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The Safe, Accountable, Flexible and Efficient
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These statistics reflect an increasing number of cases based on initiatives undertaken by FAA's expanded hazardous material workforce and an increasing number of cases involving the discovery of undeclared hazardous materials shipments.
Furthermore, the problem of undeclared hazardous materials shipments is not limited to air transportation; it has been experienced in virtually every mode of transportation. These major incidents are merely representative of a more widespread problem. The following data from the Research and Special Program Administration's Hazardous Materials Information System (HMIS) indicate that there were hundreds of carrier-reported incidents (usually releases of hazardous materials) involving undeclared or hidden hazardous materials. Specifically, from January 1990 through December 2000, there were approximately 3,300 carrier-reported incidents involving a release of undeclared hazardous materials, resulting in 110 deaths and 197 injuries. Because many incidents are unreported, including those in intrastate highway transportation not required to be reported until recently, these statistics understate the severity of problems caused by shipments of undeclared hazardous materials. In addition, these statistics cover only those shipments in which an incident occurred -- most likely only a small percentage of the total number of undeclared or hidden hazardous materials shipments.
The authorities being set forth for DOT officials and inspection personnel would clarify and expand their existing authority to deal with this problem by opening certain packagings, inspecting their contents, identifying likely hazardous materials, taking and analyzing samples of those materials, and taking or directing effective mitigating or prohibitory actions to reduce, eliminate or prevent hazards and their serious potential consequences. For example, a hazardous materials inspector who directly observes a hazardous materials shipment that does not comply with the law currently has no authority under the law to prevent movement of that shipment until it is brought into compliance. This proposal would provide such authority.
Subsection (b) of this proposal would amend section 5121(d) to authorize the Secretary of Transportation to issue emergency orders when it is determined, by inspection, investigation, testing, or research that a violation of this chapter or a regulation issued under it, or an unsafe condition or practice is causing an imminent hazard. In those situations, the Secretary would be 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's action would have to be a written order describing the violation, condition or practice causing the imminent hazard; stating the restrictions, prohibitions, recalls, or out-of-service orders being issued or imposed; and prescribing standards and procedures for obtaining relief from the order. A person aggrieved by an action of the Secretary could petition for review of that action, with an opportunity for a hearing on the record under the Administrative Procedure Act, within 20 days after the order is issued. The term "out-of-service order" would be defined in section 5121(d) as a mandate that an aircraft, vessel, motor vehicle, train, railcar, locomotive, other vehicle, transport unit, freight container, or package not be moved until specified conditions have been met.
Subsection (c) would add a new section 5121(f) to allow the Secretary to determine whether release of certain sensitive information contained in government records would be contrary to national security. Currently, the Freedom of Information Act (FOIA) provides for the protection from release of certain sensitive information that is contained in government records; for example, information related to the privacy of individuals, trade secrets, commercial information, investigative records, and security information about aviation. This current authority allows or requires the withholding of some information relating to the transportation of hazardous materials. However, FOIA does not necessarily protect all information that could be used by terrorists to plan for or to carry out terrorist acts relating to the transportation of hazardous materials.
Security-sensitive information could include an application for classification and approval to transport an explosive that contains details of the manufacturing process or a study of gaps in security with respect to the transportation of hazardous materials. Subsection (c) of this proposal would allow the Secretary to determine, on a case-by-case basis, whether release of the information would be contrary to national security. This proposal would also allow the Secretary to determine by regulation that certain categories of information would not be released. Moreover, this proposal would allow the Secretary to make a limited release of information in furtherance of national security, without waiving the right to withhold the information from the general public.
Subsection (d) of this proposal would expand the existing capability of the Department to look at the risks of hazardous material and participate in emergency preparedness. A new subsection (g) would be added to section 5121, authorizing the Secretary of Transportation to enter into grants, cooperative agreements, and other transactions to address security risk assessment and emergency preparedness and to otherwise further the objectives of chapter 51 of title 49. Those objectives include the conduct of research, development, demonstration, risk assessment, emergency response planning, program support, and training activities. The Secretary would have express authority to enter into grants, 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.
Subsection (e) of this proposal would authorize a new approach to address the problem of undeclared hazardous material in transportation in commerce. It would authorize 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. Department of Transportation inspection personnel, in coordination with Department of Homeland Security officials, would be authorized to open and inspect containers at any U.S. Customs port of entry. Although these inspections would not be based on a reasonably articulable belief that a hazardous material is present, they would be carried out by Department inspection personnel at U.S. Customs ports of entry where they would be similar to border inspections, and they would be based upon random selections made by supervisory personnel not present at the site of the inspections. Therefore, the proposed program represents a careful balancing of parties' privacy interests and the need to protect emergency responders, transportation workers, and the general public from the dangers inherent in the transportation of undeclared hazardous material.
The purpose of this proposed provision is to clarify and expand DOT's enforcement authority under the Federal hazardous materials transportation law, 49 U.S.C. 5101-5127.
This section would provide the Administrator of the Research and Special Programs Administration (RSPA) necessary administrative authority to conduct effective research on transportation service and infrastructure assurance and to prevent security-sensitive information developed in the course of that research from aiding persons who might want to disrupt the transportation system. RSPA has had considerable success in implementing research through the gamut of contracts, grants, cooperative agreements, and other transactions. The flexibility to select the appropriate funding mechanism would aid this research. Research on transportation service and infrastructure assurance would entail the gathering of such information as ongoing security efforts and vulnerabilities from transportation interdependencies. Information such as this could be used in an attack on transportation systems. This proposal would allow the Administrator to limit release of such information to those whose official duties include a role in safety or security.
The purpose of this proposed provision is to provide RSPA with the authority to enter into "other transactions" agreements to conduct research into transportation service and infrastructure assurance and to carry out RSPA's research activities. "Other transactions" agreements are contractual arrangements that allow the maximum participation in R&D programs. While "other transactions" authority is not subject to the statutes and regulations specifically applicable to Federal contracts or grants programs, their use does not eliminate the applicability of all laws and regulations or other guidance provided within the Department. This authority generally encourages greater use of commercial-like practices, standards, and procedures; makes the acquisition process work better, faster, and less expensively; and provides greater flexibility and shared Government-industry responsibility for achieving desired milestones.
Federal agencies, such as NASA, DoD, and the Defense Advanced Research Projects Agency (DARPA) already use this type of authority and confirm its effectiveness. This authority also exists under Federal pipeline law, 49 U.S.C. 60117. Moreover, RSPA has used such authority itself, on a limited basis, as part of its involvement in the DARPA Technology Reinvestment Project, Advanced Vehicles Technologies Program, Remote Sensing Program, and Human Factor Program.
This section would amend chapter 30 of title 39, U.S.C., to prohibit hazardous materials in the mail unless specifically authorized by law or Postal Service regulation. It also would allow the United States Postal Service to collect civil penalties, and to recover clean-up costs and damages, for violations of this statutory provision and regulations issued under it. This language would provide the Postal Service with civil penalty authority analogous to the Department of Transportation's civil penalty authority under chapter 51. It would enhance the Postal Service's authority to regulate hazardous materials in the mail and would institute a civil penalty process that would serve as a deterrent to those who unlawfully place hazardous material in the mails.
This section would require the Postal Service to demonstrate that a "knowing" violation has occurred, to give written notice of the amount of the penalty, cost or damages assessed, and to provide an opportunity for a hearing before making a finding of violation. The Postal Service would have to take into account certain penalty assessment criteria -- such as prior violation history, gravity of the violation, and ability to remain in business -- in determining the amount of a civil penalty. A person accused of a violation would have the right to file an administrative appeal with the Postal Service, and the Attorney General would be able to bring a civil action to collect penalties, damages, and costs. Costs, damages, and penalties under this section would be paid into the Postal Service Fund under 39 U.S.C. 2003.
Most hazardous materials are nonmailable. The Postal Service regulations generally limit the mailing of hazardous materials to ORM-D materials (defined as "consumer commodities"). The postal mailing standards for hazardous materials closely adhere to DOT's Hazardous Materials Regulations and often include additional limitations and prohibitions.
Currently, anyone who mails or causes to be mailed a nonmailable or improperly packaged hazardous material can be subject to criminal penalties including, but not limited to, those specified in 18 U.S.C. 1716. The Postal Service initiates hazardous materials investigations and works cooperatively with other agencies to conduct inspections. However, it can be difficult to enforce the postal service regulations using this criminal penalty authority because "intent" must be demonstrated. Moreover, U.S. Attorneys' offices may lack the resources or time to devote to prosecuting these violations.
Between January 1, 1998, and June 30, 2002, Postal Service personnel reported over 1200 hazardous materials incidents involving the mail. None of these incidents resulted in death or serious injury. However, in 93 of these incidents, medical attention was needed for one or more Postal Service employees. Of these, 47 required medical follow-up due to potential exposure to biological materials (e.g., blood or urine). Also, 93 of these incidents resulted in property damage of approximately $115,059. This amount does not include costs associated with emergency response, evacuation, hospitalization, and lost productivity.
Several incidents in the last four years demonstrate the serious potential safety hazards posed by hazardous materials in the mail. Civil penalty authority would have given the Postal Service a mechanism for better enforcing its postal regulations and for recovering clean-up costs and damages.
For example, in 1998, a Priority Mail parcel containing four glass quart bottles of mercury was mailed from Baltimore, Maryland to San Francisco, California. During the offloading of luggage at an intermediate location, a ground handler reported that it was "raining silver." The ground supervisor instructed the ground employee to remove the damaged parcel, and to resume the reloading operations to maintain an on-time departure. The fire department responded after the aircraft had departed and found that the damaged parcel contained mercury. The aircraft was told to return to the airport. Three pounds of mercury were found in the fuselage of the aircraft. The Postal Service paid $87,000 to Southwest Airlines in aircraft clean-up costs. The airline did not press for reimbursement of other costs, which were estimated at $1.4 million.
In 1998, a Priority Mail parcel containing two one-quart cans of Sodium Bisulfate was mailed from San Francisco, California, to Seattle, Washington. The parcel leaked while at a Postal Service bulk mailing center. The fire department was called and the mailing center was evacuated for approximately 4 hours during which all mail operations ceased. An outside company was called to perform the clean-up operation. Sodium Bisulfate is mailable, but is transportable by "Surface Only." The mailer did not properly package or label this parcel or disclose the contents to the postal clerk. The clean-up cost associated with this incident was $2,500. This does not include the cost of the mail center being closed.
In November 2000, a parcel containing methyl limino ethanol and hydrogen sulfide was mailed from Woodlawn, Texas, to a testing laboratory in Texas. The package was damaged and leaked during handling at the post office. The fire department responded to the incident. Twenty-two employees were hospitalized for exposure to noxious fumes. Costs and damages to the Postal Service were approximately $11,000.
In November 2000, a motorcycle gas tank was mailed from a repair shop in Arizona to a customer outside Portland, Oregon. The gas tank contained an estimated three gallons of gasoline, which is prohibited in the mail. The package was damaged and leaked during the flight into Los Angeles International Airport. The aircraft landed safely. Fumes were noticed during off-loading of the lower cargo compartment. The fire department responded and the aircraft was taken out of service and cleaned. The parcel was turned over to the Postal Inspection Service.
In 2001, a Priority Mail parcel containing one gallon of auto paint was mailed from San Francisco, California, to Macon, Georgia. The package leaked in the lower compartment of an aircraft. The mailer had first tried to check the package as luggage but was told that he could not take auto paint on the aircraft. He then mailed the article. This type of paint is mailable, but is transportable by "Surface Only." The customer did not properly package or label this parcel or disclose the contents to the postal clerk.
In 2001, a mailer packed mercury in a vial and soup can, sealed it with duct tape, and placed it in a parcel along with books and tools. This parcel was packed inside another parcel. The mercury leaked while at a Postal Service bulk mailing center. Clean-up costs were estimated at $1,500.
In April 2001, four employees complained of eye and throat irritation after discovery of an unknown liquid leaking from a Priority Mail parcel at the air cargo complex at Baltimore- Washington International Airport. The package was going from Forest Hill, Maryland, to Orville, California. The building was evacuated and the affected employees were transported to two local area hospitals, where they were evaluated and released "fit for regular duty." Emergency Services personnel from Maryland Aviation Administration and Maryland Environment Department responded. The substance was identified as Hydro Rinse chemical cleaning solution (which would be mailable if properly packaged in an appropriate quantity). The Material Safety Data Sheet was obtained and reviewed by fire department officials prior to cleanup and eventual clearance to reoccupy the facility. Estimated work-hour cost was $1,500.
In December 2001, a package containing a one gallon bottle of Dichloromethane broke open on the slide just above the key station of a parcel sorting machine at the Seattle Bulk Mail Center. The package was going from Quebec, Canada to Snohomish, Washington. The vapors caused respiratory problems for an employee who was keying on the machine. She was taken to the doctor and later released with no restrictions. The fire department was called. They arrived and performed the cleanup, and declared the building safe for work. Several other packages were damaged in this spill of nonmailable material. Estimated work-hour cost was $750, and estimated property damage was $200.
In June 2002, the spill team was called to the Springfield Bulk Mail Center because of a parcel with a strong smell of gasoline. The parcel contained a gas-powered generator that apparently had not been fully drained and aired out before shipping. Gasoline is nonmailable under any circumstances. It was being sent from Eden, New York, to Malvern, Pennsylvania.
Three recent incidents further illustrate the continuing need for a civil penalty for violations of postal hazardous materials law and regulations:
In September 2002, at the Louisville, Kentucky plant, a mailhandler discovered a leaking package. The package was marked certified mail, with a stamped "Airborne Express" address on the ticket. The package was going from New Hampshire to Indiana. A supervisor called the Spill Response team. The Spill Response team determined that the material was mercury. When contacted, the sender (a family dentistry office) stated that the box contained an amalgamator that may contain mercury. Mercury is nonmailable. Decontamination of the facility and other costs were approximately $5,200.
In July 2002, a package containing a compressed gas cylinder was discovered leaking at the Springfield Bulk Mail Center. The package was traveling from Malden, Massachusetts, to Gilford, New Hampshire. The contents of the cylinder were not evident and the Hazmat Spill team contacted the local fire department, which secured the cylinder's leaking valve. The mailer and addressee were contacted to determine the type of compressed gas contained in the cylinder, but neither responded to the inquiry. The fire department subsequently determined that the gas was carbon dioxide under approximately 1,000 psi of pressure. The response and clean-up efforts took approximately 12 hours.
In July 2002, the spill team at the Springfield Bulk Mail Center was called to respond to a leaking package. The package was opened and found to contain leaking bottles of ArmorAll and paint remover. The package also contained a 14-ounce propane tank, paint thinner, four 7-ounce cans of sterno, and seven quarts of paint. This package containing flammable materials was being shipped from Lawrence, Massachusetts, to Puerto Rico. Flammable liquid is prohibited in the mail for transportation by air.
Subsection (a) of this section would make changes to the registration provisions in section 5108. Section 5108(a)(1)(B) would be amended to update the terminology used to reference explosive materials so as to ensure consistency with current regulatory requirements.
Section 5108(a)(2)(B) would be amended to allow the Secretary to require a registration statement from persons who design and inspect a packaging or packaging component that is represented as qualified for use in transporting hazardous materials in commerce. This proposed change is consistent with the proposed changes to section 5103(b)(1) regarding persons subject to the Hazardous Materials Regulations.
Subsection (b) would clarify an existing exemption from the Safe Explosives Act requirements of title 18, U.S.C., (1) to correct the grammatical error between the singular subject ("aspect") and plural verb ("are"); (2) to make explicit that the regulation of transportation safety includes the regulation of security risks; and (3) to make explicit that the exemption extends to the new Department of Homeland Security, with its central role in ensuring transportation security. Recent amendments of explosives law in the Department of Homeland Security Act of 2002 (see Section 1123 of Pub. L. 107-296) occasioned interpretational difficulty in this provision, and clarity would assist the governmental agencies that jointly administer law in this area and the affected manufacturing and transportation industries.
This section would amend section 5110(a) to reflect that each person who prepares a shipping paper must make the disclosures the Secretary prescribes by regulation. Section 5110(b) would be deleted as unnecessary because the informational elements set forth in that subsection are already required by the Secretary under the Hazardous Materials Regulations.
This section would also modify the requirement in existing section 5110(e) that shippers and carriers retain shipping papers for one year. Section 5110(e) presently requires retention for one year after the hazardous material to which a shipping paper applies is no longer in transportation. Because many shippers do not know whether or when the transportation ends, they do not know how long they are required to retain the shipping papers. In addition, the one-year retention period is inadequate for law enforcement purposes; meaningful, yet minimally costly (especially for electronic records), record retention should be for a three-year period. Therefore, this section would be modified to provide for shipping paper retention for three years after the shipping paper is provided to the carrier.
This section would clarify section 5116(e) by changing the phrase "Amounts of the State or tribe" to "Amounts received by the State or tribe" and by simplifying two related references. Section 5116(f) would be amended to consolidate the authority to monitor public-sector emergency response planning and training in the Secretary of Transportation because, historically, DOT has been the only agency funded to carry out this function. In subsection (g), the phrase "Government grant" programs would be broadened to "Federal financial assistance" programs in order to provide for more complete coordination of funding sources.
Also, this section would amend section 5116 to provide a name for the account established under subsection 5116(i), calling it the "Emergency Preparedness Fund." Amounts collected by the Secretary under section 5108(g)(2)(C) would be deposited into the Emergency Preparedness Fund and could be used for emergency planning and training grants under sections 5116(a) and (b), monitoring and technical assistance under section 5116(f), and administrative costs of carrying out sections 5116, 5108(g)(2), and 5115. It also would clarify that these amounts may be used to develop, publish, and distribute the Emergency Response Guidebook, which RSPA has been doing under current law. Existing section 5116(k) would be deleted because the training grants report it mandates has been completed and submitted to Congress.
This section would amend section 5122 for clarity. Specifically, subsection (a) would be amended to clarify the types of judicial relief, including civil penalties, that may be granted in an action brought by the Attorney General. Subsection (b) would be amended for clarity by changing the word "ameliorate" to "mitigate." "Ameliorate" means "to make better," which is inappropriate with regard to addressing a hazard.
This section would amend the civil and criminal penalty provisions in sections 5123 and 5124. It would extend those sections to cover violations of exemptions or approvals issued by the Department, to ensure that appropriate enforcement action can be taken against persons violating those special authorities.
Section 5123 also would be amended to increase the maximum civil penalty from $27,500 to $100,000 for each violation. An increase in the maximum civil penalty would give the Department flexibility to assess appropriately high civil penalties in cases involving significant noncompliance with the Hazardous Materials Regulations and especially those resulting in death, serious injury, or significant property damage. Finally, section 5123 would be amended to specify that a violator is liable for interest that accrues on a civil penalty and to state that, in a civil action to collect a civil penalty, the validity, amount, and appropriateness of the civil penalty is not subject to review.
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, exemption, or approval issued under that chapter, is subject to the criminal penalties provided for in that subsection.
The "knowing" standard proposed for criminal violations under section 5124 would mirror the "knowing" standard for civil violations currently contained in section 5123.
The proposed definition of a "willful" violation under section 5124 would codify the willful standard articulated by the courts. Specifically, a person would be found to have acted willfully when the person has knowledge of the facts giving rise to the violation and the person has knowledge that the conduct was unlawful. See Bryan v. U.S., 524 U.S. 184 (1998); U.S. v. Loera, 923 F.2d 725 (9th Cir.), cert. denied, 502 U.S. 854 (1991); U.S. v. Hollis, 971 F.2d 1441 (10th Cir. 1992), cert. denied, 507 U.S. 985 (1993).
This section also proposes to add a "reckless" standard to section 5124. A person would be found to have acted recklessly when the person displays a deliberate indifference or conscious disregard for the consequences of his or her conduct. Again, this definition is consistent with current court decisions. See Farmer v. Brennan, 511 U.S. 825 (1994); U.S. v. Albers, 226 F.3d 989 (9th Cir. 2000), cert. denied, 531 U.S. 1114 (2001).
In addition, a new section 5124(b) would address violations that result in a release of hazardous material. Specifically, proposed section 5124(b) would increase the criminal penalties for a person knowingly violating 49 U.S.C. 5104(b) or willfully or recklessly violating chapter 51 or a regulation issued under that chapter, and thereby causing a release of hazardous material. The penalty would be a fine under title 18, not more than twenty years imprisonment, or both, which would be an increase from current law of 15 years of possible imprisonment. The need to deter intentional releases of hazardous materials is self-evident. Hazardous materials can have disastrous consequences to members of the public exposed to those materials and to the environment.
Furthermore, the criminal penalty provision would be amended to provide that knowledge of the existence of a regulation or requirement prescribed by the Secretary is not an element of the criminal provision. This change is essential to ability of Federal prosecutors to pursue criminal cases against terrorists, parties who are likely to ignore civil penalty proceedings, or others concerning whom it may be difficult to prove actual knowledge of the regulatory requirements. Nevertheless, prosecutors still would be required to prove that a person committed the act or omission charged and knew that a hazardous material was involved.
Section 5124 would also be amended to parallel section 5123, which provides that a separate violation occurs for each day a violation -- committed by a person that transports hazardous material or causes hazardous material to be transported -- continues.
This section would amend section 46312 of title 49 (criminal penalty for violations in transporting hazardous materials by air) 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 law and the Federal Aviation Act.
Finally, this section would amend section 3663 of title 18 in order to allow the Department of Justice to seek restitution against persons convicted of a criminal offense under 49 U.S.C. 5124.
This section would amend section 5125 by adding a new subsection (h) to authorize the Secretary to immediately waive Federal preemption to allow State, local, and Tribal governments to regulate hazardous material transportation to ensure public safety in the event of a terrorist threat. The Secretary would be authorized to issue an emergency waiver of preemption, on an expedited basis without notice and public procedure, when the Secretary determines in writing that 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. The emergency waiver would remain in effect for no more than six months unless the Secretary determines in writing that the threat continued to exist. The proposal also provides for the filing of petitions for reconsideration of the Secretary's actions under this provision.
This proposal would add a new subsection (i) to specify that each preemption standard is to be applied independently to each non-Federal requirement in order to determine whether it is preempted. This change would clarify that a non-Federal requirement must satisfy both preemption standards: the "dual compliance" test and the "obstacle" test.
Finally, this section would add a new subsection (j) to clarify 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.
However, States may not be as free to regulate in the rail area as they are in other modes of transportation. Section 20106 of title 49, "National uniformity of regulation," provides as follows:
Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order (1) is necessary to eliminate or reduce an essentially local safety hazard; (2) is not incompatible with a law, regulation, or order of the United States Government; and (3) does not unreasonably burden interstate commerce.
See also CSX Transportation, Inc. v. Public Utilities Commission of Ohio, 901 F.2d 497 (6th Cir. 1990), cert. denied, 111 U.S. 781 (1991), holding that an Ohio statute regulating hazardous materials transportation by rail is subject to the preemption provisions of section 20106, rather than the more permissive preemption provisions of 49 U.S.C. 5125. Furthermore, the plain language of section 20106 allows regulation by a "State." In the interest of national uniformity, this language has been interpreted narrowly, and has been held to permit regulation only by a State, and not by political subdivisions of a State. See, e.g., Donelon v. New Orleans Terminal Co., 474 F.2d 1108 (5th Cir. 1973), cert. denied, 414 U.S. 855 (1973).
This section would add a new section 5127 providing for judicial review of final actions taken by the Secretary under chapter 51. This provision would establish the appropriate judicial forum for review of final agency actions in the areas of compliance, enforcement, civil penalties, rulemaking, and preemption. The existing law is silent on this issue with the exception of judicial review of final preemption determinations, which are currently subject to review by an appropriate U.S. district court. The proposed new section covers final actions taken by the Secretary of Transportation, the Commandant of the Coast Guard, and the Administrators of the Research and Special Programs Administration, the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, and the Federal Highway Administration. The Federal Railroad Administration would be excluded because it already has a judicial review provision (49 U.S.C. 20114(c)) applicable to its hazardous materials cases.
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 its 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. All of these provisions are modeled on the statute providing for judicial review of Department of Transportation and Federal Aviation Administration aviation orders (section 46110 of title 49). The national transportation issues under chapter 51 similarly require the type of uniform decisionmaking that the U.S. Courts of Appeals can provide.
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 Departments of Health and Human Services (HHS), Transportation, and Agriculture.
Subsection (a) of this section would amend section 402 of the Federal Food, Drug, and Cosmetic Act (the Act) to provide that food is adulterated if transported in violation of safe transportation practices prescribed under new section 416 of the Act.
Subsection (b) would add to the Act a new section 416 with the following provisions:
Section 416(a) would require 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 could 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 recordkeeping, reporting, and compliance with inspections.
Section 416(b) would authorize the Secretary to publish in the Federal Register (and amend as needed) lists of nonfood products that could render adulterated food products shipped simultaneously or subsequently in the same vehicle.
Section 416(c) would authorize the Secretary to waive all or part of the requirements of section 416, in appropriate circumstances, with respect to particular classes of persons, vehicles, food, or nonfood products.
Section 416(d) would preempt State or local law concerning transportation of food that is not identical to section 416.
Section 416(e) would require the heads of other Federal agencies, including the Secretaries of Transportation and Agriculture and the Administrator of the Environmental Protection Agency, to assist the Secretary of HHS, upon request, in carrying out this section.
Section 416(f) would define terms used in this section.
Subsection (c) of section 203 would add to the Act a new section 703A, requiring persons subject to section 416 to cooperate with HHS inspections of records required under section 416. It would also include a conforming amendment to section 703 of the Act.
Subsection (d) would amend section 301 of the Act to make violations of requirements added by this section prohibited acts subject to the sanctions provided in chapter III of the Act.
This section would require the Secretary of Transportation, in consultation with the Secretaries of Health and Human Services and Agriculture, to establish procedures for performing inspections for the purpose of identifying suspected incidents of contamination or adulteration of food that might violate regulations issued under section 416 of the Federal Food, Drug, and Cosmetic Act, 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). In addition, it would require the Secretary of Transportation to train Department of Transportation personnel who perform motor vehicle and railroad related safety inspections to identify practices and conditions that could pose a threat to food safety and to notify the Secretary of HHS and the Secretary of Agriculture of any instances of potential food contamination identified during those inspections.
This section would make the changes in law under the subtitle align with the Federal fiscal year, which is particularly important for the transfer of duties among different agencies.
This proposal would streamline Federal responsibilities for ensuring the safety of food shipments. Primary responsibility would be transferred from this Department to the Department of Health and Human Services, which would set practices to be followed by shippers, carriers, and others. Highway and railroad safety inspectors would be trained to spot threats to food safety and to report possible contamination.
This section would extend through fiscal year 2009 the authorization for transfer or expenditure of funds in the Sport Fish Restoration Account of the Aquatic Resources Trust Fund to carry out the Recreational Boating Safety Program (46 U.S.C. 13106(a)), section 5604(c) of the Clean Vessel Act of 1992 (33 U.S.C. 1322 note), the Boating Infrastructure Grant Program (16 U.S.C. 777g-1(d)), and the National Outreach and Communications Program (16 U.S.C. 777g(d)).
Several States and government agencies are sponsoring Clean Marina Programs to control pollution from marinas and from recreational boating activities along the Nation's coastal waters, lakes, and rivers. These programs have been very successful in protecting air and water quality, which are critical to our nation's economic livelihood and our recreational boating and fishing industries. This provision is intended to recognize the value and importance of Clean Marina Programs and to promote the voluntary adoption of environmentally responsible marina and boating practices through Clean Marina Initiatives. The language also encourages Federal agencies to promote Clean Marina Initiatives to the extent practicable in administering relevant programs under the Aquatic Resources Trust Fund.