Conference report on h. R. 3, Safe, accountable, flexible, efficient transportation equity act: a legacy for users

   Compromise

   The Conference adopts the House provision with modifications.

   SEC. 7117. INTERNATIONAL UNIFORMITY OF STANDARDS AND REQUIREMENTS

   House Bill

   Sec. 7016.

   This section amends current law to reflect that the Secretary may have additional international requirements, in addition to current international standards, that need to be met.

   Senate Bill

   No comparable provision in Senate bill.

   Conference Substitute

   The Conference adopts the House provision.

   SEC. 7118. ADMINISTRATIVE AUTHORITY

   House Bill

   Sec. 7017.

   This section amends section 5121 to provide for enhanced authority to discover hidden shipments of hazardous materials and to clarify and enhance the inspection and enforcement authority of DOT officials and inspection personnel, thereby enabling them to more effectively identify hazardous materials shipments and to determine whether those shipments are made in accordance with the hazardous materials regulations. This proposal would 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.

   This section also amends current law 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 section directs the Secretary to develop expedited procedures for hazardous materials that are perishable.

   The Committee believes strongly that DOT officials, law enforcement and inspection personnel must have the tools necessary to accurately determine whether hazardous materials are being transported safely and in accordance with the relevant law and regulations. To that end, the Committee supports the use of new technologies, such as the Hazmat Trucking Enforcer, that enable inspectors to conduct hazardous materials inspections in a more effective manner and to respond swiftly to any incident involving hazardous materials. The Committee notes that States must be in substantial compliance with a number of requirements under 49 U.S.C. 31102 as a condition of receiving MCSAP funding, including requirements to deploy technology to enhance the efficiency and effectiveness of commercial motor vehicle safety programs under 49 U.S.C 31102(b)(1)(A), as amended.

   This section would also repeal a requirement that the Secretary maintain 30 hazardous materials safety inspectors more than the number authorized at the end of fiscal year 1990. PHMSA currently maintains inspectors in excess of this requirement.

   Senate Bill

   Sec. 7337.

   This section improves safety by clarifying and enhancing the inspection and enforcement authority of DOT officials and inspection personnel. Section 5121(a) is amended to expressly state that the Secretary's enforcement authority includes the authority to conduct tests. This section also clarifies 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.

   This section provides for enhanced authority for DOT officials to discover hidden shipments of hazardous materials. Section 5121(c) is amended to clarify and enhance the inspection and enforcement authority of DOT officials and inspection personnel, thereby enabling them to more effectively identify hazardous materials shipments and to determine whether those shipments are made in accordance with the Hazardous Materials Regulations.

   The Secretary is required to develop procedures for the safe resumption of transportation of a package or transport unit when an inspection or investigation does not result in the discovery of an imminent hazard. The Committee expects that the Secretary will take in to consideration the impact of these procedures on the resumption of transit for time sensitive medical material such as radiopharmaceuticals and radionucleides.

   In addition, this section authorizes the Secretary to issue an emergency order when it is determined, by inspection, investigation, testing, or research, that a violation of hazardous material transportation laws, or an unsafe condition or practice, is causing an imminent hazard. In those situations, the Secretary is 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 is required to issue regulations implementing the new provisions governing package inspection and emergency orders.

   A new subsection (g) authorizes the Secretary to enter into grants, cooperative agreements, and other transactions to address security risk assessment and emergency preparedness. The objectives would include research, development, demonstration, risk assessment, emergency response planning, program support, and training activities.

   This section requires the Secretary, through the Bureau of Transportation Statistics, to submit a report at least every three years on the transportation of hazardous materials during the preceding three years, including a summary of hazmat shipments, deliveries, and movements during the period. In addition, the section would require a report every two years with, among other items, an analysis of hazmat accidents and incidents over the preceding two years, a list and summary of special permits, regulations and orders, and an evaluation of the effectiveness of enforcement activities relating to the transportation of hazmat during the period.

   The Secretary would be authorized to determine whether release of certain sensitive information contained in government records would be contrary to national security.

   Conference Substitute

   The Conference adopts the House provision with modifications. The Conference believes strongly that DOT officials, law enforcement and inspection personnel must have the tools necessary to accurately determine whether hazardous materials are being transported safely and in accordance with the relevant law and regulations.

   SEC. 7119. ENFORCEMENT

   House Bill

   Sec. 7018.

   This section amends section 5122 to clarify the types of judicial relief, including a temporary or permanent injunction, punitive damages, and assessment of civil penalties, available to be granted in an action brought by the Attorney General. Subsection (b) is amended for clarity by changing the word ``ameliorate'' to ``mitigate.''

   Senate Bill

   Sec. 7338.

   This section clarifies the types of judicial relief, including civil penalties, that may be granted in an action brought by the Attorney General.

   Conference Substitute

   The Conference adopts the Senate provision with modifications.

   SEC. 7120. CIVIL PENALTY

   House Bill

   Sec. 7019.

   This section amends section 5123 to increase the maximum civil penalty from $27,500 to $50,000 for each violation of a law or regulation under Chapter 51. In those cases resulting in death, serious illness, severe injury to any person, or substantial destruction of property, the Secretary would be able to increase the maximum penalty to $100,000.

   Senate Bill

   Sec. 7339.

   This section amends the civil penalty provisions in section 5123 to cover violations of special permits or approvals issued by DOT to ensure that appropriate enforcement action can be taken against persons violating those special authorities. Civil penalties for death, serious illness, or severe injury would be increased to up to $100,000 to serve as a deterrent against violations that could lead to such outcomes. Maximum civil penalty amounts for other violations are set at the current level of $32,500 and violations related to employee training will be subject to a minimum penalty of $450. A violator would

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be liable for interest that accrues on a civil penalty.

   Conference Substitute

   The Conference adopts the House provisions with a modification.

   SEC. 7121. CRIMINAL PENALTY

   House Bill

   Sec. 7020.

   Section 5124 would be revised to include a new ``reckless'' standard and to define the ``knowing,'' ``reckless,'' and ``willful'' mental-state standards necessary to establish a criminal violation. Section 5124(a) would be amended to provide that a person who knowingly, willfully, or recklessly violates chapter 51 or a regulation, order, special permit, or approval issued under that chapter, is subject to a fine imposed under title 18 and/or imprisonment of not more than 5 years. In cases where a violation involves the release of a hazardous material that results in death or bodily injury to any person, the maximum term of imprisonment is 10 years.

   Section 5124(c) defines a ``willful'' violation as when the person has knowledge of the facts giving rise to the violation and the person has knowledge that the conduct was unlawful.

   Section 5124(d) defines a ``reckless'' violation as when a person displays a deliberate indifference or conscious disregard for the consequences of his or her conduct.

   Senate Bill

   Sec. 7340.

   An increased criminal penalty of not more than twenty years is applied to existing law for a person who knowingly violated 49 U.S.C. 5104(b) or willfully violates chapter 51 or a regulation issued under that chapter, and thereby causes a release of hazardous material. The section also provides that a separate violation occurs for each day a violation continues.

   Conference Substitute

   The Conference adopts the House provision.

   SEC. 7122. PREEMPTION

   House Bill

   Sec. 7021.

   This section adds language to ensure that when the preemption test required by this section is conducted, each requirement is independent in their application to the State or Indian tribe.

   Senate Bill

   Sec. 7341.

   This section would include a new subsection outlining the purposes of the Secretary's current preemption authority and clarifies that a person may apply to the Secretary for a decision as to whether a fee imposed by a State, political subdivision of a State, or an Indian tribe is preempted. Further, this section deletes the requirement that the Secretary publish the reason for a delay in issuing a preemption determination in the Federal Register.

   Subsection 5125(j) is added to indicate that the preemption standard is to be applied independently to each non-Federal requirement in order to determine whether it is preempted.

   Finally, new subsection 5125(i) clarifies 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.

   Compromise

   The Conference adopts the Senate provision with modifications.

   SEC. 7123. JUDICIAL REVIEW

   House Bill

   Sec. 7023.

   This section adds 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.

   Under this proposal, the U.S. Court of Appeals for the District of Columbia or the U.S. Court of Appeals for the U.S. circuit in which a person seeking review resides or has his or her 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.

   Senate Bill

   Sec. 7343.

   This section adds 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.

   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 his or her principal place of business would review the final action. The petition for review must be filed within 60 days after issuance of the order.

   Conference Substitute

   The Conference adopts the House provision with modifications.

   SEC. 7124. RELATIONSHIP TO OTHER LAWS

   House Bill

   Sec. 7022.

   This section updates the language in the current law without changing the scope.

   Senate Bill

   Sec. 7342.

   This section requires that a person under contract to the United States government to design or inspect a packaging or packaging component used for transporting hazardous materials must comply with chapter 51 and the hazardous materials regulations.

   Further, this section enables hazardous materials law to supersede postal laws and regulations under titles 18 or 39 only `in case of an imminent hazard.'

   Conference Substitute

   The Conference adopts the Senate provision with modifications.

   SEC. 7125. AUTHORIZATION OF APPROPRIATIONS

   House Bill

   Sec. 7024.

   This section provides funding for the DOT to implement the programs and grants established and required in chapter 51 for fiscal years 2005 through 2007.

   Senate Bill

   Sec. 7344.

   This section authorizes appropriations of $24,940,000 for FY 2005, $29,000,000 for FY 2006, and $30,000,000 for each of FYs 2007 through 2009.

   Conference Substitute

   The Conference adopts the following structure:

    .This section would authorize appropriations of $24,940,000 for FY 2005, $29,000,000 for FY 2006, and $30,000,000 for each of FYs 2007 and 2008.

    .A new subsection (b) would authorize appropriations from the Hazardous Materials Emergency Preparedness Fund account to carry out certain activities:

   $4,000,000 for each of FYs 2005 through 2008 to carry out section 5107(e) (training grants);

   $200,000 for each of FYs 2005 through 2008 to carry out section 5115 (training curriculum for the public sector);

   $21,800,000 for each FYs 2005 through 2008 for sections 5116(a) and (b) to be split as follows: $5,000,000 for section 5116(a); $7,800,000 for 5116(b); and 35 percent of the remainder for 5116(a) and 65 percent of the remainder for 5116(b). The Secretary may increase the amount for 5116(b) if the Secretary determines it appropriate based upon the relative training and planning needs of individual applicants.

   $150,000 for each of FYs 2005 through 2008 to carry out section 5116(f) (monitoring and technical assistance to the public sector); $1,000,000 for each of FYs 2005 through 2008 to carry out section 5116(j) (supplemental training grants);

   $625,000 for each of FYs 2005 through 2008 to carry out section 5116(i)(3) (for publication and distribution of the Emergency Response Guidebook).

   Funding for issuance of hazmat licenses is authorized to be appropriated for such amounts as may be necessary to carry out section 5103a.

   Administrative costs for carrying out certain programs are capped at 2 percent.

   SEC. 7126. REFERENCES TO THE SECRETARY OF TRANSPORTATION

   House Bill

   Sec. 7026.

   This section designates that any reference to the ``Secretary of Transportation'' in chapter 51 be simplified to ``Secretary''.

   Senate Bill

   Sec. 7346.

   This section clarifies that references to the ``Secretary of Transportation'' in certain sections of chapter 51 are simplified to ``Secretary''.

   Conference Substitute

   The Conference adopts the Senate provision with modifications.

   SEC. 7127. CRIMINAL MATTERS

   House Bill

   No comparable provision in the House bill.

   Senate Bill

   Sec. 7363.

   This section provides for a correction to title 18 of the United States Code for the transportation of explosives. It makes explosives that are regulated by the DOT and the Department of Homeland Security (DHS) subject to their authority.

   Conference Substitute

   The Conference adopted the Senate provision with modifications.

   SEC. 7128. ADDITIONAL CIVIL AND CRIMINAL PENALTIES

   House Bill

   No comparable provision in the House bill.

   Senate Bill

   Sec. 7345.

   This section amends criminal penalties for violations in transporting hazardous materials by air (49 U.S.C. 46312) to clarify that the regulations referred to in that section include the Hazardous Materials Regulations issued by the Secretary under chapter 51. Consequently, violations in transporting hazardous materials by air would clearly constitute violations of both Federal hazardous material transportation laws and the Federal Aviation Act.

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   This section also would allow the Department of Justice to seek restitution against persons convicted of a criminal offense under 49 U.S.C. 5124.

   Conference Substitute

   The Conference adopted the Senate provision.

   SEC. 7129. HAZARDOUS MATERIAL TRANSPORTATION PLAN REQUIREMENT

   House Bill

   No comparable provision in the House bill.

   Senate Bill

   Sec. 7368.

   This section would exempt farmers as defined in the section from certain hazardous materials transportation plans for local farm-related shipments within 150 miles of their farm.

   Conference Substitute

   The Conference adopts the Senate provision.

   SEC. 7130. DETERMINING AMOUNT OF UNDECLARED SHIPMENTS OF HAZARDOUS MATERIALS ENTERING THE UNITED STATES

   House Bill

   Sec. 7025.

   This section requires the GAO to conduct a study to propose methods to determine the amount of undeclared shipments of hazardous materials entering the United States.

   Senate Bill

   Sec. 7364.

   This section authorizes the Secretary to initiate a program to randomly inspect cargo shipments at U.S. Customs ports of entry to determine the extent to which undeclared hazardous material is being offered for transportation in commerce. DOT inspection personnel, in coordination with DHS officials, are authorized to open and inspect containers at any U.S. Customs port of entry. The inspections are then carried out by DOT inspection personnel at U.S. Customs ports of entry where they are similar to border inspections, and they would be based upon random selections made by supervisory personnel not present at the site of the inspections.

   Conference Substitute

   The Conference adopts the House provision.

   SEC. 7131. HAZARDOUS MATERIALS RESEARCH PROJECTS

   House Bill

   Sec. 5216.

   This section authorizes PHMSA to enter into a contract with the National Academy of Science to carry out the 9 research projects called for in the 2005 Special Report 283 of the Transportation Research Board entitled ``Cooperative Research for Hazardous Materials Transportation: Defining the Need, Converging on Solutions''.

   Senate Bill

   Sec. 7370.

   This section creates a HAZMAT research cooperative through the National Academy of Sciences' Transportation Research Board.

   Conference Substitute

   The Conference adopts the House provision.

   SEC. 7132. NATIONAL FIRST RESPONDER TRANSPORTATION INCIDENT RESPONSE SYSTEM

   House Bill

   Sec. 7027.

   This section authorizes $2,500,000 for each of fiscal years 2005 through 2007 for Operation Respond.

   Senate Bill

   Sec. 7367.

   This section would authorize $5,000,000 annually for FYs 2005 through 2009 for Operation Respond to update the OREIS and permits the Secretary to require the Operation Respond system function across multiple transportation modes.

   Conference Substitute

   The conference adopts the House provision.

   SEC. 7133. COMMON CARRIER PIPELINE SYSTEM

   House Bill

   This section requires a study to examine the economic, environmental, and homeland security advantages and disadvantages of operating a common carrier pipeline system in Texas, Louisiana, Mississippi, and Alabama for the transportation of aromatic chemicals.

   Senate Bill

   No comparable provision in the Senate bill.

   Conference Substitute

   The Conference adopts the House provision.

   Subtitle B--Sanitary Food Transportation

   SEC. 7201. SHORT TITLE

   House Bill

   No comparable provision in House bill.

   Senate Bill

   Sec. 7381.

   This section sets forth the short title for the Sanitary Food Transportation Act of 2003. This title would reallocate responsibilities for food transportation safety among the U.S. Department of Health and Human Services, the U.S. Department of Transportation, and the U.S. Department of Agriculture.

   Conference Substitute

   The Conference adopts the Senate provision.

   SEC. 7202. RESPONSIBILITIES OF SECRETARY OF HEALTH AND HUMAN SERVICES

   House Bill

   No comparable provision in House bill.

   Senate Bill

   Sec. 7382.

   This section amends section 402 of the Federal Food, Drug, and Cosmetic Act (the Act; 21 U.S.C. 391) to provide that food is adulterated if transported in violation of safe transportation practices prescribed in the new section 416 of the Act.

   Subsection (b) adds to the Act a new section 416 requiring the Secretary of HHS to establish by regulation sanitary transportation practices to be followed by shippers, carriers, and others engaged in food transport. The Secretary of HHS may prescribe practices relating to matters such as sanitation, packaging and protective measures; limitations on the use of vehicles; information sharing between shippers and carriers; and record keeping, reporting, and compliance with inspections.