TITLE VII--MISCELLANEOUS
Subtitle A--Railroads
SEC. 7101. RAIL CORRIDOR PLANNING. [Analysis]
Section 26101(b)(1) of Title 49, United States Code, is amended in the first sentence thereof by adding "(1)" after the word "determines" and by adding "or (2) that it is necessary to help promote an effective and efficient system of conventional speed intercity rail passenger operations" after the word "improvements".
SEC. 7102. HIGH SPEED RAIL AUTHORIZATIONS. [Analysis]
Section 26104 of Title 49, United States Code, is revised to read as follows:
"§ 26104. Authorization of appropriations
"(a) There are authorized to be appropriated to the Secretary $25,000,000 each year for fiscal years 2004 through 2009 for carrying out section 26101 (including payment of administrative expenses related thereto).
"(b) There are authorized to be appropriated to the Secretary $25,000,000 each year for fiscal years 2004 through 2009 for carrying out section 26102 (including payment of administrative expenses related thereto)."
"(c) Funds made available under this section shall remain available until expended.".
Subtitle B--Miscellaneous Technical Corrections to Title 49
SEC. 7201. CORRECTION OF OBSOLETE REFERENCES TO INTERSTATE COMMERCE COMMISSION. [Analysis]
(a) Except as otherwise provided, a reference in this section to an amendment to, or a repeal of, a section or other provision is deemed to be a reference to a section or other provision of title 49, United States Code.
(b) (1) Section 307 (Safety information and intervention in Interstate Commerce Commission proceedings) is repealed.
(2) The analysis of chapter 3 is amended by striking the item designated "307".
(c) Subsections (d)(1)(C) and (e) of section 333 (Responsibility for rail transportation unification and coordination projects) are amended by striking "Interstate Commerce Commission" and "Commission" each place the words appear and substituting "Surface Transportation Board" and "Board", respectively.
(d) Section 10903(b)(2) is amended by striking "24706(c) of this title" and substituting "24706(c) of this title before May 31, 1998".
(e) Section 13541(a) is amended by striking "finds that" and all that follows, and substituting--
"finds that the exemption is in the public interest and that the application of that provision--
"(1) is not necessary to carry out the transportation policy of section 13101; and
"(2) is not needed to protect shippers from the abuse of market power or that the transaction or service is of limited scope.".
(f)(1) Section 14704 (Rights and remedies of persons injured by carriers or brokers) is amended as follows:
(A) In subsection (a) --
(i) strike "In general.--" and all that follows through "injured" and substitute "Enforcement of order.--A person injured"; and
(ii) redesignate paragraph (2) as subsection (b)(2); and
(B) In subsection (b), by strike "Liability and damages" and all that follows through "A carrier" and substitute "Liability and damages.--(1) A carrier".
(2) Section 14705(c) is amended by striking "14704(b)" and substituting "14704(b)(2)".
(g)(1) Subsection (c)(3) of section 24307 (Special transportation) is amended by striking "Interstate Commerce Commission" and substituting "Surface Transportation Board".
(2) Section 24308 (Use of facilities and providing services to Amtrak) is amended by striking "Interstate Commerce Commission" and "Commission" each place the words appear and substituting "Surface Transportation Board" and "Board", respectively.
(3) Section 24311 (Acquiring interests in property by eminent domain) is amended by striking "Interstate Commerce Commission" and "Commission" each place the words appear and substituting "Surface Transportation Board" and "Board", respectively.
(4) Section 24902 (Goals and requirements) is amended by striking "Interstate Commerce Commission" and "Commission" each place the words appear and substituting "Surface Transportation Board" and "Board", respectively.
(5) Section 24904 (General authority) is amended by striking "Interstate Commerce Commission" and "Commission" each place the words appear and substituting "Surface Transportation Board" and "Board", respectively.
Subtitle C--Hazardous Material Transportation
SEC.7301. DEFINITIONS. [Analysis]
Section 5102 of title 49, United States Code, is amended by revising paragraph (1) to read as follows:
"(1) '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."
SEC.7302. REPRESENTATIONS AND TAMPERING WITH HAZARDOUS MATERIAL PACKAGING. [Analysis]
Section 5103(b)(1) of title 49, United States Code, is amended by revising subparagraph (A) to read as follows:
"(A) apply to a person that--
"(i) transports a hazardous material in commerce;
"(ii) causes a hazardous material to be transported in commerce;
"(iii) manufactures, designs, inspects, tests, reconditions, marks, or repairs a packaging or packaging component represented as qualified for use in transporting hazardous material in commerce;
"(iv) prepares, accepts, or rejects hazardous material for transportation in commerce;
"(v) is responsible for the safety of transporting hazardous material in commerce;
"(vi) certifies compliance with any requirement issued under this chapter;
"(vii) misrepresents whether it is engaged in any of the above activities; or
"(viii) performs any other act or function relating to the transportation in commerce of a hazardous material; and".
SEC. 7303. HAZARDOUS MATERIAL TRANSPORTATION SAFETY AND SECURITY. [Analysis]
(a) ENHANCED AUTHORITY TO DISCOVER HIDDEN SHIPMENTS OF HAZARDOUS MATERIAL.--Section 5121 of title 49, United States Code, is amended by revising subsection (c) to read as follows:
"(c) INSPECTIONS AND INVESTIGATIONS.--(1) A designated officer or employee of the Secretary may--
"(A) inspect and investigate, at a reasonable time and in a reasonable way, records and property related to a function described in section 5103(b)(1) of this chapter;
"(B) except for the packaging immediately adjacent to its hazardous material contents, gain access to, open, and examine a package 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;
"(C) remove from transportation a package or related packages in a shipment offered for or in transportation, and for which such officer or employee has an objectively reasonable and articulable belief that the package or packages may pose an imminent hazard, and for which the officer or employee contemporaneously documents that belief in accordance with procedures established by the Secretary;
"(D) gather information from the offeror, carrier, packaging manufacturer or retester, or other person responsible for the package or packages, to ascertain the nature and hazards of the contents of the package or packages;
"(E) as necessary, under terms and conditions specified by the Secretary, order the offeror, carrier, packaging manufacturer or retester, or other person responsible for the package or packages to have the package or packages transported to, opened and the contents examined and analyzed at a facility appropriate for the conduct of this activity; and
"(F) when safety might otherwise be compromised, authorize properly qualified personnel to assist in the activities conducted under this subsection.
"(2) An officer or employee acting under this subsection shall display proper credentials when requested.
"(3) For instances when, as a result of the inspection or investigation, an imminent hazard is not found to exist, the Secretary shall develop procedures to assist in the safe resumption of transportation of the package or transport unit.".
(b) EMERGENCY AUTHORITY FOR HAZARDOUS MATERIAL TRANSPORTATION.--Section 5121 is amended by striking subsection (e), redesignating subsection (d) as subsection (e), and adding a new subsection (d) to read as follows:
"(d) EMERGENCY ORDERS.--(1) If, upon inspection, investigation, testing, or research, the Secretary determines that either a violation of a provision of this chapter or a regulation issued 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 the opportunity for a hearing, but only to the extent necessary to abate the imminent hazard.
"(2) The Secretary's action under paragraph (1) of this subsection shall be in a written order describing the violation, condition or practice that is causing the imminent hazard, and stating the restrictions, prohibitions, recalls, or out-of-service orders issued or imposed. The order also shall describe the standards and procedures for obtaining relief from the emergency order.
"(3) After taking action under paragraph (1) of this subsection, the Secretary shall provide an opportunity for review of that action under section 554 of title 5, if a petition for review is filed within 20 calendar days after issuance of the order.
"(4) If a petition for review is filed and the review is not completed by the end of the 30-day period beginning on the date the petition was filed, the action will cease to be effective at the end of that period unless the Secretary determines in writing that the emergency situation still exists.
"(5) For purposes of this subsection, "out-of-service order" means a mandate that an aircraft, vessel, motor vehicle, train, railcar, locomotive, other vehicle, transport unit, transport vehicle, freight container, portable tank, or other package not be moved until specified conditions have been met."
(c) SECURITY-SENSITIVE INFORMATION.--Section 5121 is revised by adding a new subsection (f) to read as follows:
"(f) SECURITY-SENSITIVE INFORMATION.--(1) If the Secretary determines that particular information may reveal a vulnerability of a hazardous material to attack during transportation in commerce, or may facilitate the diversion of hazardous material during transportation in commerce for use in an attack on people or property, the information may be disclosed only --
"(A) to an owner, custodian, offeror or carrier of the hazardous material;
"(B) to an officer, employee or agent of a Federal, State, or local government, including a volunteer fire department, concerned with carrying out transportation safety laws, protecting hazardous material during the course of transportation in commerce, protecting public safety, or national security issues, or enforcing federal laws designed to protect public health or the environment; or
"(C) in an administrative or judicial proceeding brought under this chapter, under other federal law designed to protect public health or the environment, or one that addresses terrorist actions or threats of such actions.
"(2) The Secretary may make a determination under subsection (1) of this section with respect to a category of information by regulation.
"(3) A release of information pursuant to a determination under subsection (1) of this section is not a release to the public within the meaning of 5 U.S.C. 552."
(d) ENHANCEMENTS TO SECURITY RISK ASSESSMENT AND EMERGENCY PREPAREDNESS.-- Section 5121 is amended by inserting the following after subsection (f):
"(g) AUTHORITY FOR GRANTS, COOPERATIVE AGREEMENTS, AND OTHER TRANSACTIONS.-- The Secretary may enter into grants, cooperative agreements, and other 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 to expand the risk assessment and emergency response capability with respect to hazardous materials security issues and to carry out this chapter.".
(e) CARGO INSPECTION PROGRAM.--The Secretary of Transportation may randomly inspect cargo at U.S. Customs ports of entry in order to determine the extent to which undeclared hazardous material is being offered for transportation in commerce. Under this program, an officer or employee of the Secretary may open and inspect any cargo shipment at a U.S. Customs port of entry if that shipment has been randomly selected for inspection by a Department supervisor who is not on site. The Department of Transportation shall ensure that random inspections under this program are coordinated in advance with the Department of Homeland Security and provide for the effective handling and disposition of any violations found. The Secretary shall initiate such a program within one year after the date of enactment of this Act."
SEC. 7304. ADMINISTRATIVE AUTHORITY FOR TRANSPORTATION SERVICE AND INFRASTRUCTURE ASSURANCE RESEARCH. [Analysis]
Section 112 of title 49, United States Code, is amended by adding the following new subsection to the end:
"(f) ADMINISTRATIVE AUTHORITY. -- (1) Grants, Cooperative Agreements, and Other Transactions. -- The Administrator may enter into grants, cooperative agreements, and other transactions with Federal or other public agencies (including State and local governments) and private organizations and other persons to conduct research into transportation service and infrastructure assurance and to carry out research activities of the Administration.
"(2) Prohibition on Certain Disclosures. -- If the Administrator determines that particular information developed in research sponsored by the Administration may reveal a systemic vulnerability of transportation service or infrastructure, the information may be disclosed only to a person responsible for the security of the transportation service or infrastructure or with protecting public safety or to an officer, employee, or agent of a Federal, State or local government unit whose need for the information in the performance of duties is concurred in by the Administrator. A release of information subject to a determination under this section is not a release to the public within the meaning of 5 U.S.C. 552."
SEC. 7305. POSTAL SERVICE CIVIL PENALTY AUTHORITY. [Analysis]
(a) Section 3001 of title 39, United States Code, is amended by adding a new subsection (o) as follows:
"(o)(1) Except as permitted by law and Postal Service regulation, hazardous material is nonmailable.
"(2) For purposes of this section, the term 'hazardous material' means a substance or material the Secretary of Transportation designates under section 5103(a) of title 49."
(b) Chapter 30 of title 39, United States Code, is amended by adding a new section 3018 at the end as follows:
"Sec. 3018. Hazardous material; civil penalty
"(a) REGULATIONS.--The Postal Service shall prescribe regulations for the safe transportation of hazardous material in the mail.
"(b) HAZARDOUS MATERIAL IN THE MAIL.--No person may--
"(1) mail or cause to be mailed a hazardous material that has been declared by statute or Postal Service regulation to be nonmailable;
"(2) mail or cause to be mailed a hazardous material in violation of any statute or Postal Service regulation restricting the time, place, or manner in which a hazardous material may be mailed; or
"(3) manufacture, distribute, or sell any container, packaging kit, or similar device that--
"(i) is represented, marked, certified, or sold by such person for use in the mailing of a hazardous material; and
"(ii) fails to conform with any statute or Postal Service regulation setting forth standards for a container, packaging kit, or similar device used for the mailing of a hazardous material.
"(c) CIVIL PENALTY.--
"(1) A person that knowingly violates this section or a regulation issued under this section is liable to the Postal Service for a civil penalty of at least $250 but not more than $100,000 for each violation, and for any clean-up costs and damages. A person acts knowingly when--
"(A) the person has actual knowledge of the facts giving rise to the violation; or
"(B) a reasonable person acting in the circumstances and exercising reasonable care would have that knowledge.
"(2) Knowledge by the person of the existence of a statutory provision, or a regulation or requirement prescribed by the Postal Service is not an element of an offense under this section.
"(3) A separate violation occurs for each day a hazardous material, mailed or caused to be mailed in noncompliance with this section or a regulation issued under this section, is in the mail.
"(4) A separate violation occurs for each item containing a hazardous material that is mailed or caused to be mailed in noncompliance with this section or a regulation issued under this section.
"(d) HEARING REQUIREMENT.--The Postal Service may find that a person has violated this section or a regulation issued under this section only after notice and an opportunity for a hearing. Under this section, the Postal Service shall impose a penalty and recover clean-up costs and damages by giving the person written notice of the amount of the penalty, clean-up costs, and damages.
"(e) PENALTY CONSIDERATIONS.--In determining the amount of a civil penalty under this section, the Postal Service shall consider--
"(1) the nature, circumstances, extent, and gravity of the violation;
"(2) with respect to the person who committed the violation, the degree of culpability, any history of prior violations, the ability to pay, and any effect on the ability to continue in business;
"(3) the impact on postal operations; and
"(4) other matters that justice requires.
"(f) CIVIL ACTIONS TO COLLECT.--(1) In accordance with section 409(d) of this title, a civil action may be commenced in an appropriate district court of the United States to collect a civil penalty, clean-up costs, or damages assessed under this section. In such action, the validity, amount, and appropriateness of the civil penalty, clean-up costs, or damages shall not be subject to review.
"(2) The Postal Service may compromise the amount of a civil penalty, clean-up costs, or damages assessed under this section before civil action is taken to collect the penalty, costs, or damages.
"(g) CIVIL JUDICIAL PENALTIES.--At the request of the Postal Service, 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 issued under this chapter. The court may award appropriate relief, including a temporary or permanent injunction, punitive damages, and assessment of civil penalties considering the same penalty amounts and factors as prescribed for the Postal Service in an administrative case under this section.
"(h) DEPOSITING AMOUNTS COLLECTED.--Amounts collected under this section shall be paid into the Postal Service Fund established by section 2003 of this title.".
(c) CONFORMING AMENDMENT.--The chapter analysis for chapter 30 of title 39, United
States Code, is amended by adding the following:
"3018. Hazardous material;
civil penalty."
SEC. 7306. REGISTRATION. [Analysis]
(a) IN GENERAL.--Section 5108 of title 49, United States Code, is amended--
(1) by striking "class A or B explosive" in subsection (a)(1)(B) and inserting "Division 1.1, 1.2, or 1.3 explosive material";
(2) by revising subsection (a)(2)(B) to read as follows:
"(B) a person manufacturing, designing, inspecting, testing, reconditioning, marking, or repairing a packaging or packaging component represented as qualified for use in transporting a hazardous material in commerce.".
(b) CLARIFICATION OF TITLE 18 EXEMPTION.--Section 845(a)(1) of title 18, United States Code, is amended to read as follows:
"(1) aspects of the transportation of explosive materials via railroad, water, highway, or air that pertain to safety, including security, and are regulated by the Department of Transportation or the Department of Homeland Security;".
SEC. 7307. SHIPPING PAPER RETENTION. [Analysis]
Section 5110 of title 49, United States Code, is amended --
(1) in subsection (a), by striking "under subsection (b) of this section" and inserting "by regulation";
(2) by striking subsection (b) and redesignating subsections (c)-(e) as subsections (b)-(d); and
(3) by revising the first sentence in subsection (d), as redesignated, to read as follows:
"The person that provided the shipping paper and the carrier required to keep it under this section shall retain the paper, or an electronic image of it, for a period of 3 years after the shipping paper was provided to the carrier, to be accessible through their respective principal places of business.".
SEC. 7308. PLANNING AND TRAINING GRANTS. [Analysis]
(a) Section 5116 of title 49, United States Code, is amended--
(1) in the second sentence of subsection (e), by striking "of the State or tribe under subsections (a)(2)(A) and (b)(2)(A)" and inserting "received by the State or tribe under subsections (a)(1) and (b)(1)";
(2) revising subsection (f) to read as follows:
"(f) MONITORING AND TECHNICAL ASSISTANCE.--The Secretary of Transportation shall monitor public-sector emergency response planning and training for an accident or incident involving hazardous material. Considering the results of the monitoring, the Secretary shall provide technical assistance to a State, political subdivision of a State, or Indian tribe for carrying out emergency response training and planning for an accident or incident involving hazardous material and shall coordinate the assistance using the existing coordinating mechanisms of the National Response Team and, for radioactive material, the Federal Radiological Preparedness Coordinating Committee.";
(3) in subsection (g), by striking "Government grant" and inserting "Federal financial assistance";
(4) by revising subsection (i) to read as follows:
"(i) EMERGENCY PREPAREDNESS FUND.--The Secretary of the Treasury shall establish an Emergency Preparedness Fund account in the Treasury into which the Secretary of the Treasury shall deposit amounts the Secretary of Transportation transfers to the Secretary of the Treasury under section 5108(g)(2)(C) of this title. Without further appropriation, amounts in the account are available--
"(1) to make grants under this section;
"(2) to monitor and provide technical assistance under subsection (f) of this section;
"(3) to publish and distribute the Emergency Response Guidebook;
"(4) to pay administrative costs of carrying out this section and sections 5108(g)(2) and 5115 of this title, except that not more than 10 percent of the amounts made available from the account in a fiscal year to carry out these sections may be used to pay those costs."; and
(5) by striking subsection (k).
(b) Chapter 51 is amended by--
(1) revising the section heading for section 5116 to read "Planning and training grants; emergency preparedness fund"; and
(2) striking the item for section 5116 in the analysis of the chapter and inserting "5116. Planning and training grants; emergency preparedness fund.".
SEC. 7309. ENFORCEMENT. [Analysis]
Section 5122 of title 49, United States Code, is amended--
(1) in subsection (a), by revising the last sentence to read as follows:
"The court may award appropriate relief, including a temporary or permanent injunction, punitive damages, and assessment of civil penalties considering the same penalty amounts and factors as prescribed for the Secretary in an administrative case under section 5123 of this chapter."; and
(2) in subparagraph (b)(1)(B), by striking "or ameliorate the" and inserting "or mitigate the".
SEC. 7310. PENALTIES. [Analysis]
(a) Section 5123 of title 49, United States Code, is amended--
(1) by revising subsection (a) to read as follows:
"(a) PENALTY.--(1) A person that knowingly violates this chapter, or a regulation, order, special permit, or approval issued under this chapter, is liable to the United States Government for a civil penalty of at least $250 but not more than $100,000 for each violation.
"(2) Knowledge by the person of the existence of a statutory provision, or a regulation or requirement prescribed by the Secretary is not an element of an offense under this section.
"(3) A separate violation occurs for each day the violation, committed by a person that transports or causes to be transported hazardous material, continues"; and
(2) by redesignating subsections (b)-(g) as subsections (c)-(h) and inserting a new subsection (b) to read as follows:
"(b) KNOWING VIOLATIONS.--In this section, a person acts knowingly when--
"(1) the person has actual knowledge of the facts giving rise to the violation; or
"(2) a reasonable person acting in the circumstances and exercising reasonable care would have that knowledge.";
(3) in subsection (c), as redesignated, by striking the first sentence and inserting the following:
"The Secretary of Transportation may find that a person has violated this chapter, or a regulation, order, special permit or approval issued under this chapter, only after notice and an opportunity for a hearing."
(4) by revising subsection (e), as redesignated, to read as follows:
"(e) CIVIL ACTIONS TO COLLECT.--The Attorney General may bring a civil action in an appropriate district court of the United States to collect a civil penalty under this section and any accrued interest on that penalty calculated in the manner described under section 2705 of title 33. In such action, the validity, amount, and appropriateness of the civil penalty shall not be subject to review.".
(b) Section 5124 is revised to read as follows:
"Sec. 5124. Criminal penalty
"(a) GENERAL.--A person knowingly violating section 5104(b) of this title or willfully or recklessly violating this chapter or a regulation, order, special permit, or approval issued under this chapter, shall be fined under title 18, imprisoned for not more than 5 years, or both.
"(b) AGGRAVATED VIOLATIONS.--A person knowingly violating section 5104(b) of this chapter, or willfully or recklessly violating this chapter or a regulation, order, special permit, or approval issued under this chapter, and thereby causing the release of a hazardous material, shall be fined under title 18, imprisoned for not more than 20 years, or both.
"(c) KNOWING VIOLATIONS.--In this section, a person acts knowingly when--
"(1) the person has actual knowledge of the facts giving rise to the violation; or
"(2) a reasonable person acting in the circumstances and exercising reasonable care would have that knowledge.
"(d) WILLFUL VIOLATIONS.--In this section, a person acts willfully when-
"(1) the person has knowledge of the facts giving rise to the violation; and
"(2) the person has knowledge that the conduct was unlawful.
"(e) RECKLESS VIOLATIONS.-In this section, a person acts recklessly when the person displays a deliberate indifference or conscious disregard for the consequences of that person's conduct.
"(f) KNOWLEDGE OF REQUIREMENTS.-- Knowledge by a person of the existence of a statutory provision, or a regulation or requirement prescribed by the Secretary, is not an element of an offense under this section.
"(g) SEPARATE VIOLATIONS.-A separate violation occurs for each day the violation, committed by a person who transports hazardous material or who causes hazardous material to be transported, continues.".
(c) Section 46312 is amended--
(1) in subparagraph (a), by striking "under this part" and inserting "under this part or under chapter 51 of this title";
(2) in subparagraph (b), by striking "by the Secretary" and inserting "by the Secretary under this part or under chapter 51 of this title".
(d) Section 3663, title 18 United States Code, is amended in subparagraph (a)(1)(A) by striking "or section 46312, 46502, or 46504 of title 49" and inserting "or section 5124, 46312, 46502, or 46504 of title 49.".
SEC. 7311. EMERGENCY WAIVER OF PREEMPTION. [Analysis]
Section 5125 of title 49, United States Code, is amended by adding new subsections (h), (i), and (j) to read as follows:
"(h) EMERGENCY WAIVER OF PREEMPTION.-- (1) The Secretary, upon a finding of good cause, may waive preemption on an expedited basis without notice and public procedure. Good cause exists when there is a possible threat that hazardous material being transported in commerce may be used in an attack on people or property, and notice and public procedure are impracticable or contrary to the public interest.
"(2) An emergency waiver of preemption shall remain in effect for no more than 6 months unless, prior to its expiration, the Secretary determines that a possible threat that hazardous material being transported in commerce may be used in an attack on people or property continues to exist.
"(3) An action of the Secretary under paragraphs (1) and (2) of this subsection shall be in writing and shall describe the standards and procedures for seeking reconsideration of the Secretary's action.
"(4) After taking action under paragraphs (1) or (2) of this subsection, the Secretary shall provide an opportunity for review of that action if a petition for reconsideration is filed within 20 calendar days after the Secretary issues or extends an emergency waiver.
"(5) If a petition for reconsideration is filed and the review is not completed by the end of the 30-day period beginning on the date the petition was filed, the emergency waiver will cease to be effective at the end of that period unless the Secretary determines, in writing, that a possible threat that hazardous material being transported in commerce may be used in an attack on people or property continues to exist.".
"(i) INDEPENDENT APPLICATION OF EACH STANDARD.--Each preemption standard in subsections (b), (c)(1), (d), and (e) of this section and in section 5119(b) of this chapter is independent in its application to a requirement of any State, political subdivision of a State, or Indian tribe.
"(j) NONFEDERAL ENFORCEMENT STANDARDS.--This section does not apply to procedure, penalty, or required mental state or other standard used by a State, political subdivision of a State, or Indian tribe to enforce a requirement applicable to transportation of a hazardous material.".
SEC. 7312. JUDICIAL REVIEW. [Analysis]
Chapter 51 of title 49, United States Code, is amended by redesignating section 5127 as section 5128, and by inserting after section 5126 the following new section:
"Sec. 5127. Judicial review
"(a) FILING AND VENUE.--Except as provided in section 20114(c) of this title, a person suffering legal wrong or adversely affected or aggrieved by a final action of the Secretary of Transportation under this chapter may petition for review of the final action in the United States Court of Appeals for the District of Columbia or in the court of appeals for the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not more than 60 days after the Secretary's action becomes final.
"(b) JUDICIAL PROCEDURES.--When a petition is filed under subsection (a) of this section, the clerk of the court immediately shall send a copy of the petition to the Secretary. The Secretary shall file with the court a record of any proceeding in which the final action was issued, as provided in section 2112 of title 28.
"(c) AUTHORITY OF COURT.--The court has exclusive jurisdiction, as provided in the Administrative Procedure Act, 5 U.S.C. 551 et seq., to affirm or set aside any part of the Secretary's final action and may order the Secretary to conduct further proceedings. Findings of fact by the Secretary, if supported by substantial evidence, are conclusive.
"(d) REQUIREMENT FOR PRIOR OBJECTION.--In reviewing a final action under this section, the court may consider an objection to a final action of the Secretary only if the objection was made in the course of a proceeding or review conducted by the Secretary or if there was a reasonable ground for not making the objection in the proceeding.";
(b) CONFORMING AMENDMENT.--The chapter analysis for chapter 51 is amended by
striking the item related to section 5127 and inserting the following:
"5127. Judicial review.
"5128. Authorization of appropriations.".
Subtitle D--Sanitary Food Transportation
SEC. 7401. SHORT TITLE [Analysis]
This Subtitle may be cited as the "Sanitary Food Transportation Act of 2003."
SEC. 7402. RESPONSIBILITIES OF THE SECRETARY OF HEALTH AND HUMAN SERVICES. [Analysis]
(a) Unsanitary Transport Deemed Adulteration.--Section 402 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 342) is amended by adding at the end the following new subsection:
"(i) If it is transported under conditions that are not in compliance with the sanitary transportation practices prescribed by the Secretary under section 416."
(b) Sanitary Transportation Requirements.-- Chapter IV of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 341 et seq.) is amended by adding at the end the following new section:
"Sec. 416. Sanitary transportation of food
"(a) SANITARY TRANSPORTATION PRACTICES.-- The Secretary shall establish by regulation sanitary transportation practices which shippers, carriers, receivers, and other persons engaged in the transportation of food shall be required to follow to ensure that the food is not transported under conditions that may render it adulterated, including such practices as the Secretary may find appropriate relating to--
"(1) sanitation;
"(2) packaging, isolation, and other protective measures;
"(3) limitations on the use of vehicles;
"(4) information to be disclosed--
"(A) to a carrier by a person arranging for the transport of food, and
"(B) to a manufacturer or other persons arranging for the transport of food by a carrier or other person furnishing a tank or bulk vehicle for the transport of food; and
"(5) recordkeeping.
"(b) LIST OF UNACCEPTABLE NONFOOD PRODUCTS.--The Secretary, by publication in the Federal Register, may establish and periodically amend-
"(1) a list of nonfood products that the Secretary determines may, if shipped in a tank or bulk vehicle, render adulterated food transported subsequently in such vehicle; and
"(2) a list of nonfood products that the Secretary determines may, if shipped in a motor or rail vehicle (other than a tank or bulk vehicle), render adulterated food transported simultaneously or subsequently in such vehicle.
"(c) WAIVER AUTHORITY.--(1) In General.--The Secretary may waive all or part of this section, or any requirement under this section, with respect to any class of persons, of vehicles, of food, or of nonfood products, if the Secretary determines that such waiver-
"(A) will not result in the transportation of food under conditions that would be unsafe for human or animal health; and
"(B) will not be contrary to the public interest or this Act.
"(2) Publication.--The Secretary shall publish in the Federal Register any waiver and the reasons for the waiver.
"(d) PREEMPTION.--(1) In General.--No State or political subdivision of a State may directly or indirectly establish or continue in effect, as to any food in interstate commerce, any authority or requirement concerning that transportation of food that is not identical to the requirement of this section.
"(2) Effective Date.--The provisions of this subsection apply only with respect to transportation occurring on or after the effective date of regulations prescribed under subsection (a).
"(e) ASSISTANCE OF OTHER AGENCIES.--The Secretary of Transportation, the Secretary of Agriculture, the Administrator of the Environmental Protection Agency, and the heads of other Federal agencies, as appropriate, shall provide assistance upon request, to the extent resources are available, to the Secretary of Health and Human Services for the purposes of carrying out this section.
"(f) DEFINITIONS. For purposes of the section-
"(1) The term 'transportation' means any movement of property in commerce by motor vehicle or rail vehicle.
"(2) The term 'tank or bulk vehicle' includes any vehicle in which food is shipped in bulk and in which the food comes directly into contact with the vehicle, including tank trucks, hopper trucks, rail tank cars, hopper cars, cargo tanks, portable tanks, freight containers, or hopper bins."
(c) Inspection of Transportation Records.-- (1) Requirement.--Chapter VII of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371 et seq.) is amended by inserting after section 703 the following new section:
"Sec. 703A. Food transportation records
"Shippers, carriers by motor vehicle or rail vehicle, and other persons subject to section 416 shall, upon request of an officer or employee duly designated by the Secretary, permit such officer or employee, at reasonable times, to have access to and to copy all records that the Secretary requires them to make or retain under section 416(a)(5) of this Act.".
(2) Conforming Amendment.--Section 703 of the Act (21 U.S.C. 373) is amended by striking "in the usual course of business as carriers." and inserting "in the usual course of business as carriers, unless otherwise explicitly provided.".
(d) Prohibited Acts.--(1) Records Inspection.--Section 301(c) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 331(e)) is amended-
(A) by striking "or 703" and inserting ", 703, or 703A"; and
(B) by inserting "416," before "504".
(2) Unsafe Food Transportation.--Section 301 of the Act (21 U.S.C. 331) is further amended by adding at the end the following new subsection:
"(gg) The failure, by a shipper, carrier, receiver, or any other person engaged in the transportation of food, to comply with the sanitary transportation practices prescribed by the Secretary under section 416."
SEC. 7403. DEPARTMENT OF TRANSPORTATION REQUIREMENTS. [Analysis]
Chapter 57 of title 49, relating to sanitary food transportation is revised to read as follows:
"CHAPTER 57--SANITARY FOOD TRANSPORTATION
"Sec.
"5701. Food transportation safety inspections
"Sec. 5701. Food transportation safety inspections
"(a) INSPECTION PROCEDURES.--(1) The Secretary of Transportation, in consultation with the Secretaries of Health and Human Services and Agriculture, shall establish procedures to be used in performing transportation safety inspections for the purpose of identifying suspected incidents of contamination or adulteration of food that may violate regulations issued under section 416 of title 21, United States Code, and of meat and poultry products subject to detention under section 402 of the Federal Meat Inspection Act (21 U.S.C. 672) and section 19 of the Poultry Products Inspection Act (21 U.S.C. 467a), and shall train personnel of the Department of Transportation in the appropriate use of such procedures.
"(2) The procedures established under paragraph (1) of this subsection shall apply, at a minimum, to the Department of Transportation personnel who perform commercial motor vehicle and railroad safety inspections.
"(b) NOTIFICATION OF SECRETARIES OF HEALTH AND HUMAN SERVICES AND AGRICULTURE.--The Secretary of Transportation shall promptly notify the Secretary of Health and Human Services or the Secretary of Agriculture, as applicable, of any instances of potential food contamination or adulteration of a food identified during transportation safety inspections.
"(c) USE OF STATE EMPLOYEES.--The means by which the Secretary of Transportation carries out subsection (b) of this section may include inspections conducted by State employees using funds authorized to be appropriated under sections 31102 through 31104 of this title.".
SEC. 7404. EFFECTIVE DATE OF THE SUBTITLE. [Analysis]
Unless otherwise specified, the provisions of this title are effective October 1, 2003.
Subtitle E--Sport Fishing and Boating Safety
SEC. 7501. SPORT FISH RESTORATION ACCOUNT AMENDMENTS. [Analysis]
(a) IN GENERAL.--Section 4 of the Act entitled "An Act to provide that the United States shall aid the States in fish restoration and management projects, and for other purposes" (August 9, 1950)(16 U.S.C. 777c) is amended--
(1) in subsection (b),
(A) by striking "2003" each place it appears and inserting "2009"; and
(B) by striking "Secretary of Transportation" each place it appears and inserting "Secretary of Homeland Security"; and
(2) in subsection (c)(5), by striking "fiscal year 2003" and inserting "fiscal years 2003 through 2009".
(b) CLEAN MARINA INITIATIVES.--To further enhance the natural environment, federal agencies administering programs funded under the Aquatic Resources Trust Fund should promote, to the extent practicable, "Clean Marina Initiatives" in each of the following programs:
(1) Clean Vessel Act "Pumpout" Program.
(2) Boating Infrastructure Grant Program.
(3) National Outreach and Communications Program.
(4) Recreational Boating Access Facilities.