42 U.S.C. § 4909 — Prohibited acts

Page 6248 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 4906 (B) with respect to any component incor- porated into such new product by the manu- facturer of such product, any law or regulation setting a limit on noise emissions from such component when so incorporated. (2) Subject to sections 4916 and 4917 of this title, nothing in this section precludes or denies the right of any State or political subdivision thereof to establish and enforce controls on en- vironmental noise (or one or more sources there- of) through the licensing, regulation, or restric- tion of the use, operation, or movement of any product or combination of products. (f) Publication of notice of receipt of revision pe- titions and proposed revised regulations At any time after the promulgation of regula- tions respecting a product under this section, a State or political subdivision thereof may peti- tion the Administrator to revise such standard on the grounds that a more stringent standard under subsection (c) of this section is necessary to protect the public health and welfare. The Administration shall publish notice of receipt of such petition in the Federal Register and shall within ninety days of receipt of such petition re- spond by (1) publication of proposed revised reg- ulations in accordance with subsection (c)(3) of this section, or (2) publication in the Federal Register of a decision not to publish such pro- posed revised regulations at that time, together with a detailed explanation for such decision. (Pub. L. 92–574, § 6, Oct. 27, 1972, 86 Stat. 1237; Pub. L. 95–609, § 5, Nov. 8, 1978, 92 Stat. 3081.) Editorial Notes REFERENCES IN TEXT The Clean Air Act, referred to in subsec. (c)(1), is act July 14, 1955, ch. 360, 69 Stat. 322, which is classified generally to chapter 85 (§ 7401 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 7401 of this title and Tables. The Federal Water Pollution Control Act, referred to in subsec. (c)(1), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 816, which is classified generally to chapter 26 (§ 1251 et seq.) of Title 33, Navigation and Navigable Waters. For com- plete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Ta- bles. CODIFICATION In subsec. (c)(1), ‘‘chapter 301 of title 49’’ substituted for ‘‘the National Traffic and Motor Vehicle Safety Act of 1966 [15 U.S.C. 1381 et seq.]’’ on authority of Pub. L. 103–272, § 6(b), July 5, 1994, 108 Stat. 1378, the first sec- tion of which enacted subtitles II, III, and V to X of Title 49, Transportation. AMENDMENTS 1978—Subsec. (f). Pub. L. 95–609 added subsec. (f). § 4906. Omitted Editorial Notes CODIFICATION Section, Pub. L. 92–574, § 7(a), Oct. 27, 1972, 86 Stat. 1239, related to a study by the Administrator of the adequacy of noise controls, noise emission standards, and measures available to control such noise, the re- sults of such study to be reported to the appropriate committees of Congress within nine months after Oct. 27, 1972. § 4907. Labeling (a) Regulations The Administrator shall by regulation des- ignate any product (or class thereof)— (1) which emits noise capable of adversely af- fecting the public health or welfare; or (2) which is sold wholly or in part on the basis of its effectiveness in reducing noise. (b) Manner of notice; form; methods and units of measurement For each product (or class thereof) designated under subsection (a) the Administrator shall by regulation require that notice be given to the prospective user of the level of the noise the product emits, or of its effectiveness in reducing noise, as the case may be. Such regulations shall specify (1) whether such notice shall be affixed to the product or to the outside of its container, or to both, at the time of its sale to the ultimate purchaser or whether such notice shall be given to the prospective user in some other manner, (2) the form of the notice, and (3) the methods and units of measurement to be used. Section 4905(c)(2) of this title shall apply to the pre- scribing of any regulation under this section. (c) State regulation of product labeling This section does not prevent any State or po- litical subdivision thereof from regulating prod- uct labeling or information respecting products in any way not in conflict with regulations pre- scribed by the Administrator under this section. (Pub. L. 92–574, § 8, Oct. 27, 1972, 86 Stat. 1241.) § 4908. Imports The Secretary of the Treasury shall, in con- sultation with the Administrator, issue regula- tions to carry out the provisions of this chapter with respect to new products imported or offered for importation. (Pub. L. 92–574, § 9, Oct. 27, 1972, 86 Stat. 1242.) § 4909. Prohibited acts (a) Except as otherwise provided in subsection (b), the following acts or the causing thereof are prohibited: (1) In the case of a manufacturer, to dis- tribute in commerce any new product manu- factured after the effective date of a regula- tion prescribed under section 4905 of this title which is applicable to such product, except in conformity with such regulation. (2)(A) The removal or rendering inoperative by any person, other than for purposes of maintenance, repair, or replacement, of any device or element of design incorporated into any product in compliance with regulations under section 4905 of this title, prior to its sale or delivery to the ultimate purchaser or while it is in use, or (B) the use of a product after such device or element of design has been re- moved or rendered inoperative by any person. (3) In the case of a manufacturer, to dis- tribute in commerce any new product manu- factured after the effective date of a regula- Page 6249 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 4911 1 So in original. Probably should be subsection ‘‘(f)’’. tion prescribed under section 4907(b) of this title (requiring information respecting noise) which is applicable to such product, except in conformity with such regulation. (4) The removal by any person of any notice affixed to a product or container pursuant to regulations prescribed under section 4907(b) of this title, prior to sale of the product to the ultimate purchaser. (5) The importation into the United States by any person of any new product in violation of a regulation prescribed under section 4908 of this title which is applicable to such product. (6) The failure or refusal by any person to comply with any requirement of section 4910(d) or 4912(a) of this title or regulations prescribed under section 4912(a), 4916, or 4917 of this title. (b)(1) For the purpose of research, investiga- tions, studies, demonstrations, or training, or for reasons of national security, the Adminis- trator may exempt for a specified period of time any product, or class thereof, from paragraphs (1), (2), (3), and (5) of subsection (a), upon such terms and conditions as he may find necessary to protect the public health or welfare. (2) Paragraphs (1), (2), (3), and (4) of subsection (a) shall not apply with respect to any product which is manufactured solely for use outside any State and which (and the container of which) is labeled or otherwise marked to show that it is manufactured solely for use outside any State; except that such paragraphs shall apply to such product if it is in fact distributed in commerce for use in any State. (Pub. L. 92–574, § 10, Oct. 27, 1972, 86 Stat. 1242.) § 4910. Enforcement (a) Criminal penalties (1) Any person who willfully or knowingly vio- lates paragraph (1), (3), (5), or (6) of subsection (a) of section 4909 of this title shall be punished by a fine of not more than $25,000 per day of vio- lation, or by imprisonment for not more than one year, or by both. If the conviction is for a violation committed after a first conviction of such person under this subsection, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment for not more than two years, or by both. (2) Any person who violates paragraph (1), (3), (5), or (6) of subsection (a) of section 4909 of this title shall be subject to a civil penalty not to ex- ceed $10,000 per day of such violation. (b) Separate violations For the purpose of this section, each day of violation of any paragraph of section 4909(a) of this title shall constitute a separate violation of that section. (c) Actions to restrain violations The district courts of the United States shall have jurisdiction of actions brought by and in the name of the United States to restrain any violations of section 4909(a) of this title. (d) Orders issued to protect public health and welfare; notice; opportunity for hearing (1) Whenever any person is in violation of sec- tion 4909(a) of this title, the Administrator may issue an order specifying such relief as he deter- mines is necessary to protect the public health and welfare. (2) Any order under this subsection shall be issued only after notice and opportunity for a hearing in accordance with section 554 of title 5. (e) ‘‘Person’’ defined The term ‘‘person,’’ as used in this section, does not include a department, agency, or in- strumentality of the United States. (Pub. L. 92–574, § 11, Oct. 27, 1972, 86 Stat. 1242; Pub. L. 95–609, § 4, Nov. 8, 1978, 92 Stat. 3081.) Editorial Notes AMENDMENTS 1978—Subsec. (a). Pub. L. 95–609 redesignated existing provisions as par. (1) and added par. (2). § 4911. Citizen suits (a) Authority to commence suits Except as provided in subsection (b), any per- son (other than the United States) may com- mence a civil action on his own behalf— (1) against any person (including (A) the United States, and (B) any other govern- mental instrumentality or agency to the ex- tent permitted by the eleventh amendment to the Constitution) who is alleged to be in viola- tion of any noise control requirement (as de- fined in subsection (e) 1), or (2) against— (A) the Administrator of the Environ- mental Protection Agency where there is al- leged a failure of such Administrator to per- form any act or duty under this chapter which is not discretionary with such Admin- istrator, or (B) the Administrator of the Federal Avia- tion Administration where there is alleged a failure of such Administrator to perform any act or duty under section 44715 of title 49 which is not discretionary with such Admin- istrator. The district courts of the United States shall have jurisdiction, without regard to the amount in controversy, to restrain such person from vio- lating such noise control requirement or to order such Administrator to perform such act or duty, as the case may be. (b) Notice No action may be commenced— (1) under subsection (a)(1)— (A) prior to sixty days after the plaintiff has given notice of the violation (i) to the Administrator of the Environmental Protec- tion Agency (and to the Federal Aviation Administrator in the case of a violation of a noise control requirement under such sec- tion 44715 of title 49) and (ii) to any alleged violator of such requirement, or (B) if an Administrator has commenced and is diligently prosecuting a civil action to require compliance with the noise control requirement, but in any such action in a court of the United States any person may intervene as a matter of right, or