U.S. Department of Transportation
Pipeline and Hazardous Materials Safety
Administration
FEDERAL HAZARDOUS MATERIALS TRANSPORTATION LAW
August 10, 2005
49 U.S.C.
SUBTITLE III--GENERAL AND INTERMODAL PROGRAMS
CHAPTER 51 - TRANSPORTATION OF HAZARDOUS MATERIAL
1
Sec. 5101. Purpose.......................................................................................................... 4
Sec. 5102. Definitions..................................................................................................... 4
Sec. 5103. General regulatory authority. ........................................................................ 7
Sec. 5103a Limitation on issuance of hazmat licenses................................................... 8
Sec. 5104. Representation and tampering..................................................................... 11
Sec. 5105. Transporting certain highly radioactive material. ....................................... 12
Sec. 5106. Handling criteria.......................................................................................... 13
Sec. 5107. Hazmat employee training requirements and grants................................... 13
Sec. 5108. Registration. ................................................................................................ 15
Sec. 5109. Motor carrier safety permits........................................................................ 18
Sec. 5110. Shipping papers and disclosure................................................................... 20
Sec. 5111. Rail tank cars. [REPEALED. Pub.L. 109-59, Title VII, § 7111, Aug. 10,
2005, 119 Stat. 1899].................................................................................................... 21
Sec. 5112. Highway routing of hazardous material...................................................... 21
Sec. 5113. Unsatisfactory safety rating......................................................................... 24
Sec. 5114. Air transportation of ionizing radiation material. ....................................... 24
Sec. 5115. Training curriculum for the public sector. .................................................. 24
Sec. 5116. Planning and training grants, monitoring, and review. ............................... 26
Sec. 5117. Special permits and exclusions. .................................................................. 30
Sec. 5118. Inspectors. [REPEALED. Pub.L. 109-59, Title VII, § 5117(h), Aug. 10,
2005, 119 Stat. 1901 ..................................................................................................... 32
Sec. 5119. Uniform forms and procedures. .................................................................. 32
Sec. 5120. International uniformity of standards and requirements. ............................ 32
Sec. 5121. Administrative............................................................................................. 33
Sec. 5122. Enforcement. ............................................................................................... 37
Sec. 5123. Civil penalty................................................................................................ 37
Sec. 5124. Criminal penalty.......................................................................................... 39
Sec. 5125. Preemption. ................................................................................................. 39
Sec. 5126. Relationship to other laws........................................................................... 42
Sec. 5127. Judicial review. ........................................................................................... 43
AMENDMENTS TO OTHER STATUTES
Sec. 7127. Criminal matters.......................................................................................... 46
Sec. 7128. Additional civil and criminal penalties. ...................................................... 46
Sec. 7112. Unsatisfactory safety ratings....................................................................... 46
FREE STANDING PROVISIONS
Sec. 7109. Registration. ................................................................................................ 47
Sec. 7120. Civil penalty................................................................................................ 47
1
As amended by H.R.3 - SAFETEA-LU (Public Law 109-59, 119 Stat. 1144, August 10, 2005)
2
Sec. 7129. Hazardous material transportation plan requirement .................................. 47
Sec. 7130. Determining amount of undeclared shipments of hazardous materials
entering the United States. ............................................................................................ 48
Sec. 7131. Hazardous materials research projects........................................................ 48
Sec. 7132. National first responder transportation incident response system............... 48
Sec. 7133. Common carrier pipeline system. ............................................................... 49
3
Sec. 5101. Purpose.
The purpose of this chapter is to protect against the risks to life, property, and the
environment that are inherent in the transportation of hazardous material in intrastate,
interstate, and foreign commerce.
Sec. 5102. Definitions.
In this chapter--
(1)
"commerce" means trade or transportation in the jurisdiction of the United States--
(A)
between a place in a State and a place outside of the State;
(B)
that affects trade or transportation between a place in a State and a place outside
of the State; or
(C)
on a United States-registered aircraft.
(2)
"hazardous material" means a substance or material the Secretary designates under
section 5103(a) of this title.
(3)
"hazmat employee"--
(A)
means an individual--
(i)
who--
(I)
is employed on a full time, part time, or temporary basis by a hazmat
employer; or
(II)
is self-employed (including an owner-operator of a motor vehicle, vessel, or
aircraft) transporting hazardous material in commerce; and
(ii)
who during the course of such full time, part time, or temporary employment, or
such self employment, directly affects hazardous material transportation safety as
the Secretary decides by regulation; and
(B)
includes an individual, employed on a full time, part time, or temporary basis by a
hazmat employer, or self employed, who during the course of employment--
(i)
loads, unloads, or handles hazardous material;
(ii)
designs,
manufactures, fabricates,
inspects, marks, maintains, reconditions,
repairs, or tests a package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting hazardous material in
4
commerce;
(iii)
prepares hazardous material for transportation;
(iv)
is responsible for the safety of transporting hazardous material; or
(v)
operates a vehicle used to transport hazardous material.
(4)
'hazmat employer'--
(A)
means a person--
(i)
who--
(I)
employs or uses at least 1 hazmat employee on a full time, part time, or
temporary basis; or
(II)
is self-employed (including an owner-operator of a motor vehicle, vessel, or
aircraft) transporting hazardous material in commerce; and
(ii)
who--
(I)
transports hazardous material in commerce;
(II)
causes hazardous material to be transported in commerce; or
(III)
designs, manufactures, fabricates, inspects, marks, maintains, reconditions,
repairs, or tests a package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting hazardous material in
commerce; and
(B)
includes
a
department,
agency,
or
instrumentality
of
the
United
States
Government, or an authority of a State, political subdivision of a State, or Indian
tribe, carrying out an activity described in clause (ii).
(5)
"imminent hazard" means the existence of a condition relating to hazardous material
that presents a substantial likelihood that death, serious illness, severe personal injury,
or a substantial endangerment to health, property, or the environment may occur before
the reasonably foreseeable completion date of a formal proceeding begun to lessen the
risk of that death, illness, injury, or endangerment.
(6)
"Indian tribe" has the same meaning given that term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
(7)
"motor carrier"--
(A)
means a motor carrier, motor private carrier, and freight forwarder as those terms
5
are defined in section 13102; but
(B)
does not include a freight forwarder, as so defined, if the freight forwarder is not
performing a function relating to highway transportation.
(8)
"National Response Team" means the National Response Team established under
the National Contingency Plan established under section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9605).
(9)
"person", in addition to its meaning under section 1 of title 1--
(A)
includes a government, Indian tribe, or authority of a government or tribe that--
(i)
offers hazardous material for transportation in commerce;
(ii)
transports hazardous material to further a commercial enterprise; or
(iii)
designs, manufactures, fabricates, inspects, marks, maintains, reconditions,
repairs, or tests a package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting hazardous material in
commerce; but".
(B)
does not include--
(i)
the United States Postal Service; and
(ii)
in sections 5123 and 5124 of this title, a department, agency, or instrumentality
of the Government.
(10)
"public sector employee"--
(A)
means an individual employed by a State, political subdivision of a State, or
Indian tribe and who during the course of employment has responsibilities related to
responding to an accident or incident involving the transportation of hazardous
material;
(B)
includes an individual employed by a State, political subdivision of a State, or
Indian tribe as a firefighter or law enforcement officer; and
(C)
includes an individual who volunteers to serve as a firefighter for a State, political
subdivision of a State, or Indian tribe.
(11)
'Secretary" means the Secretary of Transportation except as otherwise provided.
(12)
"State" means--
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(A)
except in section 5119 of this title, a State of the United States, the District of
Columbia, Puerto Rico, the Northern Mariana Islands, the Virgin Islands, American
Samoa, Guam, and any other territory or possession of the United States designated
by the Secretary; and
(B)
in section 5119 of this title, a State of the United States and the District of
Columbia.
(13)
"transports" or "transportation" means the movement of property and loading,
unloading, or storage incidental to the movement.
(14)
"United States" means all of the States.
Sec. 5103. General regulatory authority.
(a)
Designating
material
as
hazardous.
--The
Secretary
shall
designate
material
(including
an
explosive,
radioactive
material,
infectious
substance,
flammable
or
combustible liquid, solid, or gas, toxic, oxidizing, or corrosive material, and compressed
gas) or a group or class of material as hazardous when the Secretary determines that
transporting the material in commerce in a particular amount and form may pose an
unreasonable risk to health and safety or property.
(b) Regulations for safe transportation.--(1)
The Secretary shall prescribe regulations
for
the
safe
transportation,
including
security,
of
hazardous
material
in
intrastate,
interstate, and foreign commerce. The regulations--
(A)
apply to a person who--
(i)
transports hazardous material in commerce;
(ii)
causes hazardous material to be transported in commerce;
(iii)
designs,
manufactures,
fabricates,
inspects,
marks,
maintains,
reconditions,
repairs, or tests a package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting hazardous material in
commerce;
(iv)
prepares or accepts hazardous material for transportation in commerce;
(v)
is responsible for the safety of transporting hazardous material in commerce;
(vi)
certifies compliance with any requirement under this chapter; or
(vii)
misrepresents whether such person is engaged in any activity under clause (i)
through (vi); and
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(B)
shall govern safety aspects, including security, of the transportation of hazardous
material the Secretary considers appropriate.
(2)
A proceeding to prescribe the regulations must be conducted under section 553 of title
5, including an opportunity for informal oral presentation.
(c) Consultation.
--When prescribing a security regulation or issuing a security order that
affects the safety of the transportation of hazardous material, the Secretary of Homeland
Security shall consult with the Secretary of Transportation.
Sec. 5103a Limitation on issuance of hazmat licenses.
(a) Limitation.--
(1) Issuance of licenses.
--A State may not issue to any individual a license to operate a
motor vehicle transporting in commerce a hazardous material unless the Secretary has
first determined, upon receipt of a notification under subsection (d)(1)(B), that the
individual does not pose a security risk warranting denial of the license.
(2) Renewals included.
--For the purposes of this section, the term 'issue', with respect
to a license, includes renewal of the license.
(b) Hazardous materials described.
--The limitation in subsection (a) shall apply with
respect to any material defined as hazardous material by the Secretary for which the
Secretary requires placarding of a commercial motor vehicle transporting that material in
commerce.
(c) Recommendations on chemical and biological materials.
--The Secretary of Health
and Human Services shall recommend to the Secretary of Transportation any chemical or
biological material or agent for regulation as a hazardous material under section 5103(a)
if the Secretary of Health and Human Services determines that such material or agent
poses a significant risk to the health of individuals.
(d) Background records check.--
(1) In general.
--Upon the request of a State regarding issuance of a license described in
subsection (a)(1) to an individual, the Attorney General--
(A)
shall carry out a background records check regarding the individual; and
(B)
upon completing the background records check, shall notify the Secretary of the
completion and results of the background records check.
(2) Scope.
--A background records check regarding an individual under this subsection
shall consist of the following:
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(A)
A check of the relevant criminal history data bases.
(B)
In the case of an alien, a check of the relevant data bases to determine the status
of the alien under the immigration laws of the United States.
(C)
As appropriate, a check of the relevant international data bases through Interpol-
U.S. National Central Bureau or other appropriate means.
(e) Reporting requirement.
--Each State shall submit to the Secretary, at such time and
in such manner as the Secretary may prescribe, the name, address, and such other
information as the Secretary may require, concerning--
(1)
each alien to whom the State issues a license described in subsection (a); and
(2)
each other individual to whom such a license is issued, as the Secretary may require.
(f) Alien defined.
--In this section, the term "alien" has the meaning given the term in
section 101(a)(3) of the Immigration and Nationality Act.
(g)
Background checks for drivers hauling hazardous materials.--
(1) In general.
--
(A) Employer notification.
--Not later than 90 days after the date of enactment of this
subsection, the Director of the Transportation Security Administration, after receiving
comments
from
interested
parties,
shall
develop
and
implement
a
process
for
notifying
hazmat
employers
designated
by
an
applicant
of
the
results
of
the
applicant's background record check, if--
(i)
such notification is appropriate considering the potential security implications;
and
(ii)
the Director, in a final notification of threat assessment, served on the applicant
determines that the applicant does not meet the standards set forth in regulations
issued to carry out this section.
(B) Relationship to other background records checks.
--
(i) Elimination of redundant checks.
--An individual with respect to whom the
Transportation Security Administration--
(I)
has performed a security threat assessment under this section; and
(II)
has issued a final notification of no security threat,
is deemed to have met the requirements of any other background check that is
9
required for purposes of any Federal law applicable to transportation workers
if
that
background
check
is
equivalent
to,
or
less
stringent
than,
the
background check required under this section.
(ii) Determination by director.
--Not later than 60 days after the date of issuance of
the report under paragraph (5), but no later than 120 days after the date of
enactment of this Act, the Director shall initiate a rulemaking proceeding, including
notice
and
opportunity
for
comment,
to
determine
which
background
checks
required for purposes of Federal laws applicable to transportation workers are
equivalent to, or less stringent than, those required under this section.
(iii) Future rulemakings.
--The Director shall make a determination under the
criteria established under clause (ii) with respect to any rulemaking proceeding to
establish or modify required background checks for transportation workers initiated
after the date of enactment of this subsection.
(2) Appeals process for more stringent State procedures.
--If a State establishes its
own standards for applicants for a hazardous materials endorsement to a commercial
driver's license, the State shall also provide--
(A)
an appeals process similar to and to the same extent as the process provided under
part 1572 of title 49, Code of Federal Regulations, by which an applicant denied a
hazardous materials endorsement to a commercial driver's license by that State may
appeal that denial; and
(B)
a waiver process similar to and to the same extent as the process provided under
part 1572 of title 49, Code of Federal Regulations, by which an applicant denied a
hazardous materials endorsement to a commercial driver's license by that State may
apply for a waiver.
(3) Clarification of term defined in regulations.
--The term "transportation security
incident", as defined in part 1572 of title 49, Code of Federal Regulations, does not
include a work stoppage or other nonviolent employee-related action resulting from an
employer-employee dispute. Not later than 30 days after the date of enactment of this
subsection, the Director shall modify the definition of that term to reflect the preceding
sentence.
(4) Background check capacity.
--Not later than October 1, 2005, the Director shall
transmit to the Committee on Commerce, Science, and Transportation of the Senate and
the Committees on Transportation and Infrastructure and Homeland Security of the
House of Representatives a report on the implementation of fingerprint-based security
threat
assessments
and
the
adequacy
of
fingerprinting
locations,
personnel,
and
resources to accomplish the timely processing of fingerprint-based security threat
assessments for individuals holding commercial driver's licenses who are applying to
renew hazardous materials endorsements.
10
(5) Report.
--
(A) In general.
--Not later than 60 days after the date of enactment of this subsection,
the Director shall transmit to the committees referred to in paragraph (4) a report on
the Director's plans to reduce or eliminate redundant background checks for holders
of hazardous materials endorsements performed under this section.
(B) Contents.
--The report shall--
(i)
include a list of background checks and other security or threat assessment
requirements applicable to transportation workers under Federal laws for which the
Department of Homeland Security is responsible and the process by which the
Secretary of Homeland Security will determine whether such checks or assessments
are equivalent to, or less stringent than, the background check performed under this
section; and
(ii)
provide an analysis of how the Director plans to reduce or eliminate redundant
background checks in a manner that will continue to ensure the highest level of
safety and security.
(h)
Commercial
motor
vehicle
operators
registered
to
operate
in
Mexico
or
Canada.
--
(1) In general.
--Beginning on the date that is 6 months after the date of enactment of
this subsection, a commercial motor vehicle operator registered to operate in Mexico or
Canada shall not operate a commercial motor vehicle transporting a hazardous material
in commerce in the United States until the operator has undergone a background
records check similar to the background records check required for commercial motor
vehicle operators licensed in the United States to transport hazardous materials in
commerce.
(2) Extension.
--The Director of the Transportation Security Administration may extend
the deadline established by paragraph (1) for a period not to exceed 6 months if the
Director determines that such an extension is necessary.
(3) Commercial motor vehicle defined.
--In this subsection, the term "commercial motor
vehicle" has the meaning given that term by section 31101.
Sec. 5104. Representation and tampering.
(a) Representation.
--A person may represent, by marking or otherwise, that--
(1)
a package, component of a package, or packaging for transporting hazardous
material is safe, certified, or complies with this chapter only if the package, component
of a package, or packaging meets the requirements of each applicable regulation
prescribed under this chapter; or
11
(2)
hazardous material is present in a package, container, motor vehicle, rail freight car,
aircraft, or vessel only if the material is present.
(b) Tampering.
--No person may alter, remove, destroy, or otherwise tamper unlawfully
with--
(1)
a marking, label, placard, or description on a document required under this chapter
or a regulation prescribed under this chapter; or
(2)
a package, component of a package, or packaging, container, motor vehicle, rail
freight car, aircraft, or vessel used to transport hazardous material.
Sec. 5105. Transporting certain highly radioactive material.
(a) Definitions.
--In this section, "high-level radioactive waste" and "spent nuclear fuel"
have the same meanings given those terms in section 2 of the Nuclear Waste Policy Act
of 1982 (42 U.S.C. 10101).
(b) Transportation safety study.
--In consultation with the Secretary of Energy, the
Nuclear
Regulatory
Commission,
potentially
affected
States
and
Indian
tribes,
representatives of the rail transportation industry, and shippers of high-level radioactive
waste and spent nuclear fuel, the Secretary shall conduct a study comparing the safety of
using trains operated only to transport high-level radioactive waste and spent nuclear fuel
with the safety of using other methods of rail transportation for transporting that waste
and fuel. The Secretary shall submit to Congress not later than November 16, 1991, a
report on the results of the study.
(c) Safe rail transportation regulations.
--Not later than November 16, 1992, after
considering the results of the study conducted under subsection (b) of this section, the
Secretary shall prescribe amendments to existing regulations that the Secretary considers
appropriate to provide for the safe rail transportation of high-level radioactive waste and
spent nuclear fuel, including trains operated only for transporting high-level radioactive
waste and spent nuclear fuel.
(d) Inspections of motor vehicles transporting certain material.--(1)
Not later than
November 16, 1991, the Secretary shall require by regulation that before each use of a
motor vehicle to transport a highway-route-controlled quantity of radioactive material in
commerce, the vehicle shall be inspected and certified as complying with this chapter and
applicable United States motor carrier safety laws and regulations. The Secretary may
require that the inspection be carried out by an authorized United States Government
inspector or according to appropriate State procedures.
(2)
The Secretary may allow a person, transporting or causing to be transported a
highway-route-controlled quantity of radioactive material, to inspect the motor vehicle
used to transport the material and to certify that the vehicle complies with this chapter.
The
inspector
qualification
requirements
the
Secretary
prescribes
for
an
individual
12
inspecting a motor vehicle apply to an individual conducting an inspection under this
paragraph.
Sec. 5106. Handling criteria.
The Secretary may prescribe criteria for handling hazardous material, including--
(1)
a minimum number of personnel;
(2)
minimum levels of training and qualifications for personnel;
(3)
the kind and frequency of inspections;
(4)
equipment for detecting, warning of, and controlling risks posed by the hazardous
material;
(5)
specifications
for
the
use
of
equipment
and
facilities
used
in
handling
and
transporting the hazardous material; and
(6)
a system of monitoring safety procedures for transporting the hazardous material.
Sec. 5107. Hazmat employee training requirements and grants.
(a) Training requirements.
--The Secretary shall prescribe by regulation requirements
for training that a hazmat employer must give hazmat employees of the employer on the
safe loading, unloading, handling, storing, and transporting of hazardous material and
emergency
preparedness
for
responding
to
an
accident
or
incident
involving
the
transportation of hazardous material. The regulations--
(1)
shall establish the date, as provided by subsection (b) of this section, by which the
training shall be completed; and
(2)
may provide for different training for different classes or categories of hazardous
material and hazmat employees.
(b) Beginning and completing training.
--A hazmat employer shall begin the training of
hazmat employees of the employer not later than 6 months after the Secretary prescribes
the regulations under subsection (a) of this section. The training shall be completed
within a reasonable period of time after--
(1)
6 months after the regulations are prescribed; or
(2)
the date on which an individual is to begin carrying out a duty or power of a hazmat
employee if the individual is employed as a hazmat employee after the 6-month period.
(c) Certification of training.
--After completing the training, each hazmat employer shall
certify, with documentation the Secretary may require by regulation, that the hazmat
13
employees of the employer have received training and have been tested on appropriate
transportation areas of responsibility, including at least one of the following:
(1)
recognizing and understanding the Department of Transportation hazardous material
classification system.
(2)
the use and limitations of the Department hazardous material placarding, labeling,
and marking systems.
(3)
general handling procedures, loading and unloading techniques, and strategies to
reduce
the
probability
of
release
or
damage
during
or
incidental
to
transporting
hazardous material.
(4)
health,
safety,
and
risk
factors
associated
with
hazardous
material
and
the
transportation of hazardous material.
(5)
appropriate emergency response and communication procedures for dealing with an
accident or incident involving hazardous material transportation.
(6)
the use of the Department Emergency Response Guidebook and recognition of its
limitations or the use of equivalent documents and recognition of the limitations of
those documents.
(7)
applicable hazardous material transportation regulations.
(8)
personal protection techniques.
(9)
preparing a shipping document for transporting hazardous material.
(d) Coordination of training requirements.
--In consultation with the Administrator of
the Environmental Protection Agency and the Secretary of Labor, the Secretary shall
ensure that the training requirements prescribed under this section do not conflict with or
duplicate--
(1)
the requirements of regulations the Secretary of Labor prescribes related to hazard
communication, and hazardous waste operations, and emergency response that are
contained in part 1910 of title 29, Code of Federal Regulations; and
(2)
the regulations the Agency prescribes related to worker protection standards for
hazardous waste operations that are contained in part 311 of title 40, Code of Federal
Regulations.
(e) Training grants.
--
(1) In general.
--Subject to the availability of funds under section 5128(c), the Secretary
shall make grants under this subsection--
14
(A)
for training instructors to train hazmat employees; and
(B)
to the extent determined appropriate by the Secretary, for such instructors to train
hazmat employees.
(2) Eligibility.
--A grant under this subsection shall be made to a nonprofit hazmat
employee organization that demonstrates--
(A)
expertise in conducting a training program for hazmat employees; and
(B)
the ability to reach and involve in a training program a target population of
hazmat employees.
(f) Training of certain employees.
--The Secretary shall ensure that maintenance-of-way
employees and railroad signalmen receive general awareness and familiarization training
and safety training pursuant to section 172.704 of title 49, Code of Federal Regulations.
(g) Relationship to other laws.--(1)
Chapter 35 of title 44 does not apply to an activity
of the Secretary under subsections (a)-(d) of this section.
(2)
An action of the Secretary under subsections (a)-(d) of this section and section 5106
is not an exercise, under section 4(b)(1) of the Occupational Safety and Health Act of
1970 (29 U.S.C. 653(b)(1)), of statutory authority to prescribe or enforce standards or
regulations affecting occupational safety or health.
(h) Existing effort.
--No grant under subsection (e) shall supplant or replace existing
employer-provided hazardous materials training efforts or obligations.
Sec. 5108. Registration.
(a) Persons required to file.--(1)
A person shall file a registration statement with the
Secretary under this subsection if the person is transporting or causing to be transported
in commerce any of the following:
(A)
a highway-route-controlled quantity of radioactive material.
(B)
more than 25 kilograms of a Division 1.1, 1.2, or 1.3 explosive material in a motor
vehicle, rail car, or transport container.
(C)
more
than
one
liter
in
each
package of
a
hazardous
material
the
Secretary
designates as extremely toxic by inhalation.
(D)
hazardous material in a bulk packaging, container, or tank, as defined by the
Secretary, if the bulk packaging, container, or tank has a capacity of at least 3,500
gallons or more than 468 cubic feet.
(E)
a shipment of at least 5,000 pounds (except in a bulk packaging) of a class of
15
hazardous material for which placarding of a vehicle, rail car, or freight container is
required under regulations prescribed under this chapter.
(2)
The Secretary may require any of the following persons to file a registration statement
with the Secretary under this subsection:
(A)
a person transporting or causing to be transported hazardous material in commerce
and not required to file a registration statement under paragraph (1) of this subsection.
(B)
a person designing, manufacturing, fabricating, inspecting, marking, maintaining,
reconditioning, repairing, or testing a package, container, or packaging component that
is represented, marked, certified, or sold as qualified for use in transporting hazardous
material in commerce.
(3)
A person required to file a registration statement under this subsection may transport
or cause to be transported, or design, manufacture, fabricate, inspect, mark, maintain,
recondition, repair, or test a package, container packaging component, or container for
use in transporting, hazardous material, only if the person has a statement on file as
required by this subsection.
(4)
The Secretary may waive the filing of a registration statement, or the payment of a
fee, required under this subsection, or both, for any person not domiciled in the United
States who solely offers hazardous materials for transportation to the United States from
a place outside the United States if the country of which such person is a domiciliary does
not require persons domiciled in the United States who solely offer hazardous materials
for
transportation
to
the
foreign
country
from
places
in
the
United
States
to
file
registration statements, or to pay fees, for making such an offer.
(b) Form, contents, and limitation on filings.--(1)
A registration statement under
subsection (a) of this section shall be in the form and contain information the Secretary
requires by regulation. The Secretary may use existing forms of the Department of
Transportation and the Environmental Protection Agency to carry out this subsection.
The statement shall include--
(A)
the name and principal place of business of the registrant;
(B)
a description of each activity the registrant carries out for which filing a statement
under subsection (a) of this section is required; and
(C)
each State in which the person carries out any of the activities.
(2)
A person carrying out more than one activity, or an activity at more than one location,
for which filing is required only has to file one registration statement to comply with
subsection (a) of this section.
(c) Filing.
--Each person required to file a registration statement under subsection (a) shall
16
file the statement in accordance with regulations prescribed by the Secretary.
(d) Simplifying the registration process.
--The Secretary may take necessary action to
simplify the registration process under subsections (a)-(c) of this section and to minimize
the number of applications, documents, and other information a person is required to file
under this chapter and other laws of the United States.
(e)
Cooperation
with
Administrator.
--The
Administrator
of
the
Environmental
Protection Agency shall assist the Secretary in carrying out subsections (a)- (g)(1) and (h)
of this section by providing the Secretary with information the Secretary requests to carry
out the objectives of subsections (a)-(g)(1) and (h).
(f) Availability of statements.
--The Secretary shall make a registration statement filed
under subsection (a) of this section available for inspection by any person for a fee the
Secretary
establishes.
However,
this
subsection
does
not
require
the
release
of
information described in section 552(b) of title 5 or otherwise protected by law from
disclosure to the public.
(g) Fees.--(1)
The Secretary shall establish, impose, and collect from a person required to
file a registration statement under subsection (a) of this section a fee necessary to pay for
the costs of the Secretary in processing the statement.
(2)(A)
In addition to a fee established under paragraph (1) of this subsection, the
Secretary shall establish and impose by regulation and collect an annual fee. Subject to
subparagraph (B) of this paragraph, the fee shall be at least $250 but not more than
$3,000 from each person required to file a registration statement under this section. The
Secretary shall determine the amount of the fee under this paragraph on at least one of the
following:
(i)
gross revenue from transporting hazardous material.
(ii)
the type of hazardous material transported or caused to be transported.
(iii)
the amount of hazardous material transported or caused to be transported.
(iv)
the number of shipments of hazardous material.
(v)
the number of activities that the person carries out for which filing a registration
statement is required under this section.
(vi)
the threat to property, individuals, and the environment from an accident or
incident involving the hazardous material transported or caused to be transported.
(vii)
the percentage of gross revenue derived from transporting hazardous material.
(viii)
the amount to be made available to carry out sections 5108(g)(2), 5115, and
17
5116 of this title.
(ix)
other factors the Secretary considers appropriate.
(B)
The Secretary shall adjust the amount being collected under this paragraph to
reflect any unexpended balance in the account established under section 5116(i) of this
title. However, the Secretary is not required to refund any fee collected under this
paragraph.
(C)
The Secretary shall transfer to the Secretary of the Treasury amounts the Secretary
of Transportation collects under this paragraph for deposit in the Hazardous Materials
Emergency Preparedness Fund established under section 5116(i) of this title.
(3) Fees on exempt persons.
--Notwithstanding subsection (a)(4), the Secretary shall
impose and collect a fee of $25 from a person who is required to register under this
section but who is otherwise exempted by the Secretary from paying any fee under this
section. The fee shall be used to pay the costs incurred by the Secretary in processing
registration statements filed by such persons.
(h) Maintaining proof of filing and payment of fees.
--The Secretary may prescribe
regulations requiring a person required to file a registration statement under subsection
(a) of this section to maintain proof of the filing and payment of fees imposed under
subsection (g) of this section.
(i) Relationship to other laws.--(1)
Chapter 35 of title 44 does not apply to an activity of
the Secretary under subsections (a)-(g)(1) and (h) of this section.
(2)(A)
This section does not apply to an employee of a hazmat employer.
(B)
Subsections (a)-(h) of this section do not apply to a department, agency, or
instrumentality of the United States Government, an authority of a State or
political subdivision of a State, an Indian tribe, or an employee of a department,
agency, instrumentality, or authority carrying out official duties.
Sec. 5109. Motor carrier safety permits.
(a) Requirement.
--A motor carrier may transport or cause to be transported by motor
vehicle in commerce hazardous material only if the carrier holds a safety permit the
Secretary issues under this section authorizing the transportation and keeps a copy of the
permit, or other proof of its existence, in the vehicle. The Secretary shall issue a permit if
the Secretary finds the carrier is fit, willing, and able--
(1)
to provide the transportation to be authorized by the permit;
(2)
to comply with this chapter and regulations the Secretary prescribes to carry out this
chapter; and
18
(3)
to comply with applicable United States motor carrier safety laws and regulations
and applicable minimum financial responsibility laws and regulations.
(b)
Applicable
transportation.
--The
Secretary
shall
prescribe
by
regulation
the
hazardous material and amounts of hazardous material to which this section applies.
However, this section shall apply at least to transportation by a motor carrier, in amounts
the Secretary establishes, of--
(1)
a class A or B explosive;
(2)
liquefied natural gas;
(3)
hazardous material the Secretary designates as extremely toxic by inhalation; and
(4)
a highway-route-controlled quantity of radioactive material, as defined by the
Secretary.
(c) Applications.
--A motor carrier shall file an application with the Secretary for a safety
permit to provide transportation under this section. The Secretary may approve any part
of the application or deny the application. The application shall be under oath and
contain information the Secretary requires by regulation.
(d) Amendments, suspensions, and revocations.--(1)
After notice and an opportunity
for a hearing, the Secretary may amend, suspend, or revoke a safety permit, as provided
by procedures prescribed under subsection (e) of this section, when the Secretary decides
the motor carrier is not complying with a requirement of this chapter, a regulation
prescribed under this chapter, or an applicable United States motor carrier safety law or
regulation or minimum financial responsibility law or regulation.
(2)
If the Secretary decides an imminent hazard exists, the Secretary may amend,
suspend, or revoke a permit before scheduling a hearing.
(e) Procedures.
--The Secretary shall prescribe by regulation--
(1)
application procedures, including form, content, and fees necessary to recover the
complete cost of carrying out this section;
(2)
standards for deciding the duration, terms, and limitations of a safety permit;
(3)
procedures to amend, suspend, or revoke a permit; and
(4)
other procedures the Secretary considers appropriate to carry out this section.
(f) Shipper responsibility.
--A person offering hazardous material for motor vehicle
transportation in commerce may offer the material to a motor carrier only if the carrier
19
has a safety permit issued under this section authorizing the transportation.
(g) Conditions.
--A motor carrier may provide transportation under a safety permit issued
under this section only if the carrier complies with conditions the Secretary finds are
required to protect public safety.
(h) Regulations.
--The Secretary shall prescribe regulations necessary to carry out this
section not later than November 16, 1991.
Sec. 5110. Shipping papers and disclosure.
(a) Providing shipping papers.
--Each person offering for transportation in commerce
hazardous material to which the shipping paper requirements of the Secretary apply shall
provide to the carrier providing the transportation a shipping paper that makes the
disclosures the Secretary prescribes in regulations.
(b) Keeping shipping papers on the vehicle.--(1)
A motor carrier, and the person
offering the hazardous material for transportation if a private motor carrier, shall keep the
shipping paper on the vehicle transporting the material.
(2)
Except as provided in paragraph (1) of this subsection, the shipping paper shall be
kept in a location the Secretary specifies in a motor vehicle, train, vessel, aircraft, or
facility until--
(A)
the hazardous material no longer is in transportation; or
(B)
the documents are made available to a representative of a department, agency, or
instrumentality
of
the
United
States
Government
or
a
State
or
local
authority
responding to an accident or incident involving the motor vehicle, train, vessel, aircraft,
or facility.
(c)
Disclosure
to
emergency
response
authorities.
--When
an
incident
involving
hazardous material being transported in commerce occurs, the person transporting the
material, immediately on request of appropriate emergency response authorities, shall
disclose to the authorities information about the material.
(d) Retention of papers.
--
(1) Shippers.
--The person who provides the shipping paper under this section shall
retain the paper, or an electronic format of it, for a period of 2 years after the date that
the shipping paper is provided to the carrier, with the paper or electronic format to be
accessible through the shipper's principal place of business.
(2) Carriers.
--The carrier required to keep the shipping paper under this section, shall
retain the paper, or an electronic format of it, for a period of 1 year after the date that
the shipping paper is provided to the carrier, with the paper or electronic format to be
20
accessible through the carrier's principal place of business.
(3) Availability to Government agencies.
--Any person required to keep a shipping
paper under this subsection shall, upon request, make it available to a Federal, State,
or local government agency at reasonable times and locations.
Sec. 5111. Rail tank cars. [REPEALED. Pub.L. 109-59, Title VII, § 7111, Aug. 10,
2005, 119 Stat. 1899]
This section was REPEALED.
Sec. 5112. Highway routing of hazardous material.
(a) Application.--(1)
This section applies to a motor vehicle only if the vehicle is
transporting hazardous material in commerce for which placarding of the vehicle is
required under regulations prescribed under this chapter. However, the Secretary by
regulation
may
extend
application
of
this
section
or
a
standard
prescribed
under
subsection (b) of this section to--
(A)
any use of a vehicle under this paragraph to transport any hazardous material in
commerce; and
(B)
any motor vehicle used to transport hazardous material in commerce.
(2)
Except as provided by subsection (d) of this section and section 5125(c) of this title,
each State and Indian tribe may establish, maintain, and enforce--
(A)
designations of specific highway routes over which hazardous material may and
may not be transported by motor vehicle; and
(B)
limitations and requirements related to highway routing.
(b) Standards for States and Indian tribes.--(1)
The Secretary, in consultation with the
States, shall prescribe by regulation standards for States and Indian tribes to use in
carrying out subsection (a) of this section. The standards shall include--
(A)
a requirement that a highway routing designation, limitation, or requirement of a
State or Indian tribe shall enhance public safety in the area subject to the jurisdiction of
the State or tribe and in areas of the United States not subject to the jurisdiction of the
State or tribe and directly affected by the designation, limitation, or requirement;
(B)
minimum procedural requirements to ensure public participation when the State or
Indian tribe is establishing a highway routing designation, limitation, or requirement;
(C)
a requirement that, in establishing a highway routing designation, limitation, or
requirement, a State or Indian tribe consult with appropriate State, local, and tribal
21
officials
having
jurisdiction
over
areas
of
the
United
States
not
subject
to
the
jurisdiction of that State or tribe establishing the designation, limitation, or requirement
and with affected industries;
(D)
a requirement that a highway routing designation, limitation, or requirement of a
State or Indian tribe shall ensure through highway routing for the transportation of
hazardous material between adjacent areas;
(E)
a requirement that a highway routing designation, limitation, or requirement of one
State or Indian tribe affecting the transportation of hazardous material in another State
or tribe may be established, maintained, and enforced by the State or tribe establishing
the designation, limitation, or requirement only if--
(i)
the designation, limitation, or requirement is agreed to by the other State or tribe
within a reasonable period or is approved by the Secretary under subsection (d) of this
section; and
(ii)
the designation, limitation, or requirement is not an unreasonable burden on
commerce;
(F)
a
requirement
that
establishing
a highway
routing
designation,
limitation,
or
requirement of a State or Indian tribe be completed in a timely way;
(G)
a requirement that a highway routing designation, limitation, or requirement of a
State
or
Indian
tribe
provide
reasonable
routes
for
motor
vehicles
transporting
hazardous material to reach terminals, facilities for food, fuel, repairs, and rest, and
places to load and unload hazardous material;
(H)
a requirement that a State be responsible--
(i)
for
ensuring
that
political
subdivisions
of
the
State
comply
with
standards
prescribed
under
this
subsection
in
establishing,
maintaining,
and
enforcing
a
highway routing designation, limitation, or requirement; and
(ii)
for resolving a dispute between political subdivisions; and
(I)
a requirement that, in carrying out subsection (a) of this section, a State or Indian
tribe shall consider--
(i)
population densities;
(ii)
the types of highways;
(iii)
the types and amounts of hazardous material;
(iv)
emergency response capabilities;
22
(v)
the results of consulting with affected persons;
(vi)
exposure and other risk factors;
(vii)
terrain considerations;
(viii)
the continuity of routes;
(ix)
alternative routes;
(x)
the effects on commerce;
(xi)
delays in transportation; and
(xii)
other factors the Secretary considers appropriate.
(2)
The Secretary may not assign a specific weight that a State or Indian tribe shall use
when considering the factors under paragraph (1)(I) of this subsection.
(c) List of route designations.
--In coordination with the States, the Secretary shall
update and publish periodically a list of currently effective hazardous material highway
route designations.
(d) Dispute resolution.--(1)
The Secretary shall prescribe regulations for resolving a
dispute related to through highway routing or to an agreement with a proposed highway
route
designation,
limitation,
or
requirement
between
or
among
States,
political
subdivisions of different States, or Indian tribes.
(2)
A State or Indian tribe involved in a dispute under this subsection may petition the
Secretary to resolve the dispute. The Secretary shall resolve the dispute not later than one
year after receiving the petition. The resolution shall provide the greatest level of
highway safety without being an unreasonable burden on commerce and shall ensure
compliance with standards prescribed under subsection (b) of this section.
(3)(A)
After a petition is filed under this subsection, a civil action about the subject
matter of the dispute may be brought in a court only after the earlier of--
(i)
the day the Secretary issues a final decision; or
(ii)
the last day of the one-year period beginning on the day the Secretary receives the
petition.
(B)
A State or Indian tribe adversely affected by a decision of the Secretary under this
subsection may bring a civil action for judicial review of the decision in an appropriate
district court of the United States not later than 89 days after the day the decision
23
becomes final.
(e) Relationship to other laws.
--This section and regulations prescribed under this
section do not affect sections 31111 and 31113 of this title or section 127 of title 23.
(f) Existing radioactive material routing regulations.
--The Secretary is not required to
amend or again prescribe regulations related to highway routing designations over which
radioactive material may and may not be transported by motor vehicles, and limitations
and requirements related to the routing, that were in effect on November 16, 1990.
Sec. 5113. Unsatisfactory safety rating.
A violation of section 31144(c)(3) shall be considered a violation of this chapter, and
shall be subject to the penalties in sections 5123 and 5124.
Sec. 5114. Air transportation of ionizing radiation material.
(a)
Transporting
in
air
commerce.
--Material
that
emits
ionizing
radiation
spontaneously may be transported on a passenger-carrying aircraft in air commerce (as
defined in section 40102(a) of this title) only if the material is intended for a use in, or
incident
to,
research
or
medical
diagnosis
or
treatment
and
does
not
present
an
unreasonable
hazard
to
health
and
safety
when
being
prepared
for,
and
during,
transportation.
(b) Procedures.
--The Secretary shall prescribe procedures for monitoring and enforcing
regulations prescribed under this section.
(c) Nonapplication.
--This section does not apply to material the Secretary decides does
not pose a significant hazard to health or safety when transported because of its low order
of radioactivity.
Sec. 5115. Training curriculum for the public sector.
(a) In general.
--In coordination with the Director of the Federal Emergency Management
Agency, the Chairman of the Nuclear Regulatory Commission, the Administrator of the
Environmental Protection Agency, the Secretaries of Labor, Energy, and Health and
Human Services, and the Director of the National Institute of Environmental Health
Sciences, and using existing coordinating mechanisms of the National Response Team
and,
for
radioactive
material,
the
Federal
Radiological
Preparedness
Coordinating
Committee, the Secretary of Transportation shall maintain, and update periodically, a
current curriculum of courses necessary to train public sector emergency response and
preparedness teams in matters relating to the transportation of hazardous material. Only
in developing the curriculum, the Secretary of Transportation shall consult with regional
response teams established under the national contingency plan established under section
105 of the Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9605), representatives of commissions established under section 301 of
24
the Emergency Planning and Community Right-To-Know Act of 1986 (42 U.S.C.
11001), persons (including governmental entities) that provide training for responding to
accidents
and
incidents
involving
the
transportation
of
hazardous
material,
and
representatives of persons that respond to those accidents and incidents.
(b) Requirements.
--The curriculum maintained and updated under subsection (a) of this
section--
(1)
shall include--
(A)
a recommended course of study to train public sector employees to respond to an
accident or incident involving the transportation of hazardous material and to plan for
those responses;
(B)
recommended
basic
courses
and
minimum
number
of
hours
of
instruction
necessary for public sector employees to be able to respond safely and efficiently to
an accident or incident involving the transportation of hazardous material and to plan
those responses; and
(C)
appropriate emergency response training and planning programs for public sector
employees
developed
with
Federal
financial
assistance,
including
programs
developed with grants made under section 126(g) of the Superfund Amendments and
Reauthorization Act of 1986 (42 U.S.C. 9660a); and
(2)
may include recommendations on material appropriate for use in a recommended
basic course described in clause (1)(B) of this subsection.
(c) Training on complying with legal requirements.
--A recommended basic course
described in subsection (b)(1)(B) of this section shall provide the training necessary for
public sector employees to comply with--
(1)
regulations
related
to
hazardous
waste
operations
and
emergency
response
contained in part 1910 of title 29, Code of Federal Regulations, prescribed by the
Secretary of Labor;
(2)
regulations related to worker protection standards for hazardous waste operations
contained in part 311 of title 40, Code of Federal Regulations, prescribed by the
Administrator; and
(3)
standards related to emergency response training prescribed by the National Fire
Protection
Association
and
such
other
voluntary
consensus
standard-setting
organizations as the Secretary of Transportation determines appropriate.
(d) Distribution and publication.
--With the National Response Team--
(1)
the Secretary shall distribute the curriculum and any updates to the curriculum to
25
the regional response teams and all committees and commissions established under
section 301 of the Emergency Planning and Community Right-To-Know Act of 1986
(42 U.S.C. 11001); and
(2)
the Secretary may publish and distribute a list of programs and courses maintained
and updated under this section and of any programs utilizing such courses.
Sec. 5116. Planning and training grants, monitoring, and review.
(a) Planning grants.--(1)
The Secretary shall make grants to States and Indian tribes--
(A)
to develop, improve, and carry out emergency plans under the Emergency Planning
and Community Right-To-Know Act of 1986 (42 U.S.C. 11001 et seq.), including
ascertaining flow patterns of hazardous material on lands under the jurisdiction of a
State or Indian tribe, and between lands under the jurisdiction of a State or Indian tribe
and lands of another State or Indian tribe; and
(B)
to decide on the need for a regional hazardous material emergency response team.
(2)
The Secretary may make a grant to a State or Indian tribe under paragraph (1) of this
subsection in a fiscal year only if--
(A)
the State or Indian tribe certifies that the total amount the State or Indian tribe
expends (except amounts of the United States Government) to develop, improve, and
carry out emergency plans under the Act will at least equal the average level of
expenditure for the last 5 fiscal years; and
(B)
the State agrees to make available at least 75 percent of the amount of the grant
under paragraph (1) of this subsection in the fiscal year to local emergency planning
committees established under section 301(c) of the Act (42 U.S.C. 11001(c)) to develop
emergency plans under the Act.
(3)
A State or Indian tribe receiving a grant under this subsection shall ensure that
planning under the grant is coordinated with emergency planning conducted by adjacent
States and Indian tribes.
(b) Training grants.--(1)
The Secretary shall make grants to States and Indian tribes to
train public sector employees to respond to accidents and incidents involving hazardous
material.
(2)
The Secretary make a grant under paragraph (1) of this subsection in a fiscal year--
(A)
to a State or Indian tribe only if the State or tribe certifies that the total amount the
State or tribe expends (except amounts of the Government) to train public sector
employees to respond to an accident or incident involving hazardous material will at
least equal the average level of expenditure for the last 2 fiscal years;
26
(B)
to a State or Indian tribe only if the State or tribe makes an agreement with the
Secretary that the State or tribe will use in that fiscal year, for training public sector
employees to respond to an accident or incident involving hazardous material--
(i)
a course developed or identified under section 5115 of this title; or
(ii)
another course the Secretary decides is consistent with the objectives of this
section; and
(C)
to a State only if the State agrees to make available at least 75 percent of the
amount of the grant under paragraph (1) of this subsection in the fiscal year for training
public sector employees a political subdivision of the State employs or uses.
(3)
A grant under this subsection may be used--
(A)
to pay--
(i)
the tuition costs of public sector employees being trained;
(ii)
travel expenses of those employees to and from the training facility;
(iii)
room and board of those employees when at the training facility; and
(iv)
travel expenses of individuals providing the training;
(B)
by the State, political subdivision, or Indian tribe to provide the training; and
(C)
to make an agreement the Secretary of Transportation approves authorizing a
person (including an authority of a State or political subdivision of a State or Indian
tribe) to provide the training--
(i)
if the agreement allows the Secretary and the State or tribe to conduct random
examinations, inspections, and audits of the training without prior notice; and
(ii)
if the State or tribe conducts at least one on-site observation of the training each
year.
(4)
The Secretary shall allocate amounts made available for grants under this subsection
for a fiscal year among eligible States and Indian tribes based on the needs of the States
and tribes for emergency response training. In making a decision about those needs, the
Secretary shall consider--
(A)
the number of hazardous material facilities in the State or on land under the
jurisdiction of the tribe;
(B)
the types and amounts of hazardous material transported in the State or on that land;
27
(C)
whether the State or tribe imposes and collects a fee on transporting hazardous
material;
(D)
whether the fee is used only to carry out a purpose related to transporting hazardous
material; and
(E)
other factors the Secretary decides are appropriate to carry out this subsection.
(c) Compliance with certain law.
--The Secretary may make a grant to a State under this
section in a fiscal year only if the State certifies that the State complies with sections 301
and 303 of the Emergency Planning and Community Right-To-Know Act of 1986 (42
U.S.C. 11001, 11003).
(d) Applications.
--A State or Indian tribe interested in receiving a grant under this
section shall submit an application to the Secretary. The application must be submitted at
the time, and contain information, the Secretary requires by regulation to carry out the
objectives of this section.
(e) Government's share of costs.
--A grant under this section is for 80 percent of the cost
the State or Indian tribe incurs in the fiscal year to carry out the activity for which the
grant is made. Amounts of the State or tribe under subsections (a)(2)(A) and (b)(2)(A) of
this section are not part of the non-Government share under this subsection.
(f)
Monitoring
and
technical
assistance.
--In
coordination
with
the
Secretaries
of
Transportation and Energy, Administrator of the Environmental Protection Agency, and
Director of the National Institute of Environmental Health Sciences, the Director of the
Federal Emergency Management Agency shall monitor public sector emergency response
planning
and
training
for
an
accident
or
incident
involving
hazardous
material.
Considering the results of the monitoring, the Secretaries, Administrator, and Directors
each shall provide technical assistance to a State, political subdivision of a State, or
Indian tribe for carrying out emergency response training and planning for an accident or
incident involving hazardous material and shall coordinate the assistance using the
existing coordinating mechanisms of the National Response Team and, for radioactive
material, the Federal Radiological Preparedness Coordinating Committee.
(g)
Delegation
of
authority.
--To
minimize
administrative
costs
and
to
coordinate
Federal financial assistance for emergency response training and planning, the Secretary
may delegate to the Directors of the Federal Emergency Management Agency and
National
Institute
of
Environmental
Health
Sciences,
Chairman
of
the
Nuclear
Regulatory Commission, Administrator of the Environmental Protection Agency, and
Secretaries of Labor and Energy any of the following:
(1)
authority to receive applications for grants under this section.
(2)
authority to review applications for technical compliance with this section.
28
(3)
authority to review applications to recommend approval or disapproval.
(4)
any other ministerial duty associated with grants under this section.
(h) Minimizing duplication of effort and expenses.
--The Secretaries of Transportation,
Labor, and Energy, Directors of the Federal Emergency Management Agency and
National
Institute
of
Environmental
Health
Sciences,
Chairman
of
the
Nuclear
Regulatory Commission, and Administrator of the Environmental Protection Agency
shall review periodically, with the head of each department, agency, or instrumentality of
the Government, all emergency response and preparedness training programs of that
department, agency, or instrumentality to minimize duplication of effort and expense of
the department, agency, or instrumentality in carrying out the programs and shall take
necessary action to minimize duplication.
(i) Annual registration fee account and its uses.
--The Secretary of the Treasury shall
establish
an
account
in
the
Treasury
(to
be
known
as
the
"Hazardous
Materials
Emergency Preparedness Fund") into which the Secretary of the Treasury shall deposit
amounts the Secretary of Transportation transfers to the Secretary of the Treasury under
section 5108(g)(2)(C) of this title. Without further appropriation, amounts in the account
are available--
(1)
to make grants under this section;
(2)
to monitor and provide technical assistance under subsection (f) of this section;
(3)
to publish and distribute an emergency response guide; and
(4)
to pay administrative costs of carrying out this section and sections 5108(g)(2) and
5115 of this title, except that not more than 2 percent of the amounts made available
from the account in a fiscal year may be used to pay those costs.
(j) Supplemental training grants.--
(1)
In order to further the purposes of subsection (b), the Secretary shall, subject to the
availability of funds, make grants to national nonprofit employee organizations engaged
solely in fighting fires for the purpose of training instructors to conduct hazardous
materials response training programs for individuals with statutory responsibility to
respond to hazardous materials accidents and incidents.
(2)
For the purposes of this subsection the Secretary, after consultation with interested
organizations, shall--
(A)
identify regions or locations in which fire departments or other organizations
which provide emergency response to hazardous materials transportation accidents
and incidents are in need of hazardous materials training; and
29
(B)
prioritize such needs and develop a means for identifying additional specific
training needs.
(3)
Funds granted to an organization under this subsection shall only be used--
(A)
to train instructors to conduct hazardous materials response training programs;
(B)
to purchase training equipment used exclusively to train instructors to conduct
such training programs; and
(C)
to disseminate such information and materials as are necessary for the conduct of
such training programs.
(4)
The Secretary may only make a grant to an organization under this subsection in a
fiscal year if the organization enters into an agreement with the Secretary to train
instructors to conduct hazardous materials response training programs in such fiscal
year that will use--
(A)
a course or courses developed or identified under section 5115 of this title; or
(B)
other courses which the Secretary determines are consistent with the objectives of
this subsection;
for training individuals with statutory responsibility to respond to accidents and
incidents involving hazardous materials. Such agreement also shall provide that
training courses shall be open to all such individuals on a nondiscriminatory basis.
(5)
The Secretary may impose such additional terms and conditions on grants to be
made under this subsection as the Secretary determines are necessary to protect the
interests of the United States and to carry out the objectives of this subsection.
(k) Reports.
--The Secretary shall submit annually to the Committee on Transportation
and Infrastructure of the House of Representatives and the Committee on Commerce,
Science, and Transportation of the Senate and make available to the public information
on the allocation and uses of the planning grants allocated under subsection (a), training
grants under subsection (b), and grants under subsection (j) of this section and under
section 5107. The report shall identify the ultimate recipients of training grants and
include a detailed accounting of all grant expenditures by grant recipients, the number of
persons trained under the grant programs, and an evaluation of the efficacy of training
programs carried out.
Sec. 5117. Special permits and exclusions.
(a) Authority to issue special permits.--(1)
As provided under procedures prescribed by
regulation, the Secretary may issue, modify, or terminate a special permit authorizing a
30
variance from this chapter or a regulation prescribed under section 5103(b), 5104, 5110,
or 5112 of this title to a person performing a function regulated by the Secretary under
section 5103(b)(1) in a way that achieves a safety level--
(A)
at least equal to the safety level required under this chapter; or
(B)
consistent with the public interest and this chapter, if a required safety level does
not exist.
(2)
A special permit issued under this section shall be effective for an initial period of not
more than 2 years and may be renewed by the Secretary upon application for successive
periods of not more than 4 years each or, in the case of a special permit relating to section
5112, for an additional period of not more than 2 years.
(b) Applications.
--When applying for a special permit or renewal of a special permit
under this section, the person must provide a safety analysis prescribed by the Secretary
that justifies the special permit. The Secretary shall publish in the Federal Register notice
that an application for a special permit has been filed and shall give the public an
opportunity
to
inspect
the
safety
analysis
and
comment
on
the
application.
This
subsection does not require the release of information protected by law from public
disclosure.
(c) Applications to be dealt with promptly.
--The Secretary shall issue or renew the
special permit for which an application was filed or deny such issuance or renewal within
180 days after the first day of the month following the date of the filing of such
application, or the Secretary shall publish a statement in the Federal Register of the
reason why the Secretary's decision on the special permit is delayed, along with an
estimate of the additional time necessary before the decision is made.
(d) Exclusions.--(1)
The Secretary shall exclude, in any part, from this chapter and
regulations prescribed under this chapter--
(A)
a public vessel (as defined in section 2101 of title 46);
(B)
a vessel exempted under section 3702 of title 46 from chapter 37 of title 46; and
(C)
a vessel to the extent it is regulated under the Ports and Waterways Safety Act of
1972 (33 U.S.C. 1221 et seq.).
(2)
This chapter and regulations prescribed under this chapter do not prohibit--
(A)
or regulate transportation of a firearm (as defined in section 232 of title 18), or
ammunition for a firearm, by an individual for personal use; or
(B)
transportation of a firearm or ammunition in commerce.
31
(e) Limitation on authority.
--Unless the Secretary decides that an emergency exists, a
special permit or renewal granted under this section is the only way a person subject to
this chapter may be granted a variance from this chapter.
Sec. 5118. Inspectors. [REPEALED. Pub.L. 109-59, Title VII, § 5117(h), Aug. 10,
2005, 119 Stat. 1901]
This section was REPEALED.
Sec. 5119. Uniform forms and procedures.
(a) Establishment of working group.
--The Secretary shall establish a working group of
State and local government officials, including representatives of the National Governors'
Association, the National Association of Counties, the National League of Cities, the
United States Conference of Mayors, the National Conference of State Legislatures, and
the Alliance for Uniform Hazmat Transportation Procedures.
(b) Purpose of working group.
--The purpose of the working group shall be to develop
uniform forms and procedures for a State to register, and to issue permits to, persons that
transport, or cause to be transported, hazardous material by motor vehicle in the State.
(c) Limitation on working group.
--The working group may not propose to define or
limit the amount of a fee a State may impose or collect.
(d) Procedure.
--The Secretary shall develop a procedure for the working group to
employ in developing recommendations for the Secretary to harmonize existing State
registration and permit laws and regulations relating to the transportation of hazardous
materials, with special attention paid to each State's unique safety concerns and interest in
maintaining strong hazmat safety standards.
(e) Report of working group.
--Not later than 18 months after the date of enactment of
this subsection, the working group shall transmit to the Secretary a report containing
recommendations for establishing uniform forms and procedures described in subsection
(b).
(f) Regulations.
--Not later than 18 months after the date the working group's report is
delivered
to
the
Secretary,
the
Secretary
shall
issue
regulations
to
carry
out
such
recommendations of the working group as the Secretary considers appropriate. In
developing such regulations, the Secretary shall consider the State needs associated with
the transition to and implementation of a uniform forms and procedures program.
(g) Limitation on statutory construction.
--Nothing in this section shall be construed as
prohibiting a State from voluntarily participating in a program of uniform forms and
procedures until such time as the Secretary issues regulations under subsection (f).
Sec. 5120. International uniformity of standards and requirements.
(a) Participation in international forums.
--Subject to guidance and direction from the
32
Secretary of State, the Secretary of Transportation shall participate in international
forums
that
establish
or
recommend
mandatory
standards
and
requirements
for
transporting hazardous material in international commerce.
(b) Consultation.
--The Secretary may consult with interested authorities to ensure that,
to the extent practicable, regulations the Secretary prescribes under sections 5103(b),
5104, 5110, and 5112 of this title are consistent with standards and requirements related
to transporting hazardous material that international authorities adopt.
(c) Differences with international standards and requirements.
--This section--
(1)
does not require the Secretary to prescribe a standard or requirement identical to a
standard or requirement adopted by an international authority if the Secretary decides
the standard or requirement is unnecessary or unsafe; and
(2)
does not prohibit the Secretary from prescribing a safety standard or requirement
more stringent than a standard or requirement adopted by an international authority if
the Secretary decides the standard or requirement is necessary in the public interest.
Sec. 5121. Administrative.
(a) General authority.
--To carry out this chapter, the Secretary may investigate, conduct
tests, make reports, issue subpoenas, conduct hearings, require the production of records
and property, take depositions, and conduct research, development, demonstration, and
training activities. Except as provided in subsections (c) and (d), after notice and an
opportunity for a hearing, the Secretary may issue an order requiring compliance with
this chapter or a regulation prescribed, or an order, special permit, or approval issued,
under this chapter.
(b) Records, reports, and information.
--A person subject to this chapter shall--
(1)
maintain records and property, make reports, and provide information the Secretary
by regulation or order requires; and
(2)
make the records, property, reports, and information available for inspection when
the Secretary undertakes an investigation or makes a request.
(c) Inspections and investigations.
--
(1) In general.
--A designated officer, employee, or agent of the Secretary--
(A)
may inspect and investigate, at a reasonable time and in a reasonable manner,
records and property relating to a function described in section 5103(b)(1);
(B)
except in the case of packaging immediately adjacent to its hazardous material
contents, may gain access to, open, and examine a package offered for, or in,
transportation when the officer, employee, or agent has an objectively reasonable and
33
articulable belief that the package may contain a hazardous material;
(C)
may remove from transportation a package or related packages in a shipment
offered for or in transportation for which--
(i)
such officer, employee, or agent has an objectively reasonable and articulable
belief that the package may pose an imminent hazard; and
(ii)
such officer, employee, or agent contemporaneously documents such belief in
accordance with procedures set forth in guidance or regulations prescribed under
subsection (e);
(D)
may gather information from the offeror, carrier, packaging manufacturer or
tester, or other person responsible for the package, to ascertain the nature and hazards
of the contents of the package;
(E)
as necessary, under terms and conditions specified by the Secretary, may order
the offeror, carrier, packaging manufacturer or tester, or other person responsible for
the package to have the package transported to, opened, and the contents examined
and analyzed, at a facility appropriate for the conduct of such examination and
analysis; and
(F)
when safety might otherwise be compromised, may authorize properly qualified
personnel to assist in the activities conducted under this subsection.
(2) Display of credentials.
--An officer, employee, or agent acting under this subsection
shall display proper credentials when requested.
(3) Safe resumption of transportation.
--In instances when, as a result of an inspection
or investigation under this subsection, an imminent hazard is not found to exist, the
Secretary, in accordance with procedures set forth in regulations prescribed under
subsection (e), shall assist--
(A)
in the safe and prompt resumption of transportation of the package concerned; or
(B)
in any case in which the hazardous material being transported is perishable, in the
safe
and
expeditious
resumption
of
transportation
of
the
perishable
hazardous
material.
(d) Emergency orders.
--
(1) In general.
--If, upon inspection, investigation, testing, or research, the Secretary
determines that a violation of a provision of this chapter, or a regulation prescribed
under this chapter, or an unsafe condition or practice, constitutes or is causing an
imminent
hazard,
the
Secretary
may
issue
or
impose
emergency
restrictions,
prohibitions, recalls, or out-of-service orders, without notice or an opportunity for a
34
hearing, but only to the extent necessary to abate the imminent hazard.
(2) Written orders.
--The action of the Secretary under paragraph (1) shall be in a
written emergency order that--
(A)
describes the violation, condition, or practice that constitutes or is causing the
imminent hazard;
(B)
states the restrictions, prohibitions, recalls, or out-of-service orders issued or
imposed; and
(C)
describes the standards and procedures for obtaining relief from the order.
(3) Opportunity for review.
--After taking action under paragraph (1), the Secretary
shall provide for review of the action under section 554 of title 5 if a petition for review
is filed within 20 calendar days of the date of issuance of the order for the action.
(4) Expiration of effectiveness of order.
--If a petition for review of an action is filed
under paragraph (3) and the review under that paragraph is not completed by the end of
the 30-day period beginning on the date the petition is filed, the action shall cease to be
effective at the end of such period unless the Secretary determines, in writing, that the
imminent hazard providing a basis for the action continues to exist.
(5) Out-of-service order defined.
--In this subsection, the term "out-of-service order"
means a requirement that an aircraft, vessel, motor vehicle, train, railcar, locomotive,
other vehicle, transport unit, transport vehicle, freight container, potable tank, or other
package not be moved until specified conditions have been met.
(e) Regulations.
--
(1) Temporary regulations.
--Not later than 60 days after the date of enactment of the
Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005,
the Secretary shall issue temporary regulations to carry out subsections (c) and (d). The
temporary regulations shall expire on the date of issuance of the regulations under
paragraph (2).
(2) Final regulations.
--Not later than 1 year after such date of enactment, the Secretary
shall
issue
regulations
to
carry
out
subsections
(c)
and
(d)
in
accordance
with
subchapter II of chapter 5 of title 5.
(f) Facility, staff, and reporting system on risks, emergencies, and actions. -- (1)
The
Secretary shall--
(A)
maintain a facility and technical staff sufficient to provide, within the United States
Government,
the
capability
of
evaluating
a
risk
related
to
the
transportation
of
hazardous material and material alleged to be hazardous;
35
(B)
maintain a central reporting system and information center capable of providing
information and advice to law enforcement and firefighting personnel, other interested
individuals,
and
officers
and
employees
of
the
Government
and
State
and
local
governments on meeting an emergency related to the transportation of hazardous
material; and
(C)
conduct a continuous review on all aspects of transporting hazardous material to
decide on and take appropriate actions to ensure safe transportation of hazardous
material.
(2)
Paragraph (1) of this subsection does not prevent the Secretary from making a
contract with a private entity for use of a supplemental reporting system and information
center operated and maintained by the contractor.
(g) Grants and cooperative agreements.
--The Secretary may enter into grants and
cooperative agreements with a person, agency, or instrumentality of the United States, a
unit of State or local government, an Indian tribe, a foreign government (in coordination
with the Department of State), an educational institution, or other appropriate entity--
(1)
to expand risk assessment and emergency response capabilities with respect to the
security of transportation of hazardous material;
(2)
to enhance emergency communications capacity as determined necessary by the
Secretary, including the use of integrated, interoperable emergency communications
technologies where appropriate;
(3)
to conduct research, development, demonstration, risk assessment, and emergency
response planning and training activities; or
(4)
to otherwise carry out this chapter.
(h) Report.
--The Secretary shall, once every 2 years, prepare and transmit to the
Committee on Transportation and Infrastructure of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the Senate a comprehensive
report on the transportation of hazardous materials during the preceding 2 calendar years.
The report shall include--
(1)
a statistical compilation of accidents and casualties related to the transportation of
hazardous material;
(2)
a list and summary of applicable Government regulations, criteria, orders, and
exemptions;
(3)
a summary of the basis for each exemption;
(4)
an evaluation of the effectiveness of enforcement activities relating to a function
36
regulated by the Secretary under section 5103(b)(1) and the degree of voluntary
compliance with regulations;
(5)
a summary of outstanding problems in carrying out this chapter in order of priority;
and
(6)
recommendations for appropriate legislation.
Sec. 5122. Enforcement.
(a) General.
--At the request of the Secretary, the Attorney General may bring a civil
action in an appropriate district court of the United States to enforce this chapter or a
regulation prescribed or order, special permit, or approval issued under this chapter. The
court may award appropriate relief, including a temporary or permanent injunction,
punitive
damages,
and
assessment
of
civil
penalties
considering
the
same
penalty
amounts and factors as prescribed for the Secretary in an administrative case under
section 5123.
(b) Imminent hazards.--(1)
If the Secretary has reason to believe that an imminent
hazard exists, the Secretary may bring a civil action in an appropriate district court of the
United States--
(A)
to suspend or restrict the transportation of the hazardous material responsible for
the hazard; or
(B)
to eliminate or mitigate the hazard.
(2)
On request of the Secretary, the Attorney General shall bring an action under
paragraph (1) of this subsection.
(c) Withholding of clearance.--(1)
If any owner, operator, or individual in charge of a
vessel is liable for a civil penalty under section 5123 of this title or for a fine under
section 5124 of this title, or if reasonable cause exists to believe that such owner,
operator, or individual in charge may be subject to such a civil penalty or fine, the
Secretary of the Treasury, upon the request of the Secretary, shall with respect to such
vessel refuse or revoke any clearance required by section 4197 of the Revised Statutes of
the United States (46 App. U.S.C. 91).
(2)
Clearance refused or revoked under this subsection may be granted upon the filing of
a bond or other surety satisfactory to the Secretary.
Sec. 5123. Civil penalty.
(a) Penalty.--(1)
A person that knowingly violates this chapter or a regulation, order,
37
special permit, or approval issued under this chapter is liable to the United States
Government for a civil penalty of at least $250 but not more than $50,000 for each
violation. A person acts knowingly when--
(A)
the person has actual knowledge of the facts giving rise to the violation; or
(B)
a reasonable person acting in the circumstances and exercising reasonable care
would have that knowledge.
(2)
If the Secretary finds that a violation under paragraph (1) results in death, serious
illness, or severe injury to any person or substantial destruction of property, the Secretary
may increase the amount of the civil penalty for such violation to not more than
$100,000.
(3)
If the violation is related to training, paragraph (1) shall be applied by substituting
'$450' for '$250'.
(4)
A separate violation occurs for each day the violation, committed by a person that
transports or causes to be transported hazardous material, continues.
(b) Hearing requirement.
--The Secretary may find that a person has violated this
chapter or a regulation prescribed or order, special permit, or approval issued under this
chapter only after notice and an opportunity for a hearing. The Secretary shall impose a
penalty under this section by giving the person written notice of the amount of the
penalty.
(c) Penalty considerations.
--In determining the amount of a civil penalty under this
section, the Secretary shall consider--
(1)
the nature, circumstances, extent, and gravity of the violation;
(2)
with respect to the violator, the degree of culpability, any history of prior violations,
the ability to pay, and any effect on the ability to continue to do business; and
(3)
other matters that justice requires.
(d) Civil actions to collect.
--The Attorney General may bring a civil action in an
appropriate district court of the United States to collect a civil penalty under this section
and any accrued interest on the civil penalty as calculated in accordance with section
1005 of the Oil Pollution Act of 1990 (33 U.S.C. 2705). In the civil action, the amount
and appropriateness of the civil penalty shall not be subject to review.
(e) Compromise.
--The Secretary may compromise the amount of a civil penalty imposed
under this section before referral to the Attorney General.
(f) Setoff.
--The Government may deduct the amount of a civil penalty imposed or
38
compromised under this section from amounts it owes the person liable for the penalty.
(g) Depositing amounts collected.
--Amounts collected under this section shall be
deposited in the Treasury as miscellaneous receipts.
Sec. 5124. Criminal penalty.
(a) In general.
--A person knowingly violating section 5104(b) or willfully or recklessly
violating this chapter or a regulation, order, special permit, or approval issued under this
chapter shall be fined under title 18, imprisoned for not more than 5 years, or both;
except that the maximum amount of imprisonment shall be 10 years in any case in which
the violation involves the release of a hazardous material that results in death or bodily
injury to any person.
(b) Knowing violations.
--For purposes of this section--
(1)
a person acts knowingly when--
(A)
the person has actual knowledge of the facts giving rise to the violation; or
(B)
a reasonable person acting in the circumstances and exercising reasonable care
would have that knowledge; and
(2)
knowledge of the existence of a statutory provision, or a regulation or a requirement
required by the Secretary, is not an element of an offense under this section.
(c) Willful violations.
--For purposes of this section, a person acts willfully when--
(1)
the person has knowledge of the facts giving rise to the violation; and
(2)
the person has knowledge that the conduct was unlawful.
(d) Reckless violations.
--For purposes of this section, a person acts recklessly when the
person displays a deliberate indifference or conscious disregard to the consequences of
that person's conduct.
Sec. 5125. Preemption.
(a) General.
--Except as provided in subsections (b), (c), and (e) of this section and unless
authorized by another law of the United States, a requirement of a State, political
subdivision of a State, or Indian tribe is preempted if--
(1)
complying with a requirement of the State, political subdivision, or tribe and a
requirement of this chapter, a regulation prescribed under this chapter, or a hazardous
materials transportation security regulation or directive issued by the Secretary of
Homeland Security is not possible; or
39
(2)
the requirement of the State, political subdivision, or tribe, as applied or enforced, is
an obstacle to accomplishing and carrying out this chapter, a regulation prescribed
under this chapter, or a hazardous materials
transportation
security regulation or
directive issued by the Secretary of Homeland Security.
(b) Substantive differences.--(1)
Except as provided in subsection (c) of this section and
unless authorized by another law of the United States, a law, regulation, order, or other
requirement of a State, political subdivision of a State, or Indian tribe about any of the
following subjects, that is not substantively the same as a provision of this chapter, a
regulation prescribed under this chapter, or a hazardous materials transportation security
regulation or directive issued by the Secretary of Homeland Security, is preempted:
(A)
the designation, description, and classification of hazardous material.
(B)
the packing, repacking, handling, labeling, marking, and placarding of hazardous
material.
(C)
the preparation, execution, and use of shipping documents related to hazardous
material and requirements related to the number, contents, and placement of those
documents.
(D)
the written notification, recording, and reporting of the unintentional release in
transportation of hazardous material.
(E)
the
designing,
manufacturing,
fabricating,
inspecting,
marking,
maintaining,
reconditioning, repairing, or testing a package, container, or packaging component that
is represented, marked, certified, or sold as qualified for use in transporting hazardous
material in commerce.
(2)
If the Secretary prescribes or has prescribed under section 5103(b), 5104, 5110, or
5112 of this title or prior comparable provision of law a regulation or standard related to a
subject referred to in paragraph (1) of this subsection, a State, political subdivision of a
State, or Indian tribe may prescribe, issue, maintain, and enforce only a law, regulation,
standard, or order about the subject that is substantively the same as a provision of this
chapter or a regulation prescribed or order issued under this chapter. The Secretary shall
decide on and publish in the Federal Register the effective date of section 5103(b) of this
title for any regulation or standard about any of those subjects that the Secretary
prescribes. The effective date may not be earlier than 90 days after the Secretary
prescribes the regulation or standard nor later than the last day of the 2-year period
beginning on the date the Secretary prescribes the regulation or standard.
(3)
If a State, political subdivision of a State, or Indian tribe imposes a fine or penalty the
Secretary decides is appropriate for a violation related to a subject referred to in
paragraph (1) of this subsection, an additional fine or penalty may not be imposed by any
other authority.
40
(c) Compliance with section 5112(b) regulations.--(1)
Except as provided in paragraph
(2) of this subsection, after the last day of the 2-year period beginning on the date a
regulation is prescribed under section 5112(b) of this title, a State or Indian tribe may
establish, maintain, or enforce a highway routing designation over which hazardous
material may or may not be transported by motor vehicles, or a limitation or requirement
related to highway routing, only if the designation, limitation, or requirement complies
with section 5112(b).
(2)(A)
A highway routing designation, limitation, or requirement established before the
date a regulation is prescribed under section 5112(b) of this title does not have to comply
with section 5112(b)(1)(B), (C), and (F).
(B)
This subsection and section 5112 of this title do not require a State or Indian tribe to
comply with section 5112(b)(1)(I) if the highway routing designation, limitation, or
requirement was established before November 16, 1990.
(C)
The Secretary may allow a highway routing designation, limitation, or requirement to
continue in effect until a dispute related to the designation, limitation, or requirement is
resolved under section 5112(d) of this title.
(d) Decisions on preemption.--(1)
A person (including a State, political subdivision of a
State, or Indian tribe) directly affected by a requirement of a State, political subdivision,
or tribe may apply to the Secretary, as provided by regulations prescribed by the
Secretary, for a decision on whether the requirement is preempted by subsection (a),
(b)(1), or (c) of this section or section 5119(e). The Secretary shall publish notice of the
application in the Federal Register. The Secretary shall issue a decision on an application
for a determination within 180 days after the date of the publication of the notice of
having received such application, or the Secretary shall publish a statement in the Federal
Register of the reason why the Secretary's decision on the application is delayed, along
with an estimate of the additional time necessary before the decision is made. After
notice is published, an applicant may not seek judicial relief on the same or substantially
the same issue until the Secretary takes final action on the application or until 180 days
after the application is filed, whichever occurs first.
(2)
After consulting with States, political subdivisions of States, and Indian tribes, the
Secretary shall prescribe regulations for carrying out paragraph (1) of this subsection.
(3)
Subsection (a) of this section does not prevent a State, political subdivision of a State,
or Indian tribe, or another person directly affected by a requirement, from seeking a
decision on preemption from a court of competent jurisdiction instead of applying to the
Secretary under paragraph (1) of this subsection.
(e) Waiver of preemption.
--A State, political subdivision of a State, or Indian tribe may
apply to the Secretary for a waiver of preemption of a requirement the State, political
subdivision, or tribe acknowledges is preempted by subsection (a), (b)(1), or (c) of this
41
section or section 5119(b). Under a procedure the Secretary prescribes by regulation, the
Secretary may waive preemption on deciding the requirement--
(1)
provides the public at least as much protection as do requirements of this chapter
and regulations prescribed under this chapter; and
(2)
is not an unreasonable burden on commerce.
(f) Fees.--(1)
A State, political subdivision of a State, or Indian tribe may impose a fee
related to transporting hazardous material only if the fee is fair and used for a purpose
related
to
transporting
hazardous
material,
including
enforcement
and
planning,
developing, and maintaining a capability for emergency response.
(2)
A State or political subdivision thereof or Indian tribe that levies a fee in connection
with the transportation of hazardous materials shall, upon the Secretary's request, report
to the Secretary on--
(A)
the basis on which the fee is levied upon persons involved in such transportation;
(B)
the purposes for which the revenues from the fee are used;
(C)
the annual total amount of the revenues collected from the fee; and
(D)
such other matters as the Secretary requests.
(g)
Application
of
each
preemption
standard.
--Each
standard
for
preemption
in
subsection (b), (c)(1), or (d), and in section 5119(b), is independent in its application to a
requirement of a State, political subdivision of a State, or Indian tribe.
(h) Non-Federal enforcement standards.
--This section does not apply to any procedure,
penalty, required mental state, or other standard utilized by a State, political subdivision
of a State, or Indian tribe to enforce a requirement applicable to the transportation of
hazardous material.
Sec. 5126. Relationship to other laws.
(a) Contracts.
--A person under contract with a department, agency, or instrumentality of
the United States Government that transports hazardous material, or causes hazardous
material
to
be
transported,
or
designs,
manufactures,
fabricates,
inspects,
marks,
maintains, reconditions, repairs, or tests a package, container, or packaging component
that is represented as qualified for use in transporting hazardous material shall comply
with this chapter, regulations prescribed and orders issued under this chapter, and all
other requirements of the Government, State and local governments, and Indian tribes
(except a requirement preempted by a law of the United States) in the same way and to
the
same
extent
that
any
person
engaging
in
that
transportation,
designing,
manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing,
42
or testing that is in or affects commerce must comply with the provision, regulation,
order, or requirement.
(b) Nonapplication.
--This chapter does not apply to--
(1)
a pipeline subject to regulation under chapter 601 of this title; or
(2)
any matter that is subject to the postal laws and regulations of the United States
under this chapter or title 18 or 39.
Sec. 5127. Judicial review.
(a) Filing and venue.
--Except as provided in section 20114(c), a person adversely
affected or aggrieved by a final action of the Secretary under this chapter may petition for
review of the final action in the United States Court of Appeals for the District of
Columbia or in the court of appeals for the United States for the circuit in which the
person resides or has its principal place of business. The petition must be filed not more
than 60 days after the Secretary's action becomes final.
(b) Judicial procedures.
--When a petition is filed under subsection (a), the clerk of the
court immediately shall send a copy of the petition to the Secretary. The Secretary shall
file with the court a record of any proceeding in which the final action was issued, as
provided in section 2112 of title 28.
(c) Authority of court.
--The court has exclusive jurisdiction, as provided in subchapter
II of chapter 5 of title 5, to affirm or set aside any part of the Secretary's final action and
may order the Secretary to conduct further proceedings.
(d) Requirement for prior objection.
--In reviewing a final action under this section, the
court may consider an objection to a final action of the Secretary only if the objection
was made in the course of a proceeding or review conducted by the Secretary or if there
was a reasonable ground for not making the objection in the proceeding.
§ 5128. Authorizations of
appropriations
(a) In general.
--In order to carry out this chapter (except sections 5107(e), 5108(g)(2),
5113, 5115, 5116, and 5119), the following amounts are authorized to be appropriated to
the Secretary:
(1)
For fiscal year 2005, $24,940,000.
(2)
For fiscal year 2006, $29,000,000.
(3)
For fiscal year 2007, $30,000,000.
(4)
For fiscal year 2008, $30,000,000.
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(b) Hazardous materials emergency preparedness fund.
--There shall be available to
the Secretary, from the account established pursuant to section 5116(i), for each of fiscal
years 2005 through 2008 the following:
(1)
To carry out section 5115, $200,000.
(2)
To carry out sections 5116(a) and (b), $21,800,000 to be allocated as follows:
(A)
$5,000,000 to carry out section 5116(a).
(B)
$7,800,000 to carry out section 5116(b).
(C)
Of the amount provided for by this paragraph for a fiscal year in excess of the
suballocations in subparagraphs (A) and (B)--
(i)
35 percent shall be used to carry out section 5116(a); and
(ii)
65 percent shall be used to carry out section 5116(b),
except that the Secretary may increase the proportion to carry out section 5116(b)
and
decrease
the
proportion
to
carry
out
section
5116(a)
if
the
Secretary
determines that such reallocation is appropriate to carry out the intended uses of
these funds as described in the applications submitted by States and Indian tribes.
(3)
To carry out section 5116(f), $150,000.
(4)
To publish and distribute the Emergency Response Guidebook under section
5116(i)(3), $625,000.
(5)
To carry out section 5116(j), $1,000,000.
(c) Hazmat training grants.
--There shall be available to the Secretary, from the account
established pursuant to section 5116(i), to carry out section 5107(e) $4,000,000 for each
of fiscal years 2005 through 2008.
(d) Issuance of hazmat licenses.
--There are authorized to be appropriated for the
Department of Transportation such amounts as may be necessary to carry out section
5103a.
(e) Credits to appropriations.
--The Secretary may credit to any appropriation to carry
out this chapter an amount received from a State, Indian tribe, or other public authority or
private entity for expenses the Secretary incurs in providing training to the State,
authority, or entity.
(f) Availability of amounts.
--Amounts made available by or under this section remain
44
available until expended.
45
AMENDMENTS TO OTHER STATUTES
Sec. 7127. Criminal matters.
Section 845(a)(1) of title 18, United States Code, is amended to read as follows:
“(1)
aspects of the transportation of explosive materials via railroad, water, highway, or
air that pertain to safety, including security, and are regulated by the Department of
Transportation or the Department of Homeland Security;”
Sec. 7128. Additional civil and criminal penalties.
(a) T
ITLE
49
P
ENALTIES
.
-- Section 46312 is amended –
(1)
by striking “part –” in subsection (a) and inserting “part or chapter 51–”; and
(2)
by inserting “or chapter 51” in subsection (b) after “under this part”.
(b) T
ITLE
18
P
ENALTIES
.
-- Section 3663(a)(1)(A) of title 18, United States Code, is
amended by inserting “5124,” before “46312,”.
Sec. 7112. Unsatisfactory safety ratings.
(b) C
ONFORMING
A
MENDMENTS
.
-- The first subsection (c) of section 31144, relating to
prohibited transportation, is amended –
(1)
in paragraph (1) by striking “sections 521(b)(5)(A) and 5113” and inserting
“section 521(b)(5)(A)”; and
(2)
by adding at the end of paragraph (3) the following: “A violation of this paragraph by
an owner or operator transporting hazardous material shall be considered a violation of
chapter 51, and shall be subject to penalties in sections 5123 and 5124.”.
46
FREE STANDING PROVISIONS
Sec. 7109. Registration.
(D)
Registration. - As soon as practicable, the Administrator of the Pipeline and
Hazardous Materials Safety Administration shall transmit to the Federal Motor Carrier
Safety Administration hazardous material registrant information obtained before, on, or
after the date of enactment of this Act under section 5109 of title 49, United States Code,
together with any Department of Transportation identification number for each registrant.
Sec. 7120. Civil penalty.
(d) Effective Dates.
--
(1)
Hearing Requirement.
-- The amendment made by subsection (b) shall take
effect on the date of enactment of this Act, and shall apply with respect to violations
described in section 5123(a) of title 49, United States Code (as amended by this
section), that occur on or after that date.
(2)
Civil Actions to Collect.
-- The amendment made by subsection (c) shall apply
with respect to civil penalties imposed on violations described in section 5123(a) of
title 49, United States Code (as amended by this section), which violations occur on
or after the date of the enactment of this Act.
Sec. 7129. Hazardous material transportation plan requirement.
(a) IN GENERAL.
--Subpart I of part 172 of the Department of Transportation’s
regulations (49 C.F.R. 172.800 et seq.), or any subsequent Department of Transportation
regulation in pari materia, does not apply to the surface transportation activities of a
farmer that are—
(1)
in direct support of the farmer’s farming operations; and
(2)
conducted within a 150-mile radius of those operations.
(b) FARMER DEFINED.
--In this section, the term ‘‘farmer’’ means a person—
(1)
actively engaged in the production or raising of crops, poultry, livestock, or
other agricultural commodities; and
(2)
whose gross receipts from the sale of such agricultural commodities or
products do not exceed $500,000 annually.
47
Sec. 7130. Determining amount of undeclared shipments of hazardous materials
entering the United States.
(a) Study.
--The Comptroller General shall review existing options and determine
additional options for discovering the amount of undeclared shipments of hazardous
materials (as defined in section 5101 of title 49, United States Code) entering the United
States.
(b) Report.
--Not later than 1 year after the date of enactment of this Act, the Comptroller
General shall transmit to the Committee on Transportation and Infrastructure of the
House of Representatives and the Committee on Commerce, Science, and Transportation
of the Senate a report on the results of the study.
Sec. 7131. Hazardous materials research projects.
(a) IN GENERAL.
--The Administrator of the Pipeline and Hazardous Materials Safety
Administration shall enter into a contract with the National Academy of Sciences to carry
out the 9 research projects called for in the 2005 Special Report 283 of the Transportation
Research Board entitled ‘‘Cooperative Research for Hazardous Materials Transportation:
Defining the Need, Converging on Solutions’’. In carrying out the research projects, the
National Academy of Sciences shall consult with the Administrator.
(b) REPORT.
-- Not later than 6 months after the date of enactment of this Act, the
Secretary shall transmit to the Committee on Transportation and Infrastructure of the
House of Representatives and the Committee on Commerce, Science, and Transportation
of the Senate a report on the need to establish a cooperative research program on
hazardous materials transportation.
(c) FUNDING.
-- Of the amounts made available by section 5101(a)(1) of this Act,
$1,250,000 for each of fiscal years 2006 through 2009 shall be available to carry out this
section.
Sec. 7132. National first responder transportation incident response system.
(a) IN GENERAL.
--The Secretary shall provide funding to the Operation Respond
Institute to design, build, and operate a seamless first responder hazardous materials
incident detection, preparedness, and response system.
(b) EXPANSION. --
This system shall include an expansion of the Operation Respond
Emergency Information System (OREIS).
(c) AUTHORIZATION OF APPROPRIATIONS.
--There is authorized to be
appropriated to the Secretary to carry out this section $2,500,000 for each of fiscal years
2005 through 2008.
48
Sec. 7133. Common carrier pipeline system.
(a) STUDY.
--The Secretary shall conduct a study of the economic, environmental, and
homeland security advantages and disadvantages of operating a common carrier pipeline
system in the States of Texas, Louisiana, Mississippi, and Alabama for the transportation
of aromatic chemicals.
(b) EVALUATION.
--In conducting the study, the Secretary shall evaluate the
appropriateness of the different Federal incentives for the construction and operation of
such a pipeline system, including loan guarantees, other types of financial assistance, and
various types of tax incentives.
(c) REPORT.
--Not later than December 31, 2005, the Secretary shall transmit to
Congress a report on the results of the study, including recommendations, if any, for
legislation.
49
| File Type | application/pdf |
| File Title | Sec |
| Author | vincent.lopez |
| File Modified | 2006-01-24 |
| File Created | 2006-01-24 |