49 U.S.C. § 5122 — Enforcement

Page 225 TITLE 49—TRANSPORTATION § 5122 and effectiveness of using paperless hazard communica- tions systems. At least 1 of the pilot projects under this section shall take place in a rural area. ‘‘(b) REQUIREMENTS.—In conducting pilot projects under this section, the Secretary— ‘‘(1) may not waive the requirements under section 5110 of title 49, United States Code; and ‘‘(2) shall consult with organizations representing— ‘‘(A) fire services personnel; ‘‘(B) law enforcement and other appropriate en- forcement personnel; ‘‘(C) other emergency response providers; ‘‘(D) persons who offer hazardous material for transportation; ‘‘(E) persons who transport hazardous material by air, highway, rail, and water; and ‘‘(F) employees of persons who transport or offer for transportation hazardous material by air, high- way, rail, and water. ‘‘(c) REPORT.—Not later than 2 years after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of Title 23, Highways], the Secretary shall— ‘‘(1) prepare a report on the results of the pilot projects carried out under this section, including— ‘‘(A) a detailed description of the pilot projects; ‘‘(B) an evaluation of each pilot project, including an evaluation of the performance of each paperless hazard communications system in such project; ‘‘(C) an assessment of the safety and security im- pact of using paperless hazard communications sys- tems, including any impact on the public, emer- gency response, law enforcement, and the conduct of inspections and investigations; ‘‘(D) an analysis of the associated benefits and costs of using the paperless hazard communications systems for each mode of transportation; and ‘‘(E) a recommendation that incorporates the in- formation gathered in subparagraphs (A), (B), (C), and (D) on whether paperless hazard communica- tions systems should be permanently incorporated into the Federal hazardous material transportation safety program under chapter 51 of title 49, United States Code; and ‘‘(2) submit a final report to the Committee on Commerce, Science, and Transportation of the Sen- ate and the Committee on Transportation and Infra- structure of the House of Representatives that con- tains the results of the pilot projects carried out under this section, including the matters described in paragraph (1). ‘‘(d) PAPERLESS HAZARD COMMUNICATIONS SYSTEM DE- FINED.—In this section, the term ‘paperless hazard com- munications system’ means the use of advanced com- munications methods, such as wireless communica- tions devices, to convey hazard information between all parties in the transportation chain, including emer- gency responders and law enforcement personnel. The format of communication may be equivalent to that used by the carrier.’’ HAZARDOUS MATERIAL ENFORCEMENT TRAINING Pub. L. 112–141, div. C, title III, § 33008, July 6, 2012, 126 Stat. 836, provided that: ‘‘(a) IN GENERAL.—Not later than 18 months after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of Title 23, Highways], the Secretary [of Transportation] shall develop uniform performance standards for train- ing hazardous material inspectors and investigators on— ‘‘(1) how to collect, analyze, and publish findings from inspections and investigations of accidents or incidents involving the transportation of hazardous material; and ‘‘(2) how to identify noncompliance with regula- tions issued under chapter 51 of title 49, United States Code, and take appropriate enforcement ac- tion. ‘‘(b) STANDARDS AND GUIDELINES.—The Secretary may develop— ‘‘(1) guidelines for hazardous material inspector and investigator qualifications; ‘‘(2) best practices and standards for hazardous ma- terial inspector and investigator training programs; and ‘‘(3) standard protocols to coordinate investigation efforts among Federal, State, and local jurisdictions on accidents or incidents involving the transpor- tation of hazardous material. ‘‘(c) AVAILABILITY.—The standards, protocols, and guidelines established under this section— ‘‘(1) shall be mandatory for— ‘‘(A) the Department of Transportation’s multimodal personnel conducting hazardous mate- rial enforcement inspections or investigations; and ‘‘(B) State employees who conduct federally fund- ed compliance reviews, inspections, or investiga- tions; and ‘‘(2) shall be made available to Federal, State, and local hazardous material safety enforcement per- sonnel.’’ FINALIZING REGULATIONS Pub. L. 112–141, div. C, title III, § 33009(b)(2), July 6, 2012, 126 Stat. 837, provided that: ‘‘In accordance with section 5103(b)(2) of title 49, United States Code, not later than 1 year after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of Title 23, Highways], the Sec- retary [of Transportation] shall take all actions nec- essary to finalize a regulation under paragraph (1) of this subsection [amending this section].’’ TOLL FREE NUMBER FOR REPORTING Pub. L. 103–311, title I, § 116, Aug. 26, 1994, 108 Stat. 1678, provided that: ‘‘The Secretary of Transportation shall designate a toll free telephone number for trans- porters of hazardous materials and other individuals to report to the Secretary possible violations of chapter 51 of title 49, United States Code, or any order or regula- tion issued under that chapter.’’ § 5122. Enforcement (a) GENERAL.—At the request of the Secretary, the Attorney General may bring a civil action in an appropriate district court of the United States to enforce this chapter or a regulation prescribed or order, special permit, or approval issued under this chapter. The court may award appropriate relief, including a temporary or per- manent injunction, punitive damages, and as- sessment of civil penalties considering the same penalty amounts and factors as prescribed for the Secretary in an administrative case under section 5123. (b) IMMINENT HAZARDS.—(1) If the Secretary has reason to believe that an imminent hazard exists, the Secretary may bring a civil action in an appropriate district court of the United States— (A) to suspend or restrict the transportation of the hazardous material responsible for the hazard; or (B) to eliminate or mitigate the hazard. (2) On request of the Secretary, the Attorney General shall bring an action under paragraph (1) of this subsection. (c) WITHHOLDING OF CLEARANCE.—(1) If any owner, operator, or individual in charge of a ves- sel is liable for a civil penalty under section 5123 of this title or for a fine under section 5124 of this title, or if reasonable cause exists to believe 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.