1625-0005 Stat/Authority

§ 5103a

TITLE 49—TRANSPORTATION

materials), for fiscal years beginning after September
30, 1997.
‘‘(c) STUDY.—
‘‘(1) IN GENERAL.—Within 90 days after the date of
the enactment of this Act [Dec. 29, 1995], the Secretary shall contract with the National Academy of
Sciences to conduct a study—
‘‘(A) to determine whether the requirements of
section 5103(b) of title 49, United States Code (relating to regulations for safe transportation), as they
pertain to fiber drum packaging with a removable
head can be met for the transportation of liquid
hazardous materials (with respect to those liquid
hazardous materials transported by such drums
pursuant to regulations in effect on September 30,
1991) with standards (including fiber drum industry
standards set forth in a June 8, 1992, exemption application submitted to the Department of Transportation), other than the performance-oriented packaging standards adopted under docket number
HM–181 contained in part 178 of title 49, Code of
Federal Regulations; and
‘‘(B) to determine whether a packaging standard
(including such fiber drum industry standards),
other than such performance-oriented packaging
standards, will provide an equal or greater level of
safety for the transportation of liquid hazardous
materials than would be provided if such performance-oriented packaging standards were in effect.
‘‘(2) COMPLETION.—The study shall be completed before March 1, 1997 and shall be transmitted to the
Committee on Commerce, Science, and Transportation of the Senate and the Transportation and Infrastructure Committee of the House of Representatives.
‘‘(d) SECRETARIAL ACTION.—By September 30, 1997, the
Secretary shall issue final regulations to determine
what standards should apply to fiber drum packaging
with a removable head for transportation of liquid hazardous materials (with respect to those liquid hazardous materials transported by such drums pursuant to
regulations in effect on September 30, 1991) after September 30, 1997. In issuing such regulations, the Secretary shall give full and substantial consideration to
the results of the study conducted in subsection (c).’’
Section 122 of Pub. L. 103–311 provided that:
‘‘(a) INITIATION OF RULEMAKING PROCEEDING.—Not
later than the 60th day following the date of enactment
of this Act [Aug. 26, 1994], the Secretary of Transportation shall initiate a rulemaking proceeding to determine whether the requirements of section 5103(b) of
title 49, United States Code (relating to regulations for
safe transportation), as they pertain to open head fiber
drum packaging can be met for the domestic transportation of liquid hazardous materials (with respect to
those classifications of liquid hazardous materials
transported by such drums pursuant to regulations in
effect on September 30, 1991) with standards other than
the performance-oriented packaging standards adopted
under docket number HM–181 contained in part 178 of
title 49, Code of Federal Regulations.
‘‘(b) ISSUANCE OF STANDARDS.—If the Secretary of
Transportation determines, as a result of the rulemaking proceeding initiated under subsection (a), that
a packaging standard other than the performance-oriented packaging standards referred to in subsection (a)
will provide an equal or greater level of safety for the
domestic transportation of liquid hazardous materials
than would be provided if such performance-oriented
packaging standards were in effect, the Secretary shall
issue regulations which implement such other standard
and which take effect before October 1, 1996.
‘‘(c) COMPLETION OF RULEMAKING PROCEEDING.—The
rulemaking proceeding initiated under subsection (a)
shall be completed before October 1, 1995.
‘‘(d) LIMITATIONS.—
‘‘(1) The provisions of subsections (a), (b), and (c)
shall not apply to packaging for those hazardous materials regulated by the Department of Transportation as poisonous by inhalation under chapter 51 of
title 49, United States Code.

Page 136

‘‘(2) Nothing in this section shall be construed to
prohibit the Secretary of Transportation from issuing
or enforcing regulations for the international transportation of hazardous materials.’’

§ 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 of
Homeland Security 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 of Transportation for
which the Secretary of Transportation 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
Homeland Security 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:
(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 of Homeland Security, at such time and in such manner as the
Secretary of Homeland Security may prescribe,
the name, address, and such other information
as the Secretary of Homeland Security 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 of Homeland
Security may require.

Page 137

TITLE 49—TRANSPORTATION

(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,1 served on the applicant 1 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 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 subsection, 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
1 So in original. Comma probably should appear after ‘‘applicant’’.

§ 5103a

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 fingerprintbased security threat assessments for individuals holding commercial driver’s licenses who
are applying to renew hazardous materials endorsements.
(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

§ 5104

TITLE 49—TRANSPORTATION

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.
(Added Pub. L. 107–56, title X, § 1012(a)(1), Oct. 26,
2001, 115 Stat. 396; amended Pub. L. 109–59, title
VII, §§ 7104, 7105, 7126, Aug. 10, 2005, 119 Stat. 1894,
1909; Pub. L. 110–53, title XV, § 1556(a), Aug. 3,
2007, 121 Stat. 475; Pub. L. 110–244, title III,
§ 302(b), June 6, 2008, 122 Stat. 1618.)
REFERENCES IN TEXT
Section 101(a)(3) of the Immigration and Nationality
Act, referred to in subsec. (f), is classified to section
1101(a)(3) of Title 8, Aliens and Nationality.
The date of enactment of this subsection, referred to
in subsecs. (g) and (h), is the date of enactment of Pub.
L. 109–59, which was approved Aug. 10, 2005.
AMENDMENTS
2008—Subsec. (g)(1)(B)(ii). Pub. L. 110–244 substituted
‘‘subsection’’ for ‘‘Act’’.
2007—Subsec. (a)(1). Pub. L. 110–53, § 1556(a)(1), substituted ‘‘Secretary of Homeland Security’’ for ‘‘Secretary’’.
Subsec. (b). Pub. L. 110–53, § 1556(a)(2), substituted
‘‘Secretary of Transportation’’ for ‘‘Secretary’’ in two
places.
Subsec. (d)(1)(B). Pub. L. 110–53, § 1556(a)(3), substituted ‘‘Secretary of Homeland Security’’ for ‘‘Secretary’’.
Subsec. (e). Pub. L. 110–53, § 1556(a)(4), substituted
‘‘Secretary of Homeland Security’’ for ‘‘Secretary’’
wherever appearing.
2005—Subsec. (a)(1). Pub. L. 109–59, § 7126, substituted
‘‘Secretary’’ for ‘‘Secretary of Transportation’’.
Pub. L. 109–59, § 7104(c), substituted ‘‘subsection
(d)(1)(B),’’ for ‘‘subsection (c)(1)(B),’’.
Subsec. (b). Pub. L. 109–59, § 7104(a), substituted ‘‘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’’ for ‘‘with respect to—
‘‘(1) any material defined as a hazardous material
by the Secretary of Transportation; and
‘‘(2) any chemical or biological material or agent
determined by the Secretary of Health and Human
Services or the Attorney General as being a threat to
the national security of the United States’’.
Subsec. (c). Pub. L. 109–59, § 7104(b)(2), added subsec.
(c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 109–59, § 7104(b)(1), redesignated
subsec. (c) as (d). Former subsec. (d) redesignated (e).
Subsec. (d)(1)(B). Pub. L. 109–59, § 7126, substituted
‘‘Secretary’’ for ‘‘Secretary of Transportation’’.
Subsec. (e). Pub. L. 109–59, § 7126, substituted ‘‘submit
to the Secretary’’ for ‘‘submit to the Secretary of
Transportation’’ in introductory provisions.
Pub. L. 109–59, § 7104(b)(1), redesignated subsec. (d) as
(e). Former subsec. (e) redesignated (f).
Subsec. (f). Pub. L. 109–59, § 7104(b)(1), redesignated
subsec. (e) as (f).

Page 138

Subsecs. (g), (h). Pub. L. 109–59, § 7105, added subsecs.
(g) and (h).
AUTHORIZATION OF APPROPRIATIONS
Pub. L. 107–56, title X, § 1012(c), Oct. 26, 2001, 115 Stat.
398, provided that: ‘‘There is authorized to be appropriated for the Department of Transportation and the
Department of Justice such amounts as may be necessary to carry out section 5103a of title 49, United
States Code, as added by subsection (a).’’

§ 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
(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.
(Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 761;
Pub. L. 103–311, title I, § 117(b), Aug. 26, 1994, 108
Stat. 1678; Pub. L. 103–429, § 6(4), Oct. 31, 1994, 108
Stat. 4378; Pub. L. 109–59, title VII, § 7106, Aug.
10, 2005, 119 Stat. 1897.)
HISTORICAL AND REVISION NOTES
PUB. L. 103–272
Revised
Section

Source (U.S. Code)

5104(a) ........

49 App.:1804(e).

5104(b) ........

49 App.:1804(f).

Source (Statutes at Large)
Jan. 3, 1975, Pub. L. 93–633,
88 Stat. 2156, § 105(e), (f);
added Nov. 16, 1990, Pub.
L. 101–615, § 5, 104 Stat.
3252.

In subsection (a)(1), the words ‘‘the requirements of’’
and ‘‘applicable’’ are omitted as surplus.
In subsection (b), before clause (1), the word ‘‘deface’’
is omitted as surplus.
PUB. L. 103–429
This amends 49:5104(a)(1) to clarify the restatement of
49 App.:1804(e)(1) by section 1 of the Act of July 5, 1994
(Public Law 103–272, 108 Stat. 761).
AMENDMENTS
2005—Subsec. (a)(1). Pub. L. 109–59, § 7106(a), substituted ‘‘a package, component of a package, or packaging for’’ for ‘‘a container, package, or packaging (or
a component of a container, package, or packaging)
for’’ and ‘‘the package, component of a package, or
packaging meets’’ for ‘‘the container, package, or packaging (or a component of a container, package, or packaging) meets’’.
Subsec. (b). Pub. L. 109–59, § 7106(b)(1), substituted
‘‘No person may’’ for ‘‘A person may not’’ in introductory provisions.
Subsec. (b)(2). Pub. L. 109–59, § 7106(b)(2), inserted
‘‘component of a package, or packaging,’’ after ‘‘package,’’.