II Calendar No. 368 112th CONGRESS 2d Session S. 1952 [Report No. 112–162] IN THE SENATE OF THE UNITED STATES December 7, 2011 Mr. Lautenberg (for himself and Mr. Rockefeller) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation April 25, 2012 Reported by Mr. Rockefeller, without amendment A BILL To improve hazardous materials transportation safety and for other purposes.
1.
Short title
This Act may be cited as the Hazardous Materials Transportation Safety Improvement Act of 2011.
2.
Table of contents
The table of contents for this Act is as follows: Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Definition. Sec. 4. References to title 49, United States Code. Sec. 5. Training for emergency responders. Sec. 6. Paperless Hazard Communications Pilot Program. Sec. 7. Improving data collection, analysis, and reporting. Sec. 8. Loading and unloading of hazardous materials. Sec. 9. Hazardous material technical assessment, research and development, and analysis program. Sec. 10. Hazardous Material Enforcement Training Program. Sec. 11. Inspections. Sec. 12. Civil penalties. Sec. 13. Reporting of fees. Sec. 14. Special permits, approvals, and exclusions. Sec. 15. Highway routing disclosures. Sec. 16. Authorization of appropriations.
3.
Definition
In this Act, the term Secretary means the Secretary of Transportation.
4.
References to title 49, United States Code
Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of title 49, United States Code.
5.
Training for emergency responders
(a)
Training curriculum
Section 5115 is amended— (1)in subsection (b)(1)(B), by striking basic; (2)in subsection (b)(2), by striking basic; and (3)in subsection (c), by striking basic. (b)
Operations level training
Section 5116 is amended— (1)in subsection (b)(1), by adding at the end the following: To the extent that a grant is used to train emergency responders, the State or Indian tribe shall provide written certification to the Secretary that the emergency responders who receive training under the grant will have the ability to protect nearby persons, property, and the environment from the effects of accidents or incidents involving the transportation of hazardous material in accordance with existing regulations or National Fire Protection Association standards for competence of responders to hazardous materials.; (2)in subsection (j)— (A)by redesignating paragraph (5) as paragraph (7); and (B)by inserting after paragraph (4) the following: (5)The Secretary may not award a grant to an organization under this subsection unless the organization ensures that emergency responders who receive training under the grant will have the ability to protect nearby persons, property, and the environment from the effects of accidents or incidents involving the transportation of hazardous material in accordance with existing regulations or National Fire Protection Association standards for competence of responders to hazardous materials. (6)Notwithstanding paragraphs (1) and (3), to the extent determined appropriate by the Secretary, a grant awarded by the Secretary to an organization under this subsection to conduct hazardous material response training programs may be used to train individuals with responsibility to respond to accidents and incidents involving hazardous material. ; and (3)in subsection (k)— (A)by striking annually and inserting an annual report; (B)by inserting the report after make available; (C)by striking information and inserting . The report submitted under this subsection shall include information; and (D)by striking The report shall identify and all that follows and inserting the following: “The report submitted under this subsection shall identify the ultimate recipients of such grants and include— (A)a detailed accounting and description of each grant expenditure by each grant recipient, including the amount of, and purpose for, each expenditure; (B)the number of persons trained under the grant program, by training level; (C)an evaluation of the efficacy of such planning and training programs; and (D)any recommendations the Secretary may have for improving such grant programs. .
6.
Paperless Hazard Communications Pilot Program
(a)
In general
The Secretary 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 the enactment of this Act, 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; and (D)a recommendation 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.
7.
Improving data collection, analysis, and reporting
(a)
Assessment
(1)
In general
Not later than 6 months after the date of the enactment of this Act, the Secretary, in coordination with the Secretary of Homeland Security, as appropriate, shall conduct an assessment to improve the collection, analysis, reporting, and use of data related to accidents and incidents involving the transportation of hazardous material. (2)
Review
The assessment conducted under this subsection shall review the methods used by the Pipeline and Hazardous Materials Safety Administration (referred to in this section as the Administration) for collecting, analyzing, and reporting accidents and incidents involving the transportation of hazardous material, including the adequacy of— (A)information requested on the accident and incident reporting forms required to be submitted to the Administration; (B)methods used by the Administration to verify that the information provided on such forms is accurate and complete; (C)accident and incident reporting requirements, including whether such requirements should be expanded to include shippers and consignees of hazardous materials; (D)resources of the Administration related to data collection, analysis, and reporting, including staff and information technology; and (E)the database used by the Administration for recording and reporting such accidents and incidents, including the ability of users to adequately search the database and find information. (b)
Development of action plan
Not later than 9 months after the date of the enactment of this Act, the Secretary shall develop an action plan and timeline for improving the collection, analysis, reporting, and use of data by the Administration, including revising the database of the Administration, as appropriate. (c)
Submission to Congress
Not later than 15 days after the completion of the action plan and timeline under subsection (c), the Secretary shall submit the action plan and timeline to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives. (d)
Reporting requirements
Section 5125(b)(1)(D) is amended by inserting and other hazardous materials transportation incident reporting to the 9–1–1 emergency system or involving State or local emergency responders in the initial response to the incident before the period at the end.
8.
Loading and unloading of hazardous materials
(a)
Rulemaking
Not later than 2 years after date of the enactment of this Act, the Secretary, after consultation with the Department of Labor and the Environmental Protection Agency, as appropriate, and after providing notice and an opportunity for public comment shall prescribe regulations establishing uniform procedures among facilities for the safe loading and unloading of hazardous materials on and off tank cars and cargo tank trucks. (b)
Inclusion
The regulations prescribed under subsection (a) may include procedures for equipment inspection, personnel protection, and necessary safeguards. (c)
Consideration
In prescribing regulations under subsection (a), the Secretary shall give due consideration to carrier rules and procedures that produce an equivalent level of safety.
9.
Hazardous material technical assessment, research and development, and analysis program
(a)
In general
Chapter 51 is amended by inserting after section 5117 the following:
5118.
Hazardous material technical assessment, research and development, and analysis program
(a)
Risk reduction
(1)
Program authorized
The Secretary of Transportation may develop and implement a hazardous material technical assessment, research and development, and analysis program for the purpose of— (A)reducing the risks associated with the transportation of hazardous material; and (B)identifying and evaluating new technologies to facilitate the safe, secure, and efficient transportation of hazardous material. (2)
Coordination
In developing the program under paragraph (1), the Secretary shall— (A)utilize information gathered from other modal administrations with similar programs; and (B)coordinate with other modal administrations, as appropriate. (b)
Cooperation
In carrying out subsection (a), the Secretary may work cooperatively with regulated and other entities, including shippers, carriers, emergency responders, State and local officials, and academic institutions.
. (b)
Conforming amendment
The chapter analysis for chapter 51 is amended by inserting after the item relating to section 5117 the following: 5118. Hazardous material technical assessment, research and development, and analysis program. .
10.
Hazardous Material Enforcement Training Program
(a)
In general
The Secretary shall establish a multimodal hazardous material enforcement training program for government hazardous materials inspectors and investigators— (1)to develop uniform performance standards for training hazardous material inspectors and investigators; and (2)to train hazardous material inspectors and investigators on— (A)how to collect, analyze, and publish findings from inspections and investigations of accidents or incidents involving the transportation of hazardous material; and (B)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
Under the program established under this section, 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 findings of the program 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 materials safety enforcement personnel.
11.
Inspections
(a)
Notice of enforcement measures
Section 5121(c)(1) is amended— (1)in subparagraph (E), by striking and at the end; (2)in subparagraph (F), by striking the period at the end and inserting ; and; and (3)by adding at the end the following: (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. . (b)
Regulations
Section 5121(e) is amended by adding at the end the following: (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. . (c)
Grants and cooperative agreements
Section 5121(g)(1) is amended by inserting safety and before security.
12.
Civil penalties
Section 5123 is amended— (1)in subsection (a)— (A)in paragraph (1), by striking $50,000 and inserting $75,000; and (B)in paragraph (2), by striking $100,000 and inserting $175,000; and (2)by adding at the end the following: (h)
Penalty for obstruction of inspections and investigations
The Secretary may impose a penalty on a person who obstructs or prevents the Secretary from carrying out inspections or investigations under subsection (c) or (i) of section 5121. (i)
Prohibition on hazardous material operations after nonpayment of penalties
(1)
In general
Except as provided under paragraph (2), a person subject to the jurisdiction of the Secretary under this chapter who fails to pay a civil penalty assessed under this chapter, or fails to arrange and abide by an acceptable payment plan for such civil penalty, may not conduct any activity regulated under this chapter beginning on the 91st day after the date specified by order of the Secretary for payment of such penalty unless the person has filed a formal administrative or judicial appeal of the penalty. (2)
Exception
Paragraph (1) shall not apply to any person who is unable to pay a civil penalty because such person is a debtor in a case under chapter 11 of title 11. (3)
Rulemaking
Not later than 2 years after the date of the enactment of this subsection, the Secretary, after providing notice and an opportunity for public comment, shall issue regulations that— (A)set forth procedures to require a person who is delinquent in paying civil penalties to cease any activity regulated under this chapter until payment has been made or an acceptable payment plan has been arranged; and (B)ensures that the person described in subparagraph (A)— (i)is notified in writing; and (ii)is given an opportunity to respond before the person is required to cease the activity. .
13.
Reporting of fees
Section 5125(f)(2) is amended by striking , upon the Secretary’s request, and inserting biennially.
14.
Special permits, approvals, and exclusions
(a)
In general
Section 5117 is amended to read as follows:
5117.
Special permits, approvals, and exclusions
(a)
Authority To issue special permits
(1)
Conditions
The Secretary of Transportation may issue, modify, or terminate a special permit implementing new technologies or authorizing a variance from a provision under this chapter or a regulation prescribed under section 5103(b), 5104, 5110, or 5112 to a person performing a function regulated by the Secretary under section 5103(b)(1) to achieve— (A)a safety level at least equal to the safety level required under this chapter; or (B)a safety level consistent with the public interest and this chapter, if a required safety level does not exist. (2)
Findings required
(A)
In general
Before issuing, renewing, or modifying a special permit or granting party status to a special permit, the Secretary shall determine that the person is fit to conduct the activity authorized by such permit in a manner that achieves the level of safety required under paragraph (1). (B)
Considerations
In making the determination under subparagraph (A), the Secretary shall consider— (i)the person’s safety history (including prior compliance history); (ii)the person’s accident and incident history; and (iii)any other information the Secretary considers appropriate to make such a determination. (3)
Effective period
A special permit issued under this section— (A)shall be for an initial period of not more than 2 years; (B)may be renewed by the Secretary upon application— (i)for successive periods of not more than 4 years each; or (ii)in the case of a special permit relating to section 5112, for an additional period of not more than 2 years. (b)
Applications
(1)
Required documentation
When applying for a special permit or the renewal or modification of a special permit or requesting party status to a special permit under this section, the Secretary shall require the person to submit an application that contains— (A)a detailed description of the person’s request; (B)a listing of the person’s current facilities and addresses where the special permit will be utilized; (C)a safety analysis prescribed by the Secretary that justifies the special permit; (D)documentation to support the safety analysis; (E)a certification of safety fitness; and (F)proof of registration, as required under section 5108. (2)
Public notice
The Secretary shall— (A)publish notice in the Federal Register that an application for a special permit has been filed; and (B)provide the public an opportunity to inspect and comment on the application. (3)
Savings clause
This subsection does not require the release of information protected by law from public disclosure. (c)
Coordinate and communicate with modal contact officials
(1)
In general
In evaluating applications under subsection (b), and making the findings and determinations under subsections (a), (e), and (h), the Administrator of the Pipeline and Hazardous Materials Safety Administration shall consult, coordinate, or notify the modal contact official responsible for the specified mode of transportation that will be utilized under a special permit or approval before— (A)issuing, modifying, or renewing the special permit; (B)granting party status to the special permit; or (C)issuing or renewing the special permit or approval. (2)
Modal contact official defined
In this section, the term modal contact official means— (A)the Administrator of the Federal Aviation Administration; (B)the Administrator of the Federal Motor Carrier Safety; (C)the Administrator of the Federal Railroad Administration; and (D)the Commandant of the Coast Guard. (d)
Applications To be dealt with promptly
The Secretary shall— (1)issue, modify, renew, or grant party status to a special permit or approval for which a request was filed under this section, or deny the issuance, modification, renewal, or grant, on or before the last day of the 180-day period beginning on the first day of the month following the date of the filing of the request; or (2)publish a statement in the Federal Register that— (A)describes the reason for the delay of the Secretary's decision on the special permit or approval; and (B)includes an estimate of the additional time necessary before the decision is made. (e)
Emergency processing of special permits
(1)
Findings required
The Secretary may not grant a request for emergency processing of a special permit unless the Secretary determines that— (A)a special permit is necessary for national security purposes; (B)processing on a routine basis under this section would result in significant injury to persons or property; or (C)a special permit is necessary to prevent significant economic loss or damage to the environment that could not be prevented if the application were processed on a routine basis. (2)
Waiver of fitness test
The Secretary may waive the requirement under subsection (a)(2) for a request for which the Secretary makes a determination under subparagraph (A) or (B) of paragraph (1). (3)
Notification
Not later than 90 days after the date of issuance of a special permit under this subsection, the Secretary shall publish a notice in the Federal Register of the issuance that includes— (A)a statement of the basis for the finding of emergency; and (B)the scope and duration of the special permit. (4)
Effective period
A special permit issued under this subsection shall be effective for a period not to exceed 180 days. (f)
Exclusions
(1)
In general
The Secretary shall exclude, in any part, from this chapter and regulations prescribed under this chapter— (A)a public vessel (as defined in section 2101 of title 46); (B)a vessel exempted under section 3702 of title 46 or from chapter 37 of title 46; and (C)a vessel to the extent it is regulated under the Ports and Waterways Safety Act of 1972 (33 U.S.C. 1221, et seq.). (2)
Firearms
This chapter and regulations prescribed under this chapter do not prohibit— (A)or regulate transportation of a firearm (as defined in section 232 of title 18), or ammunition for a firearm, by an individual for personal use; or (B)transportation of a firearm or ammunition in commerce. (g)
Limitation on authority
Unless the Secretary decides that an emergency exists, a person subject to this chapter may only be granted a variance from this chapter through a special permit or renewal granted under this section. (h)
Approvals
(1)
Findings required
(A)
In general
The Secretary may not issue an approval or grant the renewal of an approval pursuant to part 107 of title 49, Code of Federal Regulations until the Secretary has determined that the person is fit, willing, and able to conduct the activity authorized by the approval in a manner that achieves the level of safety required under subsection (a)(1). (B)
Considerations
In making a determination under subparagraph (A), the Secretary shall consider— (i)the person’s safety history (including prior compliance history); (ii)the person’s accident and incident history; and (iii)any other information the Secretary considers appropriate to make such a determination. (2)
Required documentation
When applying for an approval or renewal or modification of an approval under this section, the Secretary shall require the person to submit an application that contains— (A)a detailed description of the person’s request; (B)a listing of the persons current facilities and addresses where the approval will be utilized; (C)a safety analysis prescribed by the Secretary that justifies the approval; (D)documentation to support the safety analysis; (E)a certification of safety fitness; and (F)the verification of registration required under section 5108. (3)
Savings provision
Nothing in this subsection may be construed to require the release of information protected by law from public disclosure. (i)
Noncompliance
The Secretary may modify, suspend, or terminate a special permit or approval if the Secretary determines that— (1)the person who was granted the special permit or approval has violated the special permit or approval or the regulations issued under this chapter in a manner that demonstrates that the person is not fit to conduct the activity authorized by the special permit or approval; or (2)the special permit or approval is unsafe. (j)
Rulemaking
Not later than 2 years after the date of the enactment of this Act, the Secretary, after providing notice and an opportunity for public comment, shall issue regulations that establish— (1)standard operating procedures to support administration of the special permit and approval programs; and (2)objective criteria to support the evaluation of special permit and approval applications. (k)
Annual review of certain special permits
(1)
Review
The Secretary shall conduct an annual review and analysis of special permits— (A)to identify consistently used and longstanding special permits with an established safety record; and (B)to determine whether such permits may be converted into the hazardous materials regulations. (2)
Factors
In conducting the review and analysis under paragraph (1), the Secretary may consider— (A)the safety record for hazardous materials transported under the special permit; (B)the application of a special permit; (C)the suitability of provisions in the special permit for incorporation into the hazardous materials regulations; and (D)rulemaking activity in related areas. (3)
Rulemaking
After completing the review and analysis under paragraph (1) and providing notice and opportunity for public comment, the Secretary shall issue regulations, as needed.
. (b)
Conforming amendment
The analysis for chapter 51 is amended by striking the item relating to section 5117 and inserting the following: 5117. Special permits, approvals, and exclusions. .
15.
Highway routing disclosures
(a)
List of route designations
Section 5112(c) is amended— (1)by striking In coordination and inserting the following: (1)
In general
In coordination ; and (2)by adding at the end the following: (2)
State responsibilities
(A)
In general
Each State shall submit to the Secretary, in a form and manner to be determined by the Secretary and in accordance with subparagraph (B)— (i)the name of the State agency responsible for hazardous material highway route designations; and (ii)a list of the State’s currently effective hazardous material highway route designations. (B)
Frequency
Each State shall submit the information described in subparagraph (A)(ii)— (i)at least once every 2 years; and (ii)not later than 60 days after a hazardous material highway route designation is established, amended, or discontinued. . (b)
Compliance with section 5112
Section 5125(c)(1) is amended by inserting , and is published in the Department’s hazardous materials route registry under section 5112(c) before the period at the end.
16.
Authorization of appropriations
Section 5128 is amended to read as follows:
5128.
Authorization of appropriations
(a)
In general
There are authorized to be appropriated to the Secretary to carry out this chapter (except sections 5107(e), 5108(g)(2), 5113, 5115, 5116, and 5119)— (1)$42,338,000 for fiscal year 2012; and (2)$42,762,000 for fiscal year 2013. (b)
Hazardous materials emergency preparedness fund
From the Hazardous Materials Emergency Preparedness Fund established under section 5116(i), the Secretary may expend, during each of fiscal years 2012 and 2013— (1)$188,000 to carry out section 5115; (2)$21,800,000 to carry out subsections (a) and (b) of section 5116, of which not less than $13,650,000 shall be available to carry out section 5116(b); (3)$150,000 to carry out section 5116(f); (4)$625,000 to publish and distribute the Emergency Response Guidebook under section 5116(i)(3); and (5)$1,000,000 to carry out section 5116(j). (c)
Hazardous materials training grants
From the Hazardous Materials Emergency Preparedness Fund established pursuant to section 5116(i), the Secretary may expend $4,000,000 for each of the fiscal years 2012 and 2013 to carry out section 5107(e). (d)
Credits to appropriations
(1)
Expenses
In addition to amounts otherwise made available to carry out this chapter, the Secretary may credit amounts received from a State, Indian tribe, or other public authority or private entity for expenses the Secretary incurs in providing training to the State, authority, or entity. (2)
Availability of amounts
Amounts made available under this section shall remain available until expended.
.
April 25, 2012 Reported without amendment