1625-0005 Stat/Authority

§ 5102

TITLE 49—TRANSPORTATION

‘‘(4) because of the potential risks to life, property,
and the environment posed by unintentional releases
of hazardous materials, consistency in laws and regulations governing the transportation of hazardous
materials is necessary and desirable; and
‘‘(5) in order to provide reasonable, adequate, and
cost-effective protection from the risks posed by the
transportation of hazardous materials, a network of
well-trained State and local emergency response personnel and hazmat employees is essential.’’
BUY AMERICAN
Pub. L. 103–311, title I, § 123, Aug. 26, 1994, 108 Stat.
1682, provided that:
‘‘(a) COMPLIANCE WITH BUY AMERICAN ACT.—None of
the funds made available under this title [see Short
Title of 1994 Amendment note above] may be expended
in violation of sections 2 through 4 of the Act of March
3, 1933 ([former] 41 U.S.C. 10a–10c; popularly known as
the ‘Buy American Act’ [see 41 U.S.C. 8301 et seq.]),
which are applicable to those funds.
‘‘(b) SENSE OF CONGRESS; REQUIREMENT REGARDING
NOTICE.—
‘‘(1) In the case of any equipment or products that
may be authorized to be purchased with financial assistance provided under this title, it is the sense of
Congress that entities receiving such assistance
should, in expending such assistance, purchase only
American-made equipment and products.
‘‘(2) In providing financial assistance under this
title, the Secretary of Transportation shall provide
to each recipient of the assistance a notice describing
the statement made in paragraph (1) by Congress.
‘‘(c) PROHIBITION OF CONTRACTS.—If it has been finally
determined by a court or Federal agency that any person intentionally affixed a label bearing a ‘Made in
America’ inscription, or any inscription with the same
meaning, to any product sold in or shipped to the
United States that is not made in the United States,
such person shall be ineligible to receive any contract
or subcontract made with funds provided pursuant to
this title, pursuant to the debarment, suspension, and
ineligibility procedures described in sections 9.400
through 9.409 of title 48, Code of Federal Regulations.
‘‘(d) RECIPROCITY.—
‘‘(1) Except as provided in paragraph (2), no contract or subcontract may be made with funds authorized under this title to a company organized under
the laws of a foreign country unless the Secretary of
Transportation finds that such country affords comparable opportunities to companies organized under
laws of the United States.
‘‘(2)(A) The Secretary of Transportation may waive
the provisions of paragraph (1) if the products or services required are not reasonably available from companies organized under the laws of the United States.
Any such waiver shall be reported to Congress.
‘‘(B) Paragraph (1) shall not apply to the extent
that to do so would violate the General Agreement on
Tariffs and Trade or any other international agreement to which the United States is a party.’’

§ 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’’—

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(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
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

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§ 5102

TITLE 49—TRANSPORTATION

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 SelfDetermination 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
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—
(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, un-

loading, or storage incidental to the movement.
(14) ‘‘United States’’ means all of the States.
(Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 759;
Pub. L. 103–311, title I, § 117(a)(1), Aug. 26, 1994,
108 Stat. 1678; Pub. L. 104–88, title III, § 308(d),
Dec. 29, 1995, 109 Stat. 947; Pub. L. 109–59, title
VII, §§ 7102, 7126, Aug. 10, 2005, 119 Stat. 1892, 1909;
Pub. L. 110–244, title III, § 302(a), June 6, 2008, 122
Stat. 1618.)
HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

5102(1) ........

49 App.:1802(1)–(3),
(13).

5102(2) ........
5102(3) ........
5102(4) ........
5102(5) ........
5102(6) ........
5102(7) ........
5102(8) ........
5102(9) ........
5102(10) ......
5102(11) ......
5102(12) ......
5102(13) ......

49
49
49
49
49
49
49
49
49
49
49
49

Source (Statutes at Large)
Jan. 3, 1975, Pub. L. 93–633,
§ 103, 88 Stat. 2156; restated Nov. 16, 1990, Pub.
L. 101–615, § 3(a), 104 Stat.
3245; Oct. 24, 1992, Pub. L.
102–508, §§ 501, 502, 106 Stat.
3311.

App.:1802(4).
App.:1802(5).
App.:1802(6).
App.:1802(7).
App.:1802(8).
App.:1802(9).
App.:1802(10).
App.:1802(11).
App.:1802(12).
App.:1802(14).
App.:1802(15).
App.:1802(16).

In this chapter, the words ‘‘or shipped’’ are omitted
as being included in ‘‘transported’’.
In clause (1), before subclause (A), the text of 49
App.:1802(1), (3), and (13) is omitted because the complete names of the Administrator of the Environmental
Protection Agency, Director of the Federal Emergency
Management Agency, and Secretary of Transportation
are used the first time the terms appear in a section.
The words ‘‘traffic, commerce’’ are omitted as surplus.
In subclause (B), the words ‘‘between a place in a State
and a place outside of the State’’ are substituted for
‘‘described in clause (A)’’ for clarity.
In clauses (3)(C) and (10)(B), the words ‘‘at a minimum’’ are omitted as surplus.
In clause (5), the words ‘‘administrative hearing or
other’’ are omitted as surplus.
In clause (9), before subclause (A), the words ‘‘including any trustee, receiver, assignee, or similar representative thereof’’ are omitted as surplus.
In clause (12), the words ‘‘by any mode’’ are omitted
as surplus.
AMENDMENTS
2008—Par. (3). Pub. L. 110–244 amended Pub. L. 109–59,
§ 7102(2). See 2005 Amendment notes below.
2005—Par. (1)(C). Pub. L. 109–59, § 7102(1), added subpar. (C).
Par. (2). Pub. L. 109–59, § 7126, substituted ‘‘Secretary’’
for ‘‘Secretary of Transportation’’.
Par. (3)(A)(i). Pub. L. 109–59, § 7102(2)(A), as amended
by Pub. L. 110–244, § 302(a)(1), (2), added cl. (i) and struck
out former cl. (i) which read as follows: ‘‘employed by
a hazmat employer; and’’.
Par. (3)(A)(ii). Pub. L. 109–59, § 7102(2)(B), as amended
by Pub. L. 110–244, § 302(a)(1), (3), substituted ‘‘course of
such full time, part time, or temporary employment, or
such self employment,’’ for ‘‘course of employment’’
and inserted ‘‘and’’ at end.
Par. (3)(B). Pub. L. 109–59, § 7102(2)(D)(i), as amended
by Pub. L. 110–244, § 302(a)(1), substituted ‘‘employed on
a full time, part time, or temporary basis by a hazmat
employer, or self employed,’’ for ‘‘employed by a
hazmat employer,’’ in introductory provisions.
Pub. L. 109–59, § 7102(2)(C), as amended by Pub. L.
110–244, § 302(a)(1), redesignated subpar. (C) as (B) and
struck out former subpar. (B) which read as follows:
‘‘includes an owner-operator of a motor vehicle transporting hazardous material in commerce; and’’.

§ 5103

TITLE 49—TRANSPORTATION

Par. (3)(B)(ii). Pub. L. 109–59, § 7102(2)(D)(ii), as amended by Pub. L. 110–244, § 302(a)(1), added cl. (ii) and struck
out former cl. (ii) which read as follows: ‘‘manufactures, reconditions, or tests containers, drums, and
packagings represented as qualified for use in transporting hazardous material;’’.
Par. (3)(C). Pub. L. 109–59, § 7102(2)(C), as amended by
Pub. L. 110–244, § 302(a)(1), redesignated subpar. (C) as
(B).
Par. (4). Pub. L. 109–59, § 7102(3), amended par. (4) generally. Prior to amendment, par. (4) consisted of subpars. (A) to (C), which included within definition of
‘‘hazmat employer’’ a person using at least one employee in connection with transporting or containers
for transporting hazardous material, an owner-operator
of a motor vehicle transporting hazardous material in
commerce, and 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 certain described activities.
Par. (5). Pub. L. 109–59, § 7102(4), inserted ‘‘relating to
hazardous material’’ after ‘‘of a condition’’.
Par. (7). Pub. L. 109–59, § 7102(5), amended par. (7) generally. Prior to amendment, par. (7) read as follows:
‘‘ ‘motor carrier’ means a motor carrier, motor private
carrier, and freight forwarder as those terms are defined in section 13102 of this title.’’
Par. (8). Pub. L. 109–59, § 7102(6), substituted ‘‘National
Response Team’’ for ‘‘national response team’’ in two
places and ‘‘National Contingency Plan’’ for ‘‘national
contingency plan’’.
Par. (9)(A). Pub. L. 109–59, § 7102(7), amended subpar.
(A) generally. Prior to amendment, subpar. (A) read as
follows: ‘‘includes a government, Indian tribe, or authority of a government or tribe offering hazardous material for transportation in commerce or transporting
hazardous material to further a commercial enterprise;
but’’.
Pars. (11) to (14). Pub. L. 109–59, § 7102(8), added par.
(11) and redesignated former pars. (11) to (13) as (12) to
(14), respectively.
1995—Par. (7). Pub. L. 104–88 substituted ‘‘motor carrier, motor private’’ for ‘‘motor common carrier, motor
contract carrier, motor private’’ and ‘‘section 13102’’ for
‘‘section 10102’’.
1994—Pars. (3)(C)(ii), (4)(A)(iii). Pub. L. 103–311 substituted ‘‘packagings’’ for ‘‘packages’’.
EFFECTIVE DATE OF 2008 AMENDMENT
Amendment by Pub. L. 110–244 effective as of the date
of enactment of Pub. L. 109–59 (Aug. 10, 2005) and to be
treated as included in Pub. L. 109–59 as of that date, and
provisions of Pub. L. 109–59, as in effect on the day before June 6, 2008, that are amended by Pub. L. 110–244
to be treated as not enacted, see section 121(b) of Pub.
L. 110–244, set out as a note under section 101 of Title
23, Highways.

§ 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;

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(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
(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.
(d) BIENNIAL REPORT.—The Secretary of Transportation shall submit to the Committee on
Transportation and Infrastructure of the House
of Representatives and the Senate Committee
on Commerce, Science, and Transportation a biennial report providing information on whether
the Secretary has designated as hazardous materials for purposes of chapter 51 of such title all
by-products of the methamphetamine-production process that are known by the Secretary to
pose an unreasonable risk to health and safety
or property when transported in commerce in a
particular amount and form.
(Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 761;
Pub. L. 103–311, title I, § 117(a)(2), Aug. 26, 1994,
108 Stat. 1678; Pub. L. 103–429, § 6(3), Oct. 31, 1994,
108 Stat. 4378; Pub. L. 107–296, title XVII,
§ 1711(a), Nov. 25, 2002, 116 Stat. 2319; Pub. L.
109–59, title VII, §§ 7103, 7126, Aug. 10, 2005, 119
Stat. 1893, 1909; Pub. L. 109–177, title VII, § 741,
Mar. 9, 2006, 120 Stat. 272.)
HISTORICAL AND REVISION NOTES
PUB. L. 103–272
Revised
Section

Source (U.S. Code)

5103(a) ........

49 App.:1803.

5103(b) ........

49 App.:1804(a)
(1)–(3).

Source (Statutes at Large)
Jan. 3, 1975, Pub. L. 93–633,
§ 104, 88 Stat. 2156.
Jan. 3, 1975, Pub. L. 93–633,
§ 105(a)(1)–(3), 88 Stat. 2157;
restated Nov. 16, 1990,
Pub. L. 101–615, § 4, 104
Stat. 3247.

In subsection (a), the words ‘‘such quantity and form
of material’’ and ‘‘in his discretion’’ are omitted as surplus.
In subsection (b)(1), before clause (A), the words ‘‘in
accordance with section 553 of title 5’’ are omitted because 5:553 applies unless otherwise stated. In clause
(A)(i), the words ‘‘hazardous material in commerce’’,