42 U.S.C. § 6303 — Enforcement

Page 6749 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6303 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2007 AMENDMENT Amendment by Pub. L. 110–140 effective on the date that is 1 day after Dec. 19, 2007, see section 1601 of Pub. L. 110–140, set out as an Effective Date note under sec- tion 1824 of Title 2, The Congress. § 6303. Enforcement (a) In general Except as provided in subsection (c), any per- son who knowingly violates any provision of section 6302 of this title shall be subject to a civil penalty of not more than $100 for each vio- lation. Such penalties shall be assessed by the Commission, except that penalties for violations of section 6302(a)(3) of this title which relate to requirements prescribed by the Secretary, viola- tions of section 6302(a)(4) of this title which re- late to requests of the Secretary under section 6296(b)(2) of this title, or violations of paragraph (5), (6), (7), or (8) of section 6302(a) of this title shall be assessed by the Secretary. Civil pen- alties assessed under this part may be com- promised by the agency or officer authorized to assess the penalty, taking into account the na- ture and degree of the violation and the impact of the penalty upon a particular respondent. Each violation of paragraph (1), (2), (5), (6), (7), or (8) of section 6302(a) of this title shall con- stitute a separate violation with respect to each covered product, and each day of violation of section 6302(a)(3) or (4) of this title shall con- stitute a separate violation. (b) ‘‘Knowingly’’ defined As used in subsection (a), the term ‘‘know- ingly’’ means (1) the having of actual knowl- edge, or (2) the presumed having of knowledge deemed to be possessed by a reasonable man who acts in the circumstances, including knowledge obtainable upon the exercise of due care. (c) Special rule It shall be an unfair or deceptive act or prac- tice in or affecting commerce (within the mean- ing of section 45(a)(1) of title 15) for any person to violate section 6293(c) of this title, except to the extent that such violation is prohibited under the provisions of section 6302(a)(1) of this title, in which case such provisions shall apply. (d) Procedure for assessing penalty (1) Before issuing an order assessing a civil penalty against any person under this section, the Secretary shall provide to such person no- tice of the proposed penalty. Such notice shall inform such person of his opportunity to elect in writing within 30 days after the date of receipt of such notice to have the procedures of para- graph (3) (in lieu of those of paragraph (2)) apply with respect to such assessment. (2)(A) Unless an election is made within 30 cal- endar days after receipt of notice under para- graph (1) to have paragraph (3) apply with re- spect to such penalty, the Secretary shall assess the penalty, by order, after a determination of violation has been made on the record after an opportunity for an agency hearing pursuant to section 554 of title 5 before an administrative law judge appointed under section 3105 of such title 5. Such assessment order shall include the administrative law judge’s findings and the basis for such assessment. (B) Any person against whom a penalty is as- sessed under this paragraph may, within 60 cal- endar days after the date of the order of the Sec- retary assessing such penalty, institute an ac- tion in the United States court of appeals for the appropriate judicial circuit for judicial re- view of such order in accordance with chapter 7 of title 5. The court shall have jurisdiction to enter a judgment affirming, modifying, or set- ting aside in whole or in part, the order of the Secretary, or the court may remand the pro- ceeding to the Secretary for such further action as the court may direct. (3)(A) In the case of any civil penalty with re- spect to which the procedures of this paragraph have been elected, the Secretary shall promptly assess such penalty, by order, after the date of the receipt of the notice under paragraph (1) of the proposed penalty. (B) If the civil penalty has not been paid with- in 60 calendar days after the assessment order has been made under subparagraph (A), the Sec- retary shall institute an action in the appro- priate district court of the United States for an order affirming the assessment of the civil pen- alty. The court shall have authority to review de novo the law and the facts involved, and shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or set- ting aside in whole or in part, such assessment. (C) Any election to have this paragraph apply may not be revoked except with the consent of the Secretary. (4) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order under paragraph (2), or after the appropriate district court has entered final judgment in favor of the Secretary under para- graph (3), the Secretary shall institute an action to recover the amount of such penalty in any ap- propriate district court of the United States. In such action, the validity and appropriateness of such final assessment order or judgment shall not be subject to review. (5)(A) Notwithstanding the provisions of title 28 or section 7192(c) of this title, the Secretary shall be represented by the general counsel of the Department of Energy (or any attorney or attorneys within the Department of Energy des- ignated by the Secretary) who shall supervise, conduct, and argue any civil litigation to which paragraph (3) of this subsection applies (includ- ing any related collection action under para- graph (4)) in a court of the United States or in any other court, except the Supreme Court. However, the Secretary or the general counsel shall consult with the Attorney General con- cerning such litigation, and the Attorney Gen- eral shall provide, on request, such assistance in the conduct of such litigation as may be appro- priate. (B) Subject to the provisions of section 7192(c) of this title, the Secretary shall be represented by the Attorney General, or the Solicitor Gen- eral, as appropriate, in actions under this sub- section, except to the extent provided in sub- paragraph (A) of this paragraph. (C) Section 7172(d) of this title shall not apply with respect to the functions of the Secretary under this subsection. Page 6750 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6304 (6) For purposes of applying the preceding pro- visions of this subsection in the case of the as- sessment of a penalty by the Commission for a violation of paragraphs (1) and (2) of section 6302 of this title, references in such provisions to ‘‘Secretary’’ and ‘‘Department of Energy’’ shall be considered to be references to the ‘‘Commis- sion’’. (Pub. L. 94–163, title III, § 333, Dec. 22, 1975, 89 Stat. 929; Pub. L. 95–619, title IV, §§ 423, 425(e), title VI, § 691(b)(2), Nov. 9, 1978, 92 Stat. 3262, 3266, 3288; Pub. L. 100–12, § 11(b)(6), Mar. 17, 1987, 101 Stat. 125; Pub. L. 114–11, title II, § 201(3), Apr. 30, 2015, 129 Stat. 189.) Editorial Notes AMENDMENTS 2015—Subsec. (a). Pub. L. 114–11 substituted ‘‘para- graph (5), (6), (7), or (8) of section 6302(a)’’ for ‘‘section 6302(a)(5)’’ and ‘‘paragraph (1), (2), (5), (6), (7), or (8) of section 6302(a)’’ for ‘‘paragraph (1), (2), or (5) of section 6302(a)’’. 1987—Pub. L. 100–12 inserted headings for subsecs. (a) to (d). 1978—Subsec. (a). Pub. L. 95–619, §§ 425(e)(1), 691(b)(2), substituted ‘‘Secretary’’ for ‘‘Administrator’’, meaning Administrator of the Federal Energy Administration, wherever appearing, and ‘‘subsection (c)’’ for ‘‘sub- section (b)’’. Subsec. (c). Pub. L. 95–619, § 425(e)(2), substituted ‘‘section 6293(c) of this title’’ for ‘‘section 6293(d)(2) of this title’’ and inserted provision making an exception from the unfair or deceptive act or practice rule. Subsec. (d). Pub. L. 95–619, § 423, added subsec. (d). § 6304. Injunctive enforcement The United States district courts shall have jurisdiction to restrain (1) any violation of sec- tion 6302 of this title and (2) any person from distributing in commerce any covered product which does not comply with an applicable rule under section 6294 or 6295 of this title. Any such action shall be brought by the Commission, ex- cept that any such action to restrain any viola- tion of section 6302(a)(3) of this title which re- lates to requirements prescribed by the Sec- retary, any violation of section 6302(a)(4) of this title which relates to requests of the Secretary under section 6296(b)(2) of this title, or any vio- lation of paragraph (5), (6), (7), or (8) of section 6302(a) of this title shall be brought by the Sec- retary. Any such action to restrain any person from distributing in commerce a general service incandescent lamp that does not comply with the applicable standard established under sec- tion 6295(i) of this title or an adapter prohibited under section 6302(a)(7) of this title may also be brought by the attorney general of a State in the name of the State. Any such action may be brought in any United States district court for a district wherein any act, omission, or trans- action constituting the violation occurred, or in such court for the district wherein the defend- ant is found or transacts business. In any action under this section, process may be served on a defendant in any other district in which the de- fendant resides or may be found. (Pub. L. 94–163, title III, § 334, Dec. 22, 1975, 89 Stat. 929; Pub. L. 95–619, title VI, § 691(b)(2), Nov. 9, 1978, 92 Stat. 3288; Pub. L. 110–140, title III, § 321(f), Dec. 19, 2007, 121 Stat. 1586; Pub. L. 114–11, title II, § 201(4), Apr. 30, 2015, 129 Stat. 189.) Editorial Notes AMENDMENTS 2015—Pub. L. 114–11 substituted ‘‘paragraph (5), (6), (7), or (8) of section 6302(a)’’ for ‘‘section 6302(a)(5)’’ and ‘‘section 6302(a)(7)’’ for ‘‘section 6302(a)(6)’’. 2007—Pub. L. 110–140 inserted after second sentence ‘‘Any such action to restrain any person from distrib- uting in commerce a general service incandescent lamp that does not comply with the applicable standard es- tablished under section 6295(i) of this title or an adapt- er prohibited under section 6302(a)(6) of this title may also be brought by the attorney general of a State in the name of the State.’’ 1978—Pub. L. 95–619 substituted ‘‘Secretary’’ for ‘‘Ad- ministrator’’, meaning Administrator of the Federal Energy Administration, wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2007 AMENDMENT Amendment by Pub. L. 110–140 effective on the date that is 1 day after Dec. 19, 2007, see section 1601 of Pub. L. 110–140, set out as an Effective Date note under sec- tion 1824 of Title 2, The Congress. § 6305. Citizen suits (a) Civil actions; jurisdiction Except as otherwise provided in subsection (b), any person may commence a civil action against— (1) any manufacturer or private labeler who is alleged to be in violation of any provision of this part or any rule under this part; (2) any Federal agency which has a responsi- bility under this part where there is an alleged failure of such agency to perform any act or duty under this part which is not discre- tionary; or (3) the Secretary in any case in which there is an alleged failure of the Secretary to com- ply with a nondiscretionary duty to issue a proposed or final rule according to the sched- ules set forth in section 6295 of this title. The United States district courts shall have ju- risdiction, without regard to the amount in con- troversy or the citizenship of the parties, to en- force such provision or rule, or order such Fed- eral agency to perform such act or duty, as the case may be. The courts shall advance on the docket, and expedite the disposition of, all causes filed therein pursuant to paragraph (3) of this subsection. If the court finds that the Sec- retary has failed to comply with a deadline es- tablished in section 6295 of this title, the court shall have jurisdiction to order appropriate re- lief, including relief that will ensure the Sec- retary’s compliance with future deadlines for the same covered product. (b) Limitation No action may be commenced— (1) under subsection (a)(1)— (A) prior to 60 days after the date on which the plaintiff has given notice of the viola- tion (i) to the Secretary, (ii) to the Commis- sion, and (iii) to any alleged violator of such provision or rule, or (B) if the Commission has commenced and is diligently prosecuting a civil action to re-