49 U.S.C. § 21301 — Chapter 201 general violations

Page 620 TITLE 49—TRANSPORTATION § 21301 (2) WAIVER.—The Secretary may temporarily waive the requirements of this section, if nec- essary, to complete a pilot project under this subsection. (f) DUTY CALL DEFINED.—In this section the term ‘‘duty call’’ means a telephone call that a railroad places to an employee to notify the em- ployee of his or her assigned shift time. (Added Pub. L. 110–432, div. A, title I, § 108(e)(1), Oct. 16, 2008, 122 Stat. 4864.) Editorial Notes REFERENCES IN TEXT The date of enactment of the Rail Safety Improve- ment Act of 2008, referred to in subsecs. (b), (d)(3), and (e)(1), is the date of enactment of div. A of Pub. L. 110–432, which was approved Oct. 16, 2008. Statutory Notes and Related Subsidiaries COMPLETION OF HOURS OF SERVICE AND FATIGUE STUDIES Pub. L. 117–58, div. B, title II, § 22408, Nov. 15, 2021, 135 Stat. 739, provided that: ‘‘(a) IN GENERAL.—Not later than 90 days after the date of enactment of this Act [Nov. 15, 2021], the Ad- ministrator of the Federal Railroad Administration shall commence the pilot programs required under sub- paragraphs (A) and (B) of section 21109(e)(1) of title 49, United States Code. ‘‘(b) CONSULTATION.—The Federal Railroad Adminis- tration shall consult with the class or craft of employ- ees impacted by the pilot projects, including railroad carriers, and representatives of labor organizations rep- resenting the impacted employees when designing and conducting the pilot programs referred to in subsection (a). ‘‘(c) REPORT.—If the pilot programs required under section 21109(e)(1) of title 49, United States Code, have not commenced on the date that is 1 year and 120 days after the date of enactment of this Act, the Secretary [of Transportation], not later than 30 days after such date, submit [sic] a report to the Committee on Com- merce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives that describes— ‘‘(1) the status of such pilot programs; ‘‘(2) actions that the Federal Railroad Administra- tion has taken to commence the pilot programs, in- cluding efforts to recruit participant railroads; ‘‘(3) any challenges impacting the commencement of the pilot programs; and ‘‘(4) any other details associated with the develop- ment of the pilot programs that affect progress to- ward meeting the mandate under such section 21109(e)(1).’’ CHAPTER 213—PENALTIES SUBCHAPTER I—CIVIL PENALTIES Sec. 21301. Chapter 201 general violations. 21302. Chapter 201 accident and incident violations and chapter 203–209 violations. 21303. Chapter 211 violations. 21304. Willfulness requirement for penalties against individuals. SUBCHAPTER II—CRIMINAL PENALTIES 21311. Records and reports. SUBCHAPTER I—CIVIL PENALTIES § 21301. Chapter 201 general violations (a) PENALTY.—(1) A person may not fail to comply with section 20160 or with a regulation prescribed or order issued by the Secretary of Transportation under chapter 201 of this title. Subject to section 21304 of this title, a person violating section 20160 of this title or a regula- tion prescribed or order issued by the Secretary under chapter 201 is liable to the United States Government for a civil penalty. The Secretary shall impose the penalty applicable under para- graph (2) of this subsection. A separate violation occurs for each day the violation continues. (2) The Secretary shall include in, or make ap- plicable to, each regulation prescribed and order issued under chapter 201 of this title a civil pen- alty for a violation. The Secretary shall impose a civil penalty for a violation of section 20160 of this title. The amount of the penalty shall be at least $500 but not more than $25,000. However, when a grossly negligent violation or a pattern of repeated violations has caused an imminent hazard of death or injury to individuals, or has caused death or injury, the amount may be not more than $100,000. (3) The Secretary may find that a person has violated this chapter or a regulation prescribed or order, special permit, or approval issued under this chapter only after notice and an op- portunity for a hearing. The Secretary shall im- pose a penalty under this section by giving the person written notice of the amount of the pen- alty. The Secretary may compromise the amount of a civil penalty by settlement agree- ment without issuance of an order. In deter- mining the amount of a compromise, the Sec- retary shall consider— (A) the nature, circumstances, extent, and gravity of the violation; (B) with respect to the violator, the degree of culpability, any history of violations, the ability to pay, and any effect on the ability to continue to do business; and (C) other matters that justice requires. (4) The Attorney General may bring a civil ac- tion in an appropriate district court of the United States to collect a civil penalty imposed or compromise under this section and any ac- crued interest on the civil penalty. In the civil action, the amount and appropriateness of the civil penalty shall not be subject to review. (b) SETOFF.—The Government may deduct the amount of a civil penalty imposed or com- promised under this section from amounts it owes the person liable for the penalty. (c) DEPOSIT IN TREASURY.—A civil penalty col- lected under this section or section 20113(b) of this title shall be deposited in the Treasury as miscellaneous receipts. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 891; Pub. L. 104–287, § 5(53), Oct. 11, 1996, 110 Stat. 3393; Pub. L. 110–432, div. A, title II, § 204(d), title III, § 302(a), Oct. 16, 2008, 122 Stat. 4871, 4878; Pub. L. 117–58, div. B, title II, § 22418, Nov. 15, 2021, 135 Stat. 749.) Page 621 TITLE 49—TRANSPORTATION § 21302 HISTORICAL AND REVISION NOTES PUB. L. 103–272 Revised Section Source (U.S. Code) Source (Statutes at Large) 21301(a)(1) .. 45:438(a). Oct. 16, 1970, Pub. L. 91–458, § 209(a), 84 Stat. 975; re- stated Jan. 14, 1983, Pub. L. 97–468, § 706, 96 Stat. 2581; June 22, 1988, Pub. L. 100–342, § 3(a)(1), 102 Stat. 624; Sept. 3, 1992, Pub. L. 102–365, § 9(a)(1), 106 Stat. 977. 45:438(c) (1st, 3d sen- tences). Oct. 16, 1970, Pub. L. 91–458, § 209(c) (1st, 3d, 5th–8th sentences), 84 Stat. 975; June 22, 1988, Pub. L. 100–342, § 3(a)(3)(A), (C), 102 Stat. 624; Sept. 3, 1992, Pub. L. 102–365, § 4(c)(1), 106 Stat. 974. 21301(a)(2) .. 45:438(b) (related to rules, regulations, orders, or stand- ards issued under this subchapter). Oct. 16, 1970, Pub. L. 91–458, § 209(b) (related to rules, regulations, orders, or standards issued under this title), 84 Stat. 975; Jan. 3, 1975, Pub. L. 93–633, § 204(a), 88 Stat. 2165; June 22, 1988, Pub. L. 100–342, § 3(a)(2), 102 Stat. 624; Sept. 3, 1992, Pub. L. 102–365, § 4(a)(1), 106 Stat. 973. 21301(a)(3) .. 45:438(c) (5th, 6th sentences). 21301(b) ...... 45:438(c) (7th sen- tence). 21301(c) ...... 45:438(c) (8th sen- tence). In subsection (a), the words ‘‘impose’’ and ‘‘imposed’’ are substituted for ‘‘assessed’’, for consistency in the revised title. In subsection (a)(1), the first 2 sentences are sub- stituted for 45:438(a) and (c) (1st sentence) for consist- ency in the revised title and to eliminate unnecessary words. The words ‘‘(including but not limited to a rail- road; any manager, supervisor, official, or other em- ployee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facili- ties; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent con- tractor)’’ are omitted as surplus because of the defini- tion of ‘‘person’’ in 1:1 and because the provision being violated indicates to whom it applies. The word ‘‘shall’’ in 45:438(c) (1st sentence) is retained from the source provisions. For a discussion of whether the authority of the Secretary of Transportation to impose a penalty is mandatory or permissive, see Railway Labor Executives’ Ass’n v. Dole, 760 F.2d 1021, 1024, 1025 (9th Cir. 1985); H.R. Conf. Rept. No. 100–637, 100th Cong., 2d Sess., p. 20; 134 Cong. Rec. H3470, May 23, 1988 (daily ed.); 134 Cong. Rec. S7510, June 9, 1988 (daily ed.). See also 134 Cong. Rec. E1946, June 10, 1988 (daily ed.). For an extended discus- sion of FRA’s prosecutorial discretion, see Nationwide Rail Safety: Hearing Before the Subcommittee on Transpor- tation, Tourism, and Hazardous Materials of the House En- ergy and Commerce Committee, 100th Cong., 1st Sess., pp. 54–65 (1987). See also section 6 of this bill that provides that this bill restates, without substantive change, the provisions of law replaced by this bill, and that this bill may not be construed as making a substantive change in the law restated. Therefore, the word ‘‘shall’’ in this subsection has the same meaning it has under existing law. The words ‘‘A separate violation’’ are substituted for ‘‘a separate offense’’ for consistency. In subsection (a)(3), the words ‘‘may compromise the amount . . . to not less than $500’’ are substituted for ‘‘may, however, be compromised . . . for any amount, but in no event for an amount less than the minimum provided in subsection (b) of this section’’ for clarity and to eliminate unnecessary words. In clause (B), the words ‘‘prior or subsequent’’ are omitted as unneces- sary. In subsection (c), the words ‘‘deposited in’’ are sub- stituted for ‘‘covered into’’ for consistency in the re- vised title and with other titles of the United States Code. PUB. L. 104–287 This amends 49:21301(a)(1) to clarify the restatement of 45:438(a) by section 1 of the Act of July 5, 1994 (Public Law 103–272, 108 Stat. 891). Editorial Notes AMENDMENTS 2021—Subsec. (a)(3), (4). Pub. L. 117–58 added pars. (3) and (4) and struck out former par. (3). Prior to amend- ment, par. (3) read as follows: ‘‘The Secretary may compromise the amount of a civil penalty imposed under this subsection to not less than $500 before refer- ring the matter to the Attorney General for collection. In determining the amount of a compromise, the Sec- retary shall consider— ‘‘(A) the nature, circumstances, extent, and gravity of the violation; ‘‘(B) with respect to the violator, the degree of cul- pability, any history of violations, the ability to pay, and any effect on the ability to continue to do busi- ness; and ‘‘(C) other matters that justice requires.’’ 2008—Subsec. (a)(1). Pub. L. 110–432, § 204(d)(1), in- serted ‘‘with section 20160 or’’ after ‘‘comply’’ and ‘‘sec- tion 20160 of this title or’’ after ‘‘violating’’. Subsec. (a)(2). Pub. L. 110–432, § 302(a), substituted ‘‘$25,000.’’ for ‘‘$10,000.’’ and ‘‘$100,000.’’ for ‘‘$20,000.’’ Pub. L. 110–432, § 204(d)(2), inserted ‘‘The Secretary shall impose a civil penalty for a violation of section 20160 of this title.’’ after first sentence. 1996—Subsec. (a)(1). Pub. L. 104–287, § 5(53)(B), sub- stituted ‘‘Secretary under chapter 201 is liable’’ for ‘‘Secretary of Transportation under chapter 201 of this title is liable’’. Pub. L. 104–287, § 5(53)(A), inserted ‘‘A person may not fail to comply with a regulation prescribed or order issued by the Secretary of Transportation under chap- ter 201 of this title.’’ before ‘‘Subject to’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–287 effective July 5, 1994, see section 8(1) of Pub. L. 104–287, set out as a note under section 5303 of this title. § 21302. Chapter 201 accident and incident viola- tions and chapter 203–209 violations (a) PENALTY.—(1) Subject to section 21304 of this title, a person violating a regulation pre- scribed or order issued under chapter 201 of this title related to accident and incident reporting or investigation, or violating chapters 203–209 of this title or a regulation or requirement pre- scribed or order issued under chapters 203–209, is liable to the United States Government for a civil penalty. An act by an individual that causes a railroad carrier to be in violation is a violation. A separate violation occurs for each day the violation continues. (2) The Secretary of Transportation imposes a civil penalty under this subsection. The amount of the penalty shall be at least $500 but not more than $25,000. However, when a grossly negligent violation or a pattern of repeated violations has caused an imminent hazard of death or injury to individuals, or has caused death or injury, the amount may be not more than $100,000. (3) The Secretary may compromise the amount of the civil penalty under section 3711 of title 31. In determining the amount of a com- promise, the Secretary shall consider—