42 U.S.C. § 6302 — Prohibited acts

Page 6748 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6301 (2) such covered product when distributed in commerce, or any container in which it is en- closed when so distributed, bears a stamp or label stating that such covered product is in- tended for export. (Pub. L. 94–163, title III, § 330, Dec. 22, 1975, 89 Stat. 928.) § 6301. Imports Any covered product offered for importation in violation of section 6302 of this title shall be refused admission into the customs territory of the United States under rules issued by the Sec- retary of the Treasury, except that the Sec- retary of the Treasury may, by such rules, au- thorize the importation of such covered product upon such terms and conditions (including the furnishing of a bond) as may appear to him ap- propriate to ensure that such covered product will not violate section 6302 of this title, or will be exported or abandoned to the United States. The Secretary of the Treasury shall prescribe rules under this section not later than 180 days after December 22, 1975. (Pub. L. 94–163, title III, § 331, Dec. 22, 1975, 89 Stat. 928.) § 6302. Prohibited acts (a) In general It shall be unlawful— (1) for any manufacturer or private labeler to distribute in commerce any new covered product to which a rule under section 6294 of this title applies, unless such covered product is labeled in accordance with such rule; (2) for any manufacturer, distributor, re- tailer, or private labeler to remove from any new covered product or render illegible any label required to be provided with such prod- uct under a rule under section 6294 of this title; (3) for any manufacturer to fail to permit ac- cess to, or copying of, records required to be supplied under this part, or fail to make re- ports or provide other information required to be supplied under this part; (4) for any person to fail to comply with an applicable requirement of section 6296(a), (b)(2), (b)(3), or (b)(5) of this title; (5) for any manufacturer or private labeler to distribute in commerce any new covered product which is not in conformity with an ap- plicable energy conservation standard estab- lished in or prescribed under this part, except to the extent that the new covered product is covered by a regional standard that is more stringent than the base national standard; (6) for any manufacturer or private labeler to knowingly sell a product to a distributor, contractor, or dealer with knowledge that the entity routinely violates any regional stand- ard applicable to the product; (7) for any manufacturer, distributor, re- tailer, or private labeler to distribute in com- merce an adapter that— (A) is designed to allow an incandescent lamp that does not have a medium screw base to be installed into a fixture or lampholder with a medium screw base sock- et; and (B) is capable of being operated at a volt- age range at least partially within 110 and 130 volts; or (8) for any person— (A) to activate an activation lock for a grid-enabled water heater with knowledge that such water heater is not used as part of an electric thermal storage or demand re- sponse program; (B) to distribute an activation key for a grid-enabled water heater with knowledge that such activation key will be used to ac- tivate a grid-enabled water heater that is not used as part of an electric thermal stor- age or demand response program; (C) to otherwise enable a grid-enabled water heater to operate at its designed spec- ification and capabilities with knowledge that such water heater is not used as part of an electric thermal storage or demand re- sponse program; or (D) to knowingly remove or render illegi- ble the label of a grid-enabled water heater described in section 6295(e)(6)(A)(ii)(V) of this title. (b) ‘‘New covered product’’ defined For purposes of this section, the term ‘‘new covered product’’ means a covered product the title of which has not passed to a purchaser who buys such product for purposes other than (1) re- selling such product, or (2) leasing such product for a period in excess of one year. (Pub. L. 94–163, title III, § 332, Dec. 22, 1975, 89 Stat. 928; Pub. L. 100–12, § 11(a)(3), (b)(5), Mar. 17, 1987, 101 Stat. 125; Pub. L. 110–140, title III, §§ 306(b), 321(e), Dec. 19, 2007, 121 Stat. 1559, 1586; Pub. L. 114–11, title II, § 201(2), Apr. 30, 2015, 129 Stat. 188.) Editorial Notes AMENDMENTS 2015—Subsec. (a)(6) to (8). Pub. L. 114–11 redesignated par. (6) relating to prohibition of distribution in com- merce of certain adapters as (7) and added par. (8). 2007—Subsec. (a)(4). Pub. L. 110–140, § 321(e)(1), which directed the striking out of ‘‘or’’ after semicolon at end, could not be executed after amendment by Pub. L. 110–140, § 306(b)(1). See below. Pub. L. 110–140, § 306(b)(1), struck out ‘‘or’’ after semi- colon at end. Subsec. (a)(5). Pub. L. 110–140, § 321(e)(2), which di- rected substitution of ‘‘; or’’ for period at end, could not be executed after amendment by Pub. L. 110–140, § 306(b)(2). See below. Pub. L. 110–140, § 306(b)(2), substituted ‘‘part, except to the extent that the new covered product is covered by a regional standard that is more stringent than the base national standard; or’’ for ‘‘part.’’ Subsec. (a)(6). Pub. L. 110–140, § 321(e)(3), added par. (6) relating to prohibition of distribution in commerce of certain adapters. Pub. L. 110–140, § 306(b)(3), added par. (6) relating to sale of a product to a distributor, contractor, or dealer with knowledge that the entity routinely violates a re- gional standard. 1987—Subsec. (a). Pub. L. 100–12, § 11(b)(5)(A), inserted heading. Subsec. (a)(5). Pub. L. 100–12, § 11(a)(3), substituted ‘‘energy conservation standard established in or pre- scribed under’’ for ‘‘energy efficiency standard pre- scribed under’’. Subsec. (b). Pub. L. 100–12, § 11(b)(5)(B), inserted head- ing. 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.