to subchapter C of this chapter; (2) Conflicting information concerning the package exists; or (3) Additional investigation is not possible on the immediate premises. (b) In the event of a determination in accordance with paragraph (a) of this section, an agent may: (1) Direct the offeror of the package, or other person responsible for the package, to have the package transported to a facility where the material may be examined and analyzed; (2) Direct the packaging manufacturer or tester of the packaging to have the package transported to a facility where the packaging may be tested in accordance with the HMR; or (3) Direct the carrier to transport the package to a facility capable of conducting such examination and analysis. (c) The 48-hour removal period provided in § 109.7 may be extended in writing by the Administrator pending the conclusion of examination and analysis under this section. § 109.11 Assistance of properly qualified personnel. An agent may authorize properly qualified personnel to assist in the activities conducted under this part if the agent is not properly qualified to perform a function that is essential to the agent's exercise of authority under this part or when safety might otherwise be compromised by the agent's performance of such a function. § 109.13 Closing packages and safe resumption of transportation. (a) No imminent hazard found. (1) Assist in preparing the package for safe and prompt transportation, when practicable, by reclosing the package in accordance with the packaging manufacturer's closure instructions or other appropriate closure method; (2) Mark and certify the reclosed package to indicate that it was opened and reclosed in accordance with this part; (3) Return the package to the person from whom the agent obtained it, as soon as practicable; and (4) For a package containing a perishable hazardous material, assist in resuming the safe and expeditious transportation of the package as soon as practicable after determining that the package presents no imminent hazard. (b) Imminent hazard found. (c) Package does not contain hazardous material. (d) Non-compliant package. § 109.15 Termination. When the facts disclosed by an investigation indicate that further action is not warranted under this part at the time, the Administrator will close the investigation without prejudice to further investigation and notify the person being investigated of the decision. Nothing herein precludes civil enforcement action at a later time related to the findings of the investigation. § 109.16 Notification of enforcement measures. In addition to complying with the notification requirements in § 109.7 of this part, an agent, after exercising an authority under this subpart, will immediately take reasonable measures to notify the offeror and the person in possession of the package, providing the reason for the action being taken, the results of any preliminary investigation including apparent violations of subchapter C of this chapter, and any further action that may be warranted. [78 FR 60763, Oct. 2, 2013] Subpart C—Emergency Orders § 109.17 Emergency Orders. (a) Determination of imminent hazard. (1) Describe the violation, condition, or practice that constitutes or is causing the imminent hazard; (2) Set forth the terms and conditions of the emergency order; (3) Be limited to the extent necessary to abate the imminent hazard; and, (4) Advise the recipient that, within 20 calendar days of the date the order is issued, recipient may request review; and that any request for a formal hearing in accordance with 5 U.S.C. 554 must set forth the material facts in dispute giving rise to the request for a hearing; and (5) Set forth the filing and service requirements contained in § 109.19(f), including the address of DOT Docket Operations and of all persons to be served with the petition for review. (b) Out-of-service order. (1) Upon receipt of an out-of-service order, the person in possession of, or responsible for, the package must remove the package from transportation until it is brought into compliance with the out-of-service order. (2) A package subject to an out-of-service order may be moved from the place where it was found to present an imminent hazard to the nearest location where the package can be brought into compliance, provided that the agent who issued the out-of-service order is notified before the move. (3) The recipient of the out-of-service order must notify the operating administration that issued the order when the package is brought into compliance. (4) Upon receipt of an out-of-service order, a recipient may appeal the decision of the agent issuing the order to PHMSA's Chief Safety Officer. A petition for review of an out-of-service order must meet the requirements of § 109.19. (c) Recalls. § 109.19 Petitions for review of emergency orders. (a) Petitions for review. (1) Be in writing; (2) State with particularity each part of the emergency order that is sought to be amended or rescinded and include all information, evidence and arguments in support thereof; (3) State whether a formal hearing in accordance with 5 U.S.C. 554 is requested, and, if so, the material facts in dispute giving rise to the request for a hearing; and, (4) Be filed and served in accordance with § 109.19(f). (b) Response to the petition for review. (c) Chief Safety Officer Responsibilities Hearing requested. (2) No hearing requested. (d) Hearings. (1) Administer oaths and affirmations; (2) Issue subpoenas as provided by the appropriate agency regulations (49 CFR 209.7, 49 CFR 105.45, 14 CFR 13.3, and 49 U.S.C. 502 and 31133); (3) Adopt the relevant Federal Rules of Civil Procedure for the United States District Courts for the procedures governing the hearings when appropriate; (4) Adopt the relevant Federal Rules of Evidence for United States Courts and Magistrates for the submission of evidence when appropriate; (5) Take or cause depositions to be taken; (6) Examine witnesses at the hearing; (7) Rule on offers of proof and receive relevant evidence; (8) Convene, recess, adjourn or otherwise regulate the course of the hearing; (9) Hold conferences for settlement, simplification of the issues, or any other proper purpose; and, (10) Take any other action authorized by or consistent with the provisions of this part and permitted by law that may expedite the hearing or aid in the disposition of an issue raised therein. (e) Parties. (f) Filing and service. http://www.regulations.gov. (2) Service. (i) Chief Safety Officer ( Attn: facsimile: electronic mail: PHMSAChiefCounsel@dot.gov (ii) The Chief Counsel of the operating administration issuing the emergency order; (iii) If the petition for review requests a formal hearing, the Chief Administrative Law Judge, U.S. Department of Transportation, Office of Hearings, M-20, Room E12-320, 1200 New Jersey Avenue, SE., Washington, DC 20590 ( facsimile: (iv) Service shall be made personally, by commercial delivery service, or by electronic means if consented to in writing by the party to be served, except as otherwise provided herein. The emergency order shall state all relevant service requirements and list the persons to be served and may be updated as necessary. The emergency order shall also be published in the Federal Register (3) Certificate of service. (4) The emergency order shall be served by “hand delivery,” unless such delivery is not practicable, or by electronic means if consented to in writing by the party to be served. (5) Service upon a person's duly authorized representative, agent for service, or an organization's president constitutes service upon that person. (g) Report and recommendation. (1) Contain findings of fact and conclusions of law and the grounds for the decision based on the material issues of fact or law presented on the record; (2) Be served on the parties to the proceeding; and (3) Be issued no later than 25 days after receipt of the petition for review by the Chief Safety Officer. (h) Expiration of order. (i) Reconsideration. (2) The Chief Safety Officer shall issue a final agency decision within three calendar days of service of the final pleading, but no later than 30 days after receipt of the original petition for review. (3) The Chief Safety Officer's decision on the merits of a petition for reconsideration constitutes final agency action. (j) Appellate review. (k) Time. § 109.21 Remedies generally. An Administrator may request the Attorney General to bring an action in the appropriate United States district court seeking temporary or permanent injunctive relief, punitive damages, assessment of civil penalties as provided by 49 U.S.C. 5122(a), and any other appropriate relief to enforce the Federal hazardous material transportation law, regulation, order, special permit, or approval prescribed or issued under the Federal hazardous material transportation law. Subpart D—Equipment Source: 78 FR 60763, Oct. 2, 2013, unless otherwise noted. § 109.25 Equipment. When an agent exercises an authority under subpart B of this part, the agent shall use the appropriate safety, handling, and other equipment authorized by his or her operating administration's equipment requirements for hazardous material inspectors and investigators. Subpart E—Prohibition on Hazardous Materials Operations After Nonpayment of Penalties Source: 79 FR 46199, Aug. 7, 2014, unless otherwise noted. § 109.101 Prohibition of hazardous materials operations. (a) Definition of hazardous materials operations. (b) Failure to pay civil penalty in full. i.e. (c) Civil penalties paid in installments. i.e. (d) Appeals to Federal Court. (e) Applicability to ticketing. (f) Applicability to debtors. (1) The chapter of the Bankruptcy Code under which the bankruptcy proceeding is filed; (2) The bankruptcy case number; (3) The court in which the bankruptcy proceeding was filed; and (4) Any other information requested by the agency to determine a debtor's bankruptcy status. (g) Penalties for prohibited hazardous materials operations. § 109.103 Notice of nonpayment of penalties. (a) If a full payment of a civil penalty, or an installment payment as part of agreed upon payment plan, has not been made within 45 days after the date specified for payment by the final agency order, the agency may issue a cessation of hazardous materials operations order to the respondent. (b) The cessation of hazardous materials operations order issued under this section shall include the following information: (1) A citation to the statutory provision or regulation the respondent was found to have violated and to the terms of the order or agreement requiring payment; (2) A statement indicating that if the respondent fails to pay the full outstanding balance of the civil penalty within 90 days after the payment due date, the respondent shall be prohibited from conducting any activity regulated under the Federal hazardous material transportation law, this subchapter or subchapter C of this chapter, or an exemption or special permit, approval, or registration issued under this subchapter or under subchapter C of this chapter; (3) A statement describing the respondent's options for responding to the order which will include an option to file an appeal for reconsideration of the cessation of operations order within 20 days of receipt of the order; and (4) A description of the manner in which the respondent can make payment of any money due the United States as a result of the proceeding ( i.e. (c) The cessation of hazardous materials operation order will be delivered by personal service, unless such service is impossible or impractical. If personal service is impossible or impractical then service may be made by certified mail or commercial express service. If a respondent's principal place of business is in a foreign country, it will be delivered to the respondent's designated agent (as prepared in accordance with § 105.40 of this subchapter).

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