15 U.S.C. § 1194 — Administration and enforcement

Page 1348 TITLE 15—COMMERCE AND TRADE § 1194 1990—Subsec. (h)(2). Pub. L. 101–608, § 108(c), struck out period at end and inserted ‘‘, except that the Com- mission shall terminate any such proceeding and rely on a voluntary standard only if such voluntary stand- ard is in existence. For purposes of this section, a vol- untary standard shall be considered to be in existence when it is finally approved by the organization or other person which developed such standard, irrespective of the effective date of the standard. Before relying upon any voluntary standard, the Commission shall afford interested persons (including manufacturers, con- sumers, and consumer organizations) a reasonable op- portunity to submit written comments regarding such standard. The Commission shall consider such com- ments in making any determination regarding reliance on the involved voluntary standard under this sub- section.’’ Subsec. (h)(3). Pub. L. 101–608, § 107(c), added par. (3). Subsec. (k). Pub. L. 101–608, § 110(c), added subsec. (k). 1981—Subsecs. (g) to (j). Pub. L. 97–35 added subsecs. (g) to (j). 1976—Subsec. (d). Pub. L. 94–284, § 20(a)(1), provided that standards, regulations, and amendments made thereto, be made in accordance with section 553 of title 5, except that oral presentation be available with a transcript of such oral presentation kept. Subsec. (e)(3). Pub. L. 94–284, § 20(a)(2), provided that the court not affirm a standard or regulation unless the findings of the Secretary are supported by substantial evidence on the record. 1967—Pub. L. 90–189 revised section generally to achieve greater flexibility in the promulgation of flam- mability standards by substituting provisions author- izing the Secretary of Commerce to issue standards of flammability or regulations (including labeling) for fabrics, related materials or products after observing certain specified procedural requirements for provi- sions which prescribed certain fixed standards of flam- mability which could be updated only by legislation. 1954—Subsec. (c). Act Aug. 23, 1954, added subsec. (c). Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Energy and Commerce of House of Representatives treated as referring to Committee on Commerce of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Commerce of House of Representatives changed to Committee on En- ergy and Commerce of House of Representatives, and jurisdiction over matters relating to securities and ex- changes and insurance generally transferred to Com- mittee on Financial Services of House of Representa- tives by House Resolution No. 5, One Hundred Seventh Congress, Jan. 3, 2001. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–35 applicable with respect to regulations under this chapter and chapters 30 and 47 of this title for which notices of proposed rulemaking are issued after Aug. 14, 1981, see section 1215 of Pub. L. 97–35, set out a note under section 2052 of this title. EFFECTIVE DATE OF 1976 AMENDMENT Pub. L. 94–284, § 20(b), May 11, 1976, 90 Stat. 515, pro- vided that: ‘‘The amendments made by subsection (a) [amending this section] shall apply with respect to standards, regulations, and amendments to standards and regulations, under section 4 of the Flammable Fab- rics Act [this section] the proceedings for the promul- gation of which were begun after the date of the enact- ment of this Act [May 11, 1976].’’ § 1194. Administration and enforcement (a) Enforcement under Federal Trade Commis- sion Act provisions; civil action to enforce standard or regulation Except as otherwise specifically provided here- in, sections 1192, 1194, 1195, and 1197(b) of this title shall be enforced by the Commission under rules, regulations and procedures provided for in the Federal Trade Commission Act [15 U.S.C. 41 et seq.]. In the case of an attorney general of a State alleging a violation of a standard or regu- lation under section 1193 of this title that af- fects or may affect such State or its residents, such attorney general may bring a civil action for an injunction to enforce the requirement of such standard or regulation. The procedural re- quirements of section 2073 of this title shall apply to any such action. (b) Application of Federal Trade Commission Act provisions The Commission is authorized and directed to prevent any person from violating the provi- sions of section 1192 of this title in the same manner, by the same means and with the same jurisdiction, powers and duties as though all ap- plicable terms and provisions of the Federal Trade Commission Act [15 U.S.C. 41 et seq.] were incorporated into and made a part of this chap- ter; and any such person violating any provision of section 1192 of this title shall be subject to the penalties and entitled to the privileges and immunities provided in said Federal Trade Com- mission Act as though the applicable terms and provisions of the said Federal Trade Commission Act were incorporated into and made a part of this chapter. (c) Rules and regulations The Commission is authorized and directed to prescribe such rules and regulations, including provisions for maintenance of records relating to fabrics, related materials, and products, as may be necessary and proper for administration and enforcement of this chapter. The violation of such rules and regulations shall be unlawful and shall be an unfair method of competition and an unfair and deceptive act or practice, in commerce, under the Federal Trade Commission Act [15 U.S.C. 41 et seq.]. (d) Inspection and analysis of products; coopera- tion with other governmental entities The Commission is authorized to— (1) cause inspections, analyses, tests, and ex- aminations to be made of any product, fabric or related material which it has reason to be- lieve falls within the prohibitions of this chap- ter; and (2) cooperate on matters related to the pur- poses of this chapter with any department or agency of the Government; with any State or territory or with the District of Columbia or the Commonwealth of Puerto Rico; or with any department, agency, or political subdivi- sion thereof; or with any person. (e) Penalties (1) Any person who knowingly violates a regu- lation or standard under section 1193 of this title shall be subject to a civil penalty not to exceed $100,000 for each such violation, except that the maximum civil penalty shall not exceed $15,000,000 for any related series of violations. (2) In determining the amount of any penalty to be sought upon commencing an action seek- ing to assess a penalty for a violation of a regu- lation or standard under section 1193 of this Page 1349 TITLE 15—COMMERCE AND TRADE § 1194 1 So in original. The word ‘‘and’’ probably should not appear. title, the Commission shall consider the nature, circumstances, extent, and gravity of the viola- tions, the severity of the risk of injury, the oc- currence or absence of injury, the appropriate- ness of such penalty in relation to the size of the business of the person charged, and such other factors as appropriate. (3) Any civil penalty under this subsection may be compromised by the Commission. In de- termining the amount of such penalty or wheth- er it should be remitted or mitigated, and in what amount, the Commission shall consider the nature, circumstances, extent, and gravity of the violations, the appropriateness of such penalty to the size of the business of the persons charged, the severity of the risk of injury, and 1 the occurrence or absence of injury, and such other factors as appropriate. The amount of such penalty when finally determined, or the amount agreed on compromise, may be deducted from any sums owing by the United States to the person charged. (4) As used in paragraph (1), the term ‘‘know- ingly’’ means (A) having actual knowledge, or (B) the presumed having of knowledge deemed to be possessed by a reasonable person who acts in the circumstances, including knowledge obtain- able upon the exercise of due care to ascertain the truth of representations. (5)(A) The maximum penalty amounts author- ized in paragraph (1) shall be adjusted for infla- tion as provided in this paragraph. (B) Not later than December 1, 2011, and De- cember 1 of each fifth calendar year thereafter, the Commission shall prescribe and publish in the Federal Register a schedule of maximum au- thorized penalties that shall apply for violations that occur after January 1 of the year imme- diately following such publication. (C) The schedule of maximum authorized pen- alties shall be prescribed by increasing each of the amounts referred to in paragraph (1) by the cost-of-living adjustment for the preceding five years. Any increase determined under the pre- ceding sentence shall be rounded to— (i) in the case of penalties greater than $1,000 but less than or equal to $10,000, the nearest multiple of $1,000; (ii) in the case of penalties greater than $10,000 but less than or equal to $100,000, the nearest multiple of $5,000; (iii) in the case of penalties greater than $100,000 but less than or equal to $200,000, the nearest multiple of $10,000; and (iv) in the case of penalties greater than $200,000, the nearest multiple of $25,000. (D) For purposes of this subsection: (i) The term ‘‘Consumer Price Index’’ means the Consumer Price Index for all-urban con- sumers published by the Department of Labor. (ii) The term ‘‘cost-of-living adjustment for the preceding five years’’ means the percent- age by which— (I) the Consumer Price Index for the month of June of the calendar year pre- ceding the adjustment; exceeds (II) the Consumer Price Index for the month of June preceding the date on which the maximum authorized penalty was last adjusted. (June 30, 1953, ch. 164, § 5, 67 Stat. 112; Pub. L. 90–189, § 4, Dec. 14, 1967, 81 Stat. 570; Pub. L. 101–608, title I, §§ 115(c), 118(b), Nov. 16, 1990, 104 Stat. 3120, 3122; Pub. L. 110–314, title II, § 217(a)(3), (b)(1)(C), Aug. 14, 2008, 122 Stat. 3058, 3059.) Editorial Notes REFERENCES IN TEXT The Federal Trade Commission Act, referred to in subsecs. (a), (b), and (c), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of this title. For complete clas- sification of this Act to the Code, see section 58 of this title and Tables. AMENDMENTS 2008—Subsec. (e)(1). Pub. L. 110–314, § 217(a)(3)(A), (B), substituted ‘‘$100,000’’ for ‘‘$5,000’’ and ‘‘$15,000,000’’ for ‘‘$1,250,000’’. Subsec. (e)(2). Pub. L. 110–314, § 217(b)(1)(C)(i), sub- stituted ‘‘nature, circumstances, extent, and gravity’’ for ‘‘nature and number’’ and ‘‘absence of injury,’’ for ‘‘absence of injury, and’’ and inserted ‘‘, and such other factors as appropriate’’ before period at end. Subsec. (e)(3). Pub. L. 110–314, § 217(b)(1)(C)(ii)(III), which directed insertion of ‘‘, and such other factors as appropriate’’ before the period, was executed by mak- ing the insertion before period at end of second sen- tence, to reflect the probable intent of Congress. Pub. L. 110–314, § 217(b)(1)(C)(ii)(II), which directed the substitution of ‘‘absence of injury,’’ for ‘‘absence of in- jury, and’’, could not be executed because ‘‘absence of injury, and’’ did not appear in par. (3). Pub. L. 110–314, § 217(b)(1)(C)(ii)(I), substituted ‘‘na- ture, circumstances, extent, and gravity’’ for ‘‘nature and number’’. Subsec. (e)(5)(B). Pub. L. 110–314, § 217(a)(3)(C), which directed the substitution of ‘‘December 1, 2011,’’ for ‘‘December 1, 1994,’’ in par. (6)(B) of subsec. (e)(1), was executed by making the substitution in par. (5)(B) of subsec. (e) to reflect the probable intent of Congress be- cause subsec. (e) does not contain a par. (6). 1990—Subsec. (a). Pub. L. 101–608, § 118(b), inserted at end ‘‘In the case of an attorney general of a State alleg- ing a violation of a standard or regulation under sec- tion 1193 of this title that affects or may affect such State or its residents, such attorney general may bring a civil action for an injunction to enforce the require- ment of such standard or regulation. The procedural re- quirements of section 2073 of this title shall apply to any such action.’’ Subsec. (e). Pub. L. 101–608, § 115(c), added subsec. (e). 1967—Subsec. (c). Pub. L. 90–189, § 4(a), inserted ‘‘, including provisions for maintenance of records re- lating to fabrics, related materials, and products,’’ after ‘‘rules and regulations’’ and inserted sentence making violations of such rules and regulations unlaw- ful and an unfair method of competition and an unfair and deceptive act or practice, in commerce, under the Federal Trade Commission Act. Subsec. (d)(1). Pub. L. 90–189, § 4(b), substituted ‘‘prod- uct, fabric or related material’’ for ‘‘article of wearing apparel or fabric’’. Subsec. (d)(2). Pub. L. 90–189, § 4(b), substituted ‘‘or territory or with the District of Columbia or the Com- monwealth of Puerto Rico’’ for ‘‘, Territory, or posses- sion or with the District of Columbia’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Pub. L. 110–314, title II, § 217(a)(4), Aug. 14, 2008, 122 Stat. 3058, provided that: ‘‘The amendments made by Page 1350 TITLE 15—COMMERCE AND TRADE § 1195 this subsection [amending this section and sections 1264 and 2069 of this title] shall take effect on the date that is the earlier of the date on which final regulations are issued under subsection (b)(2) [set out as a note under section 2069 of this title] or 1 year after the date of en- actment of this Act [Aug. 14, 2008].’’ TRANSFER OF FUNCTIONS Functions of Secretary of Health, Education, and Welfare, Secretary of Commerce, and Federal Trade Commission under this chapter transferred to Con- sumer Product Safety Commission, along with func- tions of Federal Trade Commission under Federal Trade Commission Act, to extent such functions relate to administration and enforcement of this chapter, see section 2079 of this title. CIVIL PENALTY CRITERIA The Consumer Product Safety Commission to issue a final regulation providing its interpretation of penalty factors described in subsec. (e)(2) of this section no later than 1 year after Aug. 14, 2008, see section 217(b)(2) of Pub. L. 110–314, set out as a note under section 2069 of this title. § 1195. Injunction and condemnation proceedings (a) Temporary injunction; venue Whenever the Commission has reason to be- lieve that any person is violating or is about to violate section 1192 of this title, or a rule or reg- ulation prescribed under section 1194(c) of this title, and that it would be in the public interest to enjoin such violation until complaint under the Federal Trade Commission Act [15 U.S.C. 41 et seq.] is issued and dismissed by the Commis- sion or until order to cease and desist made thereon by the Commission has become final within the meaning of the Federal Trade Com- mission Act or is set aside by the court on re- view, the Commission may bring suit in the dis- trict court of the United States for the district in which such person resides or transacts busi- ness, or, if such person resides or transacts busi- ness in Guam or the Virgin Islands, then in the District Court of Guam or in the District Court of the Virgin Islands (as the case may be), to en- join such violation and upon proper showing a temporary injunction or restraining order shall be granted without bond. (b) Process of libel for seizure and confiscation; manner of procedure; consolidation of trials Whenever the Commission has reason to be- lieve that any product has been manufactured or introduced into commerce or any fabric or re- lated material has been introduced in commerce in violation of section 1192 of this title, it may institute proceedings by process of libel for the seizure and confiscation of such product, fabric, or related material in any district court of the United States within the jurisdiction of which such product, fabric, or related material is found. Proceedings in cases instituted under the authority of this section shall conform as nearly as may be to proceedings in rem in admiralty, except that on demand of either party and in the discretion of the court, any issue of fact shall be tried by jury. Whenever such proceedings involv- ing identical products, fabrics, or related mate- rials are pending in two or more jurisdictions, they may be consolidated for trial by order of any such court upon application seasonably made by any party in interest upon notice to all other parties in interest. Any court granting an order of consolidation shall cause prompt notifi- cation thereof to be given to other courts having jurisdiction in the cases covered thereby and the clerks of such other courts shall transmit all pertinent records and papers to the court des- ignated for the trial of such consolidated pro- ceedings. (c) Application by defendant for representative sample of seized materials In any such action the court, upon application seasonably made before trial, shall by order allow any party in interest, his attorney or agent, to obtain a representative sample of the product, fabric, or related material seized. (d) Disposal of condemned materials If such products, fabrics, or related materials are condemned by the court they shall be dis- posed of by destruction, by delivery to the owner or claimant thereof upon payment of court costs and fees and storage and other proper expenses and upon execution of good and sufficient bond to the effect that such products, fabrics, or re- lated materials will not be disposed of until properly and adequately treated or processed so as to render them lawful for introduction into commerce, or by sale upon execution of good and sufficient bond to the effect that such prod- ucts, fabrics, or related materials will not be disposed of until properly and adequately treat- ed or processed so as to render them lawful for introduction into commerce. If such products, fabrics, or related materials are disposed of by sale the proceeds, less costs and charges, shall be paid into the Treasury of the United States. (June 30, 1953, ch. 164, § 6, 67 Stat. 113; Pub. L. 90–189, § 5, Dec. 14, 1967, 81 Stat. 571.) Editorial Notes REFERENCES IN TEXT The Federal Trade Commission Act, referred to in subsec. (a), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of this title. For complete classifica- tion of this Act to the Code, see section 58 of this title and Tables. AMENDMENTS 1967—Subsec. (a). Pub. L. 90–189, § 5(a), inserted ‘‘, or a rule or regulation prescribed under section 1194 (c) of this title,’’ after ‘‘section 1192 of this title’’ and sub- stituted ‘‘for the district in which such person resides or transacts business, or, if such person resides or transacts business in Guam or the Virgin Islands, then in the District Court of Guam or in the District Court of the Virgin Islands (as the case may be)’’ for ‘‘or in the United States court of any Territory for the dis- trict or Territory in which such person resides or trans- acts business’’. Subsec. (b). Pub. L. 90–189, § 5(b), substituted ‘‘prod- uct’’ for ‘‘article of wearing apparel’’, ‘‘product, fabric, or related material’’ for ‘‘article of wearing apparel or fabric’’ in two places and ‘‘products, fabrics, or related materials’’ for ‘‘articles of wearing apparel or fabrics’’, and inserted ‘‘or related material’’ before ‘‘has been in- troduced in commerce’’. Subsec. (c). Pub. L. 90–189, § 5(b), substituted ‘‘prod- uct, fabric, or related material’’ for ‘‘article of wearing apparel or fabric’’. Subsec. (d). Pub. L. 90–189, § 5(b), substituted ‘‘prod- ucts, fabrics, or related materials’’ for ‘‘articles of