49 U.S.C. § 5121 — Administrative

Page 222 TITLE 49—TRANSPORTATION § 5121 HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 5120(a) ........ 49 App.:1804(d)(1). Jan. 3, 1975, Pub. L. 93–633, § 105(d), 88 Stat. 2157; re- stated Nov. 16, 1990, Pub. L. 101–615 § 4, 104 Stat. 3252. 5120(b) ........ 49 App.:1804(d)(2) (1st sentence). 5120(c) ........ 49 App.:1804(d)(2) (last sentence). Editorial Notes AMENDMENTS 2005—Subsec. (b). Pub. L. 109–59, § 7126, substituted ‘‘Secretary may’’ for ‘‘Secretary of Transportation may’’. Pub. L. 109–59, § 7117(a), inserted ‘‘and requirements’’ after ‘‘standards’’. Subsec. (c)(1). Pub. L. 109–59, § 7126, substituted ‘‘Sec- retary to prescribe’’ for ‘‘Secretary of Transportation to prescribe’’. Pub. L. 109–59, § 7117(b)(1), inserted ‘‘or requirement’’ after ‘‘standard’’ wherever appearing. Subsec. (c)(2). Pub. L. 109–59, § 7117(b)(2), struck out ‘‘included in a standard’’ before ‘‘adopted’’ and inserted ‘‘standard or’’ before ‘‘requirement’’ wherever appear- ing. § 5121. Administrative (a) GENERAL AUTHORITY.—To carry out this chapter, the Secretary may investigate, conduct tests, make reports, issue subpenas, conduct hearings, require the production of records and property, take depositions, and conduct re- search, development, demonstration, and train- ing activities. Except as provided in subsections (c) and (d), after notice and an opportunity for a hearing, the Secretary may issue an order re- quiring compliance with this chapter or a regu- lation prescribed, or an order, special permit, or approval issued, under this chapter. (b) RECORDS, REPORTS, AND INFORMATION.—A person subject to this chapter shall— (1) maintain records and property, make re- ports, and provide information the Secretary by regulation or order requires; and (2) make the records, property, reports, and information available for inspection when the Secretary undertakes an investigation or makes a request. (c) INSPECTIONS AND INVESTIGATIONS.— (1) IN GENERAL.—A designated officer, em- ployee, or agent of the Secretary— (A) may inspect and investigate, at a rea- sonable time and in a reasonable manner, records and property relating to a function described in section 5103(b)(1); (B) except in the case of packaging imme- diately adjacent to its hazardous material contents, may gain access to, open, and ex- amine a package offered for, or in, transpor- tation when the officer, employee, or agent has an objectively reasonable and articulable belief that the package may con- tain a hazardous material; (C) may remove from transportation a package or related packages in a shipment offered for or in transportation for which— (i) such officer, employee, or agent has an objectively reasonable and articulable belief that the package may pose an immi- nent hazard; and (ii) such officer, employee, or agent con- temporaneously documents such belief in accordance with procedures set forth in guidance or regulations prescribed under subsection (e); (D) may gather information from the offer- or, carrier, packaging manufacturer or test- er, or other person responsible for the pack- age, to ascertain the nature and hazards of the contents of the package; (E) as necessary, under terms and condi- tions specified by the Secretary, may order the offeror, carrier, packaging manufacturer or tester, or other person responsible for the package to have the package transported to, opened, and the contents examined and ana- lyzed, at a facility appropriate for the con- duct of such examination and analysis; (F) when safety might otherwise be com- promised, may authorize properly qualified personnel to assist in the activities con- ducted under this subsection; and (G) shall provide to the affected offeror, carrier, packaging manufacturer or tester, or other person responsible for the package reasonable notice of— (i) his or her decision to exercise his or her authority under paragraph (1); (ii) any findings made; and (iii) any actions being taken as a result of a finding of noncompliance. (2) DISPLAY OF CREDENTIALS.—An officer, em- ployee, or agent acting under this subsection shall display proper credentials, in person or in writing, when requested. (3) SAFE RESUMPTION OF TRANSPORTATION.— In instances when, as a result of an inspection or investigation under this subsection, an im- minent hazard is not found to exist, the Sec- retary, in accordance with procedures set forth in regulations prescribed under sub- section (e), shall assist— (A) in the safe and prompt resumption of transportation of the package concerned; or (B) in any case in which the hazardous ma- terial being transported is perishable, in the safe and expeditious resumption of transpor- tation of the perishable hazardous material. (d) EMERGENCY ORDERS.— (1) IN GENERAL.—If, upon inspection, inves- tigation, testing, or research, the Secretary determines that a violation of a provision of this chapter, or a regulation prescribed under this chapter, or an unsafe condition or prac- tice, constitutes or is causing an imminent hazard, the Secretary may issue or impose emergency restrictions, prohibitions, recalls, or out-of-service orders, without notice or an opportunity for a hearing, but only to the ex- tent necessary to abate the imminent hazard. (2) WRITTEN ORDERS.—The action of the Sec- retary under paragraph (1) shall be in a writ- ten emergency order that— (A) describes the violation, condition, or practice that constitutes or is causing the imminent hazard; (B) states the restrictions, prohibitions, recalls, or out-of-service orders issued or im- posed; and (C) describes the standards and procedures for obtaining relief from the order. Page 223 TITLE 49—TRANSPORTATION § 5121 (3) OPPORTUNITY FOR REVIEW.—After taking action under paragraph (1), the Secretary shall provide for review of the action under section 554 of title 5 if a petition for review is filed within 20 calendar days of the date of issuance of the order for the action. (4) EXPIRATION OF EFFECTIVENESS OF ORDER.— If a petition for review of an action is filed under paragraph (3) and the review under that paragraph is not completed by the end of the 30-day period beginning on the date the peti- tion is filed, the action shall cease to be effec- tive at the end of such period unless the Sec- retary determines, in writing, that the immi- nent hazard providing a basis for the action continues to exist. (5) OUT-OF-SERVICE ORDER DEFINED.—In this subsection, the term ‘‘out-of-service order’’ means a requirement that an aircraft, vessel, motor vehicle, train, railcar, locomotive, other vehicle, transport unit, transport vehi- cle, freight container, potable tank, or other package not be moved until specified condi- tions have been met. (e) REGULATIONS.— (1) TEMPORARY REGULATIONS.—Not later than 60 days after the date of enactment of the Haz- ardous Materials Transportation Safety and Security Reauthorization Act of 2005, the Sec- retary shall issue temporary regulations to carry out subsections (c) and (d). The tem- porary regulations shall expire on the date of issuance of the regulations under paragraph (2). (2) FINAL REGULATIONS.—Not later than 1 year after such date of enactment, the Sec- retary shall issue regulations to carry out sub- sections (c) and (d) in accordance with sub- chapter II of chapter 5 of title 5. (3) MATTERS TO BE ADDRESSED.—The regula- tions issued under this subsection shall ad- dress— (A) the safe and expeditious resumption of transportation of perishable hazardous ma- terial, including radiopharmaceuticals and other medical products, that may require timely delivery due to life-threatening situ- ations; (B) the means by which— (i) noncompliant packages that present an imminent hazard are placed out-of-serv- ice until the condition is corrected; and (ii) noncompliant packages that do not present a hazard are moved to their final destination; (C) appropriate training and equipment for inspectors; and (D) the proper closure of packaging in ac- cordance with the hazardous material regu- lations. (f) FACILITY, STAFF, AND REPORTING SYSTEM ON RISKS, EMERGENCIES, AND ACTIONS.—(1) The Sec- retary shall— (A) maintain a facility and technical staff sufficient to provide, within the United States Government, the capability of evaluating a risk related to the transportation of hazardous material and material alleged to be hazardous; (B) maintain a central reporting system and information center capable of providing infor- mation and advice to law enforcement and firefighting personnel, other interested indi- viduals, and officers and employees of the Gov- ernment and State and local governments on meeting an emergency related to the transpor- tation of hazardous material; and (C) conduct a continuous review on all as- pects of transporting hazardous material to decide on and take appropriate actions to en- sure safe transportation of hazardous mate- rial. (2) Paragraph (1) of this subsection does not prevent the Secretary from making a contract with a private entity for use of a supplemental reporting system and information center oper- ated and maintained by the contractor. (g) GRANTS AND COOPERATIVE AGREEMENTS.— The Secretary may enter into grants and coop- erative agreements with a person, agency, or in- strumentality 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 institu- tion, or other appropriate entity— (1) to expand risk assessment and emergency response capabilities with respect to the safe- ty and security of transportation of hazardous material; (2) to enhance emergency communications capacity as determined necessary by the Sec- retary, including the use of integrated, inter- operable emergency communications tech- nologies where appropriate; (3) to conduct research, development, dem- onstration, risk assessment, and emergency response planning and training activities; or (4) to otherwise carry out this chapter. (h) REPORT.—The Secretary shall, once every 2 years, prepare and make available to the public on the Department of Transportation’s Internet Web site a comprehensive report on the trans- portation of hazardous materials during the pre- ceding 2 calendar years. The report shall in- clude— (1) a statistical compilation of accidents and casualties related to the transportation of hazardous material; (2) a list and summary of applicable Govern- ment regulations, criteria, orders, and special permits; (3) a summary of the basis for each special permit; (4) an evaluation of the effectiveness of en- forcement activities relating to a function regulated by the Secretary under section 5103(b)(1) and the degree of voluntary compli- ance with regulations; (5) a summary of outstanding problems in carrying out this chapter in order of priority; and (6) recommendations for appropriate legisla- tion. (Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 779; Pub. L. 103–311, title I, §§ 108, 117(a)(2), Aug. 26, 1994, 108 Stat. 1674, 1678; Pub. L. 109–59, title VII, §§ 7118, 7126, Aug. 10, 2005, 119 Stat. 1902, 1909; Pub. L. 110–244, title III, § 302(e), June 6, 2008, 122 Stat. 1618; Pub. L. 112–141, div. C, title II, § 32501(c), title III, § 33009(a), (b)(1), (c), July 6, 2012, 126 Stat. 803, 836, 837; Pub. L. 114–94, div. A, title VII, § 7205, Dec. 4, 2015, 129 Stat. 1592.) Page 224 TITLE 49—TRANSPORTATION § 5121 HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 5121(a) ........ 49 App.:1808(a) (1st sentence, last sen- tence words be- fore semicolon). Jan. 3, 1975, Pub. L. 93–633, § 109(a) (1st sentence, last sentence words before semicolon), (b), (c), 88 Stat. 2159. 5121(b) ........ 49 App.:1808(b). 5121(c) ........ 49 App.:1808(c). 5121(d) ........ 49 App.:1808(d). Jan. 3, 1975, Pub. L. 93–633, § 109(d), 88 Stat. 2159; Oct. 30, 1984, Pub. L. 98–559, § 1(a), 98 Stat. 2907; Nov. 16, 1990, Pub. L. 101–615, § 11, 104 Stat. 3259. 5121(e) ........ 49 App.:1808(e). Jan. 3, 1975, Pub. L. 93–633, § 109(e), 88 Stat. 2159; Oct. 30, 1984, Pub. L. 98–559, § 1(b), 98 Stat. 2907. In subsection (a), the words ‘‘to the extent necessary . . . his responsibilities under’’ and ‘‘relevant’’ are omitted as surplus. The word ‘‘documents’’ is omitted as being included in ‘‘records’’. The words ‘‘directly or indirectly’’ are omitted as surplus. The word ‘‘pre- scribed’’ is substituted for ‘‘issued’’ for consistency in the revised title and with other titles of the United States Code. In subsection (b), before clause (1), the words ‘‘re- quirements under’’ are omitted as surplus. In clause (1), the words ‘‘establish and’’ are omitted as surplus. The word ‘‘requires’’ is substituted for ‘‘prescribe’’ for clar- ity and consistency. In subsection (c)(1), before clause (A), the words ‘‘enter upon . . . and examine’’ and ‘‘of persons to the extent such records and properties’’ are omitted as sur- plus. In clause (B), the words ‘‘or shipment by any per- son’’ are omitted as surplus. In subsection (d)(1), before clause (A), the words ‘‘es- tablish and’’ are omitted as executed. In clause (B), the words ‘‘capable of’’ are substituted for ‘‘so as to be able to’’ to eliminate unnecessary words. The words ‘‘tech- nical and other’’ and ‘‘of communities’’ are omitted as surplus. The words ‘‘and employees’’ are added for con- sistency in the revised title and with other titles of the Code. In clause (C), the words ‘‘in order’’ and ‘‘to be able to’’ are omitted as surplus. In subsection (e), before clause (1), the words ‘‘pre- pare and’’ and ‘‘comprehensive’’ are omitted as surplus. In clause (1), the word ‘‘thorough’’ is omitted as sur- plus. In clause (2), the words ‘‘in effect’’ are omitted as surplus. In clause (3), the words ‘‘granted or main- tained’’ are omitted as surplus. In clause (6), the words ‘‘additional . . . as are deemed necessary or’’ are omit- ted as surplus. Editorial Notes REFERENCES IN TEXT The date of enactment of the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005, referred to in subsec. (e), is the date of en- actment of title VII of Pub. L. 109–59, which was ap- proved Aug. 10, 2005. AMENDMENTS 2015—Subsec. (h). Pub. L. 114–94 substituted ‘‘make available to the public on the Department of Transpor- tation’s Internet Web site’’ for ‘‘transmit to the Com- mittee on Transportation and Infrastructure of the House of Representatives and the Committee on Com- merce, Science, and Transportation of the Senate’’ in introductory provisions. 2012—Subsec. (c)(1)(G). Pub. L. 112–141, § 33009(a), added subpar. (G). Subsec. (c)(2). Pub. L. 112–141, § 32501(c), inserted ‘‘, in person or in writing,’’ after ‘‘proper credentials’’. Subsec. (e)(3). Pub. L. 112–141, § 33009(b)(1), added par. (3). Subsec. (g)(1). Pub. L. 112–141, § 33009(c), inserted ‘‘safety and’’ before ‘‘security’’. 2008—Subsec. (h)(2). Pub. L. 110–244, § 302(e)(1), sub- stituted ‘‘special permits’’ for ‘‘exemptions’’. Subsec. (h)(3). Pub. L. 110–244, § 302(e)(2), substituted ‘‘special permit’’ for ‘‘exemption’’. 2005—Subsec. (a). Pub. L. 109–59, § 7126, substituted ‘‘Secretary may investigate’’ for ‘‘Secretary of Trans- portation may investigate’’. Pub. L. 109–59, § 7118(a), inserted ‘‘conduct tests,’’ after ‘‘investigate,’’ and substituted ‘‘Except as pro- vided in subsections (c) and (d), after’’ for ‘‘After’’ and ‘‘regulation prescribed, or an order, special permit, or approval issued,’’ for ‘‘regulation prescribed’’. Subsec. (b)(1). Pub. L. 109–59, § 7118(b)(1), inserted ‘‘and property’’ after ‘‘records’’. Subsec. (b)(2). Pub. L. 109–59, § 7118(b)(2), inserted ‘‘property,’’ after ‘‘records,’’ and ‘‘for inspection’’ after ‘‘available’’ and substituted ‘‘undertakes an investiga- tion or makes a request’’ for ‘‘requests’’. Subsec. (c). Pub. L. 109–59, § 7118(c), amended heading and text of subsec. (c) generally. Prior to amendment, text read as follows: ‘‘(1) The Secretary may authorize an officer, em- ployee, or agent to inspect, at a reasonable time and in a reasonable way, records and property related to— ‘‘(A) manufacturing, fabricating, marking, main- taining, reconditioning, repairing, testing, or distrib- uting a packaging or a container for use by a person in transporting hazardous material in commerce; or ‘‘(B) the transportation of hazardous material in commerce. ‘‘(2) An officer, employee, or agent under this sub- section shall display proper credentials when re- quested.’’ Subsecs. (d), (e). Pub. L. 109–59, § 7118(d), added sub- secs. (d) and (e). Former subsecs. (d) and (e) redesig- nated (f) and (h), respectively. Subsec. (f). Pub. L. 109–59, § 7118(d)(1), redesignated subsec. (d) as (f). Subsec. (g). Pub. L. 109–59, § 7118(e), added subsec. (g). Subsec. (h). Pub. L. 109–59, § 7118(f)(1), substituted ‘‘transmit to the Committee on Transportation and In- frastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate’’ for ‘‘submit to the President for trans- mittal to the Congress’’ in introductory provisions. Pub. L. 109–59, § 7118(d)(1), redesignated subsec. (e) as (h). Subsec. (h)(4). Pub. L. 109–59, § 7118(f)(2), inserted ‘‘re- lating to a function regulated by the Secretary under section 5103(b)(1)’’ after ‘‘activities’’. 1994—Subsec. (c)(1)(A). Pub. L. 103–311, § 117(a)(2), sub- stituted ‘‘a packaging or a’’ for ‘‘a package or’’. Subsec. (e). Pub. L. 103–311, § 108, substituted ‘‘Re- port’’ for ‘‘Annual Report’’ in heading and substituted first sentence for former first sentence which read as follows: ‘‘The Secretary shall submit to the President, for submission to Congress, not later than June 15th of each year, a report about the transportation of haz- ardous material during the prior calendar year.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–94 effective Oct. 1, 2015, see section 1003 of Pub. L. 114–94, set out as a note under section 5313 of Title 5, Government Organization and Employees. EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effec- tive and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways. PAPERLESS HAZARD COMMUNICATIONS PILOT PROGRAM Pub. L. 112–141, div. C, title III, § 33005, July 6, 2012, 126 Stat. 833, provided that: ‘‘(a) IN GENERAL.—The Secretary [of Transportation] may conduct pilot projects to evaluate the feasibility Page 225 TITLE 49—TRANSPORTATION § 5122 and effectiveness of using paperless hazard communica- tions systems. At least 1 of the pilot projects under this section shall take place in a rural area. ‘‘(b) REQUIREMENTS.—In conducting pilot projects under this section, the Secretary— ‘‘(1) may not waive the requirements under section 5110 of title 49, United States Code; and ‘‘(2) shall consult with organizations representing— ‘‘(A) fire services personnel; ‘‘(B) law enforcement and other appropriate en- forcement personnel; ‘‘(C) other emergency response providers; ‘‘(D) persons who offer hazardous material for transportation; ‘‘(E) persons who transport hazardous material by air, highway, rail, and water; and ‘‘(F) employees of persons who transport or offer for transportation hazardous material by air, high- way, rail, and water. ‘‘(c) REPORT.—Not later than 2 years after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of Title 23, Highways], the Secretary shall— ‘‘(1) prepare a report on the results of the pilot projects carried out under this section, including— ‘‘(A) a detailed description of the pilot projects; ‘‘(B) an evaluation of each pilot project, including an evaluation of the performance of each paperless hazard communications system in such project; ‘‘(C) an assessment of the safety and security im- pact of using paperless hazard communications sys- tems, including any impact on the public, emer- gency response, law enforcement, and the conduct of inspections and investigations; ‘‘(D) an analysis of the associated benefits and costs of using the paperless hazard communications systems for each mode of transportation; and ‘‘(E) a recommendation that incorporates the in- formation gathered in subparagraphs (A), (B), (C), and (D) on whether paperless hazard communica- tions systems should be permanently incorporated into the Federal hazardous material transportation safety program under chapter 51 of title 49, United States Code; and ‘‘(2) submit a final report to the Committee on Commerce, Science, and Transportation of the Sen- ate and the Committee on Transportation and Infra- structure of the House of Representatives that con- tains the results of the pilot projects carried out under this section, including the matters described in paragraph (1). ‘‘(d) PAPERLESS HAZARD COMMUNICATIONS SYSTEM DE- FINED.—In this section, the term ‘paperless hazard com- munications system’ means the use of advanced com- munications methods, such as wireless communica- tions devices, to convey hazard information between all parties in the transportation chain, including emer- gency responders and law enforcement personnel. The format of communication may be equivalent to that used by the carrier.’’ HAZARDOUS MATERIAL ENFORCEMENT TRAINING Pub. L. 112–141, div. C, title III, § 33008, July 6, 2012, 126 Stat. 836, provided that: ‘‘(a) IN GENERAL.—Not later than 18 months after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of Title 23, Highways], the Secretary [of Transportation] shall develop uniform performance standards for train- ing hazardous material inspectors and investigators on— ‘‘(1) how to collect, analyze, and publish findings from inspections and investigations of accidents or incidents involving the transportation of hazardous material; and ‘‘(2) how to identify noncompliance with regula- tions issued under chapter 51 of title 49, United States Code, and take appropriate enforcement ac- tion. ‘‘(b) STANDARDS AND GUIDELINES.—The Secretary may develop— ‘‘(1) guidelines for hazardous material inspector and investigator qualifications; ‘‘(2) best practices and standards for hazardous ma- terial inspector and investigator training programs; and ‘‘(3) standard protocols to coordinate investigation efforts among Federal, State, and local jurisdictions on accidents or incidents involving the transpor- tation of hazardous material. ‘‘(c) AVAILABILITY.—The standards, protocols, and guidelines established under this section— ‘‘(1) shall be mandatory for— ‘‘(A) the Department of Transportation’s multimodal personnel conducting hazardous mate- rial enforcement inspections or investigations; and ‘‘(B) State employees who conduct federally fund- ed compliance reviews, inspections, or investiga- tions; and ‘‘(2) shall be made available to Federal, State, and local hazardous material safety enforcement per- sonnel.’’ FINALIZING REGULATIONS Pub. L. 112–141, div. C, title III, § 33009(b)(2), July 6, 2012, 126 Stat. 837, provided that: ‘‘In accordance with section 5103(b)(2) of title 49, United States Code, not later than 1 year after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of Title 23, Highways], the Sec- retary [of Transportation] shall take all actions nec- essary to finalize a regulation under paragraph (1) of this subsection [amending this section].’’ TOLL FREE NUMBER FOR REPORTING Pub. L. 103–311, title I, § 116, Aug. 26, 1994, 108 Stat. 1678, provided that: ‘‘The Secretary of Transportation shall designate a toll free telephone number for trans- porters of hazardous materials and other individuals to report to the Secretary possible violations of chapter 51 of title 49, United States Code, or any order or regula- tion issued under that chapter.’’ § 5122. Enforcement (a) GENERAL.—At the request of the Secretary, the Attorney General may bring a civil action in an appropriate district court of the United States to enforce this chapter or a regulation prescribed or order, special permit, or approval issued under this chapter. The court may award appropriate relief, including a temporary or per- manent injunction, punitive damages, and as- sessment of civil penalties considering the same penalty amounts and factors as prescribed for the Secretary in an administrative case under section 5123. (b) IMMINENT HAZARDS.—(1) If the Secretary has reason to believe that an imminent hazard exists, the Secretary may bring a civil action in an appropriate district court of the United States— (A) to suspend or restrict the transportation of the hazardous material responsible for the hazard; or (B) to eliminate or mitigate the hazard. (2) On request of the Secretary, the Attorney General shall bring an action under paragraph (1) of this subsection. (c) WITHHOLDING OF CLEARANCE.—(1) If any owner, operator, or individual in charge of a ves- sel is liable for a civil penalty under section 5123 of this title or for a fine under section 5124 of this title, or if reasonable cause exists to believe