Section-By-Section Analysis
SECTION 1. This section contains the short title and table of contents.
SECTION 2. This section would update and clarify the purpose of chapter 51 of title 49. For example, it would clarify that commerce includes intrastate, interstate, and foreign commerce as set forth in existing section 5103. Also, in recent litigation, plaintiffs challenged a DOT hazardous materials safety rule alleging, among other things, that DOT had exceeded its authority by issuing a rule that provided more than "adequate" protection against the risks to life and property. This section would delete the word "adequate" to clarify that the Secretary has broad regulatory authority.
SECTION 3. This section would modify definitions in chapter 51 of title 49 as indicated below.
The definition of "commerce" would be amended to provide jurisdiction over hazardous materials activities being conducted on a U.S.-registered aircraft anywhere in the world. Currently, DOT does not have clear authority over U.S.-registered aircraft carrying hazardous materials between two foreign points. Such jurisdiction would parallel U.S. and DOT jurisdiction over other safety aspects of those same flights. Assertion and exercise of that jurisdiction over U.S.-registered aircraft 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, including owner-operators of motor vehicles, vessels, or aircraft transporting hazardous materials in commerce. The two definitions also would be amended to clarify the applicability of the training requirements to persons "used" by a hazmat employer -- such as contractors -- to perform any of the hazardous materials functions listed in section 5103(b)(1).
The definition of "motor carrier" would be amended by clarifying that it includes a freight forwarder, as defined in section 13102 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.
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, design, inspect, test, recondition, mark, or repair a packaging or packaging component represented as qualified for use in transporting hazardous materials in commerce. Those packaging-related activities, although rare, have the potential to affect the transportation of hazardous materials by other persons. Therefore, regulation of those activities is appropriate to ensure that they are conducted in a safe manner.
SECTION 4. This section would amend subsection 5103(a) to update the terminology used to describe materials the Secretary is required, under that subsection, to designate as hazardous.
This section would amend subsection 5103(b)(1)(A) to add that persons who prepare, accept, or reject hazardous materials for transportation in commerce, persons who are responsible for the safety of transporting hazardous materials in commerce, persons who certify compliance with any requirement issued under chapter 51, and persons who misrepresent whether they are engaged in a function listed under 5103(b)(1)(A), are subject to the Hazardous Materials Regulations.
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 current law does not require training for carriers that do not carry hazardous materials or cause the transportation of hazardous materials. However, if a carrier does not train its employees to reject hazardous materials, it unwittingly becomes a carrier of hazmat and subject to the training rules. Expansion of the law to cover rejection of hazardous materials is necessary to ensure compliance with the regulations by preventing the improper transportation of hazardous materials and, thus, enhance safety.
The application to persons who prepare or accept hazardous materials is necessary to clarify that non-shipper personnel who prepare hazardous materials for transportation on behalf of a shipper (e.g., freight forwarders) and non-carrier personnel who accept hazardous materials for transportation on behalf of a carrier (e.g., a broker, agent, or freight forwarder) are subject to the Hazardous Materials Regulations, including training requirements. The proposed amendment would also ensure that persons who are responsible for compliance with the Hazardous Materials Regulations are subject to the regulations. Including persons who certify compliance with any requirement issued under chapter 51 would ensure that the person has the knowledge necessary to accurately certify that the requirement has been met. Finally, this section would clarify that persons who misrepresent whether they are engaged in a regulated activity, such as transporting hazardous materials in commerce, are subject to the Hazardous Materials Regulations, including the civil penalty provisions.
SECTION 5. This section would make minor editorial changes to section 5104 for clarity.
SECTION 6. This section would amend section 5105 by deleting subsections (d) and (e). Subsection (d) requires the Secretary to conduct a study to decide which factors, if any, shippers and carriers should consider when selecting routes and modes that would enhance overall public safety related to the transportation of high-level radioactive waste and spent nuclear fuel. Subsection (d) would be deleted because the study was completed and submitted to Congress.
Subsection (e) states that 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 must be inspected and certified as complying with chapter 51 and applicable U.S. motor carrier safety laws and regulations. The Department currently oversees the inspection of trucks transporting highway-route-controlled quantity (HRCQ) shipments of radioactive materials at their points of origin. Presently, there are three mechanisms in place to ensure that commercial motor vehicles (CMV) transporting HRCQ shipments are safe:
(1) Contract language required by the Department of Energy (DOE) mandates point- of- origin inspection and certification of HRCQ shipments. DOE contracts cover most HRCQ shipments; the remaining shipments are made up of high-level, gamma- emitting radioactive materials used for medical purposes.
(2) The Commercial Vehicle Safety Alliance (CVSA), which includes all 50 states, Canada, and Mexico, has adopted a set of standardized protocols that require a point-of- origin, zero-defect Level VI (most complete) inspection. CVSA inspectors in participating states affix a Level VI inspection decal to any vehicle transporting HRCQ radioactive material. This decal serves as a visible means of determining, during a roadside inspection, that the vehicle has passed a point-of-origin CVSA Level VI inspection. DOE also requires the Level VI inspection decal to be displayed on vehicles transporting HRCQ radioactive material.
(3) Most states require carriers of radioactive materials to obtain a permit before beginning transportation. States typically issue permits only after arrangements for the Level VI inspection are made. The permitting process includes advising motor carriers of the requirement for a Level VI inspection at the point of origin of many radioactive materials shipments.
A recent study of HRCQ shipments conducted by CVSA determined that, of 124 shipments, 313 inspections were conducted at the point of origin, during transportation, or at the destination. These inspections resulted in a total of 17 violations discovered. This means that each shipment was inspected an average of 2.5 times during transportation. These numbers demonstrate that there is no need for further regulation of this activity. Consequently, this section proposes deleting section 5105(e).
SECTION 7. This section would repeal section 5106, which authorizes the Secretary to prescribe criteria for the handling of hazardous materials. Because of the broad authority of the Secretary of Transportation, under section 5103(b), to prescribe regulations for the safe transportation of hazardous materials in intrastate, interstate, and foreign commerce, section 5106 is unnecessary. In addition, this section has generated some confusion about the respective responsibilities of the Department of Transportation, the Occupational Safety and Health Administration, and the Environmental Protection Agency. Therefore, it should be eliminated.
SECTION 8. This section would amend subsection 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/Occupational Safety and Health Administration (OSHA) regulations specified in that section. It would also revise subsection (e) to reference proposed section 5128 rather than subsection 5127(c)(3), which does not exist.
This section also would amend subsection 5107(f)(2) by deleting reference to section 5106, which is proposed to be eliminated, and by deleting reference to section 5108(c)-(g) and (h), and section 5109. This deletion would clarify the extent of shared DOT/OSHA jurisdiction by eliminating dual jurisdiction over handling criteria, registration, and motor carrier safety.
Based on their respective statutory authorities, both DOT and OSHA regulate hazardous materials. However, section 4(b)(1) of the Occupational Safety and Health Act provides:
Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. 29 U.S.C. 653(b)(1).
This provision means that where DOT exercises its authority to prescribe or enforce standards or regulations affecting occupational safety or health in a particular area, OSHA is precluded from regulating in that same area, without exception.
However, an apparent drafting error in the Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA), Public Law (Pub. L.) 101-615, gives OSHA shared jurisdiction with DOT for hazardous materials training, handling criteria, registration, and motor carrier safety. Specifically, HMTUSA amended section 1805 of the Hazardous Materials Transportation Act (HMTA) to read as follows:
For purposes of section 653(b)(1) of title 29, no action taken by the Secretary [of Transportation] pursuant to this section shall be deemed to be an exercise of statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. 49 U.S.C. App. 1805(b)(3)(1990) (emphasis added).
This is the so-called "reverse 4(b)(1)" provision. The words "pursuant to this section," found in section 1805(b)(3), referred to the entirety of section 1805, entitled "Handling," and not solely to subsection 1805(b)(3), which pertained to emergency response training. The reference to "this section" should have read "this subsection" to maintain OSHA's shared jurisdiction with DOT for hazardous materials worker training only. The 1994 codification of the law, without substantive change, highlighted and perpetuated the error. The "reverse 4(b)(1)" provision, which had been located in subsection 1805(b)(3) of the HMTA, was codified at 49 U.S.C. 5107(f)(2). The language was revised to read as follows:
An action of the Secretary of Transportation under subsections (a)-(d) of this section and sections 5106, 5108(a)(g)(1) and (h), and 5109 of this title is not an exercise, under section 4(b)(1) of the Occupational Safety and Health Act of 1970 (28 U.S.C. 653(b)(1)), of statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. 49 U.S.C. 5107(f)(2).
Under subsection 5107(f)(2), an action of the Secretary in the areas of hazardous materials training, handling criteria, registration, and motor carrier safety no longer precludes OSHA from regulating in those same areas, but this 1990 amendment was in error. The amendment proposed in this section would correct the extent of shared DOT/OSHA jurisdiction by eliminating dual jurisdiction over handling criteria, registration, and motor carrier safety. They would retain shared jurisdiction over training.
DOT would also clarify, however, that its proposed amendment to subsection 5107(f)(2) is not intended to preclude OSHA from continuing to provide occupational safety or health protection to employees responding to a release of hazardous materials.
In 1986, Congress recognized the dangers facing hazmat transportation workers and enacted Section 126 of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99-499), which directed OSHA to issue standards to protect the health and safety of employees engaged in hazardous waste operations. Three years later, OSHA issued standards that require certain basic protections for emergency response workers, including training, respirators and other personal protective equipment, and provisions for written response plans and onsite coordination of emergency response operations. See 29 C.F.R. § 1910.120. Nonetheless, OSHA's authority to regulate occupational safety and health in hazmat transportation is limited by Section 4(b)(1) of the OSH Act, as discussed above. Other Federal agency regulations need not be as protective of employee safety and health as OSHA's requirements; even weak regulations preempt OSHA's authority. See Secretary of Labor v. Mushroom Transportation Co., 1 BNA OSHC 1390 (No. 1588, 1973).
Consequently, DOT's draft bill contains language clarifying that, notwithstanding section 4(b)(1) of the OSH Act, an action of the Secretary of Transportation under Federal hazmat law does not preclude the Secretary of Labor from prescribing or enforcing standards, regulations or requirements regarding hazardous materials employee training, or the occupational safety or health protection of employees responding to a release of hazardous materials.
SECTION 9. This section would make changes to the registration provisions in section 5108.
Section 5108(a)(1)(B) would be amended to update the terminology used to reference explosive materials.
Section 5108(a)(2)(B) would be amended to allow the Secretary to require a registration statement from persons who design and inspect a packaging or packaging component that is represented as qualified for use in transporting hazardous materials in commerce. This proposed change is consistent with the proposed changes to section 5103(b)(1) regarding persons subject to the hazardous materials regulations.
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 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. This proposal would implement the President's Budget Request for Fiscal Year 2002.
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 10. This section would repeal section 5109. 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 safety permit program will not likely resolve different States' concerns that their needs be met, and raises additional concerns related to unnecessary preemption and the expense of a parallel Federal permitting system.
Under section 5109, a federal hazardous materials safety permit program would cover over 18,000 carriers in the four categories for which the permit is mandatory. DOT believes that the following actions are alternative means of enhancing safe hazardous materials transportation by motor carrier as envisioned under section 5109:
. The Federal Motor Carrier Safety Administration (FMCSA) is incorporating a risk factor into its carrier selection system that will place additional emphasis on unsafe carriers of hazardous materials. Unsafe motor carriers, including those carrying hazardous materials, will be readily identified by FMCSA through its carrier selection system and be subject to a compliance review.
. FMCSA is actively promoting the permit and registration program of the Alliance for Uniform Hazmat Transportation Procedures, which was developed under 49 U.S.C. 5119. The implementation of this program would make a Federal hazardous materials safety permit redundant.
. FMCSA is also instituting a new entrant program that requires motor carriers who are granted new operating authority to undergo a safety review within eighteen months of commencing operations. This program, which is required by Section 210 of the Motor Carrier Safety Improvement Act of 1999, will check the safety of new motor carriers transporting hazardous materials.
Based on the above, this section proposes to repeal section 5109 as unnecessary.
SECTION 11. This section would amend subsection 5110(a) to reflect that each person who prepares a shipping paper must make the disclosures the Secretary prescribes by regulation. Subsection 5110(b) would be deleted as unnecessary because the informational elements set forth in that subsection are already required by the Secretary under the Hazardous Materials Regulations.
This section would also modify the requirement in current 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. In addition, the one-year retention period is inadequate for law enforcement purposes; meaningful, but minimally costly (especially for electronic records), record retention should be for a three-year period. Therefore, that section is being modified to provide for shipping paper retention for three years after the shipping paper is provided to the carrier.
SECTION 12. This section would repeal section 5111, which permits a rail car built before January 1, 1971, to be used for hazardous materials transportation only if the air brake equipment support attachments of the car comply with the standard for attachments contained in 49 CFR 179.100-16 and 179.200-19. This statutory requirement is currently implemented through 49 CFR 173.31(a)(4), which provides that no railroad tank car, regardless of its construction date, may be used for the transportation in commerce of any hazardous material unless the air brake equipment support attachments of the tank car conform to the standards for attachments set forth in 49 CFR 179.100-16 and 179.200-19. Section 5111 deals only with air brake equipment support attachments and is based on older standards. Current industry standards are more stringent and DOT's regulations adopt those standards.
SECTION 13. This section 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 civil penalty in section 5123 and the criminal penalties in section 5124. It would also correct a typographical error in section 31144 by substituting "(f)" for "(c)" as the subsection designation of the last subsection in the section.
SECTION 14. Several technical amendments would be made to section 5115 to reflect that the public-sector training curriculum has already been developed and to focus the statutory provisions on maintaining, not developing, the curriculum.
Also, references to activities with 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. This would expand the pool of eligible public-sector employees. In addition, the recommended basic training course would be required to include emergency response training prescribed by the National Fire Protection Association and "such other voluntary consensus standard-setting organizations as the Secretary deems appropriate." This would expand the sources for emergency response training modules.
SECTION 15. This section would clarify section 5116(e) by changing the phrase "Amounts of the State or tribe" to "Amounts received by the State or tribe" and by simplifying two related references. 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 subsection (g), the phrase "Government grant" programs would be broadened to "federal financial assistance" programs in order to provide for more complete coordination of funding sources.
Also, this section would amend section 5116 to provide a name for the account established under subsection 5116(i), calling it the "Emergency Preparedness Fund." Amounts collected by the Secretary under subsection 5108(g)(2)(C) would be deposited into the Emergency Preparedness Fund and could be used for emergency planning and training grants under subsection 5116(a) and (b), monitoring and technical assistance under subsection 5116(f), and administrative costs of carrying out sections 5116, 5108(g)(2), and section 5115. It also would clarify that these amounts may be used to develop, publish, and distribute the 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 and submitted to Congress.
SECTION 16. This section would amend section 5117 by changing 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. Also, this section would be amended to clarify that, where appropriate, the Secretary may issue a special permit to any person who performs a function identified under section 5103(b)(1).
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.
The increased maximum effective period of time will have a positive impact on safety. It will enable 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 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 17. This section would repeal section 5118. Section 5118 currently requires the Secretary to maintain 30 hazardous materials safety inspectors more than the number of inspectors authorized at the end of fiscal year 1990. It also specifies how the Secretary is to allocate those inspector resources among three specific agencies - the Pipeline and Hazardous Materials Safety Administration, the Federal Highway Administration, and the Federal Railroad Administration.
Last year, the Secretary delegated additional authority to the modal administrations with hazardous materials safety responsibilities in order to remove then-existing barriers to cross- modal enforcement by DOT's hazardous materials inspectors. (See 65 Federal Register 49763; Aug. 15, 2000). This flexibility allows the Secretary to target specific problem areas and focus inspector resources where needed most. Section 5118 is outdated and limits the Secretary's ability to manage inspector resources to maximize hazardous materials safety. Consequently, this section proposes to repeal section 5118.
SECTION 18. This section would amend section 5119 to reflect the fact that the working group established under subsection 5119(a) to formulate uniform registration and permitting forms and procedures has completed its task and submitted a report to Congress as required under subsection 5119(b). Thus, section 5119 would be revised to delete references to the working group and the report (except as indicated in the following paragraph).
Also, section 5119 would be reorganized for clarity, and a new subsection 5119(d) 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 by the Alliance for Uniform Hazmat Transportation Procedures.
SECTION 19. This section would improve safety by clarifying and enhancing the inspection and enforcement authority of DOT officials and inspection personnel. First, section 5121(a) would be amended to expressly state that the Secretary's enforcement authority includes the authority to conduct tests. This authority is implied by the existing language in current section 5121(a).
This section would amend current subsection 5121(b) to clarify that persons subject to chapter 51 must make property, as well as records, reports, and information, available to the Secretary for inspection upon the Secretary's request. The Secretary currently has the authority in 5121(a) to require the production of records and property.
This section also would amend subsection 5121(c) to clarify and expand DOT inspection authority to authorize a designated DOT officer or employee to:
- access, 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 is 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 thus reduces the privacy expectation of those businesses engaging in activities regulated under that law. Therefore, persons offering or transporting packages identified as hazardous materials possess limited privacy interests, authorizing DOT inspection personnel to inspect these shipments.
Likewise, this proposal respects the constitutional rights of persons offering or transporting other types of shipments suspected to contain a hazardous material. Momentary stopping and searching of these packages constitute minimally intrusive conduct necessary to carry out the purpose of the statute. See V-1 Oil Co. v. Means, 94 F.3d 1420 (10th Cir. 1996). 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 a pattern of 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 redesignate existing subsection 5121(d) as subsection 5121(f), and add a new subsection 5121(d) authorizing the Secretary of Transportation to issue emergency orders when it is determined, by inspection, investigation, testing, or research 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, but 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. A person aggrieved by an action of the Secretary could petition 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. The term "out-of-service order" would be defined in subsection 5121(d) as a mandate that an aircraft, vessel, motor vehicle, train, railcar, locomotive, other vehicle, transport unit, freight container, or package not be moved until specified conditions have been met.
A new subsection 5121(e) would require the Secretary to issue regulations, after notice and comment and an opportunity for an informal hearing, implementing the new package inspection and opening and emergency orders provisions of section 5121.
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 1999, eleven 38-pound batteries containing acid were offered for transportation by air. Four of the batteries leaked their entire contents into the aircraft's cargo compartment. The undeclared hazmat was discovered by ground handling employees who noticed a strong smell coming from the cargo compartment. Also in 1999, Airborne Express was offered a package containing liquid phenol -- a poison -- in unmarked packages. The package leaked at the Airborne Express facility prior to transportation, causing the facility to be evacuated.
In 1998, an undeclared shipment of non-spillable wet electric storage batteries was offered to Southwest Airlines for transportation. The shipment burst into flames while en route to the airport via truck. In 1999, an undeclared shipment of liquefied petroleum gas was offered for transportation by air to Federal Express. The shipment was transported to New York from Portland, Oregon, on a regularly scheduled cargo flight. One day after its arrival in New York, the package burst into flames at Federal Express's sort facility.
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.
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. Also in 1996, a box containing undeclared hazardous material -- calcium hypochlorite and liquid bleach -- was transported on a regularly scheduled American Airlines passenger-carrying flight from California to Montego Bay, Jamaica. Upon arrival, airport personnel observed smoke coming from the aircraft's cargo compartment. Both smoke and toxic fumes were emitted when the cargo doors were opened. The box, which was leaking, burst into flames shortly after being removed from the cargo hold.
In addition, 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 1993-2000 hazardous materials enforcement cases and the percentage of them that involved undeclared hazardous materials:
| YEAR |
HAZMAT CASES |
CASES INVOLVING UNDECLARED HAZMAT |
% CASES INVOLVING UNDECLARED HAZMAT |
| 1993 |
895 |
420 |
47% |
| 1994 |
1,029 |
656 |
64% |
| 1995 |
726 |
516 |
71% |
| 1996 |
888 |
664 |
75% |
| 1997 |
1,231 |
1,008 |
82% |
| 1998 |
1,890 |
1,320 |
70% |
| 1999 |
2,268 |
1,597 |
70% |
| 2000 |
2,767 |
1,716 |
62% |
These statistics reflect an increasing number of cases based on initiatives undertaken by FAA's expanded hazardous material workforce and an increasing number of cases involving the discovery of undeclared hazardous materials shipments.
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 December 2000, there were approximately 3,300 carrier-reported incidents involving a release of undeclared hazardous materials, resulting in 110 deaths and 197 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 set forth for DOT officials and inspection personnel would clarify and expand 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 currently has no authority under the law to prevent movement of that shipment until it is brought into compliance. This proposal would provide such authority.
Finally, this section would add a new subsection (g) 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.
SECTION 20. This section would amend section 5122 for clarity. Specifically, subsection (a) would be amended to clarify the types of judicial relief, including civil penalties, that may be granted in an action brought by the Attorney General. Subsection (b) would be amended for clarity by changing the word "ameliorate" to "mitigate." "Ameliorate" means "to make better," which is inappropriate with regard to addressing a hazard.
SECTION 21. This section would amend the civil and criminal penalty provisions in sections 5123 and 5124. It would extend those sections 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. Section 5123 also would be amended to increase the maximum civil penalty from $27,500 to $100,000 for each violation. An increase in the maximum civil penalty would give the Department flexibility to assess appropriately high civil penalties in cases involving significant noncompliance with the hazardous materials regulations and especially those resulting in death, serious injury, or significant property damage. Finally, section 5123 would be amended to specify that a violator is liable for interest that accrues on a civil penalty and to state that, in a civil action to collect a civil penalty, the validity, amount, and appropriateness of the civil penalty is not subject to review.
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, representing a 15-year increase in possible imprisonment from current law. The need to deter intentional releases of hazardous materials is self-evident. Hazardous materials can have disastrous consequences for the environment and to members of the public exposed to those materials.
Also, the criminal penalty provision would be amended to include definitions of the terms "knowingly" and "willfully." Furthermore, 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 whom 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.
Finally, this section would amend section 46312 of title 49 (criminal penalty for violations in transporting hazardous materials by air) to clarify that the regulations referred to in that section include the hazardous materials regulations issued by the Secretary under chapter 51.
SECTION 22. This section would amend section 5125 by adding a new subsection (a) outlining the purposes of the Secretary's current preemption authority. Also, current subsection (a), now redesignated as subsection (b), would be amended by adding a reference to "the purposes of this chapter" in order to clarify the scope of the "obstacle" test for preemption. This section would also delete an obsolete reference in current subsection (b)(2), now redesignated as subsection (c)(2), to "November 16, 1990."
Also, this section would clarify in current subsection 5125(d), now redesignated as subsection 5125(f), that a person may apply to the Secretary for a decision on whether a fee imposed by a state, political subdivision of a state, or an Indian tribe is preempted. Also, that subsection would be amended by deleting the requirement that the Secretary publish the reason for delay in issuing a preemption determination in the Federal Register. PHMSA presently maintains current information on its website about the status of preemption decisions. (See "http://rspa-atty.dot.gov.")
PHMSA frequently updates this document and it is widely accessible by the general
public.
Current subsection 5125(f) would be deleted. It is unnecessary under the proposed bill because, as discussed below, Section 24 would revise section 5127 to include judicial review provisions for all final actions of the Secretary, including final actions taken under section 5125. This proposal would also redesignate current subsections (d), (e), and (g) as subsections (f), (g), and (e) so that the preemption standard for fees in current subsection (g) follows the other preemption standards set forth in subsections (b), (c), and (d), as redesignated.
Also, this section would add a new subsection 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).
Finally, this section would add a new subsection 5125(i) to clarify that the Secretary's preemption authority does not apply to a procedure, penalty, required mental state, or other standard used by a State, political subdivision of a State, or Indian tribe to enforce hazardous material transportation requirements.
However, states may not be as free to regulate in the rail area as they are in other modes of transportation. Section 20106 of title 49, "National uniformity of regulation," provides as follows:
Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order (1) is necessary to eliminate or reduce an essentially local safety hazard; (2) is not incompatible with a law, regulation, or order of the United States Government; and (3) does not unreasonably burden interstate commerce.
See also CSX Transportation, Inc. v. Public Utilities Commission of Ohio, 901 F.2d 497 (6th Cir. 1990), cert. denied, 111 U.S. 781 (1991), holding that an Ohio statute regulating hazardous materials transportation by rail is subject to the preemption provisions of Section 20106, rather than the more permissive preemption provisions of 49 U.S.C. 5125. Furthermore, the plain language of section 20106 allows regulation by a "State." In the interest of national uniformity, this language has been interpreted narrowly, and has been held to permit regulation only by a State, and not by political subdivisions of a State. See, e.g., Donelon v. New Orleans Terminal Co., 474 F.2d 1108 (5th Cir. 1973), cert. denied, 414 U.S. 855 (1973).
SECTION 23. This section would amend subsection 5126(a) to clarify that a person under contract with the United States government that designs or inspects a packaging or packaging component represented as qualified for use in transporting hazardous materials in commerce must comply with chapter 51 and the hazardous materials regulations. Subsection 5126(b) would be amended to provide that chapter 51 does not apply to marine transportation of hazardous materials subject to regulation under title 33 or title 46, United States Code.
SECTION 24. This section would add a new section 5127 providing for judicial review of final actions taken by the Secretary under chapter 51. This provision establishes the appropriate judicial forum for review of final agency actions in the areas of compliance, enforcement, civil penalties, rulemaking, and preemption. The present law is silent on this issue with the exception of judicial review of final preemption determinations, which are currently subject to review by an appropriate U.S. district court. The proposed new section covers final actions taken 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, the Federal Motor Carrier Safety Administration, and the Federal Highway Administration. The Federal Railroad Administration would be excluded because it already has a judicial review provision (49 U.S.C. 20114(c)) applicable to its hazardous materials cases.
Under the proposal, 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 final action. The petition for review must be filed within 60 days after issuance of the order. The section describes judicial procedures, the authority of the court, and a requirement for prior objection -- all provisions modeled on the statute providing for judicial review of Department of Transportation and Federal Aviation Administration aviation orders (section 46110 of title 49). The national transportation issues under chapter 51 similarly require the type of uniform decision making that the Courts of Appeals can provide.
SECTION 25. This section would amend the outdated authorizations in the redesignated section 5128 (current section 5127) to cover Fiscal Years 2002-2007. Consistent with the President's budget and to carry out chapter 51 (except sections 5107(e), 5108(g), 5112, 5113, 5115, 5116 and 5119), subsection (a) would authorize (1) $21,217,000 to be appropriated to the Secretary of Transportation for fiscal year 2002, and (2) such sums as may be necessary for fiscal years 2003 through 2007.
A new subsection (b) would authorize appropriations from the Emergency Preparedness Fund account to carry out certain activities under the law. Specifically, current subsection (b), redesignated as subsection (b)(1), would authorize use of $250,000 in fiscal year 2002 and such amounts as are necessary in fiscal years 2003 through 2007, from the Emergency Preparedness Fund account, to carry out section 5116(j) (supplemental training grants).
Current subsection (c), redesignated as subsection (b)(2), would authorize use of $200,000 in fiscal year 2002 and such amounts as are necessary in fiscal years 2003 through 2007, from Emergency Preparedness Fund account, to carry out section 5115 (training curriculum).
Current subsections (d)(1), (d)(2), and (d)(3), redesignated as subsections (b)(3), (b)(4), and (b)(5), would authorize, from the Emergency Preparedness Fund account, use of $5,000,000 in fiscal year 2002 and such amounts as are necessary in fiscal years 2003 through 2007 to carry out section 5116(a) (planning grants), and $7,800,000 in fiscal year 2002 and such amounts as are necessary in fiscal years 2003 through 2007 to carry out section 5116(b) (training grants), and $150,000 in fiscal year 2002 and such amounts as are necessary in fiscal years 2003 through 2007 to carry out section 5116(f) (monitoring and technical assistance).
Also, current subsection (d)(3), redesignated as subsection (b)(5), 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.
In addition, this section would eliminate current subsection (e) and make ancillary editorial changes. Current subsection (e) concerns an authorization to the Secretary for fiscal year 1993 to carry out section 5119 and is no longer needed.
Furthermore, a new subsection (e) would be added to authorize the use of $500,000 in fiscal year 2002 and such amounts as are necessary in fiscal years 2003 through 2007, from the Emergency Preparedness Fund account, for publication and distribution of the Emergency Response Guidebook. This change would confirm the practice of funding the Guidebook from the section 5116(i) account.
A new subsection (b)(7) would authorize the appropriation of such amounts as may be necessary, from the Emergency Preparedness Fund account, in each of fiscal years 2002 through 2007 to carry out section 5107(e) (training of hazmat employee instructors). This new subsection would enable PHMSA to provide for training needs that it finds necessary in future years. A new subsection (b)(8) would be added to authorize the appropriation of $400,000 from the Emergency Preparedness Fund account for fiscal year 2002 to pay the administrative costs of carrying out sections 5116 (planning and training grants), 5108(g)(2) (registration), and 5115 (public-sector training curriculum). Current subsections (f) and (g) would become new subsections (c) and (d).
SEC. 26. This section would amend chapter 30 of title 39, United States Code, to prohibit hazardous materials in the mail unless specifically authorized by law or Postal Service regulation. It also would allow the United States Postal Service to collect civil penalties, and to recover clean-up costs and damages, for violations of this statutory provision and regulations issued under it. This language would provide the Postal Service with civil penalty authority analogous to the Department of Transportation's civil penalty authority under chapter 51. It would enhance the Postal Service's authority to regulate hazardous materials in the mail and would institute a civil penalty process that would serve as a deterrent to those who unlawfully place hazardous material in the mails.
This section would require the Postal Service to demonstrate that a "knowing" violation has occurred, to give written notice of the amount of the penalty, cost or damages assessed, and to provide an opportunity for a hearing before making a finding of violation. The Postal Service would have to take into account certain penalty assessment criteria -- such as prior violation history, gravity of the violation, and ability to remain in business -- in determining the amount of a civil penalty. Those accused of a violation would have the right to file an administrative appeal with the Postal Service, and the Postal Service would be able to bring a civil action to collect penalties, damages, and costs. Costs, damages, and penalties under this section would be paid into the Postal Service Fund under 39 U.S.C. 2003.
Most hazardous materials are nonmailable. The Postal Service regulations generally limit the mailing of hazardous materials to ORM-D materials (defined as "consumer commodities.") The postal mailing standards for hazardous materials closely adhere to DOT's Hazardous Materials Regulations and often include additional limitations and prohibitions.
Currently, anyone who mails or causes to be mailed a nonmailable or improperly packaged hazardous material can be subject to criminal penalties including, but not limited to, those specified in 18 U.S.C. 1716. The Postal Service initiates hazardous materials investigations and works cooperatively with other agencies to conduct inspections. However, it can be difficult to enforce the postal service regulations using this criminal penalty authority because "intent" must be demonstrated. Moreover, U.S. Attorneys' offices may lack the resources or time to devote to prosecuting these violations.
Between January 1, 1998, and November 15, 2000, Postal Service personnel reported over 500 hazardous materials incidents involving the mail. None of these incidents resulted in death or serious injury. However, in 68 of these incidents, medical attention was needed for one or more Postal Service employees. Of these, 38 required medical follow-up due to potential exposure to biological materials (e.g., blood or urine). Also, 64 of these incidents resulted in property damage of approximately $110,690. This amount does not include costs associated with emergency response, evacuation, hospitalization, and lost productivity.
Several incidents in the last two years demonstrate the serious potential safety hazards posed by hazardous materials in the mail. Civil penalty authority would have given the Postal Service a mechanism for better enforcing its postal regulations and for recovering clean-up costs and damages.
For example, in 1998 a priority mail parcel containing four glass quart bottles of mercury was mailed from Baltimore, Maryland to San Francisco, California. During the offloading of luggage at an intermediate location, a ground handler reported that it was "raining silver." The ground supervisor instructed the ground employee to remove the damaged parcel, and to resume the reloading operations to maintain an on-time departure. The fire department responded after the aircraft had departed and found that the damaged parcel contained mercury. The aircraft was told to return to the airport. Three pounds of mercury were found in the fuselage of the aircraft. The Postal Service paid $87,000 to Southwest Airlines in aircraft clean-up costs. The airline did not press for reimbursement of other costs, which were estimated at $1.4 million.
In 1998, a priority mail parcel containing two one-quart cans of Sodium Bisulfate was mailed from San Francisco, California to Seattle, Washington. The parcel leaked while at a Postal Service bulk mailing center. The fire department was called and the mailing center was evacuated for approximately 4 hours during which all mail operations ceased. An outside company was called to perform the clean-up operation. Sodium Bisulfate is mailable but is transportable by "Surface Only." The mailer did not properly package or label this parcel or disclose the contents to the postal clerk. The clean-up cost associated with this incident was $2,500. This does not include the cost of the mail center being closed.
In November 2000, a parcel containing methyl limino ethanol and hydrogen sulfide was mailed from Woodlawn, Texas to a testing laboratory in Texas. The package was damaged and leaked during handling at the post office. The fire department responded to the incident. Twenty-two employees were hospitalized for exposure to noxious fumes. Costs and damages to the Postal Service were approximately $11,000.
In November 2000, a motorcycle gas tank was mailed from a repair shop in Arizona to a customer outside Portland, Oregon. The gas tank contained an estimated three gallons of gasoline, which is prohibited in the mail. The package was damaged and leaked during the flight into Los Angeles International Airport. The aircraft landed safely. Fumes were noticed during off-loading of the lower cargo compartment. The fire department responded and the aircraft was taken out of service and cleaned. The parcel was turned over to the Postal Inspection Service.
Last year, a priority mail parcel containing one gallon of auto paint was mailed from San Francisco, California to Macon, Georgia. The package leaked in the lower compartment of an aircraft. The mailer had first tried to check the package as luggage but was told that he could not take auto paint on the aircraft. He then mailed the article. This type of paint is mailable, but is transportable by "Surface Only." The customer did not properly package or label this parcel or disclose the contents to the postal clerk.
Last year, a mailer packed mercury in a vial and soup can, sealed it with duct tape, and placed it in a parcel along with books and tools. This parcel was packed inside another parcel. The mercury leaked while at a Postal Service bulk mailing center. Clean-up costs were estimated at $1,500.
This section would provide the Postal Service with the necessary authority to effectively regulate hazardous materials in the mail through meaningful enforcement of its regulations.
|
