Sec. 203. Enforcement

2,223 words·~10 min read·/bill/114/s/2254/is/section-203

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

The Secretary shall establish a comprehensive inspection, collection, fiscal, and production accounting and auditing system— to accurately determine royalties, interest, fines, penalties, fees, deposits, and other payments owed under this title and section 403; and to collect and account for such payments in a timely manner. The Secretary shall establish procedures to ensure that authorized and properly identified representatives of the Secretary will inspect at least once annually each mining claim that— is producing or expected to produce a significant quantity of locatable minerals in any year; or has a history of noncompliance with this Act.

A person who is required to make any royalty or other payment under this title or section 403 shall make payment to the United States at such times and in such manner as the Secretary may by rule prescribe. Any person who pays, offsets, or credits funds, makes adjustments, requests and receives refunds, or submits reports with respect to payments another person is required to make shall be considered the designee of the other person under this title or section 403. A designee shall be liable for any payment obligation under this title or section 403 of any person on whose behalf the designee undertakes the activities described in clause (i).

The person owning an interest in a claim, millsite, or tunnel site, or production from the claim or site, shall be liable for the pro rata share of the person of payment obligations under this title or section 403. A person conducting mineral activities shall develop and comply with the site security provisions in the mining permit designed to protect from theft the locatable minerals that are produced or stored on a mining claim. The provisions shall conform with such minimum standards as the Secretary may prescribe by rule, taking into account the variety of circumstances on mining claims.

Not later than the fifth business day after production begins in any place on a mining claim or production resumes after more than 90 days after production ceased or was suspended, the person conducting mineral activities shall notify the Secretary, in the manner prescribed by the Secretary, of the date on which the production has begun or resumed. A claim holder, operator, or other person directly or indirectly involved in developing, producing, processing, transporting, purchasing, or selling locatable or hardrock minerals, subject to this Act, through the point of first sale, the point of royalty or fee computation, or the point of smelting or other processing, whichever is later, shall establish and maintain any records, make any reports, and provide any information that the Secretary may reasonably require for the purposes of implementing this title or section 403 or determining compliance with rules or orders under this title or section 403.

On the request of any officer or employee duly designated by the Secretary conducting an audit or investigation pursuant to this section, the appropriate records, reports, or information that may be required by this section shall be made available for inspection and duplication by the officer or employee. Records required by the Secretary under this section shall be maintained for 7 years after the records are generated or amended unless the Secretary notifies the claim holder, operator, other person referred to in paragraph (1), or record holder that the Secretary has initiated an audit or investigation involving the records and that the records must be maintained for a longer period.

In any case in which an audit or investigation is underway, records shall be maintained until the Secretary releases the claim holder, operator, other person referred to in paragraph (1), or record holder subject to the recordkeeping and requirements of this Act of the obligation to maintain the records. The Secretary may conduct such audits of all claim holders, operators, producers, transporters, purchasers, processors, or other persons directly or indirectly involved in the production or sales of locatable or hardrock minerals covered by this Act, as the Secretary considers necessary for the purposes of ensuring compliance with the requirements of this title or section 403.

The Secretary may enter into cooperative agreements with the Secretary of Agriculture— to share information concerning the royalty management of locatable minerals; to carry out inspection, auditing, investigation, or enforcement (not including the collection of royalties, civil or criminal penalties, or other payments) activities under this section in cooperation with the Secretary; and to carry out any other activity described in this section. Subject to paragraph

(3)and pursuant to a cooperative agreement, the Secretary of Agriculture shall, on request, have access to all royalty or fee accounting information in the possession of the Secretary relating to the production, removal, or sale of locatable minerals from claims on Federal land. Trade secrets, proprietary information, and other confidential information protected from disclosure under section 552 of title 5, United States Code (commonly known as the Freedom of Information Act ), shall be made available by the Secretary to other Federal agencies as necessary to ensure compliance with this Act and other Federal laws. The Secretary, the Secretary of Agriculture, and other Federal officials shall ensure that information described in subparagraph

(A)is provided protection in accordance with section 552 of title 5, United States Code. In this subsection, the term underpayment means the difference between the royalty on the value of the production or the fee under section 403 that should have been received by the Secretary and the royalty on the value of the production or the fee under section 403 that was received by the Secretary, if the royalty or fee that should have been received is greater than the royalty or fee that was received. In the case of mining claims or operations with respect to which royalty payments or the fee under section 403 are not received by the Secretary by the date that the payments are due, the Secretary shall charge interest on the nonpayment at the rate specified under subparagraph (C). In the case of an underpayment, interest shall be computed and charged only on the amount of the deficiency and not on the total amount, at the rate specified under subparagraph (C). In the case of nonpayment or underpayment, interest shall be charged at the rate applicable under section 6621(a)(2) of the Internal Revenue Code of 1986. Each person liable for royalty payments under this section shall be jointly and severally liable for royalty on all locatable minerals lost or wasted from a mining claim located under the general mining laws and maintained in compliance with this Act if the loss or waste is due to negligence on the part of any such person or due to the failure to comply with any rule, regulation, or order issued under this section. In carrying out this title and section 403, the Secretary may— conduct any investigation or other inquiry necessary and appropriate; conduct, after notice, any necessary and appropriate hearing or audit under rules prescribed by the Secretary; and administer oaths and issue subpoenas in conducting such proceedings. Except as provided in subparagraph (B), a person shall be liable for a penalty of up to $500 per violation for each day the violation continues, dating from the date of the notice or report, if the person— after due notice of violation or after the violation has been reported under subparagraph (B)(i), fails or refuses to comply with any requirement of this title or section 403 or any rule or regulation under this title or section 403; or fails or refuses to permit inspection authorized under this title. A penalty under this paragraph may not be applied to any person who is otherwise liable for a violation of subparagraph

(A)if— the violation was discovered and reported to the Secretary or the authorized representative of the Secretary by the liable person and corrected within 20 days after the report (or such longer period to which the Secretary may agree); or after the due notice of violation required under subparagraph (A)(i) has been given to the person by the Secretary or the authorized representative of the Secretary, the person has corrected the violation within 20 days of the notification (or such longer period to which the Secretary may agree). If corrective action is not taken within 40 days (or a longer period to which the Secretary may agree), after due notice or submission of a report referred to in paragraph (1)(A)(i), the person shall be liable for a civil penalty of not more than $5,000 per violation for each day the violation continues, dating from the date of the notice or report. A person shall be liable for a penalty of up to $10,000 per violation for each day the violation continues if the person— knowingly or willfully fails to make any payment of any royalty under this title or fee under section 403 by the date as specified by law (including regulation or order); fails or refuses to permit lawful entry, inspection, or audit; or knowingly or willfully fails to comply with subsection (b)(2)(C). A person shall be liable for a penalty of up to $25,000 per violation for each day the violation continues in any case in which the person, in violation of this title or section 403— knowingly or willfully prepares, maintains, or submits false, inaccurate, or misleading reports, notices, affidavits, records, data, or other written information; knowingly or willfully takes or removes, transports, uses or diverts any locatable mineral from any land covered by a mining claim without having valid legal authority to do so; or purchases, accepts, sells, transports, or conveys to another, any locatable mineral knowing or having reason to know that the locatable mineral was stolen or unlawfully removed or diverted. No penalty under this subsection shall be assessed until the person charged with a violation has been given the opportunity for a hearing on the record. The amount of any penalty under this subsection, as finally determined, may be deducted from any sums owed by the United States to the person charged. On a case-by-case basis, the Secretary may compromise or reduce civil penalties under this subsection. Notice under this subsection shall be by personal service by an authorized representative of the Secretary or by registered mail. Any person may, in the manner prescribed by the Secretary, designate a representative to receive any notice under this subsection. In determining the amount of the penalty under this subsection, whether the penalty should be remitted or reduced, and by what amount, the Secretary shall state on the record the reasons for the determinations of the Secretary. Any person who has requested a hearing in accordance with paragraph

(5)within the time the Secretary has prescribed for such a hearing and who is aggrieved by a final order of the Secretary under this subsection may seek review of the order in the United States district court for the judicial district in which the violation allegedly took place. Review by the district court shall be only on the administrative record and not de novo. An action under this paragraph shall be barred unless the action is filed not later than the date that is 90 days after the date of issuance of the final order of the Secretary. Subject to subparagraphs

(B)and (C), if any person fails to pay an assessment of a civil penalty under this Act, the court shall have jurisdiction to award the amount assessed plus interest from the date of the expiration of the 90-day period referred to in paragraph (10)(C). Subparagraph

(A)applies— after the order making the assessment has become a final order and if the person does not file a petition for judicial review of the order in accordance with paragraph (10); or after a court in an action brought under paragraph

(10)has entered a final judgment in favor of the Secretary. Judgment by the court shall include an order to pay. Any person who commits an act for which a civil penalty is provided under subsection (i)(4) shall, on conviction, be punished by a fine of not more than $50,000 or by imprisonment for not more than 2 years, or both. Except as provided in section 201(b) with respect to the payment of royalties, the royalty required under section 201 or fee required under section 403 shall take effect with respect to the production of minerals on or after the date of enactment of this Act. Any royalty payments or fee payments under section 403 attributable to production during the 1-year period beginning on the date of enactment of this Act shall be payable at the expiration of the 1-year period, together with interest at the rate required under subsection (f)(2)(C). In addition to any other remedy under law, the Attorney General or the designee of the Attorney General may bring a civil action in a district court of the United States, which shall have jurisdiction over such actions— to restrain any violation of this title or section 403; or to compel the taking of any action required by or under this title or section 403. A civil action described in paragraph

(1)may be brought only in the United States district court for the judicial district in which the act, omission, or transaction constituting a violation under this title or section 403 occurred, or in which the defendant is found or transacts business.