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AMENDMENTS

1970 Subsec. (f) (2). Pub. L. 91-515 struck out the provisions which related to the payment of compensation and travel expenses of members of the Committee who are not officers or employees of the United States, and substituted "to members of the Committee who are not officers or employees of the United States pursuant to section 210(c) of this title" for "under this subsection".

DEFINITION OF "SECRETARY" AND "DEPARTMENT" The terms "Secretary" and "Department" as used in this section, except when otherwise specified, to mean Secretary of Health, Education, and Welfare and Department of Health, Education, and Welfare, respectively, see section 3 of Pub. L. 90-602, set out as a note under section 263b of this title.

NONINTERFERENCE WITH OTHER FEDERAL AGENCIES Enactment of this section not to be construed to supersede or limit the functions under any other provision of law of any officer or agency of the United States, see section 4 of Pub. L. 90–602, set out as a note under section 263b of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 263b-263e, 263g263n of this title.

§ 263g. Notification of defects in and repair or replacement of electronic products.

(a) Notification; exemption.

(1) Every manufacturer of electronic products - who discovers that an electronic product produced, assembled, or imported by him has a defect which - relates to the safety of use of such product by reason of the emission of electronic product radiation, or that an electronic product produced, assembled, or imported by him on or after the effective date of an applicable standard prescribed pursuant to section 263f of this title fails to comply with such standard, shall immediately notify the Secretary of such defect or failure to comply if such product has left the place of manufacture and shall (except as authorized by paragraph (2)) with reasonable promptness furnish notification of such defect or failure to the persons (where known to the manufacturer) specified in subsection (b) of this section.

(2) If, in the opinion of such manufacturer, the defect or failure to comply is not such as to create a significant risk of injury, including genetic injury, to any person, he may, at the time of giving notice to the Secretary of such defect or failure to comply, apply to the Secretary for an exemption from the requirement of notice to the persons specified in subsection (b) of this section. If such application states reasonable grounds for such exemption, the Secretary shall afford such manufacturer an opportunity to present his views and evidence in support of the application, the burden of proof being on the manufacturer. If, after such presentation, the Secretary is satisfied that such defect or failure to comply is not such as to create a significant risk of injury, including genetic injury, to any person, he shall exempt such manufacturer from the requirement of notice to the persons specified in subsection | (b) of this section and from the requirements of repair or replacement imposed by subsection (f) of this section.

(b) Method of notification.

The notification (other than to the Secretary) required by paragraph (1) of subsection (a) of this section shall be accomplished—

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(1) by certified mail to the first purchaser of such product for purposes other than resale, and to any subsequent transferee of such product; and

(2) by certified mail or other more expeditious means to the dealers or distributors of such manufacturer to whom such product was delivered.

(c) Requisite elements of notification.

The notifications required by paragraph (1) of subsection (a) of this section shall contain a clear description of such defect or failure to comply with an applicable standard, an evaluation of the hazard reasonably related to such defect or failure to comply, and a statement of the measures to be taken to repair such defect. In the case of a notification to a person referred to in subsection (b) of this section, the notification shall also advise the person of his rights under subsection (f) of this section.

(d) Copies to Secretary of communications by manufacturers to dealers or distributors regarding defects.

Every manufacturer of electronic products shall furnish to the Secretary a true or representative copy of all notices, bulletins, and other communications to the dealers or distributors of such manufacturer or to purchasers (or subsequent transferees) of electronic products of such manufacturer regarding any such defect in such product or any such failure to comply with a standard applicable to such product. The Secretary shall disclose to the public so much of the information contained in such notice or other information obtained under section 2631 of this title as he deems will assist in carrying out the purposes of this subpart, but he shall not disclose any information which contains or relates to a trade secret or other matter referred to in section 1905 of Title 18 unless he determines that it is necessary to carry out the purposes of this subpart.

(e) Notice from Secretary to manufacturer of defects or failure to comply with standards.

If through testing, inspection, investigation, or research carried out pursuant to this subpart, or examination of reports submitted pursuant to section 2631 of this title, or otherwise, the Secretary determines that any electronic product

(1) does not comply with an applicable standard prescribed pursuant to section 263f of this title; or

(2) contains a defect which relates to the safety of use of such product by reason of the emission of electronic product radiation;

he shall immediately notify the manufacturer of such product of such defect or failure to comply. The notice shall contain the findings of the Secretary and shall include all information upon which the findings are based. The Secretary shall afford such manufacturer an opportunity to present his views and evidence in support thereof, to establish that there is no failure of compliance or that the alleged defect does not exist or does not relate to safety of use of the product by reason of the emission of such radiation hazard. If after such presentation by the manufacturer the Secretary determines that such product does not comply with an applicable standard prescribed pursuant to section 263f of this title, or that it contains a defect which relates to the safety of use of such product by reason of the emission of

electronic product radiation, the Secretary shall direct the manufacturer to furnish the notification specified in subsection (c) of this section to the persons specified in paragraphs (1) and (2) of subsection (b) of this section (where known to the manufacturer), unless the manufacturer has applied for an exemption from the requirement of such notification on the ground specified in paragraph (2) of subsection (a) of this section and the Secretary is satisfied that such noncompliance or defect is not such as to create a significant risk of injury, including genetic injury, to any person.

(f) Correction of defects.

If any electronic product is found under subsection (a) or (e) of this section to fail to comply with an applicable standard prescribed under this subpart or to have a defect which relates to the safety of use of such product, and the notification specified in subsection (c) of this section is required to be furnished on account of such failure or defect, the manufacturer of such product shall (1) without charge, bring such product into conformity with such standard or remedy such defect and provide reimbursement for any expenses for transportation of such product incurred in connection with having such product brought into conformity or having such defect remedied, (2) replace such product with a like or equivalent product which complies with each applicable standard prescribed under this subpart and which has no defect relating to the safety of its use, or (3) make a refund of the cost of such product. The manufacturer shall take the action required by this subsection in such manner, and with respect to such persons, as the Secretary by regulations shall prescribe.

(g) Effective date.

This section shall not apply to any electronic product that was manufactured before October 18, 1968. (July 1, 1944, ch. 373, title III, § 359, as added Oct. 18, 1968, Pub. L. 90–602, § 2(3), 82 Stat. 1180.)

DEFINITION OF "SECRETARY" AND "DEPARTMENT" The terms "Secretary" and "Department" as used in this section, except when otherwise specified, to mean Secretary of Health, Education, and Welfare and Department of Health, Education, and Welfare, respectively, see section 3 of Pub. L. 90-602, set out as a note under section 263b of this title.

NONINTERFERENCE WITH OTHER FEDERAL AGENCIES Enactment of this section not to be construed to supersede or limit the functions under any other provision of law of any officer or agency of the United States, see section 4 of Pub. L. 90-602, set out as a note under section 263b of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 263b-2631, 263h263n of this title.

§ 263h. Imports.

(a) Refusal of admission to non-complying electronic products.

Any electronic product offered for importation into the United States which fails to comply with an applicable standard prescribed under this subpart, or to which is not affixed a certification in the form of a label or tag in conformity with section 263f(h) of this title shall be refused admission into the United States. The Secretary of the Treasury

shall deliver to the Secretary of Health, Education, and Welfare, upon the latter's request, samples of electronic products which are being imported or offered for import in to the United States, giving notice thereof to the owner or consignee, who may have a hearing before the Secretary of Health, Education, and Welfare. If it appears from an examination of such samples or otherwise that any electronic product fails to comply with applicable standards prescribed pursuant to section 263f of this title, then, unless subsection (b) of this section applies and is complied with, (1) such electronic product shall be refused admission, and (2) the Secretary of the Treasury shall cause the destruction of such electronic product unless such article is exported, under regulations prescribed by the Secretary of the Treasury, within 90 days after the date of notice of refusal of admission or within such additional time as may be permitted by such regulations.

(b) Bond.

If it appears to the Secretary of Health, Education, and Welfare that any electronic product refused admission pursuant to subsection (a) of this section can be brought into compliance with applicable standards prescribed pursuant to section 263f of this title, final determination as to admission of such electronic product may be deferred upon filing of timely written application by the owner or consignee and the execution by him of a good and sufficient bond providing for the payment of such liquidated damages in the event of default as the Secretary of Health, Education, and Welfare may by regulation prescribe. If such application is filed and such bond is executed the Secretary of Health, Education, and Welfare may, in accordance with rules prescribed by him, permit the applicant to perform such operations with respect to such electronic product as may be specified in the notice of permission. (c) Liability of owner or consignee for expenses connected with refusal of admission.

All expenses (including travel, per diem or subsistence, and salaries of officers or employees of the United States) in connection with the destruction provided for in subsection (a) of this section and the supervision of operations provided for in subsection (b) of this section, and all expenses in connection with the storage, cartage, or labor with respect to any electronic product refused admission pursuant to subsection (a) of this section, shall be paid by the owner or consignee, and, in event of default, shall constitute a lien against any future importations made by such owner or consignee. (d) Designation of agent for purposes of service.

It shall be the duty of every manufacturer offering an electronic product for importation into the United States to designate in writing an agent upon whom service of all administrative and judicial processes, notices, orders, decisions, and requirements may be made for and on behalf of said manufacturer, and to file such designation with the Secretary, which designation may from time to time be changed by like writing, similarly filed. Service of all administrative and judicial processes. notices, orders, decisions, and requirements may be made upon said manufacturer by service upon such

designated agent at his office or usual place of residence with like effect as if made personally upon said manufacturer, and in default of such designation of such agent, service of process, notice, order, requirement, or decision in any proceeding before the Secretary or in any judicial proceeding for enforcement of this subpart or any standards prescribed pursuant to this subpart may be made by posting such process, notice, order, requirement, or decision in the Office of the Secretary or in a place designated by him by regulation. (July 1, 1944, ch. 373, title III, § 360, as added Oct. 18, 1968, Pub. L. 90–602, § 2(3), 82 Stat. 1181.)

DEFINITION OF "SECRETARY" AND "DEPARTMENT"

The terms "Secretary" and "Department" as used in this section, except when otherwise specified, to mean Secretary of Health, Education, and Welfare and Department of Health, Education, and Welfare, respectively, see section 3 of Pub. L. 90-602, set out as a note under section 263b of this title.

NONINTERFERENCE WITH OTHER FEDERAL AGENCIES Enactment of this section not to be construed to supersede or limit the functions under any other provision of law of any officer or agency of the United States, see section 4 of Pub. L. 90–602, set out as a note under section 263b of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 263b-263g, 2631263n of this title.

§ 263i. Inspection, records, and reports.

(a) Inspection of premises.

If the Secretary finds for good cause that the methods, tests, or programs related to electronic product radiation safety in a particular factory, warehouse, or establishment in which electronic products are manufactured or held, may not be adequate or reliable, officers or employees duly designated by the Secretary, upon presenting appropriate credentials and a written notice to the owner, operator, or agent in charge, are thereafter authorized (1) to enter, at reasonable times, any area in such factory, warehouse, or establishment in which the manufacturer's tests (or testing programs) required by section 263f(h) of this title are carried out, and (2) to inspect, at reasonable times and within reasonable limits and in a reasonable manner, the facilities and procedures within such area which are related to electronic product radiation safety. Each such inspection shall be commenced and completed with reasonable promptness. In addition to other grounds upon which good cause may be found for purposes of this subsection, good cause will be considered to exist in any case where the manufacturer has introduced into commerce any electronic product which does not comply with an applicable standard prescribed under this subpart and with respect to which no exemption from the notification requirements has been granted by the Secretary under section 263g(a) (2) or 263g (e) of this title.

(b) Record keeping.

Every manufacturer of electronic products shall establish and maintain such records (including testing records), make such reports, and provide such information, as the Secretary may reasonably require to enable him to determine whether such manufacturer has acted or is acting in compliance with this subpart and standards prescribed pur

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suant to this subpart and shall, upon request of an officer or employee duly designated by the Secretary, permit such officer or employee to inspect appropriate books, papers, records, and documents relevant to determining whether such manufacturer has acted or is acting in compliance with standards prescribed pursuant to this subpart.

(c) Disclosure of technical data.

Every manufacturer of electronic products shall provide to the Secretary such performance data and other technical data related to safety as may be required to carry out the purposes of this subpart. The Secretary is authorized to require the manufacturer to give such notification of such performance and technical data at the time of original purchase to the ultimate purchaser of the electronic product, as he determines necessary to carry out the purposes of this subpart after consulting with the affected industry.

(d) Public nature of reports.

Accident and investigation reports made under this subpart by any officer, employee, or agent of the Secretary shall be available for use in any civil, criminal, or other judicial proceeding arising out of such accident. Any such officer, employee, or agent may be required to testify in such proceedings as to the facts developed in such investigations. Any such report shall be made available to the public in a manner which need not identify individuals. All reports on research projects, demonstration projects, and other related activities shall be public information.

(e) Trade secrets.

The Secretary or his representative shall not disclose any information reported to or otherwise obtained by him, pursuant to subsection (a) or (b) of this section, which concerns any information which contains or relates to a trade secret or other matter referred to in section 1905 of Title 18, except that such information may be disclosed to other officers or employees of the Department and of other agencies concerned with carrying out this subpart or when relevant in any proceeding under this subpart. Nothing in this section shall authorize the withholding of information by the Secretary, or by any officers or employees under his control, from the duly authorized committees of the Congress. (f) Information required to identify and locate first purchasers of electronic products.

The Secretary may by regulation (1) require dealers and distributors of electronic products, to which there are applicable standards prescribed under this subpart and the retail prices of which is not less than $50, to furnish manufacturers of such products such information as may be necessary to identify and locate, for purposes of section 263g of this title, the first purchasers of such products for purposes other than resale, and (2) require manufacturers to preserve such information. Any regulation establishing a requirement pursuant to clause (1) of the preceding sentence shall (A) authorize such dealers and distributors to elect, in lieu of immediately furnishing such information to the manufacturer, to hold and preserve such information until advised by the manufacturer or Secretary that such information is

needed by the manufacturer for purposes of section 263g of this title, and (B) provide that the dealer or distributor shall, upon making such election, give prompt notice of such election (together with information identifying the notifier and the product) to the manufacturer and shall, when advised by the manufacturer or Secretary, of the need therefor for the purposes of section 263g of this title, immediately furnish the manufacturer with the required information. If a dealer or distributor discontinues the dealing in or distribution of electronic products, he shall turn the information over to the manufacturer. Any manufacturer receiving information pursuant to this subsection concerning first purchasers of products for purposes other than resale shall treat it as confidential and may use it only if necessary for the purpose of notifying persons pursuant to section 263g (a) of this title. (July 1, 1944, ch. 373, title III, § 360A, as added Oct. 18, 1968, Pub. L. 90–602, § 2(3), 82 Stat. 1182.)

DEFINITION OF "SECRETARY" AND "DEPARTMENT"

The terms "Secretary" and "Department" as used in this section, except when otherwise specified, to mean Secretary of Health, Education, and Welfare and Department of Health, Education, and Welfare, respectively, see section 3 of Pub. L. 90-602, set out as a note under section 263b of this title.

NONINTERFERENCE WITH OTHER FEDERAL AGENCIES Enactment of this section not to be construed to supersede or limit the functions under any other provision of law of any officer or agency of the United States, see section 4 of Pub. L. 90-602, set out as a note under section 263b of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 263b-263h, 263j— 26n of this title.

§ 263j. Prohibited acts.

(a) It shall be unlawful

(1) for any manufacturer to introduce, or to deliver for introduction, into commerce, or to import into the United States, any electronic product which does not comply with an applicable standard prescribed pursuant to section 263f of this title;

(2) for any person to fail to furnish any notification or other material or information required by section 263g or 2631 of this title; or to fail to comply with the requirements of section 263g(f) of this title;

(3) for any person to fail or to refuse to establish or maintain records required by this subpart or to permit access by the Secretary or any of his duly authorized representatives to, or the copying of, such records, or to permit entry or inspection, as required by or pursuant to section 2631 of this title;

(4) for any person to fail or to refuse to make any report required pursuant to section 2631(b) of this title or to furnish or preserve any information required pursuant to section 2631(f) of this title;

or

(5) for any person (A) to fail to issue a certification as required by section 263f (h) of this title, or (B) to issue such a certification when such certification is not based upon a test or testing program meeting the requirements of section 263f(h)

of this title or when the issuer, in the exercise of due care, would have reason to know that such certification is false or misleading in a material respect.

(b) The Secretary may exempt any electronic product, or class thereof, from all or part of subsection (a) of this section, upon such conditions as he may find necessary to protect the public health or welfare, for the purpose of research, investigations, studies, demonstrations, or training, or for reasons of national security. (July 1, 1944, ch. 373, title III, § 360B, as added Oct. 18, 1968, Pub. L. 90–602, § 2(3), 82 Stat. 1184.)

DEFINITION OF "SECRETARY" AND "DEPARTMENT" The terms "Secretary" and "Department" as used in this section, except when otherwise specified, to mean Secretary of Health, Education, and Welfare and Department of Health, Education, and Welfare respectively, see section 3 of Pub. L. 90–602, set out as a note under section 263b of this title.

NONINTERFERENCE WITH OTHER FEDERAL AGENCIES Enactment of this section not to be construed to supersede or limit the functions under any other provision of law of any officer or agency of the United States, see section 4 of Pub. L. 90–602, set out as a note under section 263b of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 263b-2631, 263k263n of this title.

§ 263k. Enforcement. (a) Jurisdiction of courts.

The district courts of the United States shall have jurisdiction, for cause shown, to restrain violations of section 263j of this title and to restrain dealers and distributors of electronic products from selling or otherwise disposing of electronic products which do not conform to an applicable standard prescribed pursuant to section 263f of this title except when such products are disposed of by returning them to the distributor or manufacturer from whom they were obtained. The district courts of the United States shall also have jurisdiction in accordance with section 1355 of Title 28 to enforce the provisions of subsection (b) of this section. (b) Penalties.

(1) Any person who violates section 263j of this title shall be subject to a civil penalty of not more than $1,000. For purposes of this subsection, any such violation shall with respect to each electronic product involved, or with respect to each act or omission made unlawful by section 263j of this title constitute a separate violation, except that the maximum civil penalty imposed on any person under this subsection for any related series of violations shall not exceed $300,000.

(2) Any such civil penalty may on application be remitted or mitigated by the Secretary. In determining the amount of such penalty, or whether it should be remitted or mitigated and in what amount. the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be considered. The amount of such penalty, when finally determined, may be deducted from any sums owing by the United States to the person charged.

(c) Venue; process.

Actions under subsections (a) and (b) of this section may be brought in the district court of the United States for the district wherein any act or omission or transaction constituting the violation occurred, or in such court for the district where the defendant is found or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever defendant may be found.

(d) Warnings.

Nothing in this subpart shall be construed as requiring the Secretary to report for the institution of proceedings minor violations of this subpart whenever he believes that the public interest will be adequately served by a suitable written notice or warning.

(e) Compliance with regulations.

Except as provided in the first sentence of section 263n of this title, compliance with this subpart or any regulations issued thereunder shall not relieve any person from liability at common law or under statutory law.

(f) Additional remedies.

The remedies provided for in this subpart shall be in addition to not in substitution for any other remedies provided by law. (July 1, 1944, ch. 373, title III, § 360C, as added Oct. 18, 1968, Pub. L. 90–602, § 2(3), 82 Stat. 1184.)

DEFINITION OF "SECRETARY" AND "DEPARTMENT"

The terms "Secretary" and "Department" as used in this section, except when otherwise specified, to mean Secretary of Health, Education, and Welfare and Department of Health, Education, and Welfare, respectively, see section 3 of Pub. L. 90-602, set out as a note under section 263b of this title.

NONINTERFERENCE WITH OTHER FEDERAL AGENCIES Enactment of this section not to be construed to supersede or limit the functions under any other provision of law of any officer or agency of the United States, see section 4 of Pub. L. 90-602, set out as a note under section 263b of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 263b-2631, 2631263n of this title.

§ 2631. Annual report.

(a) The Secretary shall prepare and submit to the President for transmittal to the Congress on or before April 1 of each year a comprehensive report on the administration of this subpart for the preceding calendar year. Such report shall include

(1) a thorough appraisal (including statistical analyses, estimates, and long-term projections) of the incidence of biological injury, and effects, including genetic effects, to the population resulting from exposure to electronic product radiation, with a breakdown, insofar as practicable, among the various sources of such radiation;

(2) a list of Federal electronic product radiation control standards prescribed or in effect in such year, with identification of standards newly prescribed during such year;

(3) an evaluation of the degree of observance of applicable standards, including a list of enforcement actions, court decisions, and compromises of alleged violations by location and company name;

(4) a summary of outstanding problems confronting the administration of this subpart in order of priority;

(5) an analysis and evaluation of research activities completed as a result of Government and private sponsorship, and technological progress for safety achieved during such year;

(6) a list, with a brief statement of the issues, of completed or pending judicial actions under this subpart;

(7) the extent to which technical information was disseminated to the scientific, commercial, and labor community and consumer-oriented information was made available to the public; and

(8) the extent of cooperation between Government officials and representatives of industry and other interested parties in the implementation of this subpart including a log or summary of meetings held between Government officials and representatives of industry and other interested parties. (b) The report required by subsection (a) of this section shall contain such recommendations for additional legislation as the Secretary deems necessary to promote cooperation among the several States in the improvement of electronic product radiation control and to strengthen the national electronic product radiation control program. (July 1, 1944, ch. 373, title III, § 360D, as added Oct. 18, 1968, Pub. L. 90-602, § 2(3), 82 Stat. 1185.)

DEFINITION OF "SECRETARY" AND "DEPARTMENT" The terms "Secretary" and "Department" as used in this section, except whe notherwise specified, to mean Secretary of Health, Education, and Welfare and Department of Health, Education, and Welfare, respectively, see section 3 of Pub. L. 90-602, set out as a note under section 263b of this title.

NONINTERFERENCE WITH OTHER FEDERAL AGENCIES Enactment of this section not to be construed to supersede or limit the functions under any other provision of law of any officer or agency of the United States, see section 4 of Pub. L. 90–602, set out as a note under section 263b of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 263b-263k, 263m, 263n of this title.

§ 263m. Federal-State cooperation.

The Secretary is authorized (1) to accept from State and local authorities engaged in activities related to health or safety or consumer protection, on a reimbursable basis or otherwise, any assistance in the administration and enforcement of this subpart which he may request and which they may be able and willing to provide and, if so agreed, may pay in advance or otherwise for the reasonable cost of such assistance, and (2) he may, for the purpose of conducting examinations, investigations, and inspections, commission any officer or employee of any such authority as an officer of the Department. (July 1, 1944, ch. 373, title III, § 360E, as added Oct. 18, 1968, Pub. L. 90-602, § 2(3), 82 Stat. 1186.)

DEFINITION OF "SECRETARY" AND "DEPARTMENT" The terms "Secretary" and "Department" as used in this section, except when otherwise specified, to mean Secretary of Health, Education, and Welfare and Department of Health, Education, and Welfare, respectively, see section 3 of Pub. L. 90-602, set out as a note under section 263b of this title.

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