49 U.S.C. § 5121

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 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 research, development, demonstration, and training activities. Except as provided in subsections (c) and (d), after notice and an opportunity for a hearing, the Secretary may issue an order requiring compliance with this chapter or a regulation 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 reports, 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, employee, or agent of the Secretary-

(A) may inspect and investigate, at a reasonable 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 immediately adjacent to its hazardous material contents, may gain access to, open, and examine a package offered for, or in, transportation when the officer, employee, or agent has an objectively reasonable and articulable belief that the package may contain 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 imminent hazard; and

(ii) such officer, employee, or agent contemporaneously documents such belief in accordance with procedures set forth in guidance or regulations prescribed under subsection (e);

(D) may gather information from the offeror, carrier, packaging manufacturer or tester, or other person responsible for the package, to ascertain the nature and hazards of the contents of the package;

(E) as necessary, under terms and conditions 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 analyzed, at a facility appropriate for the conduct of such examination and analysis;

(F) when safety might otherwise be compromised, may authorize properly qualified personnel to assist in the activities conducted 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, employee, 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 imminent hazard is not found to exist, the Secretary, in accordance with procedures set forth in regulations prescribed under subsection (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 material being transported is perishable, in the safe and expeditious resumption of transportation of the perishable hazardous material.

(d) EMERGENCY ORDERS.-

(1) IN GENERAL.-If, upon inspection, investigation, 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 practice, 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 extent necessary to abate the imminent hazard.

(2) WRITTEN ORDERS.-The action of the Secretary under paragraph (1) shall be in a written 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 imposed; and

(C) describes the standards and procedures for obtaining relief from the order.

(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 petition is filed, the action shall cease to be effective at the end of such period unless the Secretary determines, in writing, that the imminent 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 vehicle, freight container, potable tank, or other package not be moved until specified conditions have been met.

(e) REGULATIONS.-

(1) TEMPORARY REGULATIONS.-Not later than 60 days after the date of enactment of the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005, the Secretary shall issue temporary regulations to carry out subsections (c) and (d). The temporary 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 Secretary shall issue regulations to carry out subsections (c) and (d) in accordance with subchapter II of chapter 5 of title 5.

(3) MATTERS TO BE ADDRESSED.-The regulations issued under this subsection shall address-

(A) the safe and expeditious resumption of transportation of perishable hazardous material, including radiopharmaceuticals and other medical products, that may require timely delivery due to life-threatening situations;

(B) the means by which-

(i) noncompliant packages that present an imminent hazard are placed out-of-service 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 accordance with the hazardous material regulations.

(f) FACILITY, STAFF, AND REPORTING SYSTEM ON RISKS, EMERGENCIES, AND ACTIONS.-

(1) The Secretary 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 information and advice to law enforcement and firefighting personnel, other interested individuals, and officers and employees of the Government and State and local governments on meeting an emergency related to the transportation of hazardous material; and

(C) conduct a continuous review on all aspects of transporting hazardous material to decide on and take appropriate actions to ensure safe transportation of hazardous material.

(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 operated and maintained by the contractor.

(g) GRANTS AND COOPERATIVE AGREEMENTS.-The Secretary may enter into grants and cooperative agreements 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 appropriate entity-

(1) to expand risk assessment and emergency response capabilities with respect to the safety and security of transportation of hazardous material;

(2) to enhance emergency communications capacity as determined necessary by the Secretary, including the use of integrated, interoperable emergency communications technologies where appropriate;

(3) to conduct research, development, demonstration, 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 transportation of hazardous materials during the preceding 2 calendar years. The report shall include-

(1) a statistical compilation of accidents and casualties related to the transportation of hazardous material;

(2) a list and summary of applicable Government regulations, criteria, orders, and special permits;

(3) a summary of the basis for each special permit;

(4) an evaluation of the effectiveness of enforcement activities relating to a function regulated by the Secretary under section 5103(b)(1) and the degree of voluntary compliance with regulations;

(5) a summary of outstanding problems in carrying out this chapter in order of priority; and

(6) recommendations for appropriate legislation.

49 U.S.C. § 5121

Pub. L. 103-272, §1(d), July 5, 1994, 108 Stat. 779; Pub. L. 103-311, title I, §§108, Aug. 26, 1994, 117, Aug. 26, 1994, 108 Stat. 1674, 1678; Pub. L. 109-59, title VII, §§71187118,, 71267118,, 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, §72057205,, 129 Stat. 1592.

HISTORICAL AND REVISION NOTE
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
5121(a)	49 App.:1808(a) (1st sentence, last sentence words before 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 "prescribed" 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 "requirements under" are omitted as surplus. In clause (1), the words "establish and" are omitted as surplus. The word "requires" is substituted for "prescribe" for clarity 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 surplus. In clause (B), the words "or shipment by any person" are omitted as surplus.In subsection (d)(1), before clause (A), the words "establish 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 "technical and other" and "of communities" are omitted as surplus. The words "and employees" are added for consistency 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 "prepare and" and "comprehensive" are omitted as surplus. In clause (1), the word "thorough" is omitted as surplus. In clause (2), the words "in effect" are omitted as surplus. In clause (3), the words "granted or maintained" are omitted as surplus. In clause (6), the words "additional . . . as are deemed necessary or" are omitted as surplus.

EDITORIAL NOTES

REFERENCES IN TEXTThe date of enactment of the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005, referred to in subsec. (e), is the date of enactment of title VII of Pub. L. 109-59 which was approved Aug. 10, 2005.

AMENDMENTS2015-Subsec. (h). Pub. L. 114-94 substituted "make available to the public on the Department of Transportation's Internet Web site" for "transmit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, 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), substituted "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 Transportation may investigate". Pub. L. 109-59, §7118(a), inserted "conduct tests," after "investigate," and substituted "Except as provided 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 investigation 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, employee, or agent to inspect, at a reasonable time and in a reasonable way, records and property related to-"(A) manufacturing, fabricating, marking, maintaining, reconditioning, repairing, testing, or distributing 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 subsection shall display proper credentials when requested."Subsecs. (d), (e). Pub. L. 109-59, §7118(d), added subsecs. (d) and (e). Former subsecs. (d) and (e) redesignated (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 Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate" for "submit to the President for transmittal 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 "relating 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), substituted "a packaging or a" for "a package or".Subsec. (e). Pub. L. 103-311, §108, substituted "Report" 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 hazardous 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 AMENDMENTAmendment by Pub. L. 112-141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112-141 set out as an Effective 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, §330053005,, 126 Stat. 833, provided that:"(a) IN GENERAL.-The Secretary [of Transportation] may conduct pilot projects to evaluate the feasibility and effectiveness of using paperless hazard communications 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 enforcement 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, highway, 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 impact of using paperless hazard communications systems, including any impact on the public, emergency 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 information gathered in subparagraphs (A), (B), (C), and (D) on whether paperless hazard communications 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 Senate and the Committee on Transportation and Infrastructure of the House of Representatives that contains the results of the pilot projects carried out under this section, including the matters described in paragraph (1). "(d) PAPERLESS HAZARD COMMUNICATIONS SYSTEM DEFINED.-In this section, the term 'paperless hazard communications system' means the use of advanced communications methods, such as wireless communications devices, to convey hazard information between all parties in the transportation chain, including emergency 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, §330083008,, 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 training 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 regulations issued under chapter 51 of title 49, United States Code, and take appropriate enforcement action."(b) STANDARDS AND GUIDELINES.-The Secretary may develop-"(1) guidelines for hazardous material inspector and investigator qualifications;"(2) best practices and standards for hazardous material 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 transportation 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 material enforcement inspections or investigations; and"(B) State employees who conduct federally funded compliance reviews, inspections, or investigations; and"(2) shall be made available to Federal, State, and local hazardous material safety enforcement personnel."

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 Secretary [of Transportation] shall take all actions necessary 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 transporters 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 regulation issued under that chapter."

United States

"United States" means all of the States.1 See References in Text note below.

commerce

"commerce" means trade or transportation in the jurisdiction of the United States-(A) between a place in a State and a place outside of the State;(B) that affects trade or transportation between a place in a State and a place outside of the State; or(C) on a United States-registered aircraft.

hazardous material

"hazardous material" means a substance or material the Secretary designates under section 5103(a) of this title.

imminent hazard

"imminent hazard" means the existence of a condition relating to hazardous material that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of that death, illness, injury, or endangerment.