(1) establish and maintain facilities and technical staff sufficient to provide, within the Federal government, the capability of evaluating risks connected with the transportation of hazardous materials and materials alleged to be hazardous;

(2) establish and maintain a central reporting system and data center so as to be able to provide the law-enforcement and firefighting personnel of communities, and other interested persons and government officers, with technical and other information and advice for meeting emergencies connected with the transportation of hazardous materials; and

(3) conduct a continuing review of all aspects of the transportation of hazardous materials in order to determine and to be able to recommend appropriate steps to assure the safe transportation of hazardous materials.

(e) Annual report.

The Secretary shall prepare and submit to the President for transmittal to the Congress on or before May 1 of each year a comprehensive report on the transportation and hazardous materials during the preceding calendar year. Such report shall include, but need not be limited to

(1) a thorough statistical compilation of any accidents and casualties involving the transportation of hazardous materials;

(2) a list and summary of applicable Federal regulations, criteria, orders, and exemptions in effect;

(3) a summary of the basis for any exemptions granted or maintained;

(4) an evaluation of the effectiveness of enforcement activities and the degree of voluntary compliance with applicable regulations:

(5) a summary of outstanding problems confronting the administration of this chapter, in order of priority; and

(6) such recommendations for additional legislation as are deemed necessary or appropriate. (Pub. L. 93-633, title I, § 109. Jan. 3, 1975, 88 Stat. 2159.)

REFERENCES IN TEXT

"This chapter", referred to in subsecs. (a), (b), and (e) (5), read "this title" in the original, meaning title I of Pub. L. 93-633. the Hazardous Materials Transportation Act. For classification of title I of Pub. L. 93-633 in the Code, see Short Title note under section 1801 of this title.

EFFECTIVE DATE: CONTINUANCE OF PRIOR PROVISIONS; TWO YEAR LIMITATION AFTER JAN. 3, 1975, FOR ARRANGEMENTS, INCLUDING LICENSES, ETC., TO COMPLY WITH PUB. L. 93633; PENDING PROCEEDINGS UNAFFECTED

Section effective Jan. 3, 1975, except as otherwise provided, see section 114 of Pub. L. 93-633, set out as a note under section 1801 of this title.

§ 1809. Penalties.

(a) Civil.

(1) Any person (except an employee who acts without knowledge) who is determined by the Secretary, after notice and an opportunity for a hearing, to have knowingly committed an act which is a viola

tion of a provision of this title or of a regulation issued under this chapter, shall be liable to the United States for a civil penalty. Whoever knowingly commits an act which is a violation of any regulation, applicable to any person who transports or causes to be transported or shipped hazardous materials, shall be subject to a civil penalty of not more than $10,000 for each violation, and if any such violation is a continuing one, each day of violation constitutes a separate offense. Whoever knowingly commits an act which is a violation of any regulation applicable to any person who manufactures, fabricates, marks, maintains, reconditions, repairs, or tests a package or container which is represented, marked, certified, or sold by such person for use in the transportation in commerce of hazardous materials shall be subject to a civil penalty of not more than $10,000 for each violation. The amount of any such penalty shall be assessed by the Secretary by written notice. In determining the amount of such penalty, the Secretary shall take into account the nature, circumstances, extent, and gravity of the violation committed and, with respect to the person found to have committed such violation, the degree of culpability, any history of prior offenses, ability to pay, effect on ability to continue to do business, and such other matters as justice may require.

(2) Such civil penalty may be recovered in an action brought by the Attorney General on behalf of the United States in the appropriate district court of the United States or prior to referral to the Attorney General, such civil penalty may be compromised by the Secretary. The amount of such penalty, when finally determined (or agreed upon in compromise), may be deducted from any sums owed by the United States to the person charged. All penalties collected under this subsection shall be deposited in the Treasury of the United States as miscellaneous receipts.

(b) Criminal.

A person is guilty of an offense if he willfully violates a provision of this chapter or a regulation issued under this chapter. Upon conviction, such person shall be subject, for each offense, to a fine of not more than $25,000, imprisonment for a term not to exceed 5 years, or both. (Pub. L. 93-633, title I, § 110, Jan. 3, 1975, 88 Stat. 2160.)

REFERENCES IN TEXT

"This chapter", referred to in subsecs. (a)(1) and (b), read "this title" in the original, meaning title I of Pub. L. 93-633, the Hazardous Materials Transportation Act. For classification of title I of Pub. L. 93-633 in the Code, see Short Title note under section 1801 of this title.

EFFECTIVE DATE; CONTINUANCE OF PRIOR PROVISIONS; Two YEAR LIMITATION AFTER JAN. 3, 1975, FOR ARRANGEMENTS, INCLUDING LICENSES, ETC., TO COMPLY WITH PUB. L. 93633; PENDING PROCEEDINGS UNAFFECTED

Section effective Jan. 3, 1975, except as otherwise provided, see section 114 of Pub. L. 93-633. set out as a note under section 1801 of this title.

retary, may bring an action in an appropriate district court of the United States for equitable relief to redress a violation by any person of a provision of this chapter, or an order or regulation issued under this chapter. Such district courts shall have jurisdiction determine such actions and may grant such relief as is necessary or appropriate, including mandatory or prohibitive injunctive relief, interim equitable relief, and punitive damages.

(b) Imminent hazard.

If the Secretary has reason to believe that an imminent hazard exists. he may petition an appropriate district court of the United States, or upon his request the Attorney General shall so petition, for an order suspending or restricting the transportation of the hazardous material responsible for such immient hazard, or for such other order as is necessary to eliminate or ameliorate such imminent hazard. As used in this subsection, an “imminent hazard" exists if there is substantial likelihood that serious harm will occur prior to the completion of an administrative hearing or other formal proceeding initiated to abate the risk of such harm. (Pub. L. 93– 633. title I, § 111, Jan. 3, 1975, 88 Stat. 2161.)

REFERENCES IN TEXT

"This chapter", referred to in subsec. (a), read "this title" in the original, meaning title I of Pub. L. 93-633, the Hazardous Materials Transportation Act. For classification of title I of Pub. L. 93-633 in the Code, see Short Title note under section 1801 of this title.

EFFECTIVE DATE; CONTINUANCE OF PRIOR PROVISIONS; TWO YEAR LIMITATION AFTER JAN. 3, 1975, for ArranGEMENTS, INCLUDING LICENSES, ETC., TO COMPLY WITH PUB. L. 93633; PENDING PROCEEDINGS UNAFFECTED

Section effective Jan. 3, 1975, except as otherwise provided, see section 114 of Pub. L. 93-633, set out as a note under section 1801 of this title.

§ 1811. Relationship to other laws.

(a) General.

Except as provided in subsection (b) of this section, any requirement, of a State or political subdivision thereof, which is inconsistent with any requirement set forth in this chapter, or in a regulation issued under this chapter, is preempted.

(b) State laws.

Any requirement, of a State or political subdivision thereof, which is not consistent with any requirement set forth in this chapter, or in a regulation issued under this chapter, is not preempted if, upon the application of an appropriate State agency, the Secretary determines, in accordance with procedures to be prescribed by regulation, that such requirement (1) affords an equal or greater level of protection to the public than is afforded by the requirements of this chapter or of regulations issued under this chapter and (2) does not unreasonably burden commerce. Such requirement shall not be preempted to the extent specified in such determination by the Secretary for so long as such State or political subdivision thereof continues to administer and enforce effectively such requirement.

(c) Other federal laws.

The provisions of this chapter shall not apply to pipelines which are subject to regulation under the Natural Gas Pipeline Safety Act of 1968 (section 1671 et seq. of this title) or to pipelines which are subject to regulation under chapter 39 of Title 18. (Pub. L. 93-633, title I, § 112, Jan. 3, 1975, 88 Stat. 2161.)

REFERENCES IN TEXT

"This chapter", referred to in text, read "this title" in the original, meaning title I of Pub. L. 93-633, the Hazardous Materials Transportation Act. For classification of title I of Pub. L. 93-633 in the Code, see Short Title note under section 1801 of this title.

§ 1812. Authorization of appropriations.

There are authorized to be appropriated to carry out the provisions of this chapter not to exceed $7,000,000 for the fiscal year ending June 30, 1976, not to exceed $1,750,000 for the transition period of July 1, 1976, through September 30, 1976, and not to exceed $5,000,000 per fiscal year for the fiscal years ending September 30, 1977, and September 30, 1978. (Pub. L. 93-633, title I, § 115, Jan. 3, 1975, 88 Stat. 2164, amnded Pub. L. 94-56, § 4, July 19, 1975, 89 Stat. 264; Oct. 11, 1976, Pub. L. 94-474, § 3, 90 Stat. 2068.)

(c) The term "Department" means the Depart ment of Health, Education, and Welfare.

(d) The term "Secretary" means the Secretary of Health, Education, and Welfare.

(e) The term "person" includes an individual, partnership, corporation, and association.

(f) The term "hazardous substance" means:

(1) (A) Any substance or mixture of substances which (i) is toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substances or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.

(B) Any substances which the Secretary by regulation finds, pursuant to the provisions of section 1262(a) of this title, meet the requirements of subparagraph (1)(A) of this paragraph.

(C) Any radioactive substance, if, with respect to such substance as used in a particular class of article or as packaged, the Secretary determines by regulation that the substance is sufficiently hazardous to require labeling in accordance with this chapter in order to protect the public health. (D) Any toy or other article intended for use by children which the Secretary by regulation determines, in accordance with section 1262(e) of this. title, presents an electrical, mechanical, or thermal hazard.

(2) The term "hazardous substance" shall not apply to pesticides subject to the Federal Insecticide, Fungicide, and Rodenticide Act, nor to foods, drugs and cosmetics subject to the Federal Food, Drug, and Cosmetic Act, nor to substances intended for use as fuels when stored in containers and used in the heating, cooking, or refrigeration system of a house, nor to tobacco and tobacco products, but such term shall apply to any article which it not itself an economic poison within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act but which is a hazardous substance within the meaning of paragraph (1) of this subsection by reason of bearing or containing such a pesticide.

(3) The term "hazardous substance" shall not include any source material, special nuclear material, or byproduct material as defined in the Atomic Energy Act of 1954, as amended, and regulations issued pursuant thereto by the Atomic Energy Commission.

(g) The term "toxic" shall apply to any substance (other than a radioactive substance) which has the capacity to produce personal injury or illness to man

through ingestion, inhalation, or absorption through any body surface.

(h) (1) The term "highly toxic" means any substance which falls within any of the following categories: (a) Produces death within fourteen days in half or more than half of a group of ten or more laboratory white rats each weighing between two hundred and three hundred grams, at a single dose of fifty milligrams or less per kilogram of body weight, when orally administered; or (b) produces death within fourteen days in half or more than half of a group of ten or more laboratory white rats each weighing between two hunderd and three hundred grams, when inhaled continuously for a period of one hour or less at an atmospheric concentration of two hundred parts per million by volume or less of gas or vapor or two milligrams per liter by volume or less of mist or dust, provided such concentration is likely to be encountered by man when the substance is used in any reasonably forseeable manner; or (c) produces death within fourteen days in half or more than half of a group of ten or more rabbits tested in a dosage of two hundred milligrams or less per kilogram of body weight, when administered by continuous contact with the bare skin for twentyfour hours or less.

(2) If the Secretary finds that available data on human experience with any substance indicate results different from those obtained on animals in the above-named dosages or concentrations, the human data shall take precedence.

(1) The term "corrosive" means any substance which in contact with living tissue will cause destruction of tissue by chemical action; but shall not refer to action on inanimate surfaces.

(j) The term "irritant" means any substance not corrosive within the meaning of subparagraph (1) of this section which on immediate, prolonged, or repeated contact with normal living tissue will induce a local inflammatory reaction.

(k) The term "strong sensitizer" means a substance which will cause on normal living tissue through an allergic or photodynamic process a hypersensitivity which becomes evident on reapplication of the same substance and which is designated as such by the Secretary. Before designating any substance as a strong sensitizer, the Secretary, upon consideration of the frequency of occurrence and severity of the reaction, shall find that the substance has a significant potential for causing hypersensitivity.

(m) The term "radioactive substance" means a substance which emits ionizing radiation.

(n) the term "label" means a display of written, printed, or graphic matter upon the immediate container of any substance or, in the case of an article which is unpackaged or is not packaged in an immediate container intended or suitable for delivery to the ultimate consumer, a display of such matter directly upon the article involved or upon a tag or other suitable material affixed thereto; and a requirement made by or under authority of this chapter that any word, statement, or other information

appear on the label shall not be considered to be complied with unless such word, statement, or other information also appears (1) on the outside container or wrapper, if any there be, unless it is easily legible through the outside container or wrapper and (2) on all accompanying literature where there are directions for use, written or otherwise.

(0) The term "immediate container" does not include package liners.

(p) The term "misbranded hazardous substance" means a hazardous substance (including a toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted) intended, or packaged in a form suitable, for use in the household or by children, if the packaging or labeling of such substance is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title or if such substance, except as otherwise provided by or pursuant to section 1262 of this title, fails to bear a label

(1) which states conspicuously (A) the name and place of business of the manufacturer, packer, distributor or seller; (B) the common or usual name or the chemical name (if there be no common or usual name) of the hazardous substance or of each component which contributes substantially to its hazard, unless the Secretary by regulation permits or requires the use of a recognized generic name; (C) the signal word "DANGER" on substances which are extremly flammable, corrosive, or highly toxic; (D) the signal word "WARNING" or "CAUTION" on all other hazardous substances; (E) an affirmative statement of the principal hazard or hazards, such as "Flammable", "Combustible", "Vapor Harmful", "Causes Burns", "Absorbed Through Skin", or similar wording descriptive of the hazard; (F) precautionary measures describing the action to be followed or avoided, except when modified by regulation of the Secretary pursuant to section 1262 of this title; (G) instruction, when necessary or appropriate, for first-aid treatment; (H) the word "poison" for any hazardous substance which is defined as "highly toxic" by subsection (h) of this section; (I) instructions for handling and storage of packages which require special care in handling or storage; and (J) the statement (i) "Keep out of the reach of children" or its practical equivalent, or, (ii) if the article is intended for use by children, and is not a banned hazardous substance, adequate directions for the protection of children from the hazard, and

(2) on which any statements required under subparagraph (1) of this paragraph are located prominently and are in the English language in conspicuous and legible type in contrast by typography, layout, or color with other printed matter on the label.

The term "misbranded hazardous substance" also includes a household substance as defined in section 1471(2) (D) of this title if it is a substance described in paragraph (1) of subsection (f) of this section

and its packaging or labeling is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title.

(q) (1) The term "banned hazardous substance" means (A) any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted; or (B) any hazardous substance intended, or packaged in a form suitable, for use in the household, which the Secretary by regulation classifies as a "banned hazardous substance" on the basis of a finding that. notwithstanding such cautionary labeling as is or may be required under this chapter for that substance, the degree or nature of the hazard involved in the presence or use of such substance in households is such that the objective of the protection of the public health and safety can be adequately served only by keeping such substance, when so intended or packaged, out of the channels of interstate commerce: Provided, That the Secretary, by regulation, (i) shall exempt from clause (A) of this subsection articles, such as chemical sets, which by reason of their functional purpose require the inclusion of the hazardous substance involved or necessarily present an electrical, mechanical, or thermal hazard, and which bear labeling giving adequate directions and warnings for safe use and are intended for use by children who have attained sufficient maturity, and may reasonably be expected, to read and heed such directions and warnings, and (ii) shall exempt from clause (A), and provide for the labeling of, common fireworks (including toy paper caps, cone fountains, cylinder fountains, whistles without report, and sparklers) to the extent that he determines that such articles can be adequately labeled to protect the purchasers and users thereof.

(2) Proceedings for the issuance, amendment, or repeal of regulations pursuant to clause (B) of paragraph (1) of this subsection shall be governed by the provisions of sections 371 (e), (f), and (g) of Title 21: Provided. That if the Secretary finds that the distribution for household use of the hazardous substance involved presents an imminent hazard to the public health, he may by order published in the Federal Register give notice of such finding, and thereupon such substance when intended or offered for household use, or when so packaged as to be suitable for such use, shall be deemed to be a "banned hazardous substance" pending the completion of proceedings relating to the issuance of such regulations.

(Pub. L. 86-613, § 2, July 12, 1960, 74 Stat. 372; Pub. L. 89756, §§ 2(a)(c), 3(a), Nov. 3, 1966, 80 Stat. 1303, 1304; Pub. L. 91-113, §§ 2(a), (c), (d), 3, Nov. 6, 1969, 83 Stat. 187-189; Pub. L. 91-601, § 7(a), Dec. 30, 1970, 84 Stat. 1673.)

(As amended Pub. L. 92-516, § 3(1), Oct. 21, 1972, 86 Stat. 998; Pub. L. 94-284, § 3(c), May 11, 1976, 90 Stat. 503.)

AMENDMENTS

1976 Subsec. (f) (2). Pub. L. 94–284 added the words "nor to tobacco and tobacco products".

1972 Subsec. (f) (2). Pub. L. 92-516 substituted "pesticides" for "economic poisons" and "a pestiside" for "an economic poison" wherever appearing therein.

1970 Subsec. (p). Pub. L. 91-601 substituted in text preceding par. (1) "if the packaging or labeling of such substance is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title or if such substance" for "which substance" and added following and below par. (2) provision including in "misbranded hazardous substance" a household substance as defined in section 1471 (2) (D) of this title if it is a substance described in par. (1) of subsec. (f) of this section and its packaging or labeling is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title.

1969-Subsec. (f) (1) (A). Pub. L. 91–113. § 3(a), added "or combustible" following "is flammable".

Subsec. (f) (1) (D). Pub. L. 91–113, § 2(a), added subsec. (f) (1) (D).

Subsec. (1). Pub. L. 91-113, § 3(b), added the definition of the term "combustible" and expanded references to "flammability" and "flammable" to include "combustibility" and "combustible", respectively.

Subsec. (p) (1) (E). Pub. L. 91-113, § 3 (c), added "Combustible" to the enumerated affirmative statements of the principal hazard or hazards required to be stated on the label of a hazardous substance.

Subsec. (q) (1). Pub. L. 91-113, § 2(c), added "or necessarily present an electrical, mechanical, or thermal hazard" following "hazardous substance involved".

Subsecs. (r)-(t). Pub. L. 91-113, § 2(d), added subsecs. (r)-(t).

1966- Subsec. (f). Pub. L. 89-756, § 2(a), provided that "hazardous substances" shall apply to any article which is not itself an economic poison within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act but which is a hazard substance within the meaning of par. (1) of this subsec. by reason of its bearing or containing an economic poison.

Subsec. (n). Pub. L. 89-756, § 2(b), enlarged the term "label" to include, where the article is unpackaged or is packaged in an immediate container not intended or suitable for delivery to the ultimate consumer, a display of written, printed or graphic matter directly upon the article involved or upon a tag or other suitable material affixed thereto.

Subsec. (p). Pub. L. 89-756, § 2(c), in the introductory material preceding par. (1) substituted "misbranded hazardous substance" for "misbranded package" and "misbranded package of a hazardous substance" and as so retermed enlarged applicability to include toys and other articles intended for use by children, which are hazardous substances, or which bear or contain hazardous substances when susceptible of access by children, and in par. (1). clause (J) added further category of "mis

branded hazardous substance" where the article is intended for use by children and is not a banned hazardous substance and fails to bear a label with adequate directions for the protection of children from the hazard. Subsec. (q). Pub. L. 89-756, § 3(a), added subsec. (q).

EFFECT UPON FEDERAL AND STATE LAW

Pub. L. 86-613, § 18, formerly § 17, July 12, 1960, 74 Stat. 380, as amended Pub. L. 89-756, § 4 (a), Nov. 3, 1966, 80 Stat. 1305; renumbered and amended Pub. L. 91-113, § 4(a), (b) (1), Nov. 6, 1969, 83 Stat. 190, provided that: "(a) Nothing in this act [adding this chapter and repealing sections 401-411 of this title] shall be construed to modify or affect the provisions of the Flammable Fabrics Act, as amended (15 U.S.C. 1191-1200) [sections 1191-1204 of this title], or any regulations promulgated thereunder; or of chapter 39, title 18, United States Code, as amended (18 U.S.C. 831 et seq.), or any regulations promulgated thereunder or under sections 204 (a) (2) and 204 (a)(3) of the Interstate Commerce Act, as amended [section 304 (a)(2), (3) of Title 49] (relating to the transportation of dangerous substances and explosives by surface carriers); or of section 1716, title 18, United States Code, or any regulations promulgated thereunder (relating to mailing of dangerous substances); or of section 902 [section 1472 of Title 49] or regulations promulgated under section 601 of the Federal Aviation Act of 1958 section 1421 of Title 49] (relating to transportation of dangerous substances and explosives in aircraft); or of the Federal Food, Drug, and Cosmetic Act [chapter 9 of Title 21 or of the Public Health Service Act (chapter 6A of Title 421; or of the Federal Insecticide, Fungicide, and Rodenticide Act [section 135 et seq. of Title 7]; or of the Dangerous Drug Act for the District of Columbia (70 Stat. 612), or the Act entitled 'An Act to regulate the practice of pharmacy and the sale of poisons in the District of Columbia, and for other purposes', approved May 7, 1906 (34 Stat. 175), as amended; or of any other Act of Congress, except as specified in section 19 [set out as a note under former sections 401-411 of this title]. "(b) It is hereby expressly declared that it is the intent of the Congress to supersede any and all laws of the States and political subdivisions thereof insofar as they may now or hereafter provide for the precautionary labeling of any substance or article intended or suitable for household use (except for those substances defined in sections 2(f) (2) and (3) of this Act) (subsec. (f) (2) and (3) of this section] which differs from the requirements or exemptions of this Act chapter] or the regulations or interpretations promulgated pursuant thereto. Any law, regulation, or ordinance purporting to establish such a labeling requirement shall be null and void."

§ 1262. Regulations declaring hazardous substances; variations and exemptions; judicial review of determinations.

(a) (1) Whenever in the judgment of the Secretary such action will promote the objectives of this chapter by avoiding or resolving uncertainty as to its application, the Secretary may by regulation declare to be a hazardous substance, for the purposes of this chapter, any substance or mixture of substances which he finds meets the requirements of subparagraph (1)(A) of section 1261 (f) of this title.

(2) Proceedings for the issuance, amendment, or repeal of regulations under this subsection and the admissibility of the record of such proceedings in other proceedings, shall in all respects be governed by the provisions of section 371 (e), (f), and (g) of Title 21, except that

(A) the Secretary's order after public hearing (acting upon objections filed to an order made prior to hearing) shall be subject to the requirements of section 348 (f) (2) of Title 21; and