49 U.S.C. § 5123 — Civil penalty

Page 226 TITLE 49—TRANSPORTATION § 5123 that such owner, operator, or individual in charge may be subject to such a civil penalty or fine, the Secretary of Homeland Security, upon the request of the Secretary, shall with respect to such vessel refuse or revoke any clearance re- quired by section 60105 of title 46. (2) Clearance refused or revoked under this subsection may be granted upon the filing of a bond or other surety satisfactory to the Sec- retary. (Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 780; Pub. L. 104–324, title III, § 312(a), Oct. 19, 1996, 110 Stat. 3920; Pub. L. 109–59, title VII, §§ 7119, 7126, Aug. 10, 2005, 119 Stat. 1905, 1909; Pub. L. 109–304, § 17(h)(1), Oct. 6, 2006, 120 Stat. 1709.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 5122(a) ........ 49 App.:1808(a) (last sentence words after semicolon). Jan. 3, 1975, Pub. L. 93–633, §§ 109(a) (last sentence words after semicolon), 111(a), 88 Stat. 2159, 2161. 49 App.:1810(a). 5122(b) ........ 49 App.:1810(b). Jan. 3, 1975, Pub. L. 93–633, § 111(b), 88 Stat. 2161; Nov. 16, 1990, Pub. L. 101–615, § 3(b), 104 Stat. 3247. In this section, the words ‘‘bring a civil action’’ are substituted for ‘‘bring an action in’’ in 49 App.:1810 and ‘‘petition . . . for an order . . . for such other order’’ for consistency in the revised title and with other titles of the United States Code. In subsection (a), the text of 49 App.:1808(a) (last sen- tence words after semicolon) and the words ‘‘for equi- table relief’’ in 49 App.:1810(a) are omitted as surplus. The words ‘‘enforce this chapter’’ are substituted for ‘‘redress a violation by any person of a provision of this chapter’’ to eliminate unnecessary words. The words ‘‘regulation prescribed or order issued’’ are substituted for ‘‘order or regulation issued’’ for consistency in the revised title and with other titles of the Code. The words ‘‘The court may award appropriate relief, includ- ing’’ are substituted for ‘‘Such district courts shall have jurisdiction to determine such actions and may grant such relief as is necessary or appropriate, includ- ing mandatory or prohibitive injunctive relief, interim equitable relief, and’’ to eliminate unnecessary words. In subsection (b)(1), before clause (A), the words ‘‘as is necessary’’ are omitted as surplus. Editorial Notes AMENDMENTS 2006—Subsec. (c)(1). Pub. L. 109–304 substituted ‘‘Sec- retary of Homeland Security’’ and ‘‘section 60105 of title 46’’ for ‘‘Secretary of the Treasury’’ and ‘‘section 4197 of the Revised Statutes of the United States (46 App. U.S.C. 91)’’, respectively. 2005—Subsec. (a). Pub. L. 109–59, § 7126, substituted ‘‘Secretary’’ for ‘‘Secretary of Transportation’’. Pub. L. 109–59, § 7119(a), substituted ‘‘this chapter or a regulation prescribed or order, special permit, or ap- proval’’ for ‘‘this chapter or a regulation prescribed or order’’ and ‘‘The court may award appropriate relief, including a temporary or permanent injunction, puni- tive damages, and assessment of civil penalties consid- ering the same penalty amounts and factors as pre- scribed for the Secretary in an administrative case under section 5123’’ for ‘‘The court may award appro- priate relief, including punitive damages’’. Subsec. (b)(1)(B). Pub. L. 109–59, § 7119(b), substituted ‘‘or mitigate the hazard’’ for ‘‘or ameliorate the haz- ard’’. 1996—Subsec. (c). Pub. L. 104–324 added subsec. (c). § 5123. Civil penalty (a) PENALTY.—(1) A person that knowingly vio- lates this chapter or a regulation, order, special permit, or approval issued under this chapter is liable to the United States Government for a civil penalty of not more than $75,000 for each violation. A person acts knowingly when— (A) the person has actual knowledge of the facts giving rise to the violation; or (B) a reasonable person acting in the cir- cumstances and exercising reasonable care would have that knowledge. (2) If the Secretary finds that a violation under paragraph (1) results in death, serious ill- ness, or severe injury to any person or substan- tial destruction of property, the Secretary may increase the amount of the civil penalty for such violation to not more than $175,000. (3) If the violation is related to training, a per- son described in paragraph (1) shall be liable for a civil penalty of at least $450. (4) A separate violation occurs for each day the violation, committed by a person that trans- ports or causes to be transported hazardous ma- terial, continues. (b) HEARING REQUIREMENT.—The Secretary may find that a person has violated this chapter or a regulation prescribed or order, special per- mit, or approval issued under this chapter only after notice and an opportunity for a hearing. The Secretary shall impose a penalty under this section by giving the person written notice of the amount of the penalty. (c) PENALTY CONSIDERATIONS.—In determining the amount of a civil penalty under this section, the Secretary shall consider— (1) the nature, circumstances, extent, and gravity of the violation; (2) with respect to the violator, the degree of culpability, any history of prior violations, the ability to pay, and any effect on the abil- ity to continue to do business; and (3) other matters that justice requires. (d) CIVIL ACTIONS TO COLLECT.—The Attorney General may bring a civil action in an appro- priate district court of the United States to col- lect a civil penalty under this section and any accrued interest on the civil penalty as cal- culated in accordance with section 1005 of the Oil Pollution Act of 1990 (33 U.S.C. 2705). In the civil action, the amount and appropriateness of the civil penalty shall not be subject to review. (e) COMPROMISE.—The Secretary may com- promise the amount of a civil penalty imposed under this section before referral to the Attor- ney General. (f) 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. (g) DEPOSITING AMOUNTS COLLECTED.— Amounts collected under this section shall be deposited in the Treasury as miscellaneous re- ceipts. (h) PENALTY FOR OBSTRUCTION OF INSPECTIONS AND INVESTIGATIONS.— (1) The Secretary may impose a penalty on a person who obstructs or prevents the Sec- retary from carrying out inspections or inves- tigations under subsection (c) or (i) of section 5121. Page 227 TITLE 49—TRANSPORTATION § 5123 1 So in original. Probably should be ‘‘ensure’’. (2) For the purposes of this subsection, the term ‘‘obstructs’’ means actions that were known, or reasonably should have been known, to prevent, hinder, or impede an investigation. (i) PROHIBITION ON HAZARDOUS MATERIAL OPER- ATIONS AFTER NONPAYMENT OF PENALTIES.— (1) IN GENERAL.—Except as provided under paragraph (2), a person subject to the jurisdic- tion 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 ac- ceptable 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 ap- peal 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 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 1 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. (Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 780; Pub. L. 109–59, title VII, §§ 7120(a)–(c), 7126, Aug. 10, 2005, 119 Stat. 1905, 1906, 1909; Pub. L. 112–141, div. C, title III, § 33010, July 6, 2012, 126 Stat. 837.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 5123(a)(1) .... 49 App.:1809(a)(1) (1st sentence less 3d–16th words, 2d sentence words before 4th comma, 3d sentence). Jan. 3, 1975, Pub. L. 93–633, § 110(a)(1), 88 Stat. 2160; Nov. 16, 1990, Pub. L. 101–615, § 12(a)(1), 104 Stat. 3259. 49 App.:1809(a)(3). Jan. 3, 1975, Pub. L. 93–633, 88 Stat. 2156, § 110(a)(3); added Nov. 16, 1990, Pub. L. 101–615, § 12(a)(2), 104 Stat. 3259. 5123(a)(2) .... 49 App.:1809(a)(1) (2d sentence words after 4th comma). 5123(b) ........ 49 App.:1809(a)(1) (1st sentence 3d–16th words, 4th sentence). 5123(c) ........ 49 App.:1809(a)(1) (last sentence). 5123(d), (e) 49 App.:1809(a)(2) (1st sentence). Jan. 3, 1975, Pub. L. 93–633, § 110(a)(2), 88 Stat. 2160. 5123(f) ........ 49 App.:1809(a)(2) (2d sentence). 5123(g) ........ 49 App.:1809(a)(2) (last sentence). In subsection (a)(1), before clause (1), the words ‘‘A person that knowingly violates this chapter or a regu- lation prescribed or order issued under this chapter is liable to the United States Government for a civil pen- alty of at least $250 but not more than $25,000 for each violation’’ are substituted for 49 App.:1809(a)(1) (1st sen- tence less 3d–16th words, 2d sentence words before 4th comma, 3d sentence) to eliminate unnecessary words. In subsection (b), the word ‘‘impose’’ is substituted for ‘‘assessed’’ for consistency. In subsection (c)(2), the words ‘‘the violator’’ are sub- stituted for ‘‘the person found to have committed such violation’’ to eliminate unnecessary words. In subsection (f), the words ‘‘imposed or com- promised’’ are substituted for ‘‘of such penalty, when finally determined (or agreed upon in compromise)’’ to eliminate unnecessary words and for consistency. The words ‘‘liable for the penalty’’ are substituted for ‘‘charged’’ for clarity. Editorial Notes REFERENCES IN TEXT The date of enactment of this subsection, referred to in subsec. (i)(3), is the date of enactment of Pub. L. 112–141, which was approved July 6, 2012. AMENDMENTS 2012—Subsec. (a)(1). Pub. L. 112–141, § 33010(1)(A), in in- troductory provisions, struck out ‘‘at least $250 but’’ after ‘‘civil penalty of’’ and substituted ‘‘$75,000’’ for ‘‘$50,000’’. Subsec. (a)(2). Pub. L. 112–141, § 33010(1)(B), sub- stituted ‘‘$175,000’’ for ‘‘$100,000’’. Subsec. (a)(3). Pub. L. 112–141, § 33010(1)(C), amended par. (3) generally. Prior to amendment, par. (3) read as follows: ‘‘If the violation is related to training, para- graph (1) shall be applied by substituting ‘$450’ for ‘$250’.’’ Subsecs. (h), (i). Pub. L. 112–141, § 33010(2), added sub- secs. (h) and (i). 2005—Subsec. (a)(1). Pub. L. 109–59, § 7120(a)(1), in in- troductory provisions substituted ‘‘regulation, order, special permit, or approval issued’’ for ‘‘regulation pre- scribed or order issued’’ and ‘‘$50,000’’ for ‘‘$25,000’’. Subsec. (a)(2) to (4). Pub. L. 109–59, § 7120(a)(2), (3), added pars. (2) and (3) and redesignated former par. (2) as (4). Subsec. (b). Pub. L. 109–59, § 7126, substituted ‘‘Sec- retary may’’ for ‘‘Secretary of Transportation may’’. Pub. L. 109–59, § 7120(b), substituted ‘‘regulation pre- scribed or order, special permit, or approval issued’’ for ‘‘regulation prescribed’’. Subsec. (d). Pub. L. 109–59, § 7120(c), substituted ‘‘sec- tion and any accrued interest on the civil penalty as calculated in accordance with section 1005 of the Oil Pollution Act of 1990 (33 U.S.C. 2705). In the civil action, the amount and appropriateness of the civil penalty shall not be subject to review.’’ for ‘‘section.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effec- tive and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways. EFFECTIVE DATE OF 2005 AMENDMENT Pub. L. 109–59, title VII, § 7120(d), Aug. 10, 2005, 119 Stat. 1906, provided that: ‘‘(1) HEARING REQUIREMENT.—The amendment made by subsection (b) [amending this section] shall take ef- fect on the date of enactment of this Act [Aug. 10, 2005], and shall apply with respect to violations described in section 5123(a) of title 49, United States Code (as amended by this section), that occur on or after that date. ‘‘(2) CIVIL ACTIONS TO COLLECT.—The amendment made by subsection (c) [amending this section] shall apply with respect to civil penalties imposed on viola- Page 228 TITLE 49—TRANSPORTATION § 5124 tions described in section 5123(a) of title 49, United States Code (as amended by this section), that occur on or after the date of enactment of this Act [Aug. 10, 2005].’’ § 5124. Criminal penalty (a) IN GENERAL.—A person knowingly vio- lating section 5104(b) or willfully or recklessly violating this chapter or a regulation, order, special permit, or approval issued under this chapter shall be fined under title 18, imprisoned for not more than 5 years, or both; except that the maximum amount of imprisonment shall be 10 years in any case in which the violation in- volves the release of a hazardous material that results in death or bodily injury to any person. (b) KNOWING VIOLATIONS.—For purposes of this section— (1) a person acts knowingly when— (A) the person has actual knowledge of the facts giving rise to the violation; or (B) a reasonable person acting in the cir- cumstances and exercising reasonable care would have that knowledge; and (2) knowledge of the existence of a statutory provision, or a regulation or a requirement re- quired by the Secretary, is not an element of an offense under this section. (c) WILLFUL VIOLATIONS.—For purposes of this section, a person acts willfully when— (1) the person has knowledge of the facts giv- ing rise to the violation; and (2) the person has knowledge that the con- duct was unlawful. (d) RECKLESS VIOLATIONS.—For purposes of this section, a person acts recklessly when the person displays a deliberate indifference or con- scious disregard to the consequences of that per- son’s conduct. (Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 781; Pub. L. 109–59, title VII, § 7121, Aug. 10, 2005, 119 Stat. 1906.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 5124 ............ 49 App.:1809(b). Jan. 3, 1975, Pub. L. 93–633, § 110(b), 88 Stat. 2161; re- stated Nov. 16, 1990, Pub. L. 101–615, § 12(b), 104 Stat. 3259. Editorial Notes AMENDMENTS 2005—Pub. L. 109–59 reenacted section catchline with- out change and amended text generally. Prior to amendment, text read as follows: ‘‘A person knowingly violating section 5104(b) of this title or willfully vio- lating this chapter or a regulation prescribed or order issued under this chapter shall be fined under title 18, imprisoned for not more than 5 years, or both.’’ § 5125. Preemption (a) GENERAL.—Except as provided in sub- sections (b), (c), and (e) of this section and un- less authorized by another law of the United States, a requirement of a State, political sub- division of a State, or Indian tribe is preempted if— (1) complying with a requirement of the State, political subdivision, or tribe and a re- quirement of this chapter, a regulation pre- scribed under this chapter, or a hazardous ma- terials transportation security regulation or directive issued by the Secretary of Homeland Security is not possible; or (2) the requirement of the State, political subdivision, or tribe, as applied or enforced, is an obstacle to accomplishing and carrying out this chapter, a regulation prescribed under this chapter, or a hazardous materials trans- portation security regulation or directive issued by the Secretary of Homeland Security. (b) SUBSTANTIVE DIFFERENCES.—(1) Except as provided in subsection (c) of this section and un- less authorized by another law of the United States, a law, regulation, order, or other re- quirement of a State, political subdivision of a State, or Indian tribe about any of the following subjects, that is not substantively the same as a provision of this chapter, a regulation pre- scribed under this chapter, or a hazardous mate- rials transportation security regulation or di- rective issued by the Secretary of Homeland Se- curity, is preempted: (A) the designation, description, and classi- fication of hazardous material. (B) the packing, repacking, handling, label- ing, marking, and placarding of hazardous ma- terial. (C) the preparation, execution, and use of shipping documents related to hazardous ma- terial and requirements related to the number, contents, and placement of those documents. (D) the written notification, recording, and reporting of the unintentional release in transportation of hazardous material and other written hazardous materials transpor- tation incident reporting involving State or local emergency responders in the initial re- sponse to the incident. (E) the designing, manufacturing, fabri- cating, inspecting, marking, maintaining, re- conditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. (2) If the Secretary prescribes or has pre- scribed under section 5103(b), 5104, 5110, or 5112 of this title or prior comparable provision of law a regulation or standard related to a subject re- ferred to in paragraph (1) of this subsection, a State, political subdivision of a State, or Indian tribe may prescribe, issue, maintain, and en- force only a law, regulation, standard, or order about the subject that is substantively the same as a provision of this chapter or a regulation prescribed or order issued under this chapter. The Secretary shall decide on and publish in the Federal Register the effective date of section 5103(b) of this title for any regulation or stand- ard about any of those subjects that the Sec- retary prescribes. The effective date may not be earlier than 90 days after the Secretary pre- scribes the regulation or standard nor later than the last day of the 2-year period beginning on the date the Secretary prescribes the regulation or standard. (3) If a State, political subdivision of a State, or Indian tribe imposes a fine or penalty the