HR 2410 Introduced – Grow America Act

Last month Rep. DeFazio (D,OR) introduced HR 2410, the GROW AMERICA Act. This is the Democrat’s proposal for the surface transportation authorization bill that needs to be passed by the end of July. The printed version of this 629 page bill just became available this week.

There are a number of provisions of this complex bill that will be of specific interest to readers of this blog. They include:

∙ Emergency order provisions;

∙ User fees for special permits;

∙ Inspection of non-domestic entities;

∙ Increase civil penalties;

∙ General duty clause; and

∙ Intelligent transportation systems

Emergency Order Provisions

There are three separate provisions of the bill that provide authority for the Secretary of Transportation to issue emergency orders concerning the transport of hazardous materials. These provisions address:

∙ Emergency operational controls;

∙ National emergency and disaster response; and

∙ Hazard abatement authority.

Section 6002 would amend Chapter 51, Transporting Hazardous Materials, of 49 USC by adding a new §5129 dealing with emergency operational controls. This provides authority to the Secretary to issue emergency orders when the determination is made that “unsafe condition or practice, or a combination of unsafe conditions and practices, or an activity” {new §5129 (a)(1)} “causes an emergency situation involving a hazard of death, personal injury, or significant harm to property or the environment”. The order may address “operational controls, restrictions, and prohibitions, without prior notice or an opportunity for a hearing, as may be necessary to abate the situation”.

If such an order is issued and a petition for review is received under the provisions of 5 USC 554 the order will continue in force for 30 days or the review is complete unless the Secretary makes a determination “in writing that the emergency situation still exists” {new §5129(b)}.

Section 6005 would amend 49 USC 5101 and 49 USC 5103 to allow the Secretary to “prescribe standards to facilitate the movement of hazardous materials into, from and within federally declared disaster and emergency areas” {new §5103(c)}. The bill does not specify how those standards are to be prescribed.

Section 6008 would add a new 49 USC 5130 to authorize the Secretary to order the removal, remediation or disposal of hazardous materials in commerce if he determines that the material causes an unreasonable risk of death, personal injury or significant harm to the environment. The order may remain “in effect for as long as the emergency situation exists” {new §5130(c)}.

If a person subject to such an order fails to remove, remediate or dispose of the materials in accordance with that order, “the Secretary may take such action to arrange for the removal, remediation, or disposal of such hazardous materials as necessary to abate the unreasonable risk” {new §5130(d)}. The person subject to the order would, in that case, “be liable for all costs incurred by the United States Government in removing, remediating, or disposing of such hazardous materials” {new §5130(e)}.

User Fees for Special Permits

Section 6004 amends 49 USC 5117 by adding a new paragraph (g). It establishes a new “Hazardous Materials Approvals and Permits Fund for the administration of special permits and approvals” {new §5117(g)(1)}. It authorizes the Secretary to collect a reasonable fee “for the administration of special permits and approvals, which shall be deposited in the fund” {new §5117(g)(2)}. The Secretary is required to issue regulations, after providing notice and allowing for public comments, to implement the provisions of §5117(g) and set the annual fee.

Inspection of Non-Domestic Entities

Section 6009 would amend 49 USC 5121(c) by adding a new paragraph (4) that would authorize the Secretary to allow a person outside of the United States to “manufacture, requalify, or inspect a DOT specification packaging or special permit cylinders or certify compliance” with 49 CFR. The person requesting such authorization would have to allow the inspection of the applicant’s processes and procedures and “must bear the cost of the initial and subsequent inspections”.

Increase Civil Penalties

Section 6011 would amend 49 USC 5123(a). The maximum penalties for a knowing violation of 49 USC Chapter 51 would be increased from $75,000 to $250,000. When such a violation results in in death, serious illness, or severe injury to any person or substantial destruction of property the maximum penalty would be increased from $175,000 to $500,000. The penalty for violations of training requirements was not changed.

General Duty Clause

Section 6012 would amend 49 USC 5103 by adding a new paragraph (d). It formally establishes the requirement for person subject to 49 USC Chapter 51 to “take all reasonable measures and precautions to properly classify, describe, package, mark and label, and ensure proper condition for transportation of a hazardous material” {new §6012(d)(1)} in addition to the standard requirement to comply with “this chapter, or a regulation prescribed, or an order, special permit or approval issued under this chapter” {new §6012(d)(2)}.

Intelligent Transportation Systems

There are five sequential sections in the bill that deal with the development of intelligent transportation systems, starting with §8105. This section revises the existing ITS goals and purposes set out in 23 USC 514 by rewriting the current (a)(5) and adding two new sub-paragraphs, (a)(6) and (a)(7):

∙ Improvement of the ability of the United States to respond to security related or other manmade emergencies and natural disasters;

∙ Enhancement of the Nation’s freight system and support to freight policy goals by conducting heavy duty vehicle demonstration activities, and accelerating adoption of ITS applications in freight operations; and

∙ Enabling and accelerating the development and deployment of automated vehicles in all modes of surface transportation.

The remaining four ITS related sections of the bill would make other minor adjustments to the ITS language already found in Chapter 5 of 23 USC. The areas affected include:

∙ ITS general authorities and requirements;

∙ ITS national architecture and standards;

∙ Vehicle-to-vehicle and vehicle-to-infrastructure communications systems deployment; and

∙ Infrastructure development.

Moving Forward

As controversial as the surface transportation program support has become, with severe ideological disagreements on the amount and modes of spending, it is very unlikely that this bill being offered by the Democrats will be considered in the House. On the other hand, many of the provisions described above may make their way into the Republican bill as a method of offering compromises, or they may be offered as floor amendments when the Republican bill does finally get to the floor next month.