Section-By-Section Analysis

SECTION 1. This section contains the short title.

SECTION 2. This section would update and expand the purposes of chapter 51 of title 49.

SECTION 3. This section would add and modify definitions in chapter 51 of title 49 as indicated below.

The definition of "commerce" would be amended to include all trade or transportation on a United States-registered aircraft. This amendment would provide jurisdiction over hazardous materials activities being conducted on a U.S.-registered aircraft between two foreign points. Such jurisdiction would parallel U.S. and Department of Transportation jurisdiction over other air safety aspects of those same flights. Assertion and exercise of that jurisdiction is necessary for the United States to carry out its obligations under the Chicago Convention.

The definitions of "hazmat employee" and "hazmat employer" would be amended to clarify the applicability of the training requirements in section 5107. To eliminate ambiguity in the current training requirements, the two definitions would be amended to clearly require hazmat training for self-employed persons. The two definitions also would be amended to clarify that containers and drums are types of packagings that functions related to components of packagings may trigger training requirements. Also, they would be amended to include "design" of hazardous materials packagings or components. In addition, those definitions would be amended to apply to owner-operators of vessels and aircraft, as well as motor vehicles.

Finally, those two definitions would be amended to apply to situations where employees reject hazardous materials for transportation in commerce. Thus, employees performing any function pertaining to either the offering or rejecting of hazardous material for transportation would have to be trained. The application to rejection situations is necessary to address training requirements for those carriers, especially air carriers, that do not carry hazardous material and should be required to train their employees on how to identify and reject hazardous materials for transportation in commerce.

The definition of "motor carrier" would be amended by clarifying that it includes a freight forwarder, as defined in section 10102 of title 49, only if the freight forwarder is performing a function related to highway transportation. Provisions applicable to motor carriers should not apply to freight forwarders performing functions not related to highway transportation.

A new definition would be added for "out-of-service order." This term, which would be used in a new subsection 5122(d), would be defined as a mandate that an aircraft, vessel, motor vehicle, train, railcar, other vehicle, transport unit, freight container, or package not be moved until specified conditions have been met.

To clarify the meaning of terms used frequently in chapter 51, definitions would be added for "package" or "outside package," and "packaging." "Package" or "outside package" would be defined as a packaging plus its contents. "Packaging" would be defined as a receptacle and any other components or materials necessary for the receptacle to perform its containment function in conformance with the minimum packaging requirements established by the Secretary of Transportation.

Finally, the definition of "person" would be amended so that the requirements of chapter 51 apply to additional activities of government agencies and Indian tribes. They would be regulated not only when they offer hazardous materials in commerce or transport a hazardous material to further a commercial enterprise, but also when they manufacture, recondition, or test containers, drums, or other packagings represented as qualified for use in transporting hazardous materials. Because those package-related activities have the potential to affect the transportation of hazardous materials by other persons, regulation of those activities is appropriate to ensure that they are conducted in a safe manner.

SECTION 4. This section would amend section 5107(d) by deleting the words "or duplicate". This deletion would enable the Secretary to prescribe hazmat employee training requirements that are more consistent with, or incorporate by reference, certain Environmental Protection Agency and Department of Labor regulations specified in that section.

It also would amend subsection 5107(d)(2) to clearly identify the Environmental Protection Agency. Finally, it would amend subsection 5107(e) to correct a cross-reference to the authorization section.

SECTION 5. This section would make changes to the registration provisions in section 5108.

To reduce registrants’ reporting requirements, section 5108(b)(1)(C) would be amended by changing the registration statement. Instead of requiring the registrant to separately identify each registration-requiring activity that it conducts in each State, the new paragraph would only require the registrant to list each State in which it transports or causes to be transported a hazardous material in a quantity and manner requiring registration.

Section 5108(c) would be amended by eliminating some outdated deadlines and simply requiring persons to file registration statements in accordance with regulations issued by the Secretary.

Section 5108(g)(1) would be amended by replacing "may" with "shall" in order to establish explicitly that the Secretary must impose a registration fee sufficient to cover administrative processing costs.

Section 5108(g)(2) would be amended by raising the minimum annual registration fee from $250 to $500 and deleting the $5,000 ceiling on annual registration fees. These changes would facilitate funding of PHMSA’s entire hazardous materials program through the registration fees beginning July 1, 2000. They also would facilitate increases in State and Indian tribe hazardous material emergency planning and training grants and, thereby, their ability to involve organizations with recognized expertise in their planning and training activities. In summary, this change would authorize use of the registration fees currently paid by shippers and carriers of hazardous materials to fund PHMSA’s compliance, regulatory and other activities under chapter 51. This approach to funding those activities appropriately places the responsibility for funding, not on the general public, but on the industry which benefits from a uniform, national, safety-promoting hazardous materials program.

Sections 5108(g)(2)(B) and 5108(g)(2)(C) would be revised to provide that the Secretary of Transportation shall publish a fee schedule at the beginning of each fiscal year that is designed to collect all of the amounts authorized or appropriated to the Pipeline and Hazardous Materials Safety Administration (PHMSA) under section 5129 and that the Secretary of Transportation shall transfer to the Secretary of the Treasury for deposit in the account established under section 5116(i) all monies received under section 5108 except those appropriated to PHMSA under section 5129(a).

Finally, in section 5108(i)(2)(B), Indian tribes, in addition to States, would be excepted from the requirements to register and pay registration fees. It would be incongruous for beneficiaries of the grant program funded by the registration fees to be required to pay registration fees.

SECTION 6. This section would amend section 5109 by replacing a time-specific requirement for Federal permitting regulations to be issued with a requirement to issue regulations based upon the findings of a new study that would be required by section 5128(a) of this title. That study would consider alternative means of enhancing safety in motor carrier transportation of hazardous materials. Section 5109 currently requires the Secretary to prescribe regulations establishing a safety permit program under which motor carriers of certain hazardous materials would be required to obtain a Federal permit. Because many States have different permit requirements for those carriers and in order to develop a coordinated Federal-State partnership in this area, the Federal Highway Administration (FHWA) conducted a study and a pilot project under section 5119 of title 49. The purpose of those activities was to determine the feasibility of developing a uniform permitting system that would enhance safety, meet the States’ needs, and avoid unnecessary industry costs. These activities, however, revealed that a uniform permit system will not likely resolve different States’ concerns that their needs will be met, and raises additional concerns related to unnecessary preemption and expenses of a parallel Federal permitting system.

To address these concerns, this section would authorize the Secretary of Transportation to conduct an additional study (see section 16 of the bill) to consider alternative means of enhancing safe hazardous material transportation by motor carriers before issuing Federal permitting regulations. The program would consider use of automated carrier assessments in lieu of safety permits. It would build upon the FHWA’s Automated Safety Assessment Program, explore the use of advanced technology to monitor the safety performance of carriers, and examine the use of that technology to provide meaningful safety-related feedback to motor carriers.

This section also would amend sections 5113 and 31144(c) of title 49 to provide that an unfit owner or operator transporting hazardous material in commerce more than 45 days after being found unfit is subject to the $27,500 civil penalty in section 5123 and the criminal penalties in section 5124.

SECTION 7. This section would modify the requirement in section 5110(e) that shippers and carriers retain shipping papers for one year. Section 5110(e) presently requires retention for one year after the hazardous material to which a shipping paper applies is no longer in transportation. Because many shippers do not know whether or when the transportation ends, they do not know how long they are required to retain the shipping papers. Therefore, that section is being modified to provide for shipping paper retention for one year after the shipping paper is provided to the carrier.

SECTION 8. Several technical amendments would be made to section 5115 to reflect the fact that the public sector training curriculum already has been developed and to focus the statutory provisions on updates to, not development of, the curriculum.

This section also would expand the public sector training curriculum to include response to crashes or incidents involving alternative fuel vehicles. As the nation enhances protection of the environment in the transportation field, such as reducing motor vehicle-related air pollution, it is important that safety training keep abreast of those developments. Therefore, public-sector employees should receive emergency response training on any unique hazards that may be encountered in responding to situations involving alternative fuel vehicles, including those powered by electricity, liquefied petroleum gas, or compressed natural gas. As part of the curriculum, the training related to those vehicles would include the interplay between those vehicles and various types of hazardous materials that could be involved in incidents involving them.

References to the "national response team" would be changed to "National Response Team for Oil and Hazardous Substances" for clarification. Mandatory references to agencies outside the Department of Transportation would be deleted because those activities have never been funded by Congress.

The training curriculum would be required to include appropriate emergency response training and planning programs for public-sector employees developed "with Federal financial assistance," not just those under other U.S. Government grant programs. In addition, the recommended basic training course would be required to include training necessary to comply with "such voluntary consensus standard-setting organizations as the Secretary deems appropriate," not just those of the National Fire Protection Association.

SECTION 9. This section would name the account established under subsection 5116(i) the "Emergency Preparedness Fund."

This section would clarify section 5116(e) by changing a reference to "Amounts of the State or tribe" to "Amounts received by the State or tribe." Subsection 5116(f) would be amended to consolidate the authority to monitor public sector emergency response planning and training in the Secretary of Transportation because, historically, DOT has been the only agency funded to carry out this function. In that same subsection, the reference to "national response team" would be clarified to read "National Response Team for Oil and Hazardous Substances." In subsection (g), the phrase "Government grant" programs would be broadened to "Federal financial assistance" programs in order to provide for more complete coordination of programs.

Current subsection 5116(i) would be modified to create an Emergency Preparedness Fund, into which amounts under subsection 5108(g)(2)(C) would be deposited, and would provide that those funds could be used for emergency planning and training grants under subsection 5116(i), monitoring and technical assistance under subsection 5116(f), publication and distribution of the North American Emergency Response Guidebook under section and administrative costs of carrying out subsections 5116(i) and 5108(g)(2) and section 5115. It also would clarify that these amounts may be used to publish and distribute the North American Emergency Response Guidebook, which PHMSA has been doing under current law.

Current subsection 5116(k) would be deleted because the training grants report it mandates has been completed by the Secretary and submitted to Congress. A new subsection (k) would be added to authorize States and Indian tribes to use up to 25 percent of their planning and training grants to assist small businesses in complying with regulations issued under this chapter. This authorization is appropriate because the vast majority of registrants under section 5108 are small businesses and because the vast majority of the Department of Transportation’s hazardous material enforcement cases are brought against small businesses. Thus, small businesses are significantly funding the grants program and have a demonstrated need for additional training.

SECTION 10. This section would change the term "exemption" to "special permit." The term "exemption" gives an erroneous impression that hazardous materials transportation under an exemption is being carried out without regulation, and the term "special permit" will appropriately convey that such transportation is required to be conducted in accordance with terms and conditions set by the Department of Transportation.

In addition, this section would amend section 5117(a)(2) by changing the maximum effective period of a special permit from two years to four years. This change would eliminate a great deal of unnecessary industry application time and Government processing time involved in the present two-year renewal process. This proposed change evolved from President Clinton’s Regulatory Reinvention Initiative.

The increased maximum effective period of time will have a positive impact on safety. It will enable Pipeline and Hazardous Materials Safety Administration (PHMSA) staff to avoid time-consuming processing of routine renewals and instead focus attention on more significant exemption (special permit) issues. In addition, PHMSA has at least two means of dealing with related safety issues. First, the time period for each special permit can be restricted to whatever period of time less than four years that is determined appropriate for safety purposes. Second, under its regulations (49 CFR 107.121), PHMSA may modify a special permit (currently an exemption) if a related statute or regulation has been changed, and may modify, suspend, or terminate a special permit if the special permit no longer would provide the same level of safety as the regulations, the application was significantly or deliberately inaccurate or incomplete, or the special permit-holder has knowingly violated a regulation or the special permit in a manner demonstrating unfitness to conduct the activity authorized in the special permit.

SECTION 11. Subsection 5119(a)(1)(A) would be amended by adding the words "and issue permits to" to indicate that this subsection, like all of section 5119, applies to both registration and permitting by States. In addition, a new subsection 5119(c)(4) would be added to specifically authorize States, pending issuance of regulations under section 5119, to participate in the uniform forms and procedures program that has been recommended to the Secretary by the working group under subsection 5119(b).

SECTION 12. This section would move three enforcement-related provisions from section 5121 (Administrative) to the more appropriate section 5122 (Enforcement) and would add a new subsection (c) to section 5121 authorizing the Secretary of Transportation to enter into grants, cooperative agreements, and other transactions to further the objectives of chapter 51 of title 49. Those objectives include the conduct of research, development, demonstration, risk assessment, emergency response planning, program support, and training activities. Under the new provision, the Secretary would have express authority to enter into grants, agreements and transactions 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 entity.

In addition, this amendment would streamline and modernize the biennial reporting requirements. To reflect the fact that much of the required information now exists on PHMSA’s or other Internet web-sites, the Secretary would be required to either include in the report or provide appropriate reference to the required information. For example, the report could summarize and refer to hundreds of exemptions (special permits) that are on PHMSA’s Internet web-site instead of describing each of them individually in the report.

SECTION 13. This section would improve safety by clarifying and enhancing the inspection and enforcement authority of DOT officials and inspection personnel. First, the new section 5122(a) (current section 5121(a)) would be amended by adding "inspect" to the enforcement authorities of the Secretary. This addition would expressly state the authority of DOT inspectors to conduct routine inspections to ensure compliance with chapter 51, an authority that is implied by the existing language in current section 5121(a).

Current subsection 5121(b) would become subsection 5122(b).

This section also would amend the new subsection 5122(c) (current subsection 5121(c)) to expand DOT inspection authority to records and property related to industry inspections of hazardous materials packaging and to authorize a designated DOT officer or employee to:

• open and examine a package (except for the packaging immediately adjacent to the hazardous materials contents) offered for or in transportation when the officer or employee has an objectively reasonable and articulable belief that the package may contain a hazardous material;


• remove from transportation a package or related packages in a shipment when the officer or employee has an objectively reasonable and articulable belief that the package or packages may pose an imminent hazard and contemporaneously documents that belief;


• gather information from the shipper, packaging manufacturer or retester, or others responsible for the package to determine the nature and hazards of the contents of the package;


• as necessary, order the shipper, packaging manufacturer or retester, or others responsible for the package to have the package transported to, opened, and the contents analyzed at an appropriate facility; and


• authorize properly qualified personnel to assist in the package opening and examination when safety might otherwise be compromised.

The existing authority also would be amended to require the Secretary to develop procedures to assist in the safe resumption of transportation of the package and transport unit when an inspection or investigation does not result in discovery of an imminent hazard.

This improved inspection authority comports with Fourth Amendment principles on permissible searches by the Government. The landmark decision, New York v. Burger, 482 U.S. 691 (1987), and its progeny adopted the administrative search doctrine permitting a regulatory agency with a substantial governmental interest to conduct warrantless inspections of "closely regulated" or "pervasively regulated" industries, provided that the agency's inspection program was reasonable. One case, United States v. V-1 Oil Co., 63 F.3d 909 (9th Cir. 1995), cert. denied, 517 U.S. 1208, 116 S.Ct. 1824 (1996), ruled that the transportation of hazardous materials is a "closely regulated" industry in upholding the Federal Railroad Administration's hazardous materials inspection program. The hazardous materials law circumscribes this industry, thus reducing the level of expectation of privacy of those businesses engaging in it. Therefore, persons offering or transporting packages identified as hazardous materials possess limited privacy interests, authorizing DOT inspection personnel to inspect these shipments.

Likewise, this legislation protects the constitutional rights of persons offering or transporting other types of shipments. The momentary "stop and search" of these packagings invoke minimally intrusive conduct necessary to carry out the purposes of the statute. See V-1 Oil Co. v. Means, 94 F.3d 1420 (10th Cir. 1996). Such a brief detention is valid provided that there is an objectively reasonable and articulable suspicion of a violation of the hazardous material transportation law. See United States v. McSwain, 29 F.3d 558 (10th Cir. 1994). DOT officers or inspectors would have to have a particularized and objective basis for suspecting a violation, such as shipping or transporting undeclared or unreported hazardous materials, in order to open an unmarked package. See United States v. Cortez, 449 U.S. 411 (1981).

In addition, this section would add a new subsection 5122(d) authorizing the Secretary of Transportation to issue emergency orders when it is determined, by inspection or investigation, that a violation of this chapter or a regulation issued under it, or an unsafe condition or practice is causing an imminent hazard. In those situations, the Secretary would be authorized to issue or impose emergency restrictions, prohibitions, recalls, or out-of-service orders, without notice or the opportunity for a hearing only to the extent necessary to abate the imminent hazard. The Secretary’s action would have to be a written order describing the violation, condition or practice causing the imminent hazard; stating the restrictions, prohibitions, recalls, or out-of-service orders being issued or imposed; and prescribing standards and procedures for obtaining relief from the order. The Secretary would be required to provide for review of that action, with an opportunity for a hearing on the record under the Administrative Procedure Act, within 20 days after the order is issued.

Also, a new subsection 5122(e) would require the Secretary to issue regulations, with notice and comment and an opportunity for an informal hearing, implementing the new package inspection and opening and emergency orders provisions of section 5122.

The authority provided to DOT officials and inspection personnel under these new subsections is necessary to ensure the safe transportation of hazardous materials. The National Transportation Safety Board (NTSB) found that improperly packaged and undeclared hazardous materials caused the loss of 110 lives on ValuJet flight 592 in the Florida Everglades on May 11, 1996. The shipping and transportation of undeclared or hidden hazardous materials is the most dangerous practice involved in hazardous materials transportation. Without notice of the existence and nature of hazardous materials, carriers are unable to verify that the materials are being transported in accordance with the Hazardous Materials Regulations and to take appropriate emergency response actions when a problem develops.

The ValuJet incident does not stand alone. In other cases, airplanes could have been lost and people killed as a result of hidden hazardous materials in packagings. In 1998, a Federal Express employee was loading a box when the inner contents shifted, causing 200 rounds of cartridges to explode and char the box. Another serious incident involving a package shipped via Federal Express occurred in 1996, when ramp handlers encountered strong fumes while unloading an aircraft. Six ramp crew personnel were affected by the fumes and sent to a health clinic for observation. The package contained methyl acrylate, a flammable liquid, and was not marked, labeled, or documented as a hazardous material shipment.

In a 1997 incident aboard a Continental Airlines plane, drums inside a wooden crate leaked, four crew members were affected by the fumes, and two crew members sought medical attention. The leaking drums were discovered after passengers had disembarked. The shipment originated in Italy and was destined for Brazil. It had been offered to UPS in Germany, flown on a cargo aircraft to Newark, offered by UPS to Continental Airlines in Newark, and flown to Miami, where the leaking drums were discovered. The inner drums had been marked and labeled, but there were no hazardous material markings on the outer crate and no hazardous material shipping papers.

A recently regulated material was the cause of an undeclared hazardous material incident in 1996. UPS employees unloading an aircraft discovered a leaking package. Eight employees inhaled fumes and were sent to a hospital for observation. The leaking commodity was benzaldehyde, a class 9 material recently regulated as a hazardous material both domestically and internationally because of its anesthetic or noxious effects on flight crews.

The Federal Aviation Administration's (FAA) enforcement statistics demonstrate that undeclared hazardous materials shipments are a frequent and increasing problem. The following data show FAA’s 1993-1998 hazardous materials enforcement cases and the percentage of them that involved undeclared hazardous materials:

These statistics reflect an increasing number of reports to FAA concerning discoveries of undeclared shipments and an increasing number of cases based on initiatives undertaken by FAA’s increased hazardous material workforce.

Furthermore, the problem of undeclared hazardous materials shipments is not limited to air transportation; it has been experienced in virtually every mode of transportation. These major incidents are merely representative of a more widespread problem. The following data from the Research and Special Program Administration's Hazardous Materials Information System (HMIS) indicate that there were hundreds of carrier-reported incidents (usually releases of hazardous materials) involving undeclared or hidden hazardous materials. Specifically, from January 1990 through July 1998, there were approximately 1,887 carrier-reported incidents involving a release of undeclared hazardous materials, resulting in 110 deaths and 175 injuries. Because many incidents are unreported, including those in intrastate highway transportation not required to be reported until recently, these statistics understate the severity of problems caused by shipments of undeclared hazardous materials. In addition, these statistics cover only those shipments in which an incident occurred -- most likely only a small percentage of the total number of undeclared or hidden hazardous materials shipments.

The authorities being proposed for DOT officials and inspection personnel would clarify their existing authority to deal with this problem by opening certain packagings, inspecting their contents, identifying likely hazardous materials, taking and analyzing samples of those materials, and taking or directing effective mitigating or prohibitory actions to reduce, eliminate or prevent hazards and their serious potential consequences. For example, a hazardous materials inspector who directly observes a hazardous materials shipment that does not comply with the law may act to prevent movement of that shipment until it is brought into compliance, but it is increasingly important that this general authority be spelled out.

Finally, current subsections 5122(a), (b), and (c), respectively, would become subsections 5122(f), (g), and (h). In subsection (g), "ameliorate" would be changed to "mitigate" for clarity, and subsection (g)(2) would be deleted and subsection (g)(1) revised to clarify that the Secretary of Transportation requests the Attorney General to bring a civil action when necessary to respond to an imminent hazard. In subsection (h), "of the Treasury" would be added to clarify that the Secretary of the Treasury has the authority to grant, refuse, or revoke a vessel clearance and "of Transportation" would be added to indicate that the Secretary of Transportation may request the Secretary of Treasury to exercise that authority.

SECTION 14. This section would amend the civil and criminal penalty provisions in sections 5123 and 5124. It would extend those provisions to cover violations of special permits or approvals issued by the Department to ensure that appropriate enforcement action can be taken against persons violating those special authorities. The amendment to section 5123 would implement the Federal Civil Penalties Inflation Act of 1990, 28 U.S.C. 2461 note, as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134), by increasing the maximum civil penalty from $25,000 to $27,500. In addition, section 5123 would be amended to add two criteria to the list of factors the Secretary must consider in determining the amount of a civil penalty: any good-faith efforts by the violator to comply with the applicable requirements before or at the time of the violation, and any economic benefit to the violator resulting from the violation. The first of these would be considered as part of the culpability of the violator, and the second factor would be used only to increase penalties where the violator has reaped economic benefits as the result of its violation.

In addition, the criminal penalty provision in section 5124 would be amended by adding a new subsection (b), to increase the criminal penalties for a person knowingly violating 49 U.S.C. 5104(b) or willfully violating chapter 51 or a regulation issued under that chapter, and thereby causing a release of hazardous material. Section 5104(b) concerns tampering with a package, vehicle, vessel, aircraft, or rail freight car used to transport hazardous materials. The penalty would be a fine under title 18, not more than twenty years imprisonment, or both. The need to deter intentional releases of hazardous materials is self-evident. Hazardous materials can have disastrous consequences to the environment and to members of the public exposed to those materials. Finally, the criminal penalty provision would be amended to provide that knowledge of the existence of a regulation or requirement prescribed by the Secretary is not an element of the criminal provision. This change is essential to Federal prosecutors’ ability to pursue criminal cases against terrorists, parties who are likely to ignore civil penalty proceedings, or others concerning which it may be difficult to prove actual knowledge of the regulatory requirements. Nevertheless, prosecutors still would be required to prove that a person intentionally committed the act or omission charged and knew that a hazardous material was involved.

SECTION 15. This section would amend subsection 5125 by adding a reference to "the purposes of this chapter" in order to clarify the scope of the "obstacle" test for preemption. It would delete an obsolete reference in section 5125(b)(2) to "November 16, 1990." Finally, it would add a new section 5125(h) to indicate that each preemption standard is to be applied independently to each non-Federal requirement in order to determine whether it is preempted. The latter change would clarify that simply because a non-Federal requirement passes one preemption standard (e.g., the "dual compliance" test) does not mean that it need not pass other section 5125 preemption standards (e.g., the "obstacle" test).

SECTION 16. This section would add a new section 5127, providing for judicial review of final orders issued under chapter 51. This provision establishes the appropriate judicial forum for review of final agency compliance, enforcement, and civil penalty orders, an issue on which the present law is silent. It covers orders issued by the Secretary of Transportation, the Commandant of the Coast Guard, and the Administrators of the Pipeline and Hazardous Materials Safety Administration, the Federal Aviation Administration, and the Federal Highway Administration. The Federal Railroad Administration is excluded because it already has a judicial review provision (49 U.S.C. 20114(c)) applicable to its hazardous materials cases. The United States Court of Appeals for the District of Columbia or for the circuit in which a person seeking review resides or has its principal place of business would review the order. The petition for review must be filed within 60 days after issuance of the order unless the court finds reasonable grounds for a late filing. The section describes judicial procedures, the authority of the court, a requirement for prior objection, and review by the United States Supreme Court

-- all provisions modeled on the statute providing for judicial review of Department of Transportation and Federal Aviation Administration aviation safety orders (section 46110 of title 49). The national transportation issues under chapter 51 similarly require the type of uniform decisionmaking that the Courts of Appeals can provide.

SECTION 17. This section would add a new section 5128 to require the Secretary to conduct a study of alternative approaches to increase the safety of high-risk hazardous materials carriers. The study would be in lieu of initiating a Federal Safety Permitting Program for motor carriers of high-risk hazardous materials at this time and help determine the possible shape and nature of a national program of great efficiency, uniformity, and effectiveness. Existing State hazardous materials safety permitting programs in whole or in part would be examined and evaluated for national application. Safety benefits that may be derived by using technology-based programs also would be studied and appropriate technology recommended. Recommendations for uniformity of program application among existing State safety permitting programs would be sought. Overall costs, benefits and administrative efficiency would be examined.

SECTION 18. This section would amend the authorization language in the redesignated section 5129 (current section 5127). Consistent with the President’s budget and to carry out chapter 51 (except sections 5107(e), 5108(g), 5109, 5112, 5113, 5115, 5116, 5119, and 5128), subsection (a) would authorize (1) $13,725,000 to be appropriated to the Secretary of Transportation for fiscal year 2000 and (2) from the amounts collected under subsection 5108(g)(2)(B)(ii), $18,300,000 in appropriations for fiscal year 2000. It also would authorize the appropriation of such sums as are necessary from the amounts collected under that section for fiscal years 2001 through 2005.

Subsection (b) (supplemental training grants) would authorize use of $250,000 in fiscal year 2000 and such amounts as are necessary in fiscal years 2001 through 2005, from the section 5116(i) account, to carry out section 5116(j).

Subsection (c) (training curriculum) would authorize use of $200,000 in fiscal year 2000 and such amounts as are necessary in fiscal years 2001 through 2005, from the section 5116(i) account, to carry out section 5115.

Subsection (d) (planning and training grants) would authorize, from the section 5116(i) account, use of $5,000,000 in fiscal year 2000 and such amounts as are necessary in fiscal years 2001 through 2005 to carry out section 5116(a), and $7,800,000 in fiscal year 2000 and such amounts as are necessary in fiscal years 2001 through 2005 to carry out section 5116(b), and $150,000 to carry out section 5116(f).

In addition, this section would eliminate current subsection (e) and make ancillary editorial changes. Subsection (e) concerns an authorization to the Secretary for fiscal year 1993 to carry out section 5119, and is no longer needed. Subsection (d)(3) would be amended to delete, as unnecessary, the authorization of funds to the Director of the National Institute of Environmental Health Sciences, the Secretary of Energy, the Administrator of the Environmental Protection Agency, and the Director of the Federal Emergency Management Agency.

Furthermore, new subsection (e) would authorize the use of $600,000 in fiscal year 2000 and such amounts as are necessary in fiscal years 2001 through 2005, from the section 5116(i) account, for publication and distribution of the North American Emergency Response Guidebook. This change would confirm the practice of funding the Guidebook from the section 5116(i) account.

In addition, new subsection (f) (administrative costs) would authorize the use of $300,000 in fiscal year 2000 and such amounts as necessary in fiscal years 2001 through 2005, from the section 5116(i) account, to carry out section 5116(i)(3). Finally, new subsection (g) (training of hazmat employee instructors) would authorize the appropriation of such amounts as may be necessary, from the section 5116(i) account, in each of fiscal years 2001 through 2005 to carry out section 5107(e). This subsection (g) would enable PHMSA to provide for training needs that it finds necessary in future years. Current subsections (f) and (g) would become new subsections (h) and (i).

SECTION 19. This section would authorize the Secretary, through the Commandant of the Coast Guard, to begin addressing the problem of undeclared hazardous material in transportation in commerce that is more fully discussed above under section 13. It would mandate a two-year pilot program to randomly inspect intermodal containers in coastal port areas in order to determine the extent to which undeclared hazardous material is being offered for transportation in commerce. Coast Guard personnel would be authorized to open and inspect any intermodal container on a vessel or marine terminal or elsewhere in a port area on the Atlantic, Pacific, or Gulf of Mexico coasts. Although these inspections would not be based on a reasonably articulable belief that a hazardous material is present, they would be carried out solely by Coast Guard personnel who traditionally carry out customs activities, they would be carried out in coastal port areas where they would be similar to border inspections, and they would be based upon random selections made by supervisory personnel not present at the site of the inspections. Therefore, the proposed pilot program represents a careful balancing of parties’ privacy interests and the need to protect emergency responders, transportation workers and the general public from the dangers inherent in the transportation of undeclared hazardous material.

The Secretary would be required to initiate the program within 1 year after enactment of this Act and to report to Congress on the program within 6 months of its completion. That report would be required to contain the number of containers inspected, the number of containers containing undeclared hazardous material, a description of the safety hazards posed by the undeclared hazardous material, and a recommendation for any legislation necessary to address those safety hazards. That recommendation might address a broader pilot program or a substantive change to this Act.

SECTION 20. This section would delete subsection 5105(d) because the modes and routes study it mandates has been completed by the Secretary and submitted to Congress. It would then redesignate subsection 5105(e) as subsection 5105(d).