16 U.S.C. § 620d — Monitoring and enforcement

Page 1144 TITLE 16—CONSERVATION § 620d and struck out former subpars. (B) and (C). Prior to amendment, former subpars. (A) to (C) read as follows: ‘‘(A) The Secretary of Commerce shall issue an order referred to in subsection (a) of this section not later than 21 days after August 20, 1990. Such order shall cover a period beginning 120 days after the issuance of such an order, or January 1, 1991, whichever is earlier, and shall extend to December 31, 1991. Such order shall prohibit the export of 75 percent of the annual sales volume in such State of unprocessed timber from pub- lic lands. ‘‘(B) For the period beginning on January 1, 1992, and ending on December 31, 1993, the Secretary of Com- merce shall, after notice and an opportunity for a hear- ing, issue an order referred to in subsection (a) of this section not later than September 30, 1991. Such order shall prohibit the export of at least 75 percent of such State’s annual sales volume for this 2-year period. ‘‘(C) For the period beginning on January 1, 1994, and ending on December 31, 1995, the Secretary of Com- merce shall, after notice and an opportunity for a hear- ing, issue an order referred to in subsection (a) of this section not later than September 30, 1993. Such order shall prohibit the export of at least 75 percent of such State’s annual sales volume for this 2-year period.’’ Subsec. (b)(3), (4). Pub. L. 103–45, § 2(2)(C), (D), added par. (3), redesignated former par. (3) as (4), and sub- stituted ‘‘the Secretary of Commerce pursuant to sec- tions 620 to 620j of this title and the effectiveness of State programs authorized under subsection (d)’’ for ‘‘States pursuant to sections 620 to 620j of this title’’. Subsecs. (c) to (l). Pub. L. 103–45, § 2(3), (4), added sub- secs. (c) to (f), struck out former subsecs. (c) and (d) which related to basis for increase in volume prohibited from export and administrative provisions, respec- tively, and redesignated former subsecs. (e) to (j) as (g) to (l), respectively. Statutory Notes and Related Subsidiaries SEVERABILITY OF PROVISIONS Pub. L. 103–45, § 4, July 1, 1993, 107 Stat. 228, provided that: ‘‘If any provision of this Act [amending this sec- tion and section 620d of this title and enacting provi- sions set out as a note under section 620 of this title], or the amendments made by this Act, or the applica- tion thereof to any person or circumstance is held in- valid, the remainder of this Act and such amendments and the application of such provision to other persons not similarly situated or to other circumstances shall not be affected by such invalidation.’’ EXTENSION AND ISSUANCE OF ORDER UNDER SUBSECTION (b)(2) Pub. L. 104–208, div. A, title I, § 101(d) [title III], Sept. 30, 1996, 110 Stat. 3009–181, 3009–223, which in part di- rected Secretary of Commerce to extend until Sept. 30, 1997, the order issued under subsec. (b)(2)(A) of this sec- tion and to issue an order under subsec. (b)(2)(B) of this section effective Oct. 1, 1997, was from the Department of the Interior and Related Agencies Appropriations Act, 1997, and was not repeated in subsequent appro- priations acts. Similar provisions were contained in the following prior appropriation acts: Pub. L. 104–134, title I, § 101(c) [title III, § 333], Apr. 26, 1996, 110 Stat. 1321–156, 1321–210; renumbered title I, Pub. L. 104–140, § 1(a), May 2, 1996, 110 Stat. 1327. Pub. L. 104–99, title I, § 130, Jan. 26, 1996, 110 Stat. 34. § 620d. Monitoring and enforcement (a) Monitoring and reports In accordance with regulations issued under this section— (1) each person who acquires, either directly or indirectly, unprocessed timber originating from Federal lands west of the 100th meridian in the contiguous 48 States shall report the re- ceipt and disposition of such timber to the Secretary concerned, in such form as such Secretary may by rule prescribe; except that nothing in this paragraph shall be construed to hold any person responsible for the report- ing of the disposition of any such timber held by subsequent persons; (2) each person who transfers to another per- son unprocessed timber originating from Fed- eral lands west of the 100th meridian in the contiguous 48 States shall, before completing such transfer— (A) provide to such other person a written notice, in such form as the Secretary con- cerned may prescribe, which shall identify the Federal origin of such timber; (B) receive from such other person a writ- ten acknowledgment of such notice and a written agreement that such other person will comply with the requirements of sec- tions 620 to 620j of this title, in such form as the Secretary concerned may prescribe; and (C) provide to the Secretary concerned copies of all notices, acknowledgments, and agreements referred to in subparagraphs (A) and (B); (3) each person who acquires, either directly or indirectly, unprocessed timber originating from public lands in a State that is subject to an order issued by the Secretary of Commerce under section 620c(a) of this title, other than a State that is administering and enforcing a program under section 620c(d) of this title, shall report the receipt and disposition of the timber to the Secretary of Commerce, in such form as the Secretary may by rule prescribe, except that nothing in this paragraph shall be construed to hold any person responsible for reporting the disposition of any timber held by subsequent persons; and (4) each person who transfers to another per- son unprocessed timber originating from pub- lic lands in a State that is subject to an order issued by the Secretary of Commerce under section 620c(a) of this title, other than a State that is administering and enforcing a program under section 620c(d) of this title, shall, before completing the transfer— (A) provide to such other person a written notice, in such form as the Secretary of Commerce may prescribe, that shall identify the public lands from which the timber originated; and (B) receive from such other person— (i) a written acknowledgment of the no- tice, and (ii) a written agreement that the recipi- ent of the timber will comply with the re- quirements of sections 620 to 620j of this title, in such form as the Secretary of Commerce may prescribe; and (C) provide to the Secretary of Commerce copies of all notices, acknowledgments, and agreements referred to in subparagraphs (A) and (B). (b) Report to Congress Using the information gathered under sub- section (a), the Secretaries of Agriculture and Page 1145 TITLE 16—CONSERVATION § 620d 1 So in original. Probably should be ‘‘Contractual’’. Interior shall, not later than June 1, 1995, sub- mit to the Congress a report on the disposition of unprocessed timber harvested from Federal lands west of the 100th meridian in the contig- uous 48 States, and recommendations con- cerning the practice of indirect substitution of such timber for exported timber harvested from private lands. Specifically, such report shall— (1) analyze the effects of indirect substi- tution on market efficiency; (2) analyze the effects of indirect substi- tution on domestic log supply; (3) offer any recommendations that the Sec- retaries consider necessary for specific statu- tory or regulatory changes regarding indirect substitution; (4) provide summaries of the data collected; (5) analyze the effects of the provisions of section 620b(b)(2)(C) of this title; and (6) provide such other information as the Secretaries consider appropriate. (c) Civil penalties for violation (1) Exports (A) If the Secretary concerned finds, on the record and after an opportunity for a hearing, that a person, with willful disregard for the prohibition contained in sections 620 to 620j of this title against exporting Federal timber, exported or caused to be exported unprocessed timber originating from Federal lands in vio- lation of sections 620 to 620j of this title, such Secretary may assess against such person a civil penalty of not more than $500,000 for each violation, or 3 times the gross value of the un- processed timber involved in the violation, whichever amount is greater. (B)(i) Subject to clause (ii), if the Secretary of Commerce finds, on the record and after an opportunity for a hearing, that a person, with willful disregard for the restrictions contained in an order of the Secretary under section 620c(a) of this title on exports of unprocessed timber from public lands, exported or caused to be exported unprocessed timber originating from public lands in violation of such order, the Secretary may assess against such person a civil penalty of not more than $500,000 for each violation, or 3 times the gross value of the unprocessed timber involved in the viola- tion, whichever amount is greater. (ii) Clause (i) shall not apply with respect to exports of unprocessed timber originating from public lands in a State that is admin- istering and enforcing a program under sec- tion 620c(d) of this title. (2) Other violations (A) If the Secretary concerned finds, on the record and after an opportunity for a hearing, that a person has violated any provision of sections 620 to 620j of this title or any regula- tion issued under sections 620 to 620j of this title relating to lands which they administer (notwithstanding that such violation may not have caused the export of unprocessed Federal timber in violation of sections 620 to 620j of this title), such Secretary may— (i) assess against such person a civil pen- alty of not more than $75,000 for each viola- tion if the Secretary determines that the person committed such violation in dis- regard of such provision or regulation; (ii) assess against such person a civil pen- alty of not more than $50,000 for each viola- tion if the Secretary determines that the person should have known that the action constituted a violation; or (iii) assess against such person a civil pen- alty of not more than $500,000 if the Sec- retary determines that the person com- mitted such violation willfully. (B)(i) Subject to clause (ii), if the Secretary of Commerce finds, on the record and after an opportunity for a hearing, that a person has violated, on or after June 1, 1993, any provision of sections 620 to 620j of this title or any regu- lation issued under sections 620 to 620j of this title relating to the export of unprocessed tim- ber originating from public lands (whether or not the violation caused the export of unproc- essed timber from public lands in violation of sections 620 to 620j of this title), the Secretary may assess against such person a civil penalty to the same extent as the Secretary concerned may impose a penalty under clause (i), (ii), or (iii) of subparagraph (A). (ii) Clause (i) shall not apply with respect to unprocessed timber originating from public lands in a State that is administering and en- forcing a program under section 620c(d) of this title. (C) MITIGATION OF PENALTIES.— (i) IN GENERAL.—The Secretary con- cerned— (I) in determining the applicability of any penalty imposed under this paragraph, shall take into account all relevant miti- gating factors, including mistake, inad- vertence, and error; and (II) based on any mitigating factor, may, with respect to any penalty imposed under this paragraph— (aa) reduce the penalty; (bb) not impose the penalty; or (cc) on condition of there being no fur- ther violation under this paragraph for a prescribed period, suspend imposition of the penalty. (ii) CONTRACTURAL 1 REMEDIES.—In the case of a minor violation of sections 620 to 620j of this title (including a regulation), the Sec- retary concerned shall, to the maximum ex- tent practicable, permit a contracting offi- cer to redress the violation in accordance with the applicable timber sale contract rather than assess a penalty under this para- graph. (3) Penalties not exclusive; judicial review A penalty assessed under this subsection shall not be exclusive of any other penalty provided by law and shall be subject to review in an appropriate United States district court. (d) Administrative remedies (1) Debarment (A) In general Subject to subparagraph (B), the head of the appropriate Federal department or agen- Page 1146 TITLE 16—CONSERVATION § 620e cy under sections 620 to 620j of this title may debar any person who violates sections 620 to 620j of this title, or any regulation or con- tract issued under sections 620 to 620j of this title, from entering into any contract for the purchase of unprocessed timber from Federal lands for a period of not more than 5 years. Such person shall also be precluded from taking delivery of Federal timber purchased by another party for the period of debar- ment. (B) Prerequisites for debarment (i) In general No person may be debarred from bidding for or entering into a contract for the pur- chase of unprocessed timber from Federal lands under subparagraph (A) unless the head of the appropriate Federal depart- ment or agency first finds, on the record and after an opportunity for a hearing, that debarment is warranted. (ii) Withholding of awards during debar- ment proceedings The head of an appropriate Federal de- partment or agency may withhold an award under sections 620 to 620j of this title of a contract for the purchase of un- processed timber from Federal lands dur- ing a debarment proceeding. (2) Cancellation of contracts The head of the appropriate Federal depart- ment or agency under sections 620 to 620j of this title may cancel any contract entered into with a person found to have violated sec- tions 620 to 620j of this title or regulations issued under sections 620 to 620j of this title. (e) Exception Subsections (c) and (d) do not apply to viola- tions of section 620i of this title. (Pub. L. 101–382, title IV, § 492, Aug. 20, 1990, 104 Stat. 722; Pub. L. 103–45, § 3, July 1, 1993, 107 Stat. 226; Pub. L. 105–83, title VI, § 603, Nov. 14, 1997, 111 Stat. 1620.) Editorial Notes AMENDMENTS 1997—Subsec. (c)(2)(C). Pub. L. 105–83, § 603(1), added subpar. (C). Subsec. (d)(1). Pub. L. 105–83, § 603(2), inserted subpar. (A) designation and heading, substituted ‘‘Subject to subparagraph (B), the head’’ for ‘‘The head’’, and added subpar. (B). 1993—Subsec. (a)(3), (4). Pub. L. 103–45, § 3(a), added pars. (3) and (4). Subsec. (c)(1). Pub. L. 103–45, § 3(b)(1), designated ex- isting provisions as subpar. (A) and added subpar. (B). Subsec. (c)(2). Pub. L. 103–45, § 3(b)(2), designated ex- isting provisions as subpar. (A), redesignated former subpars. (A) to (C) as cls. (i) to (iii) of subpar. (A), and added subpar. (B). § 620e. Definitions For purposes of sections 620 to 620j of this title: (1) The term ‘‘acquire’’ means to come into possession of, whether directly or indirectly, through a sale, trade, exchange, or other transaction, and the term ‘‘acquisition’’ means the act of acquiring. (2) The term ‘‘Federal lands’’ means lands that are owned by the United States, but does not include any lands the title to which is— (A) held in trust by the United States for the benefit of any Indian tribe or individual, (B) held by any Indian tribe or individual subject to a restriction by the United States against alienation, or (C) held by any Native Corporation as de- fined in section 1602 of title 43. (3) MINOR VIOLATION.—The term ‘‘minor vio- lation’’ means a violation, other than an in- tentional violation, involving a single con- tract, purchase order, processing facility, or log yard involving a quantity of logs that is less than 25 logs and has a total value (at the time of the violation) of less than $10,000. (4) NORTHWESTERN PRIVATE TIMBER OPEN MARKET AREA.—The term ‘‘northwestern pri- vate timber open market area’’ means the State of Washington. (5) The term ‘‘person’’ means any individual, partnership, corporation, association, or other legal entity and includes any subsidiary, sub- contractor, or parent company, and business affiliates where 1 affiliate controls or has the power to control the other or when both are controlled directly or indirectly by a third person. (6) The term ‘‘private lands’’ means lands held or owned by a person. Such term does not include Federal lands or public lands, or any lands the title to which is— (A) held in trust by the United States for the benefit of any Indian tribe or individual, (B) held by any Indian tribe or individual subject to a restriction by the United States against alienation, or (C) held by any Native Corporation as de- fined in section 1602 of title 43. (7) The term ‘‘public lands’’ means lands west of the 100th meridian in the contiguous 48 States, that are held or owned by a State or political subdivision thereof, or any other pub- lic agency. Such term does not include any lands the title to which is— (A) held by the United States; (B) held in trust by the United States for the benefit of any Indian tribe or individual, (C) held by any Indian tribe or individual subject to a restriction by the United States against alienation, or (D) held by any Native Corporation as de- fined in section 1602 of title 43. (8) The term ‘‘Secretary concerned’’ means— (A) the Secretary of Agriculture, with re- spect to Federal lands administered by that Secretary; and (B) the Secretary of the Interior with re- spect to Federal lands administered by that Secretary. (9)(A) The term ‘‘unprocessed timber’’ means trees or portions of trees or other roundwood not processed to standards and specifications suitable for end product use. (B) The term ‘‘unprocessed timber’’ does not include timber processed into any one of the following: (i) Lumber or construction timbers, except Western Red Cedar, meeting current Amer-