49 U.S.C. § 60121 — Actions by private persons

Page 1786 TITLE 49—TRANSPORTATION § 60120 § 60120. Enforcement (a) CIVIL ACTIONS.— (1) CIVIL ACTIONS TO ENFORCE THIS CHAPTER.— At the request of the Secretary of Transpor- tation, the Attorney General may bring a civil action in an appropriate district court of the United States to enforce this chapter, includ- ing section 60112, or a regulation prescribed or order issued under this chapter. The court may award appropriate relief, including a tem- porary or permanent injunction, punitive damages, and assessment of civil penalties, considering the same factors as prescribed for the Secretary in an administrative case under section 60122. The maximum amount of civil penalties for administrative enforcement ac- tions under section 60122 shall not apply to en- forcement actions under this section. (2) CIVIL ACTIONS TO REQUIRE COMPLIANCE WITH SUBPOENAS OR ALLOW FOR INSPECTIONS.— At the request of the Secretary, the Attorney General may bring a civil action in a district court of the United States to require a person to comply immediately with a subpena or to allow an officer, employee, or agent author- ized by the Secretary to enter the premises, and inspect the records and property, of the person to decide whether the person is com- plying with this chapter. The action may be brought in the judicial district in which the defendant resides, is found, or does business. The court may punish a failure to obey the order as a contempt of court. (b) JURY TRIAL DEMAND.—In a trial for crimi- nal contempt for violating an injunction issued under this section, the violation of which is also a violation of this chapter, the defendant may demand a jury trial. The defendant shall be tried as provided in rule 42(b) of the Federal Rules of Criminal Procedure (18 App. U.S.C.). (c) EFFECT ON TORT LIABILITY.—This chapter does not affect the tort liability of any person. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1323; Pub. L. 107–355, § 8(b)(3), Dec. 17, 2002, 116 Stat. 2993; Pub. L. 112–90, § 2(c), Jan. 3, 2012, 125 Stat. 1905.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 60120(a)(1) .. 49 App.:1677(b)(2). Aug. 12, 1968, Pub. L. 90–481, 82 Stat. 720, § 10(b)(2); added Nov. 30, 1979, Pub. L. 96–129, §§ 104(a)(1), 152(a), 93 Stat. 992, 999. 49 App.:1679b(a)(1). Aug. 12, 1968, Pub. L. 90–481, 82 Stat. 720, § 12(a); added Nov. 30, 1979, Pub. L. 96–129, § 104(b), 93 Stat. 993. 49 App.:2006(b)(2). Nov. 30, 1979, Pub. L. 96–129, §§ 207(b)(2), (c), 209(a), 93 Stat. 1009, 1010. 49 App.:2008(a)(1). 60120(a)(2) .. 49 App.:1681(f). Aug. 12, 1968, Pub. L. 90–481, 82 Stat. 720, § 14(f); added Oct. 24, 1992, Pub. L. 102–508, § 112(b), 106 Stat. 3295. 49 App.:2010(f). Nov. 30, 1979, Pub. L. 96–129, 93 Stat. 989, § 211(f); added Oct. 24, 1992, Pub. L. 102–508, § 211(b), 106 Stat. 3304. 60120(b) ...... 49 App.:1679b(a)(2). 49 App.:2008(a)(2). 60120(c) ...... 49 App.:1677(c). Aug. 12, 1968, Pub. L. 90–481, § 10(c), 82 Stat. 725; Nov. 30, 1979, Pub. L. 96–129, §§ 104(a)(1), 152(a), 93 Stat. 992, 999. HISTORICAL AND REVISION NOTES—CONTINUED Revised Section Source (U.S. Code) Source (Statutes at Large) 49 App.:2006(c). In subsection (a)(1), the text of 49 App.:1677(b)(2) and 2006(b)(2) and the words ‘‘shall have jurisdiction to de- termine such actions’’ in 49 App.:1679b(a)(1) and 2008(a)(1) are omitted as redundant and because of 28:1331 and 1345. The word ‘‘civil’’ is added for consist- ency in the revised title and with other titles of the United States Code and because of rule 2 of the Federal Rules of Civil Procedure (28 App. U.S.C.). The words ‘‘to enforce this chapter’’ are substituted for ‘‘for equitable relief to redress or restrain a violation by any person of a provision of this chapter’’ to eliminate unneces- sary words. The word ‘‘prescribed’’ is substituted for ‘‘issued’’ for consistency in the revised title and with other titles of the Code. The words ‘‘necessary or . . . mandatory or prohibitive injunctive relief, interim eq- uitable relief, and’’ are omitted as surplus. In subsection (a)(2), the words ‘‘the Attorney General may bring a civil action in a district court of the United States’’ are substituted for ‘‘such district court shall, upon the request of the Attorney General . . . have jurisdiction to issue to such person an order’’ for clarity and consistency and because of 28:1331 and 1345. The words ‘‘contumacy or’’ are omitted as surplus. The word ‘‘premises’’ is added for clarity and consistency. The words ‘‘or examine’’ are omitted as being included in ‘‘inspect’’. In subsection (b), the words ‘‘mandatory or prohibi- tive’’ are omitted as surplus. The words ‘‘the defendant may demand a jury trial’’ are substituted for ‘‘trial shall be by the court or, upon demand of the accused, by a jury’’ to eliminate unnecessary words and for con- sistency in the revised title and with other titles of the Code. In subsection (c), the words ‘‘common law or statu- tory’’ are omitted as surplus. Editorial Notes AMENDMENTS 2012—Subsec. (a)(1). Pub. L. 112–90 added at end ‘‘The maximum amount of civil penalties for administrative enforcement actions under section 60122 shall not apply to enforcement actions under this section.’’ Subsec. (a). Pub. L. 107–355 reenacted subsec. heading without change, added par. (1) and struck out former par. (1), inserted par. (2) heading and realigned margins. Prior to amendment, par. (1) read as follows: ‘‘On the request of the Secretary of Transportation, the Attor- ney General may bring a civil action in an appropriate district court of the United States to enforce this chap- ter or a regulation prescribed or order issued under this chapter. The court may award appropriate relief, in- cluding punitive damages.’’ § 60121. Actions by private persons (a) GENERAL AUTHORITY.—(1) A person may bring a civil action in an appropriate district court of the United States for an injunction against another person (including the United States Government and other governmental au- thorities to the extent permitted under the 11th amendment to the Constitution) for a violation of this chapter or a regulation prescribed or order issued under this chapter. However, the person— (A) may bring the action only after 60 days after the person has given notice of the viola- tion to the Secretary of Transportation or to the appropriate State authority (when the vio- lation is alleged to have occurred in a State certified under section 60105 of this title) and Page 1787 TITLE 49—TRANSPORTATION § 60122 to the person alleged to have committed the violation; (B) may not bring the action if the Sec- retary or authority has begun and diligently is pursuing an administrative proceeding for the violation; and (C) may not bring the action if the Attorney General of the United States, or the chief law enforcement officer of a State, has begun and diligently is pursuing a judicial proceeding for the violation. (2) The Secretary shall prescribe the way in which notice is given under this subsection. (3) The Secretary, with the approval of the At- torney General, or the Attorney General may in- tervene in an action under paragraph (1) of this subsection. (b) COSTS AND FEES.—The court may award costs, reasonable expert witness fees, and a rea- sonable attorney’s fee to a prevailing plaintiff in a civil action under this section. The court may award costs to a prevailing defendant when the action is unreasonable, frivolous, or meritless. In this subsection, a reasonable attorney’s fee is a fee— (1) based on the actual time spent and the reasonable expenses of the attorney for legal services provided to a person under this sec- tion; and (2) computed at the rate prevailing for pro- viding similar services for actions brought in the court awarding the fee. (c) STATE VIOLATIONS AS VIOLATIONS OF THIS CHAPTER.—In this section, a violation of a safety standard or practice of a State is deemed to be a violation of this chapter or a regulation pre- scribed or order issued under this chapter only to the extent the standard or practice is not more stringent than a comparable minimum safety standard prescribed under this chapter. (d) ADDITIONAL REMEDIES.—A remedy under this section is in addition to any other remedies provided by law. This section does not restrict a right to relief that a person or a class of persons may have under another law or at common law. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1324.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 60121(a)(1) .. 49 App.:1686(a), (b) (1st sentence). Aug. 12, 1968, Pub. L. 90–481, 82 Stat. 720, § 19; added Oct. 11, 1976, Pub. L. 94–477, § 8, 90 Stat. 2075; Nov. 30, 1979, Pub. L. 96–129, § 104(b), 93 Stat. 992. 49 App.:2014(a), (b) (1st sentence). Nov. 30, 1979, Pub. L. 96–129, § 215, 93 Stat. 1014. 60121(a)(2) .. 49 App.:1686(b) (last sentence). 49 App.:2014(b) (last sentence). 60121(a)(3) .. 49 App.:1686(c). 49 App.:2014(c). 60121(b) ...... 49 App.:1686(e). 49 App.:2014(e). 60121(c) ...... 49 App.:1686(f). 49 App.:2014(f). 60121(d) ...... 49 App.:1686(d). 49 App.:2014(d). In subsection (a)(1), before clause (A), the text of 49 App.:1686(a) (last sentence, words after the comma) and 2014(a) (last sentence, words after the comma) is omit- ted as surplus because the amount in controversy is no longer a criterion. The word ‘‘bring’’ is substituted for ‘‘commence’’ for consistency in the revised title and with other titles of the United States Code. The words ‘‘mandatory or prohibitive’’, ‘‘including interim equi- table relief’’, ‘‘State, municipality, or’’, and ‘‘alleged to be’’ are omitted as surplus. The word ‘‘prescribed’’ is added for consistency in the revised title and with other titles of the Code. In subsection (a)(2), the words ‘‘by regulation’’ are omitted as surplus because of 49:322(a). In subsection (a)(3), the words ‘‘as a matter of right’’ are omitted as surplus. In subsection (b), before clause (1), the words ‘‘in the interest of justice’’ and ‘‘of suit, including’’ are omitted as surplus. In clause (1), the words ‘‘by an attorney’’ and ‘‘advice and other’’ are omitted as surplus. The words ‘‘provided to a person under this section’’ are substituted for ‘‘providing . . . in connection with rep- resenting a person in an action brought under this sec- tion’’ to eliminate unnecessary words. In subsection (c), the word ‘‘Federal’’ is omitted as surplus. The words ‘‘prescribed under this chapter’’ are added for clarity. In subsection (d), the words ‘‘enforcement of this chapter or any order or regulation under this chapter or to seek any other’’ are omitted as surplus. § 60122. Civil penalties (a) GENERAL PENALTIES.—(1) A person that the Secretary of Transportation decides, after writ- ten notice and an opportunity for a hearing, has violated section 60114(b), 60114(d), or 60118(a) of this title or a regulation prescribed or order issued under this chapter is liable to the United States Government for a civil penalty of not more than $200,000 for each violation. A separate violation occurs for each day the violation con- tinues. The maximum civil penalty under this paragraph for a related series of violations is $2,000,000. (2) A person violating a standard or order under section 60103 or 60111 of this title is liable to the Government for a civil penalty of not more than $50,000 for each violation. A penalty under this paragraph may be imposed in addi- tion to penalties imposed under paragraph (1) of this subsection. (3) A person violating section 60129, or an order issued thereunder, is liable to the Government for a civil penalty of not more than $1,000 for each violation. The penalties provided by para- graph (1) do not apply to a violation of section 60129 or an order issued thereunder. (b) PENALTY CONSIDERATIONS.—In determining the amount of a civil penalty under this sec- tion— (1) the Secretary shall consider— (A) the nature, circumstances, and gravity of the violation, including adverse impact on the environment; (B) with respect to the violator, the degree of culpability, any history of prior viola- tions, and any effect on ability to continue doing business; (C) good faith in attempting to comply; and (D) self-disclosure and correction of viola- tions, or actions to correct a violation, prior to discovery by the Pipeline and Hazardous Materials Safety Administration; and (2) the Secretary may consider— (A) the economic benefit gained from the violation without any reduction because of subsequent damages; and