49 U.S.C. § 5103a — Limitation on issuance of hazmat li-

Page 198 TITLE 49—TRANSPORTATION § 5103a 1 So in original. The quotation marks and semicolon probably should not appear. HM–181 contained in part 178 of title 49, Code of Federal Regulations; and ‘‘(B) to determine whether a packaging standard (including such fiber drum industry standards), other than such performance-oriented packaging standards, will provide an equal or greater level of safety for the transportation of liquid hazardous materials than would be provided if such perform- ance-oriented packaging standards were in effect. ‘‘(2) COMPLETION.—The study shall be completed be- fore March 1, 1997 and shall be transmitted to the Committee on Commerce, Science, and Transpor- tation of the Senate and the Transportation and In- frastructure Committee of the House of Representa- tives. ‘‘(d) SECRETARIAL ACTION.—By September 30, 1997, the Secretary shall issue final regulations to determine what standards should apply to fiber drum packaging with a removable head for transportation of liquid haz- ardous materials (with respect to those liquid haz- ardous materials transported by such drums pursuant to regulations in effect on September 30, 1991) after September 30, 1997. In issuing such regulations, the Sec- retary shall give full and substantial consideration to the results of the study conducted in subsection (c).’’ Pub. L. 103–311, title I, § 122, Aug. 26, 1994, 108 Stat. 1681, provided that: ‘‘(a) INITIATION OF RULEMAKING PROCEEDING.—Not later than the 60th day following the date of enactment of this Act [Aug. 26, 1994], the Secretary of Transpor- tation shall initiate a rulemaking proceeding to deter- mine whether the requirements of section 5103(b) of title 49, United States Code (relating to regulations for safe transportation), as they pertain to open head fiber drum packaging can be met for the domestic transpor- tation of liquid hazardous materials (with respect to those classifications of liquid hazardous materials transported by such drums pursuant to regulations in effect on September 30, 1991) with standards other than the performance-oriented packaging standards adopted under docket number HM–181 contained in part 178 of title 49, Code of Federal Regulations. ‘‘(b) ISSUANCE OF STANDARDS.—If the Secretary of Transportation determines, as a result of the rule- making proceeding initiated under subsection (a), that a packaging standard other than the performance-ori- ented packaging standards referred to in subsection (a) will provide an equal or greater level of safety for the domestic transportation of liquid hazardous materials than would be provided if such performance-oriented packaging standards were in effect, the Secretary shall issue regulations which implement such other standard and which take effect before October 1, 1996. ‘‘(c) COMPLETION OF RULEMAKING PROCEEDING.—The rulemaking proceeding initiated under subsection (a) shall be completed before October 1, 1995. ‘‘(d) LIMITATIONS.— ‘‘(1) The provisions of subsections (a), (b), and (c) shall not apply to packaging for those hazardous ma- terials regulated by the Department of Transpor- tation as poisonous by inhalation under chapter 51 of title 49, United States Code. ‘‘(2) Nothing in this section shall be construed to prohibit the Secretary of Transportation from issuing or enforcing regulations for the international trans- portation of hazardous materials.’’ § 5103a. Limitation on issuance of hazmat li- censes (a) LIMITATION.— (1) ISSUANCE OF LICENSES.—A State may not issue to any individual a license to operate a motor vehicle transporting in commerce a hazardous material unless— (A) ‘‘the Secretary of Homeland Secu- rity’’; 1 has first determined, upon receipt of a notification under subsection (d)(1)(B), that the individual does not pose a security risk warranting denial of the license; or (B) the individual holds a valid transpor- tation security card issued under section 70105 of title 46. (2) RENEWALS INCLUDED.—For the purposes of this section, the term ‘‘issue’’, with respect to a license, includes renewal of the license. (b) HAZARDOUS MATERIALS DESCRIBED.—The limitation in subsection (a) shall apply with re- spect to any material defined as hazardous ma- terial by the Secretary of Transportation for which the Secretary of Transportation requires placarding of a commercial motor vehicle trans- porting that material in commerce. (c) RECOMMENDATIONS ON CHEMICAL AND BIO- LOGICAL MATERIALS.—The Secretary of Health and Human Services shall recommend to the Secretary of Transportation any chemical or bi- ological material or agent for regulation as a hazardous material under section 5103(a) if the Secretary of Health and Human Services deter- mines that such material or agent poses a sig- nificant risk to the health of individuals. (d) BACKGROUND RECORDS CHECK.— (1) IN GENERAL.—Upon the request of a State regarding issuance of a license under sub- section (a)(1)(A) to an individual, the Attorney General— (A) shall carry out a background records check regarding the individual; and (B) upon completing the background records check, shall notify the Secretary of Homeland Security of the completion and results of the background records check. (2) SCOPE.—A background records check re- garding an individual under this subsection shall consist of the following: (A) A check of the relevant criminal his- tory data bases. (B) In the case of an alien, a check of the relevant data bases to determine the status of the alien under the immigration laws of the United States. (C) As appropriate, a check of the relevant international data bases through Interpol–U.S. National Central Bureau or other appropriate means. (e) REPORTING REQUIREMENT.—Each State shall submit to the Secretary of Homeland Secu- rity, at such time and in such manner as the Secretary of Homeland Security may prescribe, the name, address, and such other information as the Secretary of Homeland Security may re- quire, concerning— (1) each alien to whom the State issues a li- cense described in subsection (a); and (2) each other individual to whom such a li- cense is issued, as the Secretary of Homeland Security may require. (f) ALIEN DEFINED.—In this section, the term ‘‘alien’’ has the meaning given the term in sec- tion 101(a)(3) of the Immigration and Nation- ality Act. (g) BACKGROUND CHECKS FOR DRIVERS HAULING HAZARDOUS MATERIALS.— (1) IN GENERAL.— (A) EMPLOYER NOTIFICATION.—Not later than 90 days after the date of enactment of Page 199 TITLE 49—TRANSPORTATION § 5103a 2 So in original. Comma probably should appear after ‘‘appli- cant’’. this subsection, the Director of the Trans- portation Security Administration, after re- ceiving comments from interested parties, shall develop and implement a process for notifying hazmat employers designated by an applicant of the results of the applicant’s background record check, if— (i) such notification is appropriate con- sidering the potential security implica- tions; and (ii) the Director, in a final notification of threat assessment,2 served on the appli- cant 2 determines that the applicant does not meet the standards set forth in regula- tions issued to carry out this section. (B) RELATIONSHIP TO OTHER BACKGROUND RECORDS CHECKS.— (i) ELIMINATION OF REDUNDANT CHECKS.— An individual with respect to whom the Transportation Security Administration— (I) has performed a security threat as- sessment under this section; and (II) has issued a final notification of no security threat, is deemed to have met the requirements of any other background check that is re- quired for purposes of any Federal law ap- plicable to transportation workers if that background check is equivalent to, or less stringent than, the background check re- quired under this section. (ii) DETERMINATION BY DIRECTOR.—Not later than 60 days after the date of issuance of the report under paragraph (5), but no later than 120 days after the date of enactment of this subsection, the Director shall initiate a rulemaking proceeding, in- cluding notice and opportunity for com- ment, to determine which background checks required for purposes of Federal laws applicable to transportation workers are equivalent to, or less stringent than, those required under this section. (iii) FUTURE RULEMAKINGS.—The Director shall make a determination under the cri- teria established under clause (ii) with re- spect to any rulemaking proceeding to es- tablish or modify required background checks for transportation workers initi- ated after the date of enactment of this subsection. (2) APPEALS PROCESS FOR MORE STRINGENT STATE PROCEDURES.—If a State establishes its own standards for applicants for a hazardous materials endorsement to a commercial driv- er’s license, the State shall also provide— (A) an appeals process similar to and to the same extent as the process provided under part 1572 of title 49, Code of Federal Regulations, by which an applicant denied a hazardous materials endorsement to a com- mercial driver’s license by that State may appeal that denial; and (B) a waiver process similar to and to the same extent as the process provided under part 1572 of title 49, Code of Federal Regula- tions, by which an applicant denied a haz- ardous materials endorsement to a commer- cial driver’s license by that State may apply for a waiver. (3) CLARIFICATION OF TERM DEFINED IN REGU- LATIONS.—The term ‘‘transportation security incident’’, as defined in part 1572 of title 49, Code of Federal Regulations, does not include a work stoppage or other nonviolent em- ployee-related action resulting from an em- ployer-employee dispute. Not later than 30 days after the date of enactment of this sub- section, the Director shall modify the defini- tion of that term to reflect the preceding sen- tence. (4) BACKGROUND CHECK CAPACITY.—Not later than October 1, 2005, the Director shall trans- mit to the Committee on Commerce, Science, and Transportation of the Senate and the Committees on Transportation and Infrastruc- ture and Homeland Security of the House of Representatives a report on the implementa- tion of fingerprint-based security threat as- sessments and the adequacy of fingerprinting locations, personnel, and resources to accom- plish the timely processing of fingerprint- based security threat assessments for individ- uals holding commercial driver’s licenses who are applying to renew hazardous materials en- dorsements. (5) REPORT.— (A) IN GENERAL.—Not later than 60 days after the date of enactment of this sub- section, the Director shall transmit to the committees referred to in paragraph (4) a re- port on the Director’s plans to reduce or eliminate redundant background checks for holders of hazardous materials endorsements performed under this section. (B) CONTENTS.—The report shall— (i) include a list of background checks and other security or threat assessment requirements applicable to transportation workers under Federal laws for which the Department of Homeland Security is re- sponsible and the process by which the Secretary of Homeland Security will de- termine whether such checks or assess- ments are equivalent to, or less stringent than, the background check performed under this section; and (ii) provide an analysis of how the Direc- tor plans to reduce or eliminate redundant background checks in a manner that will continue to ensure the highest level of safety and security. (h) COMMERCIAL MOTOR VEHICLE OPERATORS REGISTERED TO OPERATE IN MEXICO OR CANADA.— (1) IN GENERAL.—Beginning on the date that is 6 months after the date of enactment of this subsection, a commercial motor vehicle oper- ator registered to operate in Mexico or Canada shall not operate a commercial motor vehicle transporting a hazardous material in com- merce in the United States until the operator has undergone a background records check similar to the background records check re- quired for commercial motor vehicle operators licensed in the United States to transport haz- ardous materials in commerce. (2) EXTENSION.—The Director of the Trans- portation Security Administration may ex- Page 200 TITLE 49—TRANSPORTATION § 5104 tend the deadline established by paragraph (1) for a period not to exceed 6 months if the Di- rector determines that such an extension is necessary. (3) COMMERCIAL MOTOR VEHICLE DEFINED.—In this subsection, the term ‘‘commercial motor vehicle’’ has the meaning given that term by section 31101. (Added Pub. L. 107–56, title X, § 1012(a)(1), Oct. 26, 2001, 115 Stat. 396; amended Pub. L. 109–59, title VII, §§ 7104, 7105, 7126, Aug. 10, 2005, 119 Stat. 1894, 1909; Pub. L. 110–53, title XV, § 1556(a), Aug. 3, 2007, 121 Stat. 475; Pub. L. 110–244, title III, § 302(b), June 6, 2008, 122 Stat. 1618; Pub. L. 115–254, div. K, title I, § 1978, Oct. 5, 2018, 132 Stat. 3618.) Editorial Notes REFERENCES IN TEXT With respect to a ‘‘transportation security card issued under section 70105 of title 46’’, referred to in subsec. (a)(1)(B), amendments made by Pub. L. 117–263 to section 70105 of Title 46, Shipping, are such that sec- tion 70105 now refers to ‘‘transportation worker identi- fication credential’’ rather than ‘‘transportation secu- rity card’’. See section 70105 of Title 46. Section 101(a)(3) of the Immigration and Nationality Act, referred to in subsec. (f), is classified to section 1101(a)(3) of Title 8, Aliens and Nationality. The date of enactment of this subsection, referred to in subsecs. (g) and (h), is the date of enactment of Pub. L. 109–59, which was approved Aug. 10, 2005. AMENDMENTS 2018—Subsec. (a)(1). Pub. L. 115–254, § 1978(a), sub- stituted ‘‘unless—’’ for ‘‘unless’’, ‘‘(A) ‘the Secretary of Homeland Security’;’’ for ‘‘the Secretary of Homeland Security’’, and ‘‘; or’’ for period at end and added sub- par. (B). Subsec. (d)(1). Pub. L. 115–254, § 1978(b), substituted ‘‘under subsection (a)(1)(A)’’ for ‘‘described in sub- section (a)(1)’’ in introductory provisions. 2008—Subsec. (g)(1)(B)(ii). Pub. L. 110–244 substituted ‘‘subsection’’ for ‘‘Act’’. 2007—Subsec. (a)(1). Pub. L. 110–53, § 1556(a)(1), sub- stituted ‘‘Secretary of Homeland Security’’ for ‘‘Sec- retary’’. Subsec. (b). Pub. L. 110–53, § 1556(a)(2), substituted ‘‘Secretary of Transportation’’ for ‘‘Secretary’’ in two places. Subsec. (d)(1)(B). Pub. L. 110–53, § 1556(a)(3), sub- stituted ‘‘Secretary of Homeland Security’’ for ‘‘Sec- retary’’. Subsec. (e). Pub. L. 110–53, § 1556(a)(4), substituted ‘‘Secretary of Homeland Security’’ for ‘‘Secretary’’ wherever appearing. 2005—Subsec. (a)(1). Pub. L. 109–59, § 7126, substituted ‘‘Secretary’’ for ‘‘Secretary of Transportation’’. Pub. L. 109–59, § 7104(c), substituted ‘‘subsection (d)(1)(B),’’ for ‘‘subsection (c)(1)(B),’’. Subsec. (b). Pub. L. 109–59, § 7104(a), substituted ‘‘with respect to any material defined as hazardous material by the Secretary for which the Secretary requires placarding of a commercial motor vehicle transporting that material in commerce’’ for ‘‘with respect to— ‘‘(1) any material defined as a hazardous material by the Secretary of Transportation; and ‘‘(2) any chemical or biological material or agent determined by the Secretary of Health and Human Services or the Attorney General as being a threat to the national security of the United States’’. Subsec. (c). Pub. L. 109–59, § 7104(b)(2), added subsec. (c). Former subsec. (c) redesignated (d). Subsec. (d). Pub. L. 109–59, § 7104(b)(1), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e). Subsec. (d)(1)(B). Pub. L. 109–59, § 7126, substituted ‘‘Secretary’’ for ‘‘Secretary of Transportation’’. Subsec. (e). Pub. L. 109–59, § 7126, substituted ‘‘submit to the Secretary’’ for ‘‘submit to the Secretary of Transportation’’ in introductory provisions. Pub. L. 109–59, § 7104(b)(1), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f). Subsec. (f). Pub. L. 109–59, § 7104(b)(1), redesignated subsec. (e) as (f). Subsecs. (g), (h). Pub. L. 109–59, § 7105, added subsecs. (g) and (h). Statutory Notes and Related Subsidiaries AUTHORIZATION OF APPROPRIATIONS Pub. L. 107–56, title X, § 1012(c), Oct. 26, 2001, 115 Stat. 398, provided that: ‘‘There is authorized to be appro- priated for the Department of Transportation and the Department of Justice such amounts as may be nec- essary to carry out section 5103a of title 49, United States Code, as added by subsection (a).’’ § 5104. Representation and tampering (a) REPRESENTATION.—A person may represent, by marking or otherwise, that— (1) a package, component of a package, or packaging for transporting hazardous material is safe, certified, or complies with this chapter only if the package, component of a package, or packaging meets the requirements of each applicable regulation prescribed under this chapter; or (2) hazardous material is present in a pack- age, container, motor vehicle, rail freight car, aircraft, or vessel only if the material is present. (b) TAMPERING.—No person may alter, remove, destroy, or otherwise tamper unlawfully with— (1) a marking, label, placard, or description on a document required under this chapter or a regulation prescribed under this chapter; or (2) a package, component of a package, or packaging, container, motor vehicle, rail freight car, aircraft, or vessel used to trans- port hazardous material. (Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 761; Pub. L. 103–311, title I, § 117(b), Aug. 26, 1994, 108 Stat. 1678; Pub. L. 103–429, § 6(4), Oct. 31, 1994, 108 Stat. 4378; Pub. L. 109–59, title VII, § 7106, Aug. 10, 2005, 119 Stat. 1897.) HISTORICAL AND REVISION NOTES PUB. L. 103–272 Revised Section Source (U.S. Code) Source (Statutes at Large) 5104(a) ........ 49 App.:1804(e). Jan. 3, 1975, Pub. L. 93–633, 88 Stat. 2156, § 105(e), (f); added Nov. 16, 1990, Pub. L. 101–615, § 5, 104 Stat. 3252. 5104(b) ........ 49 App.:1804(f). In subsection (a)(1), the words ‘‘the requirements of’’ and ‘‘applicable’’ are omitted as surplus. In subsection (b), before clause (1), the word ‘‘deface’’ is omitted as surplus. PUB. L. 103–429 This amends 49:5104(a)(1) to clarify the restatement of 49 App.:1804(e)(1) by section 1 of the Act of July 5, 1994 (Public Law 103–272, 108 Stat. 761). Editorial Notes AMENDMENTS 2005—Subsec. (a)(1). Pub. L. 109–59, § 7106(a), sub- stituted ‘‘a package, component of a package, or pack-