[Senate Report 110-265]
[From the U.S. Government Publishing Office]
110th Congress
2d Session SENATE Report
110-265
_______________________________________________________________________
Calendar No. 523
CONSUMER PRODUCT SAFETY COMMISSION REFORM ACT OF 2007
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. H.R. deg. 2045
DATE deg.February 25, 2008.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred tenth congress
second session
DANIEL K. INOUYE, Hawaii, Chairman
TED STEVENS, Alaska, Vice-Chairman
JOHN D. ROCKEFELLER IV, West JOHN McCAIN, Arizona
Virginia KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota GORDON H. SMITH, Oregon
BARBARA BOXER, California JOHN ENSIGN, Nevada
BILL NELSON, Florida JOHN E. SUNUNU, New Hampshire
MARIA CANTWELL, Washington JIM DEMINT, South Carolina
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
MARK PRYOR, Arkansas JOHN THUNE, South Dakota
THOMAS CARPER, Delaware ROGER F. WICKER, Mississippi
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota
Margaret Cummisky, Staff Director and Chief Counsel
Lila Helms, Deputy Staff Director and Policy Director
Jean Toal Eisen, Senior Advisor and Deputy Policy Director
Christine Kurth, Republican Staff Director and General Counsel
Paul J. Nagle, Republican Chief Counsel
Mimi Braniff, Republican Deputy Chief Counsel
Calendar No. 523
110th Congress Report
SENATE
2d Session 110-265
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CONSUMER PRODUCT SAFETY COMMISSION REFORM ACT OF 2007
_______
February 25, 2008.--Ordered to be printed
_______
Mr. Inouye, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 2045]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill joint resolution deg. (S.
H.R. deg. 2045) TITLE deg. to reform the
Consumer Product Safety Commission to provide greater
protection for children's products, to improve the screening of
noncompliant consumer products, to improve the effectiveness of
consumer product recall programs, and for other purposes,
having considered the same, reports favorably thereon
without amendment deg. with amendments deg.
with an amendment (in the nature of a substitute) and
recommends that the bill joint resolution deg. (as
amended) do pass.
Purpose of the Bill
Established in 1973, the Consumer Product Safety Commission
(CPSC) is an independent Federal health and safety regulatory
agency that was created by the passage of the Consumer Product
Safety Act of 1972 (15 U.S.C. 2051 et seq.) (CPSA). The CPSC
has not been reauthorized since 1992, and its current statutory
authority has limited the agency in monitoring and enforcing
against entities participating in a global marketplace. In
addition, the resources of the agency have been in decline for
several years.
The need for the agency and the product safety regime have
been highlighted by a recent series of high profile nationwide
recalls of noncompliant products. In addition to the recalls,
there are continued reports of products with potentially deadly
flaws that have been voluntarily recalled, yet are still
readily available in the stream of commerce. S. 2045, as
amended, would address several concerns about the CPSC,
including but not limited to: increased CPSC resources; the
creation of a joint enforcement regime with the States; the
improvement of reporting requirements; the creation of new
mandatory product standards; mandatory third-party
certification of the safety of children's products; stronger
authority to manage imported product safety; and increased
civil and criminal penalties.
Background and Needs
The CPSC estimates that consumer products under its
jurisdiction are related to 27,100 deaths and 33.1 million
injuries each year. The agency estimates that the dollar cost
of these deaths, injuries, and related property damage exceeds
$700 billion annually. The Commission has four primary
missions:
To protect the public against unreasonable
risks of injury associated with consumer products;
To assist consumers in evaluating the
comparative safety of consumer products;
To develop uniform safety standards for
consumer products and to minimize conflicting State and
local regulations; and
To promote research, investigation into
causes for, and prevention of products-related deaths,
illnesses, and injuries.
In addition to the CPSA, the agency fulfills these missions
via several statutes. The most significant of these corollary
statutes include:
The Federal Hazardous Substances Act (15
U.S.C. 1261) (FHSA);
The Flammable Fabrics Act (15 U.S.C. 1191)
(FFA); and
The Poison Prevention Packaging Act (15
U.S.C. 1471) (PPPA).
The CPSC employs approximately 400 full-time employees (FTEs)
who are responsible for monitoring the safety of more than
15,000 different consumer products. The agency strives to
accomplish its mission by: working in tandem with industry
leaders to develop voluntary standards; conducting research on
potentially dangerous products; issuing and implementing
mandatory standards or banning consumer products if no
reasonable standard to protect the public can be agreed upon;
and obtaining recalls of products deemed unsafe or making
arrangements for product repair. The agency does not have
jurisdiction over products such as automobiles and other
street-legal vehicles, tires, boats, tobacco, alcohol,
firearms, food, drugs, cosmetics, medical devices, and
pesticides.
Currently, the CPSC operates as a three person Commission.
The Commissioners are nominated by the President and confirmed
by the Senate for staggered seven-year terms. Ms. Nancy Nord, a
Republican, is the current Acting Chairman since the
resignation of Mr. Harold ``Hal'' Stratton on July 15, 2006.
She was confirmed on April 28, 2005, and her term expires in
2012. Mr. Thomas Hill Moore, the Democratic Commissioner, was
reconfirmed on May 21, 2004, with his term expiring in October
2010. Until the President nominates a third Commissioner, the
CPSC will operate as a two-person panel under a temporary
quorum proviso. That temporary authority will expire in
February 2008.
Funding and Staffing Levels: The President's fiscal year (FY)
2008 budget proposed to fund 401 FTEs, the fewest number in the
agency's 34 year history, and to provide only $63.25 million to
operate the agency. The agency has undergone attrition in
anticipation of this funding level and is slightly below 400
FTEs at this time. Funding for the CPSC has remained
essentially flat for FY 2005 through FY 2007, forcing staff
decreases of 31 FTEs in FY 2006 and approximately 20 FTEs in FY
2007. Since 2000, the CPSC has lost approximately 79 FTEs. The
size of the CPSC workforce today is less than half its size at
the end of the 1970's. The Consolidated Appropriations Act of
2008 contains $80 million for the operation of the CPSC for FY
2008. This bill was signed into law (P.L. 110-161) on December
26, 2007.
Quorum: Section 4(d) of the CPSA provides that three
members serving at the Commission constitute a quorum, which is
necessary for the transaction of business. If there are only
two Commissioners because of a vacancy, two members constitute
a quorum for six months after the vacancy was created. The CPSC
operated without a quorum from January 2007 to August 2007,
when a temporary quorum was extended by an amendment to H.R. 1,
the Implementing Recommendations of the 9/11 Commission Act of
2007 (P.L. 110-53) (``9/11 Act''), which was signed into law on
August 3, 2007. That quorum extension expired on February 3,
2007. Without a quorum, the Commission cannot conduct any
business requiring a vote, including rulemakings or civil
penalties, or hold public hearings.
Conversions of Employees from Noncareer to Career
Positions: In the General Accountability Office's (GAO) Report
Personnel Practices: Conversions of Employees from Noncareer to
Career Positions May 2001-April 2005, the CPSC was highlighted
for promoting a nonqualified appointee working for then
Chairman Stratton to a Senior Executive Service (SES) position.
The case is detailed on page 68 of the report (GAO-06-381, May
2006).
Case 16: Consumer Product Safety Commission (CPSC):
Positions: From Schedule C Appointment, GS-0301-15/10,
Special Assistant, Office of the Chairman, Consumer
Product Safety Commission:
To ES-0340-00/00, Director, Office of International
Programs and Intergovernmental Affairs, Office of the
Executive Director, Consumer Product Safety Commission:
Issue: Agency did not appear to address [Office of
Personnel Management (OPM)] qualification concerns
about the conversions in a substantive manner:
Details: Prior to applying for the career position,
the eventual selectee had served for over a year as a
Schedule C Special Assistant in the office of the
Chairman. According to his resume, as a Special
Assistant, the eventual selectee directly supported the
Chairman by (1) providing senior level policy advice on
current and developing issues, (2) preparing written
materials for presentation at external speaking
engagements, (3) acting as a liaison with internal and
external parties, and (4) drafting documents as needed.
On November 14, 2003, CPSC posted a vacancy
announcement for the SES career position of Director,
Office of International Programs and Intergovernmental
Affairs. Based on the vacancy announcement, the
director would oversee and coordinate the Commission's
international and intergovernmental efforts related to
product safety standards. The desired qualifications
listed in the announcement closely matched the eventual
selectee's previous experience in the private sector,
and as an elected official to the New Mexico State
Legislature, as listed on his resume.
Twenty-four applicants applied, and of these, nine
were considered qualified for the position and assigned
numerical scores. The eventual selectee received the
highest numerical score and the selecting official
selected him for the career position on December 19,
2003.
Because this is an appointment to the career SES,
CPSC submitted the selectee's case to OPM for approval
on February 13, 2004. An OPM administered
[Qualifications Review Board (QRB)] denied the agency's
request citing weakness in three of the five Executive
Core Qualifications (ECQ). The QRB also noted that the
selectee's lack of managerial experience would be a
handicap to successful performance in the SES. Based on
comments from CPSC's Executive Director, the selectee
revised his ECQ statement by citing different examples
from his experiences. Although the selectee refers to
his ``career as a senior manager and leader'' the only
concrete examples he provided of his experiences in the
ECQs relate to his 15-month position at the CPSC or his
2-terms as an elected official in the New Mexico State
Legislature. However, in describing his specific role
and duties for each of these positions on his resume,
he does not mention managerial or supervisory duties
for either. Using the revised ECQs, CPSC resubmitted
its request. OPM pointed out that the resubmission was
provided to a different QRB, which was not involved or
familiar with the initial QRB's concerns or decision.
This QRB approved the appointment on April 2, 2004.
Conclusions: Although the selectee modified his
second submission to OPM, the primary basis for the
selectee's qualifications remained his experience from
the 15-month appointment at the CPSC and 2-terms as a
State Representative. It is unclear whether or how this
revised submission addressed the concerns raised by the
initial QRB regarding the candidate not meeting the
``demonstrated executive experience'' required for SES
positions by 5 U.S.C 3393, or the ``well-honed
executive skills and broad perspective of government''
recommended by OPM guidance on the SES.
The Committee is concerned about the anomalies in the
employment selection process as evidenced in the GAO report.
The Committee would strongly encourage the CPSC develop a human
resource selection protocol to ensure that non-political
Commission staff have clear opportunities for development and
promotion, and that candidates for SES positions be technically
qualified for the demands of the position.
Civil Penalty Caps: In 1972, Congress passed the CPSA with
penalties of $2,000 per violation up to $500,000 for any
related series of violations. In 1990, Congress raised the
penalty amounts in recognition that the previous penalties had
been insufficient to motivate compliance and had not kept pace
with inflation. Congress raised the penalty amount to $5,000
per violation up to a $1.25 million cap for a series of related
violations and added a cost of living adjustment (COLA) factor.
Congress also added penalty authority under the FHSA and the
FFA.
On January 1, 1995, the first COLA pushed the penalties to
$6,000 per violation with a $1.5 million cap. On January 1,
2005, the COLA increased penalties to $8,000 per violation with
a $1.825 million cap. The largest civil penalty ever levied by
the CPSC was against Graco Children's Products for $4 million.
The penalty combined fines for seven different products that
violated the CPSA. The CPSC entered into a settlement with
Graco, which failed to report more than 12 million products
that imposed dangers to children over an 11 year period.
A comparison of current CPSC penalty authority highlights
differences in enforcement regimes for consumer protection and
consumer safety. The Federal Trade Commission has uncapped
civil penalty authority (15 U.S.C. 45(m)). In 2002, Schering-
Plough agreed to pay a $500 million fine as a result of a Food
and Drug Administration investigation into the company's drug
manufacturing practices. Some States may have stronger
penalties than the CPSC in protecting consumers from dangerous
products. For example, in 2003, the State of New York fined Dow
Chemical $2 million for misleading consumers about the safety
of its pesticides.
Preemption of State Product Safety Laws: In 2006, the CPSC
included language in the preamble of its mattress flammability
rule that would foreclose common law tort claims applied to
mattress fire safety. The preemption language was not included
in the draft rule that was released to the public for the
notice and comment period, giving constituents no opportunity
to comment on this significant change. In addition, the
Commission did not fulfill the requirements of Executive Order
13132 (August 4, 1999) that mandated consultation with local
and State governments before enacting a rule that would
substantially impact them, such as extinguishing common law
actions in tort as part of a rule regulating product safety.
The Executive Order states ``National action limiting the
policymaking discretion of the States shall be taken only where
there is constitutional and statutory authority for the action
and the national activity . . . [and] agencies shall consult
with appropriate State and local officials to determine whether
Federal objectives can be attained by other means.''
Many members of the Committee believe that the CPSC went
beyond Congressional intent in placing this limitation of State
common law actions in the preamble of the rule. The preemption
section of the FFA, 15 U.S.C. 1203, uses the narrow term
``standard or other regulation'' in subsections (a), (b) and
(c) to encompass the action and subject matter to be preempted
(15 U.S.C. 1203, emphasis added).
(a) Standards or regulations designed to protect
against same risk as State standards or regulations;
identical State standards.--Except as provided in
subsections (b) and (c) of this section, whenever a
flammability standard or other regulation for a fabric,
related material, or product is in effect under this
chapter, no State or political subdivision of a State
may establish or continue in effect a flammability
standard or other regulation for such fabric, related
material, or product if the standard or other
regulation is designed to protect against the same risk
of occurrence of fire with respect to which the
standard or other regulation under this chapter is in
effect unless the State or political subdivision
standard or other regulation is identical to the
Federal standard or other regulation.
(b) State standards or regulations which afford a
higher degree of protection.--The Federal Government
and the government of any State or political
subdivision of a State may establish and continue in
effect a flammability standard or other regulation
applicable to a fabric, related material, or product
for its own use which standard or other regulation is
designed to protect against a risk of occurrence of
fire with respect to which a flammability standard or
other regulation is in effect under this chapter and
which is not identical to such standard or other
regulation if the Federal, State, or political
subdivision standard or other regulation provides a
higher degree of protection from such risk of
occurrence of fire than the standard or other
regulation in effect under this chapter.
(c) Exemption for State standards or regulations;
requirements; determination of burden on interstate
commerce; notice and hearing.--(1) Upon application of
a State or political subdivision of a State, the
Commission may, by regulation promulgated in accordance
with paragraph (2), exempt from subsection (a) of this
section, under such conditions as may be prescribed in
such regulation, any flammability standard or other
regulation of such State or political subdivision
applicable to a fabric, related material, or product
subject to a standard or other regulation in effect
under this chapter, if--
(A) compliance with the State or political
subdivision requirement would not cause the fabric,
related material, or product to be in violation of the
standard or other regulation in effect under this
chapter, and
(B) the State or political subdivision standard or
other regulation (i) provides a significantly higher
degree of protection from the risk of occurrence of
fire with respect to which the Federal standard or
other regulation is in effect, and (ii) does not unduly
burden interstate commerce. In determining the burden,
if any, of a State or political subdivision
flammability standard or other regulation on interstate
commerce the Commission shall consider and make
appropriate (as determined by the Commission in its
discretion) findings on the technological and economic
feasibility of complying with such flammability
standard or other regulation, the cost of complying
with such flammability standard or other regulation,
the geographic distribution of the fabric, related
material, or product to which the flammability standard
or other regulation would apply, the probability of
other States or political subdivisions applying for an
exemption under this subsection for a similar
flammability standard or other regulation, and the need
for a national, uniform flammability standard or other
regulation under this chapter for such fabric, related
material, or product.
(2) A regulation under paragraph (1) granting an
exemption for a flammability standard or other
regulation of a State or political subdivision of a
State may be promulgated by the Commission only after
it has provided, in accordance with section 553(b) of
title 5, notice with respect to the promulgation of the
regulation and has provided opportunity for the oral
presentation of views respecting its promulgation.
The preamble, if read in context with all the subsections,
would require different interpretations of ``standard or other
regulation'' between (a) and (c). While (a) sets forth the
foundation of the agency's ability to preempt a State
flammability standard or regulation, (c) allows States to apply
to the Commission to exempt flammability standards or
regulations from being preempted. Therefore, if one accepts the
CPSC's interpretation, then a State court in the midst of a
ruling between independent parties for economic and noneconomic
damages regarding a mattress flammability matter would have to
apply to the CPSC for an exception to allow the court to use
its own common law.
The preamble language extinguishing common law cases in
this area of consumer product safety runs counter to the role
of State courts and the most basic notions of Federalism and
judicial economy. If the Congress wished to extinguish common
law private rights of action for consumer products covered by a
specific Federal product safety standard, it would have
explicitly stated such a notion as it has in several other
areas of law.
Recall Effectiveness: In September 2007, approximately 1.3
million toys were recalled for violating lead paint standards;
1 million cribs were recalled for design flaws; and 425,000
infant play yards were recalled for posing strangulation and
suffocation hazards. In August 2007, almost 9 million toys were
recalled for containing magnets that may come loose and create
an ingestion hazard and thousands of pieces of children's
jewelry were recalled for high lead content. While recalls for
children's products have dominated press reports in recent
months, candles, all-terrain vehicles, bunk beds, space
heaters, clothes, knives, scuba masks, radios, lamps, and
electronic equipment were also recalled. Some commentators have
pointed to the number of recalls as a sign of success of the
product safety system. Many of these recalls, however, were
prompted by attention in the press as opposed to investigations
by the CPSC. In particular, three circumstances in recent press
reports that called for substantial reform of the CPSC and the
recall system.
Simplicity Cribs. On September 21, 2007, the Commission
announced a voluntary recall with Simplicity, Inc. of Reading,
Pennsylvania, of roughly 1 million baby cribs. The Commission
reported two infant deaths, seven infant entrapments, and 55
other incidents involving design flaw and hardware failure that
permitted incorrect installation by consumers of one part of
the crib. A drop-rail side in some crib models detached from
the frame and created a small space that could entrap infants.
The cribs were manufactured in China, marketed under the
Simplicity and Graco brand names, and sold for $100 to $300
from January 1998 through May 2007 by department stores and
mass merchandisers worldwide. The voluntary recall directed
consumers to contact Simplicity for a free repair. One month
later, the CPSC announced that repair kits were ready to be
sent to parents with the recalled cribs. The crib recall
announced by the Commission on September 21 was the fourth
Federal recall since May 2005 for Simplicity. In press reports,
consumer safety groups voiced apprehension about the dangerous
cribs, emphasizing that no margin of error exists when dealing
with infant products of this nature. Critics have pointed to
the Commission's delayed response time: a California attorney
has said that he alerted the Commission about the death, caused
by a faulty crib, of a 9-month old two years before the agency
announced the crib recall. \1\
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\1\ Maurice Possley, Deaths Spur Huge Crib Recall, Chicago
Tribune, September 22, 2007 at Zone C-Pg. 1 [hereinafter Possley].
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Kazuma Meerkat 50: In June 2007, the CPSC issued a warning
about an all-terrain vehicle (ATV) imported from China called
the Kazuma Meerkat 50. The Commission noted in its press
release that ``Children are at risk of injury or death to
multiple safety defects with this off-road vehicle.'' The
Commission could not undertake a mandatory recall because it
did not have a quorum and could not undertake any official
business. Jason Tsai, President of the company that imports the
Meerkat refused to voluntarily recall the ATV, and he told the
Washington Post in an October 2007 article that he would never
agree to a recall, because agreeing to a voluntary recall
``means I agree with CPSC's [accusation] that the Meerkat 50 is
a severe hazardous product. \2\ The article also highlighted
that the CPSC is limited in information it can disclose about a
product because of protections provided under section 6(b) of
the CPSA. \3\ So in a situation such as the Meerkat impasse,
the importer can force the CPSC into court over a disclosure
that would help the consuming public help themselves. Despite
the CPSC warning and the temporary quorum extension granted in
the 9/11 Act, the CPSC has not initiated mandatory recall
proceedings.
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\2\ Annys Shin, Stuck in Neutral: Consumer Safety panel Faces
Constraints In Its Ability to Force Recalls of ATVs, Washington Post,
Oct. 27, 2007 at D1.
\3\ Id.
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Stand 'n Seal: The Stand 'n Seal case is a powerful
illustration of the Commission's inability to protect consumers
from harmful products. There have been at least 88 complaints
from consumers who have used Stand 'n Seal, including two
deaths and 28 cases of overexposure resulting in respiratory
symptoms for which medical attention were sought.
Stand 'n Seal, distributed by Roanoke Companies Group Inc.
(Roanoke), is a canned aerosol sealant used to waterproof
kitchen and bathroom floors. The product entered the market in
late 2003 for sale exclusively at Home Depot stores. In the
spring of 2005, one of Roanoke's suppliers switched an
ingredient in Stand 'n Seal. Shortly after the reformulated
cans reached Home Depot shelves, calls from customers,
emergency rooms, and doctors poured into poison control centers
and the CPSC's own hot line. \4\
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\4\ Eric Lipton, Dangerous Sealer Stayed on Shelves After Recall,
New York Times, October. 8, 2007. Available at www.NYT.com.
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After weeks of consumer complaints, in mid-June 2005, Roanoke
reported a possible health hazard from the Stand 'n Seal
product to the CPSC. Then, for over two months, the CPSC and
Roanoke negotiated a recall. During this negotiation period,
the public was not alerted to the product hazard and the
product remained on Home Depot's shelves. Also during this
period, Mr. Tripodi, an executive for Roanoke, sent an e-mail
message to a business associate saying, ``We are doing
everything to convince the Home Depot that there is no reason
to take these batches off the shelf.'' On August 31, 2005, the
CPSC announced a voluntary recall of the Stand 'n Seal product.
From mid-June 2005, when Roanoke reported to the Commission, to
August 31, 2005, when the CPSC issued a voluntary recall, Stand
'n Seal sickened dozens of people, two of them fatally. \5\
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\5\ Id.
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After the recall, Roanoke re-supplied Home Depot stores
nationwide with 50,000 new cans of Stand 'n Seal and assured
the Commission that it had fixed the problem. Since the CPSC's
recall notice only applied to cans sold at Home Depot stores
between April 2005 and June 2005, consumers were left to
believe that the new Stand 'n Seal cans were safe for use.
However, the new cans still contained the unsafe chemical
implicated in earlier illnesses. Andrew Lamer, a 24-year-old
home contractor, ended up in a hospital intensive care unit
after using a can of Stand 'n Seal he bought in November 2005,
four months after the recall. \6\
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\6\ Id.
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It was not until March 2007, a year and a half after the
original recall, that Home Depot and Roanoke acknowledged the
continuing health problem with Stand 'n Seal. A Home Depot
statement conceded that the 50,000 cans used to restock the
shelves in 2005 ``have been identified as containing the same
potentially harmful formulation as the recalled batches.'' Home
Depot then removed Stand 'n Seal from the market and posted a
notice on its corporate Web site offering a refund to anyone
who, after the recall, had bought one of the 50,000 cans. \7\
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\7\ Id.
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The time it took the Commission to take Stand 'n Seal off
Home Depot's shelves has revealed serious deficiencies in the
Commission's ability to carry out its mission to protect
consumers from unsafe products. If the CPSC had acted more
quickly to issue recalls of unsafe products or had alerted the
public of the potential dangers, deaths and injuries associated
with Stand 'n Seal might have been prevented.
Lead in Children's Products: Lead is a highly toxic substance
found in consumer products, contaminated-soil, homes, and work
environments. Lead poisoning and lead exposure are problematic
throughout the United States. Indeed, the U.S. Department of
Housing and Urban Development has estimated that 24 million
homes still have significant lead-based hazards. Children are
especially vulnerable to lead exposure because of their
developing nervous systems and brains. In particular, children
under the age of six absorb greater amounts of lead than adults
absorb when both groups' exposure to lead is identical.
According to the Centers for Disease Control and Prevention
(CDC), not only are children at increased risk of exposure to
lead because they absorb more lead than adults but also because
they tend to exhibit more hand-to-mouth activity than adults.
Lead is associated with impaired motor, behavioral, cognitive,
and physical functioning in children. The adverse health
effects of lead poisoning in children can take many forms:
behavior and learning problems like hyperactivity, ADHD, ADD,
hearing problems, headaches, memory and concentration problems,
stunted growth, brain damage and nervous system damage.
According to a 1991 statement by the CDC:
Very severe lead exposure in children (blood lead
levels 380 g/dL) can cause coma, convulsions, and even
death. Lower levels cause adverse effects on the
central nervous system, kidney, and hematopoietic
system. Blood lead levels as low as 10 g/dL, which do
not cause distinctive symptoms, are associated with
decreased intelligence and impaired neurobehavioral
development. \8\
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\8\ William L. Roper, M.D., M.P.H, Director; Vernon N. Houk, M.D.,
Henry Falk, M.D., Sue Binder, M.D., Preventing Lead Poisoning in Young
Children: A Statement by the Centers for Disease Control and
Prevention-October 1991. Available online at http://www.cdc.gov/nceh/
lead/publications/books/plpyc/chapter2.htm
In 1991, while the CDC defined 10 micrograms per deciliter (
g/dL) as the blood lead level that should trigger action by
public health officials, the CDC acknowledged that the 10 g/dL
did not represent a threshold for the harmful effects of lead.
Since then, no safe blood lead level in children has been
identified. Based on research conducted since 1991, evidence
indicates that blood lead levels of less than 10 g/dL can
affect children's physical and mental development, according to
a report written by the CDC's Advisory Committee on Childhood
Lead Poisoning Prevention (Advisory Committee) and published in
the November 2007 issue of the medical journal Pediatrics. The
report noted that lead ``has a continuing negative association
with IQ as children reach elementary school age.'' \9\ The
Advisory Committee's report also enumerated nonhousing lead
sources of exposure for children, many of which fall under the
jurisdiction of the CPSC, including pottery and toys. The
report found that ``because no safe BLL [blood lead level] has
been defined, small reductions in population-level exposures to
lead would likely affect substantial numbers of children and
could be expected to reduce the number of children with adverse
health outcomes associated with lead exposure.'' \10\
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\9\ Helen J. Binns, MD, Carla Campbill, MD, Mary Jean Brown, ScD,
RN for the Advisory Committee on childhood Lead Poisoning Prevention,
Interpreting and Managing blood Lead Levels of Less Than 10 g/dL in
children and Reducing Childhood Exposure to Lead: Recommendations of
the Centers for Disease Control and Prevention Advisory Committee on
Childhood Lead Poisoning Prevention, PEDIATRICS Vol. 120, No. 5,
November 2007, pp. e1285-e1298 (doi:10.1542/peds.2055-1770). Published
online November 1, 2007.
\10\ Id.
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Highlighting the toxicity of lead and the detrimental impact
of lead exposure on children's cognitive, physical, and
behavioral development, the American Academy of Pediatrics
reiterated much of the CDC's scientific findings on lead
accumulation in children in a letter to Acting Chairman Nancy
Nord, dated March 7, 2007:
Lead is well-established as a potent neurotoxin and a
particular threat to the developing brain of the young
child, with documented negative effects on behavior and
permanent loss of IQ points. No threshold for the toxic
effects of lead has been identified. When lead
accumulates in the body, it is tightly bound to bone
and then released slowly over years or decades. Thus,
exposures that may be separated by months to years have
an additive effect on the body's burden of lead.
Acquisition of lead in the body even in small amounts
(i.e., amounts that result in blood lead levels <10 g/
dL) contribute to an accumulation of lead and produce
the negative effects of lead on children's health and
development that last a lifetime . . . Studies on lead
accumulation at lower levels report a loss of 4 to 7 IQ
points for lead levels that move from 1 g/dL to 10 g/
dL. \11\
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\11\
Increasing children's risk of lead exposure are the millions
of toys recently recalled for containing hazardous levels of
lead. Posted on the Commission's website are many recalls
involving lead in children's jewelry; notable examples include:
a July 8, 2004, recall of one hundred fifty million pieces of
toy jewelry for containing dangerous levels of lead by four
companies, A & A Global Industries, Brand Imports, LLC,
Cardinal Distributing Company, and L. M. Becker & Company; and
a September 26, 2007, recall by Toby N.Y.C. of 23,500 Toby and
Me Jewelry Sets that contained high levels of lead. In 2006, a
four-year old child died in Minnesota after swallowing a piece
of a Reebok charm bracelet found to be almost entirely composed
of lead. In 2004 in Oregon, a child ingested a necklace of high
lead content, after which her blood lead level was recorded as
123 g/dL.
Not only has lead in children's metal jewelry been prevalent
in recent recalls, but products have also been recalled for
containing dangerous levels of lead paint. Currently, Federal
law bans the use of lead in paint above 600 parts per million.
Despite the U.S. Federal standard, Mattel revealed to the House
of Representatives Subcommittee on Commerce, Trade and Consumer
Protection on September 19, 2007, the range of lead levels, in
violation of Federal standards, in its recalled products: ``The
reported noncompliant lead levels found in paint on some
samples of recalled toys, so far, has typically been about one
(1) percent or 10,000 parts per million. The reported
noncompliant lead levels in paint, so far, range from just over
the applicable standard to about eleven (11) percent or 110,000
parts per million.''
Current science has highlighted the greater danger,
especially to children, from lead exposure. Standards need to
be updated to reflect this new information and improved testing
abilities.
Summary of Provisions
CPSC Resources: To address CPSC's lack of resources described
above, S. 2045 (the ``Reform Act'' or the ``Act'') would
provide an authorization of $759 million over seven years,
which is a 74 percent increase over current funding levels. The
Reform Act also would provide $40 million in funding authority
to renovate and improve the CPSC laboratory facilities, an
additional $1 million to support research into the safety of
nanotechnology in consumer products, and $15 million in funding
over the next seven years for the Commission's Office of the
Inspector General.
Commission Administration and Rulemaking: The Reform Act
would address current statutory authority and operations of the
CPSC. The most significant provisions include:
Quorum. Originally, the CPSC was to be composed of up to five
Commissioners, not more than three of whom could be members of
the same political party. In 1992, Congress restricted funds
for two Commissioners and their staffs for FY 1993 and
thereafter. Since that time, the CPSC has functioned as a
three-member commission, with a temporary quorum rule to allow
the CPSC to function with two Commissioners for up to 6 months.
Without a quorum, the Commission cannot conduct any business
requiring a vote, including rulemakings or civil penalties, or
hold public hearings. After the expiration of the temporary
quorum in January 2007, the CPSC operated without a quorum
until the signing of the 9/11 Act on August 3, 2007, which
included a six month extension of the temporary quorum rule,
allowing the CPSC to operate fully until February 3, 2008. The
Act would extend the temporary quorum rule for nine months
after the date of enactment. Also, the Act would repeal the
limit on the use of appropriated funds for more than three
Commissioners and urge the President to nominate members to
fill all five Commissioner positions.
Personnel. The Reform Act would require the CPSC to increase
the number of its FTEs to at least 500 from its current level
of approximately 400 by October 1, 2013, and would assign an
additional 50 FTEs to ports of entry or overseas inspection
duty by October 1, 2010. In addition, to help assure only the
most qualified individuals obtain civil service positions
within the CPSC and to limit political influence in the
professional permanent staff of the Commission, the bill would
prohibit the appointment of an active political employee to a
civil service position within the Commission, unless the
appointment is authorized by a unanimous vote of the Commission
or more than one year has elapsed since his or her termination
from the CPSC political appointment. The bill also would
prohibit the reduction of staff in the office of a
Commissioner, unless the reduction is authorized by a unanimous
vote of the Commission.
Rulemaking. Currently the CPSC is required to undertake a
three-step rulemaking process (Announced Notice of Proposed
Rulemaking (ANPR), Notice of Proposed Rulemaking (NPR), and the
Issuance of the Final Rule). By mandating a two-step rulemaking
(NPR and Issuance of Final Rule), while allowing the CPSC to
use its three-step process when the Commission deems
appropriate, the Reform Act would streamline the process.
Preemption. In 2006, the CPSC included language in the
preamble of its mattress flammability rule that would foreclose
common law tort claims applied to mattress fire safety. The
preemption language included in the rule was not authorized by
Congress and was not included in the draft rule that was
released to the public for the notice and comment period,
giving constituents no opportunity to comment on this
significant change. S. 2045 would clarify that no consumer
product safety standard promulgated by the Commission after the
date of enactment of the Reform Act, or any other action taken
by the Commission after that date, would preempt any State or
local law to an extent greater than currently permitted under
the preemption sections of the CPSA, the FHSA, the FFA, or the
PPA. The section would further clarify that the Standard for
the Flammability of Mattress Sets promulgated by the CPSC would
not limit a State's or a political division of a State's rights
to common law actions in tort and to establish standards
consistent with section 16(b) and (c) of the FFA, or the other
preemption sections within the CPSA, the FHSA, and the PPA.
Recall Effectiveness: S. 2045 contains five major amendments
to the current recall system under the CPSA.
Corrective Action Plans. Currently, companies can elect the
remedy they wish to use in the recall of a defective product ``
a repair, replacement, or refund'' even though Commission staff
may view the recall method as inadequate or lacking in
effectiveness. S. 2045 would provide the Commission the
authority to approve the corrective action plan it determines
to be in the public interest, instead of allowing the
manufacturer to select the corrective action plan it believes
appropriate. Further empowering the Commission, if the agency
finds that an approved corrective action plan is not effective,
or that the manufacturer, retailer, or distributor is not
executing an approved action plan effectively, S. 2045 would
enable the Commission to order the action plan to be amended,
if the Commission finds an approved corrective action plan not
effective or that the manufacturer, retailer, or distributor is
not effectively executing a corrective action plan. If the
Commission determines, after notice and the opportunity for
comment, that a manufacturer, retailer, or distributor has
failed to comply substantially with its obligations under its
action plan, the Commission would have the authority to revoke
approval of the action plan and require the manufacturer,
retailer, or distributor to cease distribution of the product.
Tracking Labels for Children's Products. Currently, no
mandatory Federal regime exists for identifying/tracking marks
to be placed on children's products. Because of the necessity
to identify and remove these products from the stream of
commerce as soon as possible after the notice of a voluntary or
mandatory recall, S. 2045 would require manufacturers of
children's products to place distinguishing marks on the
product and its packaging to the extent practicable, enabling
the purchaser to ascertain the source, date, and cohort
(including the batch, run number, or other identifying
characteristic) of the product by reference to those marks. S.
2045 would also authorize the Commission to extend the tracking
requirement to other products through a rulemaking proceeding.
Identification of Manufacturers by Importers and Retailers.
The CPSA contains no provision that explicitly requires
manufacturers, retailers, or importers to maintain and provide
records to the Commission of product distribution or sale to
related entities. This lack of communication and transparency
delays product recall notification to relevant actors. To
address this, S. 2045 would require that every importer,
retailer, or distributor of any product or substance under the
Commission's jurisdiction to identify the manufacturer of that
product by name, address, or such other identifying information
as the Commission may request. In addition, each manufacturer
would be required to identify the retailer, or distributor to
which it supplied a given consumer product and each
subcontractor involved in the production or component supply of
a product by name, address, or such other identifying
information upon the request of the Commission.
Bonding for Recalls or Destruction of Products. In certain
situations a manufacturer, importer or retailer may not have
the resources to execute an effective recall to remove a
dangerous product from the stream of commerce. To address this
potentiality, the Reform Act would give the Commission the
authority, by rule, require manufacturers or distributors of a
consumer product to post a bond (or other security acceptable
to the Commission) in an amount sufficient to cover the costs
of an effective recall of the product or substance, and in the
case of an imported product or substance, to cover the costs of
holding the product or substance at the port and destruction of
the product or substance should such action be required.
Prohibition of Sale of Recalled Products. Currently, the CPSA
prohibits individuals from manufacturing, selling,
distributing, or importing either a consumer product in
noncompliance with an applicable safety standard under the CPSA
or a declared banned hazardous substance under the FHSA. S.
2045 would add additional protections pertaining to the sale of
a voluntarily recalled product and expand prohibitions on the
sale of recalled consumer products under any other Act enforced
by the Commission. All persons would be prohibited from
selling, manufacturing, distributing or importing into the
United States any consumer product that is subject to a
voluntary corrective action taken by the manufacturer of which
the CPSC has notified the public. As a result of this addition,
it would be unlawful for individuals to sell a product that the
individual knew or should have known was voluntarily or
mandatorily recalled after a public announcement made by the
Commission of the recall.
Industry Reporting and Public Disclosure: The CPSC and
several outside constituencies have made a number of
suggestions to improve the reporting system and to provide more
information to consumers about unsafe or potentially unsafe
products. After reviewing the submissions, the Committee
formulated a comprehensive approach to reporting reform. The
most significant of these provisions include:
Company Reporting of Defective Products and Statutory
Violations. Under section 15(b) of the CPSA, companies are
required to immediately inform the CPSC of information which
reasonably supports the conclusion that a consumer product: (1)
fails to comply with a product safety rule; (2) contains a
defect that could create a substantial product hazard; or (3)
creates an unreasonable risk of serious injury or death. This
obligation, however, does not extend to substances and products
covered by statutes other than the CPSA that the Commission
enforces, such as the FHSA. Consistent with the requests of
both CPSC Commissioners, S. 2045 would extend the section 15(b)
reporting requirements to all statutes that the CPSC enforces.
Whistleblower Protections. S. 2045 would establish
whistleblower protections for private and governmental
employees who: (1) provided or are about to provide to an
employer, the Federal government, or a State attorney general
information relating to any violation or alleged violation of
any order, regulation, or consumer product safety standard
under any law enforceable by the Commission; (2) testified or
are about to testify about such matters; (3) assisted or
participated or is about to assist or participate in the
investigation of such matters; or (4) objected to, or refused
to participate in, an act reasonably believed to be in
violation of law or a substantial danger to public health or
safety. The bill would set out procedures under which an
employee may file a complaint with the Department of Labor
(DOL) against an employer alleging unlawful employment action
and provide the employer the opportunity to respond and defend
itself. If the DOL determines that a complainant was aggrieved
as a result of being a whistleblower, the DOL would be
authorized to order the employer to provide compensation
(including back pay); restore the terms, conditions, and
privileges associated with his or her employment; and provide
compensatory and consequential damages, reasonable litigation
costs, and punitive damages up to $250,000.
S. 2045 would encourage employees to report product safety
violations to the CPSC or State attorneys general by granting
an employee 15 to 25 percent of any civil penalty collected
with respect to a reported violation. If the CPSC or a State
attorney general proceeds with an action based on information
provided by a nongovernmental employee, the employee would be
eligible to receive between 15 and 25 percent, as determined by
the Commission, of a civil penalty collected depending upon the
extent to which the information provided by the employee
substantially contributed to the enforcement action. If the
Commission's action is based primarily on disclosures of
specific information not directly provided by the employee, the
Commission would be authorized to award up to 10 percent of a
civil penalty collected as it considers appropriate based on
the role of the employee. An employee would not be entitled to
a reward if he or she caused the violation without the
knowledge and direction of his employer. Additionally, an
employee who brings a frivolous lawsuit would be subject to a
$1,000 penalty.
Public Disclosure of Information. The Chicago Tribune
recently reported that the September 2007 recall of 1 million
cribs only occurred after the newspaper began raising
questions. This was despite two deaths and 55 complaints
received by the CPSC regarding the cribs, beginning in April
2005. A CPSC investigator was quoted as saying ``[w]e get so
many cases. Once I do a report, I send it in and that's it. I
go to the next case. We could spend more time, but we are under
the gun. We have to move on.'' \12\
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The CPSC, unlike other safety agencies, is restrained from
disseminating to the public product and manufacturer specific
information under the CPSA. Under section 6(b) of the CPSA, the
Commission cannot disclose complaint information with respect
to a product, unless it is an imminent hazard or in violation
of the CPSA. Other manufacturer specific information is barred
from release unless and until the agency has sent a copy of it
to the named manufacturer, allowed the manufacturer 30 days to
comment on the information, reviewed the manufacturer's
comments regarding the accuracy of the information and the
fairness of releasing it, and determined that disclosure of the
information would effectuate the purposes of the CPSA. If a
manufacturer believes that the CPSC has not complied with the
required procedure, it may seek to enjoin the disclosure of
information through court action.
Manufacturers believe that section 6(b) restrictions are
important because information that may be released by the CPSC
may be inaccurate and that it should be incumbent upon the CPSC
to ensure that only accurate information be released.
Misinformation could hurt the reputation of manufacturers and
products. In addition, manufacturers argue that the general
release of information will lead to unsupported lawsuits and
discourage the voluntary reporting of information.
The dictates of section 6(b), however, are resource intensive
for the
already overburdened agency, especially when a company chooses to
fight the release of information. As a result, releases by the CPSC
and responses to Freedom of Information Act requests have been
delayed and product safety information has not reached the public.
In contrast, the National Highway Traffic Safety Administration
(NHTSA) has no similar constraints and routinely posts car safety
information, including consumer complaints, on its website by make
and model. The information is not reviewed for accuracy by NHTSA
and can be used by consumers in evaluating the safety of infant car
seats and cars they might purchase.
S. 2045 would eliminate the current section 6(b) of the CPSA.
In its place, the Commission, to the extent practicable, would
be required to provide the manufacturer or private labeler of a
consumer product up to 15 days to review relevant information
for confidentiality prior to disclosure. At the end of this
period, in addition to marking proprietary information
confidential, the manufacturer would have the opportunity to
file comments with the CPSC as to the veracity of the
information to be released. The Commission would be required to
disclose the comments of a manufacturer as an addendum at the
company's request.
Inter-Governmental Sharing of Product Safety Information.
Goods made overseas are sold not only in the United States but
also in Europe, Africa, and other continents. To the extent
that the European Union bans an unsafe product and the United
States does not, shipments to Europe may well be diverted to
American shores. Once in the United States, the products may
move from State to State.
In recognition of this global market, the Committee seeks to
empower the CPSC to share information with any other Federal,
State, local, or foreign governments, so long as those entities
have established the ability to protect such information from
premature public disclosure and agree to protect such
information. The European Union has voiced an interest in
establishing an information sharing relationship with the CPSC
but has not been able to do so under the CPSC's current
statutory authority.
Based on language in the U.S. SAFE WEB Act of 2006 (P.L. 109-
455), which authorized and established procedures under which
the Federal Trade Commission may share information with foreign
law enforcement agencies, S. 2045 would authorize the CPSC to
share information with Federal, State, local, and foreign
agencies. Prior to the disclosure of such information, however,
the receiving entity must certify through prior agreement or
memorandum of understanding that the material will only be used
for official law enforcement or consumer protection purposes
and the agency has set forth a bona fide legal basis for its
authority to maintain the material in confidence. S. 2045 also
would require the CPSC to maintain the confidentiality of
information it receives from foreign governments.
CPSC Import Enforcement Improvements: S. 2045 would provide
additional authority to aid in the prosecution of importers
that violate the acts enforced by the Commission. S. 2045 would
improve the Commission's import enforcement regime by the
following statutory changes:
Third Party Certification of Children's Products. Consumers
are wary that products are not made to the same safety
standards outside of the United States and are surprised to
find out that many of the large American toy and children's
product companies actually have large manufacturing facilities
abroad. S. 2045 would address this growing lack of confidence
in the safety of children's products by creating a third party
certification regime. Every manufacturer of a children's
product subject to CPSC jurisdiction would be required to use
third party laboratories to test their products to certify that
their product conforms to CPSC safety standards, if applicable.
S. 2045 would require that the CPSC establish protocols and
standards for credentialing independent third party
laboratories or delegate that authority to an independent
standard setting organization to carry out those duties. The
CPSC or its designee would verify that products tested by such
parties comply with safety standards. The Commission may
certify a company-owned laboratory so long as it meets or
exceeds the standards of a third party laboratory and it is
protected from undue influence from the company's other
business units. All children's products, and any other product
the Commission deems necessary, would be subject to oversight
by an independent third party laboratory and would be required
to carry a label to inform consumers that the product meets
U.S. safety standards. S. 2045 also would prohibit the
importation of children's products that are not accompanied by
certification from an independent third party laboratory.
Repeated Importation Offenses. S. 2045 would create an
``aiding and abetting'' violation for customs brokers that
repeatedly assist an importer with violative products in
evading detection. The Commission would have the authority to
share this information with CPB with a recommendation that the
offender's custom broker's license be revoked. Those so
referred would have their licenses revoked by Customs and
Border Protection.
Export of Recalled Products. S. 2045 would authorize the
Commission to prohibit the exporting of products that the
Commission determines are not in conformity with applicable
product safety standards, subject to an order for a banned
hazardous substance, or subject to a voluntary corrective
action that would have been subject to a mandatory corrective
action by the CPSC. The Commission could permit the export of a
product that would be subject to this section if that product
meets the applicable safety standards of the importing country.
Civil and Criminal Penalties: The Reform Act would modify
the current authority in the following ways:
Civil Penalties. S. 2045 would increase the civil penalty cap
for each violation of a prohibited act under the CPSA, the
FHSA, or the FFA from $8,000 to $250,000. The maximum civil
penalty cap for a related series of violations under each act
would increase from $1,825,000 to $100,000,000. S. 2045 would
provide strong civil penalty authority for the Commission,
creating an incentive for companies to comply with the CPSC
enforced statutes.
The Committee believes that this increase in penalty
authority should be accompanied by a clear delineation of the
factors the Commission will use in determining the size of the
civil fine it may seek in a given situation. S. 2045 would
direct the Commission, within a year of enactment, to initiate
a rulemaking to establish criteria for the imposition of civil
penalties. In the rulemaking, the Commission would evaluate the
impact of repeat violations, the precedential value of prior
adjudicated penalties, the nature of the product defect, the
severity of the risk of injury, the occurrence or absence of
injury, the number of defective products distributed, the
appropriateness of such penalty in relation to the size of the
business the person charged, and other circumstances.
Criminal Penalties. Currently, the CPSA provides criminal
penalties of not more than one year for any person who
knowingly and willfully violates the CPSA after having received
notice of noncompliance from the Commission. Individual
directors, officers, or agents of a corporation who knowingly
and willfully authorize, order or perform an action in
violation of the CPSA and who have knowledge of notice of
noncompliance received from the Commission also may face
criminal penalties of not more than one year.
The ``notice of noncompliance'' requirement poses a
substantial hurdle that makes the CPSC's current criminal
penalty authority virtually unusable. The notice provision
means that a bad actor may intentionally violate the CPSA
without fear of criminal prosecution. Only after the CPSC finds
the company and provides notice of noncompliance would the
company be at risk of criminal sanction and then only if it
continued violating the CPSA.
In addition, the ``knowing and willful'' requirement means
that the Commission must demonstrate in any criminal
prosecution that a company both had knowledge of the facts that
constitute the violation of the CPSA (knowing) and acted with
the knowledge that its conduct was unlawful (willful).
The FHSA also contains criminal penalty provisions. Under the
FHSA, any person who violates any provision of the FHSA,
regardless of his or her mens rea (strict liability), faces a
maximum of 90 days in prison. If the CPSC proves that the
individual violated the FHSA ``with intent to defraud or
mislead,'' or for a second offense, he faces not more than one
year in jail. While the language of the FHSA is modeled on the
criminal provisions of the Federal Food, Drug, and Cosmetic Act
(FDCA), the penalties in the FDCA are stricter. Under the FDCA,
an individual faces up to one year imprisonment for strict
liability violations and up to three years imprisonment for
violations with the intent to defraud or mislead.
S. 2045 would strike ``notice of noncompliance'' requirement
in the CPSA, which would allow the Commission to seek criminal
penalties against the most egregious violators when they are
first identified. In addition, the bill would harmonize the
criminal provisions of the CPSA, the FHSA and the FFA. S. 2045
would make a knowing violation of either statute punishable by
imprisonment for not more than one year. A knowing and willful
violation of the CPSA, the FHSA or the FFA would be punishable
by imprisonment for not more than five years. In addition, S.
2045 would give the Commission authority to seek asset
forfeiture as a criminal penalty.
Attorney General Enforcement. As has been recognized by
consumer groups and industry, the CPSC is underfunded and lacks
resources to aggressively pursue many aspects of its mission.
This includes the CPSC's investigative and enforcement
capabilities. Consistent with other bills passed out of the
Commerce Committee such as the CANSPAM Act of 2003 and the
Identity Theft Prevention Act of 2007, S. 2045 would authorize
a State to bring a civil action on behalf of its residents to
enforce the provisions of the Acts enforced by the CPSC. By
empowering State attorneys general to act, the CPSC will be
buttressed by the resources of State attorney general offices.
To encourage uniformity, States would be required to serve
written notice to the Commission of any civil action at least
60 days prior to initiating such civil action, if feasible.
Upon receiving the notice, the Commission would be authorized
to intervene in the civil action, be heard on all matters in
the case, and file petitions for appeal of a decision. If the
Commission has instituted a civil action or an administrative
action, no State attorney general would be authorized to bring
an action during the pendency of the Commission action. If the
attorney general of the State prevails in any civil action, it
is authorized to seek remedies delineated under the CPSA and
other Acts enforced by the Commission as well.
Lead and Consumer Products: S. 2045 contains new authority
that would ban lead in children's products other than trace
amounts. Within 180 days after the date of enactment, any
children's product containing lead would be treated as a banned
hazardous substance under the FHSA, and the prohibition would
apply without regard to whether the lead contained in such
children's product is accessible to children.
The Committee recognizes that eliminating lead completely is
nearly impossible and so permits trace amounts of lead to
remain in products. S. 2045 defines trace amounts of lead as
follows: a children's product will be considered to contain
lead if, in the case of a children's product that is jewelry,
any part of the product contains lead or lead compounds and the
lead content of such part is greater than 0.02 percent by
weight of the total weight of such part.
The agency would consider a children's product to contain
lead if, in non-jewelry children's products, any part of the
product contains lead or lead compounds and the lead content of
such part is greater than 0.04 percent by weight of the total
weight of such part.
If the Commission determines that it is not feasible for
certain electronic devices, including batteries, to comply with
the prohibition, the Commission would be authorized to issue
standards to reduce the exposure of, and accessibility to, lead
in such electronic devices, and to establish a schedule by
which such electronic devices shall be in full compliance with
the regulations.
S. 2045 also would grant the Commission greater rulemaking
authority to aggressively reduce lead in children's products.
Upon enactment, the Commission would be required to commence a
rulemaking as to whether lower thresholds should be prescribed
for children's products. If the Commission decides that lower
thresholds are appropriate, it would promulgate regulations
establishing lower thresholds.
Finally, the bill would direct the Commission to reduce the
permissible lead level permitted in consumer use paint from
0.06 percent to 0.009 percent.
Ongoing Product Rule Amendments and Guidance: S. 2045 would
address certain specific product safety standards. These
include:
Cost-Benefit Analysis Under the PPPA. As part of its Program
Assessment Rating Tool process, the Office of Management and
Budget is advocating that the CPSC use a cost/benefit analysis
in the CPSC's PPPA rulemakings. This runs counter to the
legislative intent of Congress which specifically did not
include a cost/benefit analysis in the PPPA, as it did for many
of the other statutes administered by the CPSC. A cost/benefit
analysis under the PPPA would force the Commission to weigh the
risk of poisoning children against the cost of preventing it.
S. 2045 would clarify the PPPA by preventing all PPPA standards
from requiring a comparison of the costs versus benefits.
Toy Safety Standard. The Reform Act would address the lack of
a Federal toy safety standard. As of 60 days after the date of
enactment, the ASTM-International standard, Consumer Safety
Specifications for Toy Safety (F963-07), will be considered a
mandatory consumer product safety rule issued under the CPSA.
Updates to the standard by ASTM-International will be
incorporated into the Federal mandatory toy safety standard
unless the CPSC determines that the revision does not improve
toy safety. If the CPSC makes that determination, the prior
version of the F963-07 standard will continue as the mandatory
consumer product safety rule without regard to the proposed
revision.
All-Terrain Vehicle Safety Standard. S. 2045 would require
the CPSC to publish in the Federal Register as a mandatory
consumer product safety standard the American National Standard
for Four Wheel All-Terrain Vehicles Equipment Configuration,
and Performance Requirements developed by the Specialty Vehicle
Institute of America. The standard would take effect 150 days
after it is published. If the All-Terrain Vehicle (ATV) safety
standard is revised, the Commission would be required to
conduct a rulemaking to amend the product safety standard for
ATVs to include any such provision that the Commission
determines is reasonably related to the safe performance of
all-terrain vehicles. The Commission also would have the
authority to include any additional provisions that the
Commission determines is reasonably necessary to reduce an
unreasonable risk of injury associated with all-terrain
vehicles.
After the standard takes effect, it would be unlawful for any
manufacturer or distributor to import into or distribute in
commerce any new assembled or unassembled all-terrain vehicle
unless the vehicle complies with each applicable provision of
the standard or is subject to or complying with certain other
ATV action plans filed with the Commission. Failure to comply
with the ATV standard would be deemed a failure to comply with
a consumer product safety rule and would be subject to all of
the penalties and remedies available under the CPSA.
The section also creates a ban on 3-wheeled all-terrain
vehicles. It clarifies that until a mandatory consumer product
safety rule applicable to 3-wheeled all-terrain vehicles is in
effect, it would be unlawful to import or distribute into
commerce new 3-wheeled ATVs in the United States.
Finally, the section requires that the Commission issue a
final rule in its proceeding entitled Standards for all-terrain
vehicles and ban of three-wheeled all-terrain vehicles. In the
final rule, the Commission would provide for a multiple factor
method of categorization that, at a minimum, would incorporate
weight, the maximum speed of the vehicle, velocity, age and
height of child riders into its analysis.
Legislative History
On September 12, 2007, Senator Mark Pryor introduced S. 2045,
which was referred to the Committee on Commerce, Science and
Transportation. Chairman Inouye and Senators Klobuchar, Nelson
(FL), Durbin, Schumer, Brown, Casey, and Menendez cosponsored
the measure. The Commerce Committee held a legislative hearing
on S. 2045 on October 4, 2007. At this hearing, the Committee
explored the state of the CPSC, examined reforms that are
necessary to make the agency more effective to protect children
and other consumers from dangerous and defective products, and
sought comments on the proposed bill. CPSC Acting Chairman
Nancy Nord, Commissioner Thomas Moore, and representatives from
the consumer, manufacturer, and retailer associations testified
at the hearing.
On October 30, 2007, the Committee met in open executive
session to consider an amendment in the nature of a substitute
offered by Senator Pryor and Chairman Inouye that made several
substantive changes to the bill as introduced. In addition to
that substitute, Senator Pryor and Chairman Inouye offered a
package of technical amendments to clarify and correct portions
of the substitute. Senator Kerry offered an amendment for the
CPSC to study the feasibility of establishing a ``units-of-
mass-per-area-standard'' for measuring lead content in consumer
products. Senator Dorgan offered an amendment to assess
disparities in the risks and incidence of preventable injuries
and deaths among children of minority populations. Senator
Boxer offered two amendments. The first would amend the FHSA to
require the inclusion of warning labels on Internet and catalog
advertising of certain toys and games. The second amendment
would require manufacturers of durable infant and toddler
products to provide consumer product registration cards to
facilitate recalls of those products. Senator Nelson offered
three amendments. The first amendment would mandate issuance of
the portable generator safety rule to reduce deaths and
injuries from carbon monoxide poisoning. The second amendment
would mandate the CPSC issue a final rule on cigarette lighter
safety. The third amendment would establish the ASTM-
International standard for toy safety as a mandatory consumer
product safety rule. Senator Pryor offered an amendment to
ensure that the consumer product safety standard for garage
door openers retain an optical or edge sensor requirement.
Senator McCaskill offered three amendments. The first amendment
would establish a consumer product safety rule that would
require child-resistant closures on all portable gasoline
containers. The second amendment would authorize increased
funding for the CPSC Inspector General. The third amendment
would strengthen the whistleblower protections in the
substitute amendment. Vice Chairman Stevens offered an
amendment to establish mandatory safety standards for ATVs. The
Vice Chairman offered a second degree amendment that was
modified by Senator Kerry that made substantive and technical
corrections to the underlying amendment. Senator Snowe offered
an amendment to authorize hiring at least fifty additional CPSC
inspection personnel for duty stations at U.S. ports or
overseas production facilities. Each of these amendments to the
Pryor-Inouye substitute, except for Senator McCaskill's
amendment strengthening whistleblower protections, was adopted
en bloc by voice vote. Senator McCaskill's whistleblower
amendment was then adopted by voice vote. The Committee adopted
the Pryor-Inouye substitute amendment to the underlying
measure, as amended, and ordered the bill reported by voice
vote.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 2045--CPSC Reform Act of 2007
Summary: S. 2045 would authorize the appropriation of funds
to the Consumer Product Safety Commission (CPSC), for fiscal
years 2009 through 2015, for the purpose of implementing an
array of consumer protection laws, including the Consumer
Product Safety Act. Certain amounts authorized by the bill
would be used to fund CPSC's operating expenses, while other
funds would be designated specifically for the Office of
Inspector General, capital improvements to the agency's testing
facility, and research into the use of nanotechnology in
consumer products.
CBO estimates that implementing S. 2045 would increase
spending subject to appropriation by $447 million over the
2009-2012 period, assuming appropriation of the specified
amounts. In addition, CBO estimates the bill would increase
federal revenues by $17 million over the 2008-2012 period, and
$48 million over the 2008-2017 period by increasing civil
penalties levied by CPSC. CBO estimates the bill would not
affect direct spending.
S. 2045 contains an intergovernmental mandate as defined in
the Unfunded Mandates Reform Act (UMRA) because it would
require state and local governments to comply with
whistleblower protections authorized in the bill. CBO estimates
that the costs to governments of complying with the mandate
would be small and would not exceed the threshold established
in UMRA ($66 million in 2007, adjusted annually for inflation).
S. 2045 would impose private-sector mandates, as defined in
UMRA, on manufacturers, retailers, distributors, and importers
of consumer products subject to CPSC enforcement. Because of
the large volume of consumer products that would be affected by
the mandates, CBO expects that the total cost of complying with
them would exceed the annual threshold established in UMRA for
private-sector mandates ($131 million in 2007, adjusted
annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 2045 is shown in the following table.
The costs of this legislation fall within budget function 550
(health).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
------------------------------------------------------------------
2008 2009 2010 2011 2012 2008-2012 2008-2017
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level.......................... 0 123 131 99 109 462 n.a.
Estimated Outlays............................ 0 107 129 103 108 447 n.a.
CHANGES IN REVENUES
Estimated Revenues........................... 2 3 4 4 4 17 48
----------------------------------------------------------------------------------------------------------------
Note: n.a. = not applicable.
Basis of Estimate:
Spending subject to appropriation
Assuming that the specified amounts would be provided for
each year, and that spending would follow historical patterns,
CBO estimates that implementing S. 2045 would increase
discretionary spending by $447 million over the 2009-2012
period.
S. 2045 would amend and reauthorize several consumer
protection laws, including the Consumer Product Safety Act. It
would authorize appropriations for CPSC starting with funding
levels for fiscal year 2009. The bill would authorize separate
amounts for CPSC's general operating expenses, the Office of
the Inspector General, capital improvements to the agency's
research, development, and testing facility, and for research
into the use of nanotechnology in consumer products.
The bill would require CPSC to modify and expand
regulations regarding levels of lead paint in children's toys,
for safety standards for all-terrain vehicles, and standards
for portable gasoline containers. The bill also would require
CPSC to make changes to rules regarding public notification of
safety standards and recalls, its tracking of potentially
hazardous products, and its enforcement responsibilities. In
addition, the bill would direct the commission to employ at
least 500 full-time workers by October 2013. Currently, CPSC
employs just over 400 full-time workers.
Revenues
S. 2045 would increase the maximum civil penalty for
violations of consumer product safety standards and applicable
rules under the Consumer Product Safety Act. CBO estimates that
by raising the maximum penalty, the bill would increase
revenues by $17 million over the 2008-2012 period and $48
million over the 2008-2017 period.
Those safety standards, which are enforced by CPSC,
currently stipulate that any person who knowingly manufactures
or sells products that fail to comply with applicable safety
standards faces civil penalties up to $1.825 million for each
violation in 2007. The bill would increase the maximum penalty
to $100 million for each violation.
Since 2001, civil penalties assessed by CPSC have averaged
$4.7 million annually. The average penalty collected during
that time was $525,000, or less than 30 percent of the maximum
amounts. About 25 percent of the penalties exceeded $1 million.
Based on an analysis of historical assessments, CBO expects
that a small number of cases would be directly affected by the
higher maximum penalty. Specifically, only a few fines per year
were assessed at more than 50 percent of the maximum amount.
However, the fines collected over the past several years may
have been constrained by the current-law limit. CBO expects
that increasing the cap would change the dynamics of litigating
and settling large cases and estimates that the average penalty
for larger cases would eventually double, while the average
penalty for smaller cases would be about 20 percent higher.
Estimated impact on state, local, and tribal governments:
S. 2045 would extend whistleblower protection to employees of
state and local governments who provide information about
violations of safety standards enforceable by the CPSC. State
and local governments would be prohibited from discharging or
discriminating against those employees and would be subject to
an order by the Secretary of Labor that could require
reinstating the employee and providing damages. The requirement
to comply would be an intergovernmental mandate as defined in
UMRA. Because compliance with the protections likely would
involve only adjustments to administrative procedures, CBO
estimates that the mandate costs would be small and would not
exceed the threshold established in UMRA ($66 million in 2007,
adjusted annually for inflation).
In general, state and local governments would benefit from
a provision in the bill that would authorize the commission to
provide them product information. States also would benefit
from other provisions that would give them broader flexibility
to implement their own safety standards as well as authority to
enforce federal safety standards. Any related costs state and
local governments incur to enforce safety standards or to
comply with confidentiality agreements tied to information from
the commission would be incurred voluntarily.
Estimated impact on the private sector: S. 2045 contains
several private-sector mandates as defined in UMRA. The bill
would impose requirements to address the incidence and effects
of unsafe products, ban the use of lead in certain products,
and establish new product safety standards. Based on
information from the CPSC and industry sources, CBO expects
that the total cost of complying with the mandates would exceed
the annual threshold established in UMRA for private-sector
mandates ($131 million in 2007, adjusted annually for
inflation).
ADDRESSING THE INCIDENCE AND EFFECTS OF UNSAFE PRODUCTS
The bill would impose requirements aiming to reduce
consumers' exposure to unsafe products, including but not
limited to:
Requiring that all children's products
manufactured in and imported into the United States be tested
by third-party laboratories and certified to meet applicable
standards;
Requiring manufacturers of children's products to
display tracking labels with the source, date, and cohort of
production on each product and its packaging;
Requiring manufacturers of durable infant and
toddler products to include consumer registration forms with
each product, maintain a record of registered consumers to
inform them of recalls, and permanently place tracking
information on each product; and
Making it illegal to manufacture, distribute,
import, or sell banned, non-compliant, or recalled products.
Both CPSC and industry sources expect that these mandates
could impose substantial costs on the private sector. The costs
would depend on the specific requirements imposed by CPSC.
Manufacturers of children's products would be required to have
their products tested and certified by third-party laboratories
and include tracking labels on each product and its packaging
within one year of the date on which the CPSC Reform Act is
enacted.
Toy manufacturers, which account for about $37 billion in
toy sales (including video games) each year, could be most
affected by these mandates. Though many manufacturers currently
test products, requirements that differ from current testing
practices would lead to significant costs to the industry due
to the volume of toys sold each year and the costs associated
with testing products. Also, the certification requirement
would likely impose new costs on all manufacturers of
children's products since currently manufacturers either self-
certify or do not certify products at all.
Additionally, the requirement to display tracking labels
with the source, date, and cohort of production would be a new
requirement and would consequently impose new costs on all
manufacturers, though the cost would vary by product. For
example, according to industry sources, manufacturers would
have to pay around $5,000 per toy (or other product) for
products made in molds to have the molds remanufactured to
include the tracking label. For clothes and stuffed toys, the
cost to retool would be considerably less.
The Juvenile Products Manufacturers Association (JPMA),
which represents makers of products ranging from cribs to car
seats for children, expects that its members could experience
as much as a 10 percent increase in costs as a result of the
testing and certification requirements, including the
registration requirements for manufacturers of durable infant
and toddler products. For an industry with about $7 billion in
sales (excluding diapers), the incremental cost to comply with
those mandates could be large relative to UMRA's threshold for
private-sector mandates.
The costs associated with the provision that would make it
illegal to manufacture, distribute, import, or sell banned,
non-compliant, or recalled products would be relatively small.
Most manufacturers and retailers stop producing or selling
recalled products as soon as the recall is known. Since most
recalls are voluntary, however, it is currently legal to sell
such goods. Businesses in secondary markets--such as ``mom-n-
pop'' shops, discount stores, and Internet Web sites--that sell
such recalled goods would incur costs.
BANNING LEAD IN CONSUMER PRODUCTS
S. 2045 would ban children's products that have a lead
content that exceeds 200 parts per million (ppm) in children's
jewelry and 400 ppm in all other children's products. It also
would lower the permissible lead content in paint used by
consumers from 600 ppm to 90 ppm. The bill would allow CPSC to
temporarily modify the permissible lead levels for electronic
products, for which the 400 ppm lead requirement may not be
feasible.
A considerable number of manufacturers, especially those
that make children's jewelry and electronic devices, are
concerned about the feasibility of the lead requirement.
According to the Fashion Jewelry Trade Association, metal
jewelry cannot be made with a lead content as low as 200 ppm.
Though children's jewelry (intended for children 7 and under)
only comprises around 5 percent of the sales of the fashion
jewelry industry, manufacturers of jewelry products could still
experience significant costs, as even plastic jewelry uses
metal clasps. Manufacturers of complex and electronic toys
might also experience significant costs as a result of the lead
requirement, though the costs would depend on future CPSC
decisions regarding interim requirements on lead content in
electronic children's products. Ultimately, manufacturers of
many types of children's products might have to modify
operations to comply with this mandate.
ESTABLISHING NEW PRODUCT SAFETY STANDARDS
Finally, the bill would impose private-sector mandates by
establishing several consumer product safety rules and
standards based on voluntary industry standards set by the
American Society for Testing and Materials (ASTM-
International), the American National Standards Institute
(ANSI) and the Specialty Vehicle Institute of America (SVIA),
including standards for:
Child-resistant closures on portable gasoline
containers (ASTM F2517-05),
Toy safety (ASTM-International Standard F963-07),
and
All-terrain vehicle safety (ANSI/SVIA-1-2007).
The bill also would require all automatic garage door
openers that directly drive the door in the closing direction
to include an external secondary entrapment protection device
that does not require contact with a person or object for the
garage door to reverse its movement. CPSC and industry sources
expect the cost of compliance with these mandates to be
relatively small as most manufacturers already comply
voluntarily.
Estimate prepared by: Federal Costs: Geoffrey Gerhardt;
Revenues: Pamela Greene; Impact on State, Local, and Tribal
Governments: Lisa Ramirez-Branum; Impact on the Private Sector:
MarDestinee C. Perez.
Estimate approved by: Keith J. Fontenot, Deputy Assistant
Director for Health and Human Resources, Budget Analysis
Division.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
The regulatory changes to the authority of the CPSC would
apply to all of the manufacturers, importers and retailers of
consumer products under the jurisdiction of the agency.
Currently, there are more than 15,000 types of consumer
products under the jurisdiction of the CPSC.
ECONOMIC IMPACT
It is anticipated that manufacturers would have to make
significant design changes, use different materials and improve
safety protocols to ensure compliance with new mandatory
consumer product rules and recall requirements issued from the
CPSC Reform Act. Retailers will have to change protocols in
regards to recalled product management to be in compliance with
S. 2045.
PRIVACY
S. 2045 would have no anticipated impact on the privacy of
individuals.
PAPERWORK
The legislation would increase paperwork requirements for the
impacted manufacturers, retailers and importers that have to
work with the CPSC to prove compliance with the amended Acts
under the authority of the Commission.
Section-by-Section Analysis
Section 1. Short Title; Table of Contents.
The act would be cited as the CPSC Reform Act of 2007.
Section 2. Amendment of Consumer Product Safety Act.
Unless specified to the contrary, section references in the
bill are to the CPSA.
Section 3. Reauthorization.
S. 2045 would authorize funding of the Commission at the
following levels:
(1) $80,000,000 for FY 2009;
(2) $88,500,000 for FY 2010;
(3) $96,800,000 for FY 2011;
(4) $106,480,000 for FY 2012;
(5) $117,128,000 for FY 2013;
(6) $128,841,000 for FY 2014; and
(7) $141,725,000 for FY 2015.
In addition to the general funding delineated in the schedule
above, the Reform Act would authorize funds to improve the
Office of the Inspector General for the CPSC at the following
levels:
(1) $1,600,000 for FY 2009;
(2) $1,770,000 for FY 2010;
(3) $1,936,000 for FY 2011;
(4) $2,129,600 for FY 2012;
(5) $2,342,560 for FY 2013;
(6) $2,576,820 for FY 2014; and
(7) $2,834,500 for FY 2015.
The bill also creates separate authorizations for improving
the CPSC testing laboratories and improving research resources
for the nanotechnology safety in consumer products. S. 2045
would authorize an additional $40,000,000 for use in FY 2009
and 2010 for renovating and improving the CPSC laboratories.
The $40,000,000 is to be expended over the two-year period. The
Reform Act would also authorize $1,000,000 for use in FY 2009
and 2010 for research into the safety impact of nanotechnology
in consumer products.
Section 4. Personnel.
Subject to the availability of appropriations, S. 2045 would
require the CPSC to increase the number of its fulltime
personnel to at least 500 from its current level of 420 by
October 1, 2013. The personnel level is a floor, and as
resources and duties dictate, the CPSC may hire more than 500
in the prescribed timeframe as needed to fulfill its mission
and its current and new authority. In addition to the minimum
requirement for personnel, an additional 50 employees must be
hired for duty stations at U.S. ports of entry, or for
deployment to inspect overseas production facilities by October
1, 2010. Under no circumstances should the 50 employees reduce
the number of personnel assigned to duties at CPSC headquarters
or to CPSC regional offices.
Professional Career Path. S. 2045 would require the CPSC to
develop and implement a professional career development program
to encourage the retention and promote the development of
career personnel.
Change of Employment Status by Political Appointees. The bill
prohibits the appointment of a political employee to a civil
service position within the Commission, unless the appointment
is authorized by unanimous vote of the Commission or more than
1 year has elapsed since his or her termination from the CPSC
political position.
Personnel in the Immediate Office of Commissioners. S. 2045
would prohibit the reduction of staff in the office of a
Commissioner, unless the reduction is authorized by a unanimous
vote of the Commission.
Section 5. Full Commission Requirement; Interim Quorum.
The Committee continues to be concerned about the current
cycle of the Commission losing its quorum as a matter of course
over the past few years. The instability of this occurrence is
a waste of resources in that the CPSC is foreclosed from
fulfilling its duties whenever a Commissioner or a Chairman
decides to leave the Commission. It is the opinion of the
Committee that returning the CPSC to its full complement of
five Commissioners brings stability and a diversity of
experience that would aid in the execution of the CPSC
mandates. The Reform Act would repeal the limit on the use of
appropriated funds for more than three Commissioners and would
urge the President to nominate members to fill all five
Commissioner positions.
Temporary Quorum. In recognition of the current Commission
make-up, the section also would allow 2 Commissioners of the
CPSC, if they are not affiliated with the same political party,
to constitute a quorum for the transaction of business for the
nine-month period beginning on the date of enactment.
Section 6. Submission of Copy of Certain Documents to Congress.
S. 2045 would require the CPSC to concurrently submit to
Congress any budget or legislative recommendations, testimony
or comments on legislation sent to the President or to the
Office of Management and Budget. The section further amends
P.L. 104-66, which eliminated this requirement from the CPSA in
1995.
Section 7. Public Disclosure of Information.
The Reform Act would modify section 6(a) of the CPSA to
provide manufacturers and private labelers 15 days to review
information for confidentiality prior to disclosure. If the
CPSC disagrees with the company's confidentiality designation,
the company can appeal the decision to the CPSC General
Counsel, who shall act within 30 days. The General Counsel's
decision may be appealed to the full Commission, which shall
act within 15 days. The modification takes the appeals process
out of the Federal courts as is under current law. The new
appeals procedure is similar to the process at the National
Highway Traffic Safety Administration and greatly streamlines
the procedure for issuing a decision.
S. 2045 would modify section 6(b) of the CPSA, which requires
the CPSC to submit to manufacturers and private labelers
information that is to be disclosed to the public before it is
released. The Commission then must take reasonable steps to
assure that the information is accurate and reasonably related
to effectuating the purposes of the Act. Currently, section
6(b) provides manufacturers and private labelers with the right
to challenge a CPSC decision to release information in Federal
court.
Under the bill, prior to its public disclosure of any
information obtained under this Act, and to the extent
practicable, the Commission would be required to notify and
provide a summary of the information to each manufacturer or
private labeler of any consumer product intended to be
released, and provide the manufacturer or private labeler 15
days to submit comments to the Commission as to the accuracy of
such information, and to mark documents confidential as
appropriate. In disclosing any information under this
subsection, the Commission would be required to disclose any
comments or other information at the request of the
manufacturer or private labeler as an addendum. If a
manufacturer or private labeler disagreed with the Commission's
decision to disclose information to the public, it would be
able to appeal that determination to the General Counsel of the
Commission. A second and final appeal may be made to the full
Commission. The document in question may not be made public
during the pendency of either appeal.
The requirement to disclose manufacturer or private labeler
addendums would not apply to Commission actions on imminent
hazards, substantial product hazards, or if the Commission has
reasonable cause to believe a company has violated one of the
prohibited acts of the CPSA. The requirement also does not
apply to information concerning a rulemaking proceeding, an
adjudicatory proceeding, or other administrative or judicial
proceeding. The Commission also may not disclose the names or
addresses of consumers in its release of information to the
public, unless the consumer consents in writing.
Section 8. Rulemaking.
S. 2045 would revise the CPSC's rulemaking procedures under
the CPSA, FHSA, and the FFA to make permissive the current
requirement that the CPSC issue an advanced notice of proposed
rulemaking before issuing a notice of proposed rulemaking. The
section clarifies that rulemaking proceedings under the FHSA
are governed by the procedures set forth in the FHSA and not
the Federal Food, Drug, and Cosmetic Act. The section also
deletes references to the Secretary of Health, Education, and
Welfare and replaces with references to the CPSC consistent
with the transfer of functions to the CPSC in 1972 under
section 30 of the CPSA (P.L. 92-573).
Section 9. Prohibition on Stockpiling Under Other Commission-Enforced
Statutes.
The Reform Act would authorize the Commission to prohibit, by
rule, a manufacturer from stockpiling a product that is subject
to a rule under the CPSA or any other law enforced by the CPSC.
Section 10. Third-Party Certification of Children's Products.
S. 2045 would establish a process that would ensure that
manufacturers use third party laboratories to test all
children's products and certify the products' compliance with
applicable consumer product safety standards. The Reform Act
would require every manufacturer of a children's product (and
the private labeler of such product if it bears a private
label), which is subject to a consumer product safety standard
under the CPSA, or a rule under this or any other Act enforced
by the Commission declaring a consumer product a banned
hazardous substance to: have the product tested by a qualified
third-party laboratory; certify that such product conforms to
such consumer product safety standard or is not a banned
hazardous substance; and specify the applicable consumer
product safety standard or rule. If an advertisement, label, or
package contains a reference to a consumer product safety
standard, a statement with respect to whether the product meets
all requirements of that standard also would be required.
Within one year after the date of enactment of this Act, the
Commission would be required to, by rule: (1) establish
protocols and standards for acceptance of certification or
continuing guarantees of compliance by manufacturers; (2)
establish protocols and standards for verifying that such
products tested by third-party laboratories comply with the
applicable standards under this Act or other Acts enforced by
the Commission; (3) prescribe standards for accreditation of
third party laboratories, either by the Commission or by one or
more independent standard-setting organizations to which the
Commission delegates authority, to engage in certifying
compliance; (4) establish requirements, or delegate authority
to one or more independent standard-setting organizations for
third-party laboratory testing, as the Commission determines is
necessary to test random samples of products certified under
this section on an ongoing basis to ensure they meet the
requirements for certification; (5) establish requirements for
periodic audits of third-party laboratories by an independent
standard-setting organization as a condition for accreditation;
and (6) establish a program by which manufacturers may label
products as compliant with the certification requirements.
Interim Procedure. Within 30 days after the date of enactment
of S. 2045, the Commission would be required to consider
existing laboratory testing certification procedures
established by independent standard-setting organizations and
designate an existing procedure for manufacturers of children's
products to follow until the Commission issues its final rule.
Definitions:
Children's Product.--A product (other than a
medication, drug, or food) designed or intended for use
by, or care of, a child 7 years of age or younger. In
determining whether a product is intended for use by a
child 7 years of age or younger, the following factors
shall be considered: (a) a statement by a manufacturer
about the intended use of such toy or article,
including a label on such good, if such statement is
reasonable; (b) the context and manner of the
advertising, promotion, and marketing associated with
the good; (c) whether the good is commonly recognized
by consumers as being intended for use by a child 7
years of age or younger; and (d) the Age Determination
Guideline issued by the CPSC in September 2002 and any
subsequent version of such Guideline.
Third Party Laboratory.--A testing entity that is
designated by the Commission or by an independent
standard-setting organization to which the Commission
delegates the authority to make such a designation, as
a testing laboratory that is competent to test products
for compliance with applicable safety standards under
the CPSA and other Acts enforced by the Commission.
Upon request, the Commission would have the authority
to certify a laboratory that is owned, managed,
controlled, or directed by the manufacturer or private
labeler as a third party laboratory, if the Commission:
(1) finds that certification of the laboratory would
provide equal or greater consumer safety protection
than the manufacturer's use of an independent third
party laboratory; (2) establishes procedures to ensure
that the laboratory is protected from undue influence,
including pressure to modify or hide test results, by
the manufacturer or private labeler; and (3) the
laboratory establishes procedures for confidential
reporting of allegations of undue influence to the
Commission. The Commission or an independent standard-
setting organization to which the Commission has
delegated such authority, may decertify a third party
laboratory if it finds, after notice of investigation,
that a manufacturer or private labeler has exerted
undue influence on the laboratory.
Label and Certification.--Not later than one year
after the date of enactment of S. 2045, the Commission
would be required to prescribe a product certification
and labeling rule for children's products as defined in
this section.
Prohibition on Imports of Children's Products Without Third-
Party Testing Certification. S. 2045 also would prohibit the
importation of any children's product that is not accompanied
by certification from a third party laboratory as required by
this section.
Section 11. Tracking Labels for Products for Children.
S. 2045 would expand existing labeling requirements to
provide important safety information to consumers, facilitate
recalls, and limit the scope of recalls to veritable unsafe
products.
Internet and Catalogue Advertising Labeling. S. 2045 would
amend the FHSA to require manufacturers, retailers,
distributors, private labelers, and licensors for any toy,
game, balloon, small ball, or marble that requires a warning
label in stores under current law to provide a similar
cautionary statement to be displayed in a catalogue or online
advertisement.
Tracking Labels. S. 2045 would require manufacturers of
children's products to place distinguishing marks on the
product and its packaging, to the extent practicable, that
would enable the purchaser to ascertain the source, date, and
cohort (including the batch, run number, or other identifying
characteristic) of production of the product by reference to
those marks. To the extent that small toys and other small
products are manufactured and shipped without individual
packaging, the Committee recognizes that it may not be
practical for a label to be printed on each item. The packaging
of the bulk shipment of those items, however, would be required
to be labeled so that retailers and vendors would be able to
easily identify products that are recalled. The CPSC would also
be authorized to extend this requirement to other products
through a rulemaking proceeding.
Section 12. Substantial Product Hazard Reporting Requirement.
S. 2045 would require that every manufacturer, including an
importer, of a consumer product or other product or substance
under the jurisdiction of the Commission, and every distributor
and retailer of such product, who obtains information which
reasonably supports the conclusion that such product fails to
comply with any safety-related rule or standard promulgated by
the Commission, to immediately inform the Commission of such
failure.
Section 13. Corrective Action Plans.
The Reform Act would provide the Commission with the
authority to approve the corrective action plan elected by the
person recalling the products. If the Commission finds that an
approved corrective action plan is not effective, or that the
person is not executing an approved action plan effectively,
the Commission may order the action plan to be amended. If the
Commission determines, after notice and the opportunity for
comment, that a person failed to comply substantially with its
obligations under an action plan, the Commission would have the
authority to revoke approval of the action plan and the person
would be prohibited from distributing the product.
Section 14. Identification of Manufacturer by Importers, Retailers, and
Distributors.
S. 2045 would give the Commission the authority to require
every importer, retailer, or distributor of a consumer product
or other product under the Commission's jurisdiction to
identify the manufacturer of that product by name, address, or
such other identifying information as the Commission may
request. Every manufacturer also would be required to identify
each retailer, or distributor, to which it supplied a given
consumer product by name, address, or such other identifying
information as well as the identifying information as to each
subcontractor involved in the manufacturing of a product upon
the request of the Commission.
Section 15. Repeated Importation Offenses.
S. 2045 would authorize the Commission to designate as a
repeat offender, after notice and an opportunity for a hearing,
any customs broker found by the Commission to have aided and
abetted the importation of a consumer product on multiple
occasions in violation of section 17 of the CPSA. Minor
violations of the CPSA would not be counted for purposes of
determining whether a customs broker was a repeat offender. The
Committee intends that the Commission have the ability to
penalize customs brokers who actively aid importers in
circumventing customs processes, entry inspections, or other
safeguards for the purpose of violating consumer product safety
laws and regulations. The Commission also would be authorized
to refer any such repeat offender to U.S. Customs and Border
Protection with a recommendation that the custom broker's
import license be revoked in accordance with that agency's
procedures. The U.S. Customs and Border Protection agency would
be required to revoke the customs broker license of any customs
broker in violation of this section.
Section 16. Prohibited Acts.
Sale of Recalled Products. S. 2045 would make it unlawful for
any person to sell, offer for sale, manufacture for sale,
distribute in commerce, or import into the United States any
consumer product that is not in conformity with an applicable
consumer product safety standard, is subject to a voluntary
corrective action taken by the manufacturer of which action the
CPSC has notified the public of the extent to which the seller
knew or should have known of the corrective action, or has been
designated a banned hazardous substance.
Export of Recalled Products. The Reform Act also would
authorize the Commission to prohibit a person from exporting
from the United States for the purpose of sale any product or
substance regulated by the Commission that the Commission
determines, after notice to the manufacturer, is not in
conformity with an applicable product safety standard and does
not violate applicable safety standards established by the
importing country; has been designated a banned hazardous
substance; or is subject to voluntary corrective action taken
by the manufacturer and would have been subject to a mandatory
corrective action by the CPSC, except that the Commission may
permit the export of such product if it meets applicable safety
standards established by the importing country. S. 2045 would
make conforming changes to the FHSA and FFA to ensure that the
Commission's authority to prohibit the export of certain
recalled products extends to products and substances regulated
under those acts.
False Certification of Compliance with Testing Laboratory
Standard. S. 2045 would make it unlawful for any person to
sell, offer for sale, distribute in commerce, or import into
the United States any consumer product bearing a false
certification mark of compliance with a safety standard
established by a nationally recognized testing laboratory, if
such person knew or should have known that the certification
mark was false.
Misrepresentation of Information in Investigation. The Reform
Act would make it unlawful to misrepresent to any officer or
employee of the Commission the scope of consumer products
subject to a corrective action or to make a material
misrepresentation to such an officer or employee in the course
of an investigation under the CPSA or another Act enforced by
the Commission.
Certificates of Compliance with Mandatory Standards. S. 2045
would make it unlawful to fail to furnish a certificate
required by any statute enforced by the Commission, or to issue
a false certificate if a person in the exercise of due care has
reason to know that the certificate is false or misleading in
any material respect; or to fail to comply with any other
labeling rule promulgated under CPSA section 14(c).
Undue Influence on Third Party Laboratories. S. 2045 would
make it unlawful to exercise undue influence on third party
laboratories with respect to the testing, or reporting of the
results of testing, of any product for compliance with a
standard under the CPSA or any other Act enforced by the
Commission.
Section 17. Penalties.
CPSA Civil Penalties. The civil penalty cap for each
violation of a prohibited act under the CPSA would increase
from $8,000 to $250,000. The maximum civil penalty cap for any
related series of violations would increase from $1,825,000 to
$100,000,000.
FHSA Civil Penalties. The civil penalty cap for each
violation of a prohibited act under the FHSA would increase
from $8,000 to $250,000. The maximum civil penalty cap for any
related series of violations would increase from $1,825,000 to
$100,000,000.
FFA. The civil penalty cap for each violation of a prohibited
act under the FFA would increase from $8,000 to $250,000. The
maximum civil penalty cap for any related series of violations
would increase from $1,825,000 to $100,000,000.
This section also would change the start date of inflation
adjustments for the penalties in the CPSA, the FHSA, and the
FFA. The maximum penalty amounts authorized in this section
would be adjusted for inflation not later than December 1,
2011, and December 1 of each fifth calendar year thereafter.
Criminal Penalties. S. 2045 would make a knowing violation of
the CPSA, FFA, or the FHSA punishable by imprisonment for not
more than 1 year and a knowing and willful violation of the
CPSA, FFA, or FHSA punishable by imprisonment for not more than
5 years. Criminal fines would be set in accordance with section
3571 of title 18, United States Code. This section would strike
the requirement that the CPSC provide a person with notice of
noncompliance and wait until the person violates the law again
before seeking a criminal penalty.
Civil Penalty Criteria. Within one year after the date of
enactment of S. 2045, the Commission would be required to
initiate a rulemaking to establish criteria for the imposition
of civil penalties for the CPSA and any other Act enforced by
the Commission. Such rulemaking should take into consideration
whether the person has repeatedly violated product safety laws,
the precedential value of prior adjudicated matters, the nature
of the product defect, the severity of the risk of injury, the
occurrence or absence of injury, the number of defective
products distributed, the appropriateness of such penalty in
relation to the size of the business charged, and other
circumstances when determining the civil penalty imposed.
Criminal Penalties to Include Asset Forfeiture. In addition
to other penalties provided, the section would authorize the
Commission to seek the forfeiture of assets associated with a
violation as a criminal penalty under any Act enforced by the
Commission.
Section 18. Preemption.
Effect of Rules and Policy Statements on Preemption. The
section provides that the provisions of sections 25 and 26 of
the CPSA, section 18 of the FHSA, section 16 of the FFA, and
section 7 of the PPA, establishing the extent to which those
acts preempt, limit, or otherwise affect any other Federal,
State, or local law, any rule, procedure, or regulation, or any
cause of action under any State or local law, may not be
expanded in scope, or limited, modified or extended in
application, by any rule or regulation, referenced in any
preamble, statement of policy, executive branch statements, or
other matter associated with the publication of any such rule
or regulation.
Clarification of Preemption. The section further provides
that the provisions of sections 25 and 26 of the CPSA, section
18 of the FHSA, section 16 of the FFA, and section 7 of the PPA
would be preemptive of any State or local law, or any cause of
action under State or local law, only to the extent provided in
those Acts unless compliance with duties imposed by State law
would make compliance with the Federal rule or regulations
promulgated under those Acts impossible.
Section 19. Sharing of Information with Federal, State, Local, and
Foreign Law Enforcement Agencies.
S. 2045 would authorize the Commission to make information
obtained by the Commission available to any Federal, State,
local, or foreign law enforcement agency upon the prior
certification that such material will be maintained in
confidence and will be used only for official law enforcement
or consumer protection purposes, provided: (a) the agency has
set forth a bona fide legal basis for its authority to maintain
the material in confidence; (b) the materials are to be used
for purposes of investigating or enforcing violations of
product safety laws, aiding a CPSC investigation or enforcement
proceeding, or, with the approval of the Attorney General,
aiding in investigating an offense covered by a criminal mutual
legal assistance treaty. The CPSC would not be authorized to
share information with a foreign government agency that the
Secretary of State has determined has repeatedly provided
support for acts of international terrorism. The section also
would require the CPSC not to disclose confidential information
provided by foreign governments, except pursuant to a court
order or Congressional request. The Commission also would have
the authority to terminate a memorandum of understanding or
other agreement with another agency if it determines that the
other agency has not conformed to the Commission's
confidentiality requirements.
In this section, the term ``foreign government agency'' would
be defined as any agency or judicial authority of a foreign
government, including a foreign state, a political subdivision
of a foreign state, a multinational organization comprised of
foreign states, or any multinational organization acting on
behalf of one of the aforementioned entities that is vested
with law enforcement or investigative authority in civil,
criminal, or administrative matters.
Section 20. Bonding.
The Reform Act provides the Commission the authority in a
rulemaking proceeding to require that a person that has
committed multiple significant violations of any rule or act
enforced by the Commission, or the manufacturer or distributor
of a category or class of consumer products, or the
manufacturer or distributor of any product or substance
regulated under any other Act enforced by the Commission to
post a bond (or other security acceptable to the Commission) in
an amount sufficient to cover the costs of an effective recall
of the product or substance, or, in the case of an imported
product or substance, to cover the costs of holding the product
or substance at the port and destroying the product or
substance - should such action be required by the Commission.
Section 21. Enforcement by State Attorneys General.
S. 2045 authorizes a State to bring a civil action on behalf
of its residents in an appropriate State or district court to
enforce the provisions of the CPSA or any other Act enforced by
the Commission to obtain penalties and relief provided under
the applicable act. It is the intent of the Committee that a
State attorney general that seeks penalties under this section
would be entitled to retain any penalty awarded. If multiple
State attorneys general or the Commission participate in an
action, conferral of an award would be at the discretion of the
court based on the level of participation of the party, the
harm experienced by the State, and any other equitable factor.
The State would be required to serve written notice to the
Commission of any civil action at least 60 days prior to
initiating such civil action, if feasible. Upon receiving the
notice the Commission would be authorized to intervene in the
civil action, be heard on all matters in the case, and file
petitions for appeal of a decision.
In a civil action, the venue would be required to be a
judicial district in which the manufacturer, distributor, or
retailer was authorized to do business. If the Commission has
instituted a civil action or an administrative action for a
violation of the CPSA or any other Act enforced by the
Commission, no State attorney general would be authorized to
bring an action during the pendency of the Commission action
against any defendant or agency named in the complaint. If the
attorney general of the State prevails in any civil action, he
or she would be authorized to recover reasonable costs and
attorneys' fees from the covered entity.
Section 22. Whistleblower Protections.
Whistleblower Protection. S. 2045 would make it unlawful for
a manufacturer, private labeler, distributor, or retailer, or
any Federal, State, or local government employing agency to
discharge an employee or otherwise discriminate against an
employee because the employee, whether at the employee's
initiative or in the ordinary course of the employee's duties:
(1) provided, caused to be provided, or is about to provide to
the employer, the Federal Government, or the attorney general
of a State information relating to any violation or alleged
violation of any order, regulation, or consumer product safety
standard under any other law enforceable by the Commission; (2)
testified or is about to testify in such a proceeding; (3)
assisted or participated or is about to assist or participate
in such a proceeding; or (4) objected to, or refused to
participate in, any activity the individual believed to be in
violation of an applicable law or to be a substantial and
specific danger to public health or safety.
Employee Award. The section further provides that if the
Commission or State attorney general proceeds with an action
against a manufacturer, private labeler, distributor, or
retailer for a violation of any act enforced by the Commission,
on the basis of information provided by such an employee, the
employee would receive at least 15 percent but not more than 25
percent (as determined by the Commission in consultation with
the attorney general that brought the action) of any civil
penalty assessed and collected by the Commission or State
attorney general for the violation, depending upon the extent
to which the information provided by the employee substantially
contributed to the enforcement action. If the Commission's
action is based primarily on disclosures of specific
information not provided by the employee, the Commission may
award such sums as it considers appropriate based on the
significance of the information or role of the employee, but in
no case more than 10 percent (as determined by the Commission
in consultation with the attorney general that brought the
action) of the civil penalty assessed and collected.
Employee Recourse and Complaint Procedures. A person who
believes that he or she has been discharged or otherwise
discriminated against may, not later than one year after the
date on which such violation occurs, file a complaint with the
Secretary of Labor. Upon receipt of such a complaint, the
Secretary would notify, in writing, the person named in the
complaint of the allegations, the substance of evidence
supporting the complaint, and the opportunities to respond that
will be afforded to such person. Not later than 60 days after
the date of receipt of a complaint and after affording the
person named in the complaint an opportunity to submit to the
Secretary a written response to the complaint and an
opportunity to meet with a representative of the Secretary to
present statements from witnesses, the Secretary would be
required to conduct an investigation and determine whether
there is reasonable cause to believe that the complaint has
merit. The Secretary would notify, in writing, the complainant
and the person alleged to have committed the violation of his
findings. If the Secretary concludes that he has a reasonable
cause to believe that a violation has occurred, the Secretary
would be required to accompany the Secretary's findings with a
preliminary order providing the relief. Not later than 30 days
after the date of notification of findings under this
paragraph, either the person alleged to have committed the
violation or the complainant may file objections to the
findings or preliminary order, or both, and request a hearing
on the record. The filing of such objections shall not operate
to stay any reinstatement remedy contained in the preliminary
order. Such hearings would be required to be conducted
expeditiously. If a hearing is not requested in such 30-day
period, the preliminary order would be deemed a final order
that is not subject to judicial review.
If the complainant does not make a prima facie showing, the
Secretary would be required to dismiss a complaint filed under
this subsection and would not be authorized to conduct an
investigation into employee discrimination. Similarly, no
investigation or relief would be authorized if the employer
demonstrates by clear and convincing evidence, that the
employer would have taken the same unfavorable personnel action
in the absence of that behavior. The Secretary would be
authorized to determine a violation occurring if the
complainant demonstrates that certain actions were a
contributing factor in the unfavorable personnel action alleged
in the complaint. Relief would not be ordered unless the
employer demonstrates by clear and convincing evidence that the
employer would have taken the same unfavorable personnel action
in the absence of that behavior.
Not later than 120 days after the date of conclusion of a
hearing, the Secretary would be required to issue a final order
providing the relief or denying the complaint. At any time
before issuance of a final order, a proceeding may be
terminated on the basis of a settlement agreement entered into
by the Secretary, the complainant, and the person alleged to
have committed the violation.
If, in response to a complaint, the Secretary determines that
a violation of a certain subsection has occurred, the Secretary
would be required to: order the person who committed such
violation to take affirmative action to abate the violation;
reinstate the complainant to his or her former position
together with the compensation (including back pay); restore
the terms, conditions, and privileges associated with his or
her employment; and provide compensatory damages to the
complainant.
If such an order is issued under this paragraph, the
Secretary, at the request of the complainant, would be required
to assess against the person against whom the order is issued a
sum equal to the aggregate amount of all costs and expenses
(including attorneys' and expert witness fees) reasonably
incurred.
If the Secretary finds that a complaint is frivolous or has
been brought in bad faith, the Secretary would be authorized to
award to the prevailing employer a reasonable attorney's fee
not exceeding $1,000 to be paid by the employee.
If the Commission has not issued a final decision within 180
days after the filing of the complaint, or within 10 days after
receiving a written determination, the complainant may bring an
action at law or equity for de novo review in the appropriate
district court of the United States. At the request of either
party, the case would be tried by the court with a jury. The
court would have jurisdiction to grant all appropriate relief
to a whistleblower available by law or equity including
punitive damages up to $250,000.
Any person adversely affected or aggrieved by a final order
would be able to obtain review of the order in the U.S. Court
of Appeals. The petition for review would be required to be
filed not later than 60 days after the date of the issuance of
the final order of the Secretary. The commencement of
proceeding under this subparagraph would not, unless ordered by
the court, operate as a stay of the order.
An order of the Secretary would not be subject to judicial
review in any criminal or other civil proceeding. Whenever any
person has failed to comply with an issued order, the Secretary
would be authorized to file a civil action in the U.S. district
court for the district in which the violation was found to
occur, or in the U.S. district court for the District of
Columbia, to enforce such order. In actions brought under this
paragraph, the district courts shall have jurisdiction to grant
all appropriate relief including, but not limited to,
injunctive relief and compensatory damages.
A person on whose behalf an order was issued would be
authorized to commence a civil action against the person to
whom such order was issued to require compliance with such
order. The appropriate U.S. district court shall have
jurisdiction to enforce such order. The court, in issuing any
final order under this paragraph, would be authorized to award
costs of litigation (including reasonable attorney and expert
witness fees) to any party whenever the court determines such
award is appropriate. Any nondiscretionary duty imposed by this
section would be enforceable in a mandamus proceeding.
Whistleblower protections would not apply to an employee who,
acting without direction from such manufacturer, private
labeler, distributor, or retailer (or such person's agent),
deliberately causes a violation of a consumer product safety
law or regulation.
Section 23. Ban on Children's Products Containing Lead.
S. 2045 would require that beginning 180 days after the date
of enactment: (1) any children's product containing lead would
be treated as a banned hazardous substance under the FHSA; and
(2) the prohibition would apply without regard to whether the
lead contained in such children's product is accessible to
children.
Trace Amounts of Lead. A children's product would be
considered to contain lead if: (1) in the case of a children's
product that is jewelry, any part of the product contains lead
or lead compounds and the lead content of such part is greater
than 0.02 percent by weight of the total weight of such part;
or (2) in the case of a children's product that is not jewelry,
any part of the product contains lead or lead compounds and the
lead content of such part is greater than 0.04 percent by
weight of the total weight of such part. The Commission may
establish lesser permissible levels. If the Commission
determines that it is not feasible for certain electronic
devices, including batteries, to comply with the prohibition,
the Commission is authorized to issue standards to reduce the
exposure of and accessibility of lead in such electronic
devices, and to establish a schedule by which such electronic
devices shall be in full compliance with the regulations.
Regulations. The section further requires that, on the day
after the date of enactment, the Commission commence a
rulemaking as to whether lower thresholds should be prescribed
for children's products. It is the intent of the Committee that
the Commission examine, as part of this rulemaking, the
potential effects of trace levels of lead on children and to
mandate the lowest thresholds practicable to protect the health
of children. If the Commission makes a determination that lower
threshold levels are warranted, the Commission shall promulgate
regulations establishing such lower thresholds in lieu of the
previous thresholds. Pending the establishment of lower
thresholds, it is the intent of the Committee that the
statutory thresholds apply.
Lead Paint Standards. S. 2045 also would direct the
Commission, within 30 days of enactment, to reduce the
permissible lead level permitted in consumer use paint from
0.06 percent to 0.009 percent.
Section 24. Alternative Measures of Lead Content.
S. 2045 would require the Commission, in cooperation with the
National Academy for Sciences and the National Institute of
Standards and Technology, to study the feasibility of
establishing a measurement standard based on a units-of-mass-
per-area standard that is statistically comparable to the
parts-per-million measurement standard currently used in
laboratory analysis.
Section 25. Study of Preventable Injuries and Deaths of Minority
Children Related to Certain Consumer Products.
S. 2045 would require the Commission, within 90 days after
the date of enactment, to initiate a study to assess
disparities in the risks and incidence of preventable injuries
and deaths among children of minority populations, including
Black, Hispanic, American Indian, Alaskan Native, and Asian/
Pacific Islander children in the United States. Not later than
one year after the date of enactment of this Act, the
Commission would be required to report its findings to
Congress. There would be $500,000 authorized to the Commission
for carrying out this section for FY2008.
The study would examine the racial disparities of the rates
of preventable injuries and deaths related to suffocation,
poisoning, and drowning including those associated with the use
of cribs, mattresses and bedding materials, swimming pools and
spas, and toys and other products intended for use by children.
Section 26. Cost-Benefit Analysis Under the Poison Prevention Packaging
Act of 1970.
This section would clarify that nothing in the PPA requires
the Commission to prepare a comparison of the costs that would
be incurred in complying with such standard with the benefits
of such standard.
Section 27. Inspector General Reports.
S. 2045 would require the Inspector General of the Commission
to conduct reviews and audits of implementation of the Reform
Act and report on those findings in an annual report to
Congress. The Inspector also would be required to conduct a
review and report on complaints from employees of the
Commission about violations of the CPSA and other Acts enforced
by the Commission and leaks and unlawful disclosures of
information by employees of the Commission to persons not
authorized to receive such information.
Section 28. Public Interest Website Links.
S. 2045 would require that the Commission, not later than 30
days after the date of enactment, establish and maintain a
direct link on the homepage of its Internet website to the
Internet website of the Office of Inspector General of the
Commission and a mechanism on the homepage of the Office of
Inspector General's Internet website by which individuals may
anonymously report cases of waste, fraud, or abuse with respect
to the Commission.
Section 29. Child-Resistant Portable Gasoline Containers.
The Reform Act would establish, as a consumer product safety
rule issued by the Commission, that each portable gasoline
container for sale in the United States conform to the child
resistance requirements as specified in the ASTM F2517-05
standard and its successors unless the Commission determines
otherwise. The rule established in this section would apply to
each portable gasoline container manufactured on or after the
date that is 6 months after the date of enactment of the Reform
Act.
Not later than 2 years after the date of enactment of this
Act, the Commission would be required to submit to Congress a
report on the degree of industry compliance, any enforcement
actions brought by the Commission, and incidents involving
children interacting with portable gasoline containers.
Section 30. Toy Safety Standard.
Beginning 60 days after the date of enactment of the Act, S.
2045 would establish the ASTM 963-07 standard for toy safety as
a consumer product safety rule issued by the Commission. If
ASTM International proposes to revise the toy safety standard,
it would be required to notify the Commission of the proposed
revision and the proposed revision would be incorporated in the
consumer product safety rule, unless the Commission determines
that the revised standard would not improve the safety of the
consumer product covered. If the Commission so notifies ASTM-
International with respect to a proposed revision, the existing
standard would continue to be considered a consumer product
safety rule.
Section 31. All-Terrain Vehicle Safety Standard.
Within 90 days after the date of enactment, the Commission
would be required to publish in the Federal Register as a
consumer product safety standard the Specialty Vehicle
Institute of America, ANSI/SVIA-1-2007. The standard would take
effect 150 days after it is published. If ANSI/SVIA-1-2007 is
revised, the Commission would be required to conduct a
rulemaking, within 180 days, to amend the product safety
standard for ATVs to include any such provision that the
Commission determines is reasonably related to the safe
performance of ATVs. The Commission also would have the
authority to include any additional provisions that the
Commission determines is reasonably necessary to reduce an
unreasonable risk of injury associated with ATVs.
After the standard takes effect, it would be unlawful for any
manufacturer or distributor to import into or distribute in
commerce any newly assembled or unassembled ATV unless the
vehicle complies with each applicable provision of the standard
and is subject to or complying with an applicable ATV action
plan filed with the Commission. Failure to comply with any ATV
standard would be deemed a failure to comply with a consumer
product safety rule and would be subject to all of the
penalties and remedies available under the CPSA.
The section also would ban the import and distribution of 3-
wheeled ATVs until a mandatory consumer product safety rule
with respect to such vehicles is in effect.
Finally, the section requires that the Commission issue a
final rule in its proceeding entitled Standards for All-Terrain
Vehicles and Ban of Three-Wheeled All-Terrain Vehicles. In the
final rule, the Commission would have the authority to
incorporate weight, the maximum speed of the vehicle, velocity,
age and height of children into its analysis.
The GAO would be required to conduct a study of the utility,
recreational, and other benefits of ATVs, and the costs
associated with ATV-related accidents and injuries.
Section 32. Garage Door Opener Standard.
The Reform Act would require that all automatic garage door
openers that directly drive the door in the closing direction
that are manufactured more than 6 months after the date of
enactment include an external secondary entrapment protection
device that does not require contact with the person or object
for the door to reverse.
Section 33. Reducing Deaths and Injuries from Carbon Monoxide
Poisoning.
S. 2045 would require the Commission to issue a final rule in
its proceeding entitled Portable Generators for which the
Commission issued an advance notice of proposed rulemaking on
December 12, 2006, no later than 18 months after the date of
enactment of this Act. No later than 120 days after the date of
enactment of this Act, the Commission would be required to
submit a report that reviews the effectiveness of its labeling
requirements for its charcoal briquettes during the windstorm
that struck the Pacific Northwest on December 14, 2006,
identifies any specific challenges faced by non-English
speaking populations with use of the current standards, and
contains recommendations for improving the labels on charcoal
briquettes.
Section 34. Completion of the Cigarette Lighter Rulemaking.
S. 2045 would require the Commission to issue a final rule
mandating general safety standards for cigarette lighters in
its proceeding entitled Safety Standard for Cigarette Lighters
for which the Commission issued an advance notice of proposed
rulemaking on April 11, 2005, no later than 24 months after the
date of enactment of this Act.
Section 35. Consumer Product Registration Forms.
No later than one year after the date of enactment, S. 2045
would require the Commission to promulgate consumer product
safety rules that require manufacturers of durable infant or
toddlers' products to provide consumers with postage-paid
registration forms. Manufacturers would be required to maintain
a record of the names, addresses, e-mail addresses, and other
contact information of consumers who register their ownership
of such products in order to improve the effectiveness of
campaigns to recall such products and to place permanently the
manufacturer name, contact information, model name and number,
and the date of manufacture, on each durable infant or toddler
product.
The registration forms would be required to provide space
sufficiently large to permit easy, legible recording of the
following information: the consumer's name, the consumer's
telephone number, the consumer's postal address, the consumer's
e-mail address, the manufacturer's name, the model name and
number for the product, the date of manufacture of the product,
a message that explains the purpose of the registration and is
designed to encourage consumers to complete the registration, a
statement that information provided by the consumer would not
be used for any other purpose other than to facilitate a recall
of or a safety alert regarding that product, and a message that
explains the option to register via the Internet. Such form
would be required to be attached to the surface of the product
so that, as a practical matter, the consumer will notice and
handle the form after purchasing the product. The Commission
would have the authority to prescribe the exact text and format
of such registration forms.
Manufacturers would be required to maintain the records for a
period of not less than 6 years after the date of manufacture
of the product concerned. It would be unlawful for a
manufacturer to disseminate to any other party the information
collected by the manufacturer for any purpose other than
notification to the consumer concerned in the event of a
product recall or safety alert. Nothing in this section
requires a manufacturer to collect, retain, or use any
information unless it is provided by the consumer.
Not later than four years after the date of enactment, the
Commission would be required to conduct a study on the
effectiveness of the consumer product registration forms in
facilitating product recalls and submit to Congress a report on
its findings.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
CONSUMER PRODUCT SAFETY ACT
product safety information and research
[15 U.S.C. 2054]
Sec. 5. (a) The Commission shall--
(1) maintain an Injury Information Clearinghouse to
collect, investigate, analyze, and disseminate injury
data, and information, relating to the causes and
prevention of death, injury, and illness associated
with consumer products;
(2) conduct such continuing studies and
investigations of deaths, injuries, diseases, other
health impairments, and economic losses resulting from
accidents involving consumer products as it deems
necessary;
(3) following publication of [an advance notice of
proposed rulemaking or] a notice of proposed rulemaking
for a product safety rule under any rulemaking
authority administered by the Commission, assist public
and private organizations or groups of manufacturers,
administratively and technically, in the development of
safety standards addressing the risk of injury
identified in such notice; and
(4) to the extent practicable and appropriate (taking
into account the resources and priorities of the
Commission), assist public and private organizations or
groups of manufacturers, administratively and
technically, in the development or product safety
standards and test methods.
(b) The Commission may--
(1) conduct research, studies, and investigations on
the safety of consumer products and on improving the
safety of such products;
(2) test consumer products and develop product safety
test methods and testing devices; and
(3) offer training in product safety investigation
and test methods.
(c) In carrying out its functions under this section, the
Commission may make grants or enter into contracts for the
conduct of such functions with any person (including a
governmental entity).
(d) Whenever the Federal contribution for any information,
research, or development activity authorized by this Act is
more than minimal, the Commission shall include in any
contract, grant, or other arrangement for such activity,
provisions effective to insure that the rights to all
information, uses, processes, patents, and other developments
resulting from that activity will be made available to the
public without charge on a nonexclusive basis. Nothing in this
subsection shall be construed to deprive any person of any
right which he may have had, prior to entering into any
arrangement referred to in this subsection, to any patent,
patent application, or invention.
PUBLIC DISCLOSURE OF INFORMATION
[15 U.S.C. 2055]
Sec. 6. (a)(1) Nothing contained in this Act shall be
construed to require the release of any information described
by subsection (b) of section 552 of title 5, United States
Code, or which is otherwise protected by law from disclosure to
the public.
(2) All information reported to or otherwise obtained by the
Commission or its representative under this Act which
information contains or relates to a trade secret or other
matter referred to in section 1905 of title 18, United States
Code, or subject to section 552(b)(4) of title 5, United States
Code, shall be considered confidential and shall not be
disclosed.
(3) The Commission shall, prior to the disclosure of any
information which will permit the public to ascertain readily
the identity of a manufacturer or private labeler of a consumer
product, offer such manufacturer or private labeler an
opportunity to mark such information as confidential and
therefore barred from disclosure under paragraph (2). A
manufacturer or private labeler shall submit any such mark
within 15 calendar days after the date on which it receives the
Commission's offer.
(4) All information that a manufacturer or private labeler
has marked to be confidential and barred from disclosure under
paragraph (2), either at the time of submission or pursuant to
paragraph (3), shall not be disclosed, except in accordance
with the procedures established in paragraphs (5) and (6).
(5) If the Commission determines that a document marked as
confidential by a manufacturer or private labeler to be barred
from disclosure under paragraph (2) may be disclosed because it
is not confidential information as provided in paragraph (2),
the Commission shall notify such person in writing that the
Commission intends to disclose such document at a date not less
than 10 days after the date of receipt of notification.
[(6) Any person receiving such notification may, if he
believes such disclosure is barred by paragraph (2), before the
date set for release of the document, bring an action in the
district court of the United States in the district in which
the complainant resides, or has his principal place of
business, or in which the documents are located, or in the
United States District Court for the District of Columbia to
restrain disclosure of the document. Any person receiving such
notification may file with the appropriate district court or
court of appeals of the United States, as appropriate, an
application for a stay of disclosure. The documents shall not
be disclosed until the court has ruled on the application for a
stay.]
(6) If a manufacturer or private labeler receives a
notification from the Commission under paragraph (5) of the
Commission's intent to disclose a document marked as
confidential by that manufacturer or private labeler, it may
appeal the determination of the Commission under paragraph (5)
with respect to that document. The appeal shall be made in
writing to the general counsel of the Commission before the
date set for release of the document and set forth the reason
the manufacturer or private labeler believes disclosure of the
document is barred by paragraph (2). The general counsel shall
act on the appeal within 30 days after receiving it. If the
general counsel determines that disclosure of the document is
not barred by paragraph (2), the manufacturer or private
labeler may appeal the determination of the general counsel to
the full Commission, which shall decide within 15 days after
receiving it whether the determination of the general counsel
is supported by the law and the evidence. The document may not
be disclosed during the pendency of an appeal under this
paragraph.
(7) Nothing in this Act shall authorize the withholding of
information by the Commission or any officer or employee under
its control from the duly authorized committees or
subcommittees of the Congress, and the provisions of paragraphs
(2) through (6) shall not apply to such disclosures, except
that the Commission shall immediately notify the manufacturer
or private labeler of any such request for information
designated as confidential by the manufacturer or private
labeler.
(8) The provisions of paragraphs (2) through (6) shall not
prohibit the disclosure of information to other officers,
employees, or representatives of the Commission (including
contractors) concerned with carrying out this Act or when
relevant in any administrative proceeding under this Act or in
judicial proceedings to which the Commission is a party. Any
disclosure of relevant information--
(A) in Commission administrative proceedings or in
judicial proceedings to which the Commission is a
party, or
(B) to representatives of the Commission (including
contractors),
shall be governed by the rules of the Commission (including in
camera review rules for confidential material) for such
proceedings or for disclosures to such representatives or by
court rules or orders, except that the rules of the Commission
shall not be amended in a manner inconsistent with the purposes
of this section.
[(b)(1) Except as provided by paragraph (4) of this
subsection, not less than 30 days prior to its public
disclosure of any information obtained under this Act, or to be
disclosed to the public in connection therewith (unless the
Commission finds that the public health and safety requires a
lesser period of notice and publishes such a finding in the
Federal Register), the Commission shall, to the extent
practicable, notify and provide a summary of the information
to, each manufacturer or private labeler of any consumer
product to which such information pertains, if the manner in
which such consumer product is to be designated or described in
such information will permit the public to ascertain readily
the identity of such manufacturer or private labeler, and shall
provide such manufacturer or private labeler with a reasonable
opportunity to submit comments to the Commission in regard to
such information. The Commission shall take reasonable steps to
assure, prior to its public disclosure thereof, that
information from which the identity of such manufacturer or
private labeler may be readily ascertained is accurate, and
that such disclosure is fair in the circumstances and
reasonably related to effectuating the purposes of this Act. In
disclosing any information under this subsection, the
Commission may, and upon the request of the manufacturer or
private labeler shall, include with the disclosure any comments
or other information or a summary thereof submitted by such
manufacturer or private labeler to the extent permitted by and
subject to the requirements of this section.
[(2) If the Commission determines that a document claimed to
be inaccurate by a manufacturer or private labeler under
paragraph (1) should be disclosed because the Commission
believes it has complied with paragraph (1), the Commission
shall notify the manufacturer or private labeler that the
Commission intends to disclose such document at a date not less
than 10 days after the date of the receipt of notification. The
Commission may provide a lesser period of notice of intent to
disclose if the Commission finds that the public health and
safety requires a lesser period of notice and publishes such
finding in the Federal Register.
[(3) Prior to the date set for release of the document, the
manufacturer or private labeler receiving the notice described
in paragraph (2) may bring an action in the district court of
the United States in the district in which the complainant
resides, or has his principal place of business, or in which
the documents are located or in the United States District
Court for the District of Columbia to enjoin disclosure of the
document. The district court may enjoin such disclosure if the
Commission has failed to take the reasonable steps prescribed
in paragraph (1).
[(4) Paragraphs (1) through (3) of this subsection shall not
apply to the public disclosure of (A) information about any
consumer product with respect to which product the Commission
has filed an action under section 12 (relating to imminently
hazardous products), or which the Commission has reasonable
cause to believe is in violation of section 19 (relating to
prohibited acts); or (B) information in the course of or
concerning a rulemaking proceeding (which shall commence upon
the publication of an advance notice of proposed rulemaking or
a notice of proposed rulemaking), an adjudicatory proceeding
(which shall commence upon the issuance of a complaint) or
other administrative or judicial proceeding under this Act.
[(5) In addition to the requirements of paragraph (1), the
Commission shall not disclose to the public information
submitted pursuant to section 15(b) respecting a consumer
product unless--
[(A) the Commission has issued a complaint under
section 15 (c) or (d) alleging that such product
presents a substantial product hazard;
[(B) in lieu of proceeding against such product under
section 15 (c) or (d), the Commission has accepted in
writing a remedial settlement agreement dealing with
such product; or
[(C) the person who submitted the information under
section 15(b) agrees to its public disclosure.
The provisions of this paragraph shall not apply to the public
disclosure of information with respect to a consumer product
which is the subject of an action brought under section 12, or
which the Commission has reasonable cause to believe is in
violation of section 19(a), or information in the course of or
concerning a judicial proceeding.
[(6) Where the Commission initiates the public disclosure of
information that reflects on the safety of a consumer product
or class of consumer products, whether or not such information
would enable the public to ascertain readily the identity of a
manufacturer or private labeler, the Commission shall establish
procedures designed to ensure that such information is accurate
and not misleading.
[(7) If the Commission finds that, in the administration of
this Act, it has made public disclosure of inaccurate or
misleading information which reflects adversely upon the safety
of any consumer product or class of consumer products, or the
practices of any manufacturer, private labeler, distributor, or
retailer of consumer products, it shall, in a manner equivalent
to that in which such disclosure was made, take reasonable
steps to publish a retraction of such inaccurate or misleading
information.
[(8) If, after the commencement of a rulemaking or the
initiation of an adjudicatory proceeding, the Commission
decides to terminate the proceeding before taking final action,
the Commission shall, in a manner equivalent to that in which
such commencement or initiation was publicized, take reasonable
steps to make known the decision to terminate.]
(b)(1) Except as provided by paragraph (3) of this
subsection, prior to its public disclosure of any information
obtained under this Act, or to be disclosed to the public in
connection therewith (unless the Commission finds that the
public health and safety requires otherwise), the Commission
shall, to the extent practicable, notify and provide a summary
of the information to each manufacturer or private labeler of
any consumer product to which such information pertains, if the
manner in which such consumer product is to be designated or
described in such information will permit the public to
ascertain readily the identity of such manufacturer or private
labeler, and shall provide such manufacturer or private labeler
not less than 15 days to submit comments to the Commission as
to the accuracy of such information.
(2) In disclosing any information under this subsection, the
Commission may, and upon the request of the manufacturer or
private labeler shall, include with the disclosure any comments
or other information or a summary thereof submitted under
paragraph (1) by such manufacturer or private labeler as an
addendum.
(3) Paragraphs (1) and (2) of this subsection do not apply to
the public disclosure of--
(A) information about any consumer product--
(i) with respect to which the Commission has
filed an action under section 12;
(ii) with respect to which the Commission has
issued a complaint under section 15(c) or (d)
alleging that such product presents a
substantial product hazard; or
(iii) which the Commission has reasonable
cause to believe is in violation of any
regulation promulgated by the Commission or any
Act enforced by the Commission, or where the
Commission determines that the public health or
safety requires immediate disclosure or a
substantial product hazard exists;
(B) information in the course of, or concerning, a
rulemaking proceeding (which shall commence upon the
publication of an advance notice of proposed rulemaking
or a notice of proposed rulemaking), an adjudicatory
proceeding (which shall commence upon the issuance of a
complaint), or other administrative or judicial
proceeding under this Act.
(4) If, after the commencement of a rulemaking or the
initiation of an adjudicatory proceeding, the Commission
decides to terminate the proceeding before taking final action,
the Commission shall, in a manner equivalent to that in which
such commencement or initiation was publicized, take reasonable
steps to make known the decision to terminate.
(5) The Commission may not disclose the names or addresses of
consumers pursuant to its authority under this section unless
the consumer consents in writing to the disclosure.
(c) The Commission shall communicate to each manufacturer of
a consumer product, insofar as may be practicable, information
as to any significant risk of injury associated with such
product.
(d)(1) For purposes of this section, the term ``Act'' means
the Consumer Product Safety Act, the Flammable Fabrics Act, the
Poison Prevention Packaging Act, and the Federal Hazardous
Substances Act.
(2) The provisions of this section shall apply whenever
information is to be disclosed by the Commission, any member of
the Commission, or any employee, agent, or representative of
the Commission in an official capacity.
(e)(1) Notwithstanding the provisions of section 552 of title
5, United States Code, subsection (a)(7) of this section, or of
any other law, except as provided in paragraphs (2), (3), and
(4), no member of the Commission, no officer or employee of the
Commission, and no officer or employee of the Department of
Justice may--
(A) publicly disclose information furnished under
subsection (c)(1) or (c)(2)(A) of section 37;
(B) use such information for any purpose other than
to carry out the Commission's responsibilities; or
(C) permit anyone (other than the members, officers,
and employees of the Commission or officers or
employees of the Department of Justice who require such
information for an action filed on behalf of the
Commission) to examine such information.
(2) Any report furnished under subsection (c)(1) or (c)(2)(A)
of section 37 shall be immune from legal process and shall not
be subject to subpoena or other discovery in any civil action
in a State or Federal court or in any administrative
proceeding, except in an action against such manufacturer under
section 20, 21, or 22 for failure to furnish information
required by section 37.
(3) The Commission may, upon written request, furnish to any
manufacturer or to the authorized agent of such manufacturer
authenticated copies of reports furnished by or on behalf of
such manufacturer in accordance with section 37, upon payment
of the actual or estimated cost of searching the records and
furnishing such copies.
(4) Upon written request of the Chairman or Ranking Minority
Member of the Committee on Commerce, Science, and
Transportation of the Senate or the Committee on Energy and
Commerce of the House of Representatives or any subcommittee of
such committee, the Commission shall provide to the Chairman or
Ranking Minority Member any information furnished to the
Commission under section 37 for purposes that are related to
the jurisdiction of such committee or subcommittee.
(5) Any officer or employee of the Commission or other
officer or employee of the Federal Government who receives
information provided under section 37, who willfully violates
the requirements of this subsection shall be subject to
dismissal or other appropriate disciplinary action consistent
with procedures and requirements established by the Office of
Personnel Management.
PROCEDURE FOR CONSUMER PRODUCT SAFETY RULES
[15 U.S.C. 2058]
Sec. 9. (a) A proceeding for the development of a consumer
product safety rule [shall be commenced] may be commenced by
the publication in the Federal Register of an advance notice of
proposed rulemaking which shall--
(1) identify the product and the nature of the risk
of injury associated with the product;
(2) include a summary of each of the regulatory
alternatives under consideration by the Commission
(including voluntary consumer product safety
standards);
(3) include information with respect to any existing
standard known to the Commission which may be relevant
to the proceedings, together with a summary of the
reasons why the Commission believes preliminarily that
such standard does not eliminate or adequately reduce
the risk of injury identified in paragraph (1);
(4) invite interested persons to submit to the
Commission, within such period as the Commission shall
specify in the notice (which period shall not be less
than 30 days or more than 60 days after the date of
publication of the notice), comments with respect to
the risk of injury identified by the Commission, the
regulatory alternatives being considered, and other
possible alternatives for addressing the risk;
(5) invite any person (other than the Commission) to
submit to the Commission, within such period as the
Commission shall specify in the notice (which period
shall not be less than 30 days after the date of
publication of the notice), an existing standard or a
portion of a standard as a proposed consumer product
safety standard; and
(6) invite any person (other than the Commission) to
submit to the Commission, within such period as the
Commission shall specify in the notice (which period
shall not be less than 30 days after the date of
publication of the notice), a statement of intention to
modify or develop a voluntary consumer product safety
standard to address the risk of injury identified in
paragraph (1) together with a description of a plan to
modify or develop the standard.
The Commission shall transmit such notice within 10 calendar
days to the Committee on Commerce, Science, and Transportation
of the Senate and the Committee on Energy and Commerce of the
House of Representatives.
(b)(1) If the Commission determines that any standard
submitted to it in response to an invitation in a notice
published under subsection (a)(5) if promulgated (in whole, in
part, or in combination with any other standard submitted to
the Commission or any part of such a standard) as a consumer
product safety standard, would eliminate or adequately reduce
the risk of the injury identified [in the notice] in a notice
under subsection (a)(1), the Commission may publish such
standard, in whole, in part, or in such combination and with
nonmaterial modifications, as a proposed consumer product
safety rule.
(2) If the Commission determines that--
(A) compliance with any standard submitted to it in
response to an invitation in a notice published under
subsection (a)(6) is likely to result in the
elimination or adequate reduction of the risk of injury
identified in the notice, and
(B) it is likely that there will be substantial
compliance with such standard,
the Commission shall terminate any proceeding to promulgate a
consumer product safety rule respecting such risk of injury and
shall publish in the Federal Register a notice which includes
the determination of the Commission and which notifies the
public that the Commission will rely on the voluntary standard
to eliminate or reduce the risk of injury, except that the
Commission shall terminate any such proceeding and rely on a
voluntary standard only if such voluntary standard is in
existence. For purposes of this section, a voluntary 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 consumer product
safety standard, the Commission shall afford interested persons
(including manufacturers, consumers, and consumer
organizations) a reasonable opportunity to submit written
comments regarding such standard. The Commission shall consider
such comments in making any determination regarding reliance on
the involved voluntary standard under this subsection.
(c) No consumer product safety rule may be proposed by the
Commission [unless, not less than 60 days after publication of
the notice required in subsection (a), the] unless the
Commission publishes in the Federal Register the text of the
proposed rule, including any alternatives, which the Commission
proposes to promulgate, together with a preliminary regulatory
analysis containing--
(1) a preliminary description of the potential
benefits and potential costs of the proposed rule,
including any benefits or costs that cannot be
quantified in monetary terms, and an identification of
those likely to receive the benefits and bear the
costs;
(2) a discussion of the reasons any standard or
portion of a standard submitted to the Commission under
subsection (a)(5) was not published by the Commission
as the proposed rule or part of the proposed rule;
(3) a discussion of the reasons for the Commission's
preliminary determination that efforts proposed under
subsection (a)(6) and assisted by the Commission as
required by section 5(a)(3) would not, within a
reasonable period of time, be likely to result in the
development of a voluntary consumer product safety
standard that would eliminate or adequately reduce the
risk of injury addressed by the proposed rule; and
(4) a description of any reasonable alternatives to
the proposed rule, together with a summary description
of their potential costs and benefits, and a brief
explanation of why such alternatives should not be
published as a proposed rule.
The Commission shall transmit such notice within 10 calendar
days to the Committee on Commerce, Science, and Transportation
of the Senate and the Committee on Energy and Commerce of the
House of Representatives. Any proposed consumer product safety
rule shall be issued within twelve months after the date of
publication of [an advance notice of proposed rulemaking under
subsection (a) relating to the product involved,] the notice
unless the Commission determines that such proposed rule is not
reasonably necessary to eliminate or reduce the risk of injury
associated with the product or is not in the public interest.
The Commission may extend the twelve-month period for good
cause. If the Commission extends such period, it shall
immediately transmit notice of such extension to the Committee
on Commerce, Science, and Transportation of the Senate and the
Committee on Energy and Commerce of the House of
Representatives. Such notice shall include an explanation of
the reasons for such extension, together with an estimate of
the date by which the Commission anticipates such rulemaking
will be completed. The Commission shall publish notice of such
extension and the information submitted to the Congress in the
Federal Register.
(d)(1) Within 60 days after the publication under subsection
(c) of a proposed consumer product safety rule respecting a
risk of injury associated with a consumer product, the
Commission shall--
(A) promulgate a consumer product safety rule
respecting the risk of injury associated with such
product, if it makes the findings required under
subsection (f), or
(B) withdraw the applicable notice of proposed
rulemaking if it determines that such rule is not (i)
reasonably necessary to eliminate or reduce an
unreasonable risk of injury associated with the
product, or (ii) in the public interest;
except that the Commission may extend such 60-day period for
good cause shown (if it publishes its reasons therefor in the
Federal Register).
(2) Consumer product safety rules shall be promulgated in
accordance with section 553 of title 5, United States Code,
except that the Commission shall give interested persons an
opportunity for the oral presentation of data, views, or
arguments, in addition to an opportunity to make written
submissions. A transcript shall be kept of any oral
presentation.
(e) A consumer product safety rule shall express in the rule
itself the risk of injury which the standard is designed to
eliminate or reduce. In promulgating such a rule the Commission
shall consider relevant available product data including the
results of research, development, testing, and investigation
activities conducted generally and pursuant to this Act. In the
promulgation of such a rule the Commission shall also consider
and take into account the special needs of elderly and
handicapped persons to determine the extent to which such
persons may be adversely affected by such rule.
(f)(1) Prior to promulgating a consumer product safety rule,
the Commission shall consider, and shall make appropriate
findings for inclusion in such rule with respect to--
(A) the degree and nature of the risk of injury the
rule is designed to eliminate or reduce;
(B) the approximate number of consumer products, or
types or classes thereof, subject to such rule;
(C) the need of the public for the consumer products
subject to such rule, and the probable effect of such
rule upon the utility, cost, or availability of such
products to meet such need; and
(D) any means of achieving the objective of the order
while minimizing adverse effects on competition or
disruption or dislocation of manufacturing and other
commercial practices consistent with the public health
and safety.
(2) The Commission shall not promulgate a consumer product
safety rule unless it has prepared, on the basis of the
findings of the Commission under paragraph (1) and on other
information before the Commission, a final regulatory analysis
of the rule containing the following information:
(A) A description of the potential benefits and
potential costs of the rule, including costs and
benefits that cannot be quantified in monetary terms,
and the identification of those likely to receive the
benefits and bear the costs.
(B) A description of any alternatives to the final
rule which were considered by the Commission, together
with a summary description of their potential benefits
and costs and a brief explanation of the reasons why
these alternatives were not chosen.
(C) A summary of any significant issues raised by the
comments submitted during the public comment period in
response to the preliminary regulatory analysis, and a
summary of the assessment by the Commission of such
issues.
The Commission shall publish its final regulatory analysis with
the rule.
(3) The Commission shall not promulgate a consumer product
safety rule unless it finds (and includes such finding in the
rule)--
(A) that the rule (including its effective date) is
reasonably necessary to eliminate or reduce an
unreasonable risk of injury associated with such
product;
(B) that the promulgation of the rule is in the
public interest;
(C) in the case of a rule declaring the product a
banned hazardous product, that no feasible consumer
product safety standard under this Act would adequately
protect the public from the unreasonable risk of injury
associated with such product;
(D) in the case of a rule which relates to a risk of
injury with respect to which persons who would be
subject to such rule have adopted and implemented a
voluntary consumer product safety standard, that--
(i) compliance with such voluntary consumer
product safety standard is not likely to result
in the elimination or adequate reduction of
such risk of injury; or
(ii) it is unlikely that there will be
substantial compliance with such voluntary
consumer product safety standard;
(E) that the benefits expected from the rule bear a
reasonable relationship to its costs; and
(F) that the rule imposes the least burdensome
requirement which prevents or adequately reduces the
risk of injury for which the rule is being promulgated.
(4)(A) Any preliminary or final regulatory analysis prepared
under subsection (c) or (f)(2) shall not be subject to
independent judicial review, except that when an action for
judicial review of a rule is instituted, the contents of any
such regulatory analysis shall constitute part of the whole
rulemaking record of agency action in connection with such
review.
(B) The provisions of subparagraph (A) shall not be construed
to alter the substantive or procedural standards otherwise
applicable to judicial review of any action by the Commission.
(g)(1) Each consumer product safety rule shall specify the
date such rule is to take effect not exceeding 180 days from
the date promulgated, unless the Commission finds, for good
cause shown, that a later effective date is in the public
interest and publishes its reasons for such finding. The
effective date of a consumer product safety standard under this
Act shall be set at a date at least 30 days after the date of
promulgation unless the Commission for good cause shown
determines that an earlier effective date is in the public
interest. In no case may the effective date be set at a date
which is earlier than the date of promulgation. A consumer
product safety standard shall be applicable only to consumer
products manufactured after the effective date.
(2) The Commission may by rule prohibit a manufacturer of a
consumer product from stockpiling any product to which a
consumer product safety rule applies, or to which a rule under
any other law enforced by the Commission applies, so as to
prevent such manufacturer from circumventing the purpose of
such [consumer product safety] rule. For purposes of this
paragraph, the term ``stockpiling'' means manufacturing or
importing a product between the date of promulgation of such
[consumer product safety] rule and its effective date at a rate
which is significantly greater (as determined under the rule
under this paragraph) than the rate at which such product was
produced or imported during a base period (prescribed in the
rule under this paragraph) ending before the date of
promulgation of the [consumer product safety] rule.
(h) The Commission may by rule amend or revoke any consumer
product safety rule. Such amendment or revocation shall specify
the date on which it is to take effect which shall not exceed
180 days from the date the amendment or revocation is published
unless the Commission finds for good cause shown that a later
effective date is in the public interest and publishes its
reasons for such finding. Where an amendment involves a
material change in a consumer product safety rule, sections 7
and 8, and subsections (a) through (g) of this section shall
apply. In order to revoke a consumer product safety rule, the
Commission shall publish a proposal to revoke such rule in the
Federal Register, and allow oral and written presentations in
accordance with subsection (d)(2) of this section. It may
revoke such rule only if it determines that the rule is not
reasonably necessary to eliminate or reduce an unreasonable
risk of injury associated with the product. Section 11 shall
apply to any amendment of a consumer product safety rule which
involves a material change and to any revocation of a consumer
product safety rule, in the same manner and to the same extent
as such section applies to the Commission's action in
promulgating such a rule.
(i) The Commission shall grant, in whole or in part, or deny
any petition under section 553(e) of title 5, United States
Code, requesting the Commission to initiate a rulemaking,
within a reasonable time after the date on which such petition
is filed. The Commission shall state the reasons for granting
or denying such petition. The Commission may not deny any such
petition on the basis of a voluntary standard unless the
voluntary standard is in existence at the time of the denial of
the petition, the Commission has determined that the voluntary
standard is likely to result in the elimination or adequate
reduction of the risk of injury identified in the petition, and
it is likely that there will be substantial compliance with the
standard.
PRODUCT CERTIFICATION AND LABELING
[15 U.S.C. 2063]
Sec. 14. (a)(1) [Every manufacturer] Except as provided in
paragraph (2), every manufacturer of a product which is subject
to a consumer product safety standard under this Act and which
is distributed in commerce (and the private labeler of such
product if it bears a private label) shall issue a certificate
which shall certify that such product conforms to all
applicable consumer product safety standards, and shall specify
any standard which is applicable.
(2) Every manufacturer of a children's product (and the
private labeler of such product if it bears a private label)
which is subject to a consumer product safety standard under
this Act, or a rule under this or any other Act enforced by the
Commission declaring a consumer product a banned hazardous
product, shall--
(A) have the product tested by a third party
laboratory qualified to perform such tests or testing
programs; and
(B) issue a certification which shall--
(i) certify that such product conforms to
such consumer product safety standard or is not
a banned hazardous product under such rule; and
(ii) specify the applicable consumer product
safety standard or rule.
(3) [Such certificate shall] A certificate required under
this subsection shall accompany the product or shall otherwise
be furnished to any distributor or retailer to whom the product
is delivered.
(4) Any certificate under this subsection shall be based on a
test of each product or upon a reasonable testing program;
shall state the name of the manufacturer or private labeler
issuing the certificate; and shall include the date and place
of manufacture.
[(2)] (5) In the case of a consumer product for which there
is more than one manufacturer or more than one private labeler,
the Commission may by rule designate one or more of such
manufacturers or one or more of such private labelers (as the
case may be) as the persons who shall issue the certificate
[required by paragraph (1) of this subsection,] required by
paragraph (1) or (2) (as the case may be), and may exempt all
other manufacturers of such product or all other private
labelers of the product (as the case may be) from the
[requirement under paragraph (1)] requirement under paragraph
(1) or (2) (as the case may be) to issue a certificate with
respect to such product.
(6) The manufacturer of a children's product or other
consumer product (as may be required by the Commission in its
discretion after a rulemaking proceeding) shall place
distinguishing marks on the product and its packaging, to the
extent practicable, that will enable the ultimate purchaser to
ascertain the source, date, and cohort (including the batch,
run number, or other identifying characteristic) of production
of the product by reference to those marks.
(b)(1) The Commission may by rule prescribe reasonable
testing programs for consumer products which are subject to
consumer product safety standards under this Act and for which
a certificate is required under subsection (a).
(2) [Any test or] Except as provided in subsection (a)(2),
any test or testing program on the basis of which a certificate
is issued under subsection (a) may, at the option of the person
required to certify the product, be conducted by an independent
third party qualified to perform such tests or testing
programs.
[(c) The] (c)(1) The Commission may by rule require the use
and prescribe the form and content of labels which contain the
following information (or that portion of it specified in the
[rule)--] rule):
[(1)] (A) The date and place of manufacture of any
consumer product.
[(2)] (B) A suitable identification of the
manufacturer of the consumer product, unless the
product bears a private label in which case it shall
identify the private labeler and shall also contain a
code mark which will permit the seller of such product
to identify the manufacturer thereof to the purchaser
upon his request.
[(3)] (C) In the case of a consumer product subject
to a consumer product safety rule, a certification that
the product meets all applicable consumer product
safety standards and a specification of the standards
which are applicable.
(2) Such labels, where practicable, may be required by the
Commission to be permanently marked on or affixed to any such
consumer product. The Commission may, in appropriate cases,
permit information required under paragraphs (1) and (2) of
this subsection to be coded.
(4) If an advertisement, label, or package contains a
reference to a consumer product safety standard, a statement
with respect to whether the product meets all requirements of
that standard.
(d) Application to Other Consumer Products; Certifier
Standards; Audit.--
(1) In general.--The Commission--
(A) within 1 year after the date of enactment
of the CPSC Reform Act of 2007 shall by rule--
(i) establish protocols and
standards--
(I) for acceptance of
certification or continuing
guarantees of compliance by
manufacturers under this
section; and
(II) for verifying that
products tested by third party
laboratories comply with
applicable standards under this
Act and other Acts enforced by
the Commission;
(ii) prescribe standards for
accreditation of third party
laboratories, either by the Commission
or by 1 or more independent standard-
setting organizations to which the
Commission delegates authority, to
engage in certifying compliance under
subsection (a)(2) for children's
products or products to which the
Commission extends the certification
requirements of that subsection;
(iii) establish requirements, or
delegate authority to 1 or more
independent standard-setting
organizations, for third party
laboratory testing, as the Commission
determines to be necessary to ensure
compliance with any applicable rule or
order, of random samples of products
certified under this section to
determine whether they meet the
requirements for certification;
(iv) establish requirements for
periodic audits of third party
laboratories by an independent
standard-setting organization as a
condition for accreditation of such
laboratories under this section; and
(v) establish a program by which
manufacturers may label products as
compliant with the certification
requirements of subsection (a)(2); and
(B) may by rule extend the certification
requirements of subsection (a)(2) to other
consumer products or to classes or categories
of consumer products;
(2) Interim procedure.--Within 30 days after the date
of enactment of the CPSC Reform Act of 2007, the
Commission shall--
(A) consider existing laboratory testing
certification procedures established by
independent standard-setting organizations; and
(B) designate an existing procedure for
manufacturers of children's products to follow
until the Commission issues a final rule under
paragraph (1)(A).
(e) Definitions.--In this section:
(1) Children's product.--The term ``children's
product'' means a product (other than a medication,
drug, or food) designed or intended for use by, or care
of, a child 7 years of age or younger that is
introduced into the interstate stream of commerce. In
determining whether a product is intended for use by a
child 7 years of age or younger, the following factors
shall be considered:
(A) A statement by a manufacturer about the
intended use of such product, including a label
on such product, if such statement is
reasonable.
(B) The context and manner of the
advertising, promotion, and marketing
associated with the product.
(C) Whether the product is commonly
recognized by consumers as being intended for
use by a child 7 years of age or younger.
(D) The Age Determination Guideline issued by
the Consumer Product Safety Commission in
September 2002 and any subsequent version of
such Guideline.
(2) Third party laboratory.--
(A) In general.--The term ``third party
laboratory'' means a testing entity that--
(i) is designated by the Commission,
or by an independent standard-setting
organization to which the Commission
delegates the authority to make such a
designation, as a testing laboratory
that is competent to test products for
compliance with applicable safety
standards under this Act and other Acts
enforced by the Commission; and
(ii) except as provided in
subparagraph (B), is a non-governmental
entity that is not owned, managed,
controlled, or directed by the
manufacturer or private labeler.
(B) Exception for proprietary laboratories.--
Upon request, the Commission may certify a
laboratory that is owned, managed, controlled,
or directed by the manufacturer or private
labeler as a third party laboratory if the
Commission--
(i) finds that certification of the
laboratory would provide equal or
greater consumer safety protection than
the manufacturer's use of an
independent third party laboratory;
(ii) establishes procedures to ensure
that the laboratory is protected from
undue influence, including pressure to
modify or hide test results, by the
manufacturer or private labeler; and
(iii) establishes procedures for
confidential reporting of allegations
of undue influence to the Commission.
(C) Decertification.--The Commission, or an
independent standard-setting organization to
which the Commission has delegated such
authority, may decertify a third party
laboratory if it finds, after notice and
investigation, that a manufacturer or private
labeler has exerted undue influence on the
laboratory.
NOTIFICATION AND REPAIR, REPLACEMENT, OR REFUND
[15 U.S.C. 2064]
Sec. 15. (a) For purposes of this section, the term
``substantial product hazard'' means--
(1) a failure to comply with an applicable consumer
product safety rule which creates a substantial risk of
injury to the public, or
(2) a product defect which (because of the pattern of
defect, the number of defective products distributed in
commerce, the severity of the risk, or otherwise)
creates a substantial risk of injury to the public.
(b) Every manufacturer of a [consumer product distributed in
commerce,] consumer product (or other product or substance over
which the Commission has jurisdiction under this or any other
Act) distributed in commerce, and every distributor and
retailer of such product, who obtains information which
reasonably supports the conclusion that such product--
(1) fails to comply with an applicable consumer
product safety rule or with a voluntary consumer
product safety standard upon which the Commission has
relied under section 9;
(2) fails to comply with any rule or standard
promulgated by the Commission under this or any other
Act;
[(2)] (3) contains a defect which could create a
substantial product hazard described in subsection
(a)(2); or
[(3)] (4) creates an unreasonable risk of serious
injury or death,
shall immediately inform the Commission of such failure to
comply, of such defect, or of such risk, unless such
manufacturer, distributor, or retailer has actual knowledge
that the Commission has been adequately informed of such
defect, failure to comply, or such risk.
(c) If the Commission determines (after affording interested
persons, including consumers and consumer organizations, an
opportunity for a hearing in accordance with subsection (f) of
this section) that a product distributed in commerce presents a
substantial product hazard and that notification is required in
order to adequately protect the public from such substantial
product hazard, the Commission may order the manufacturer or
any distributor or retailer of the product to take any one or
more of the following actions:
(1) To give public notice of the defect or failure to
comply.
(2) To mail notice to each person who is a
manufacturer, distributor, or retailer of such product.
(3) To mail notice to every person to whom the person
required to give notice knows such product was
delivered or sold.
Any such order shall specify the form and content of any notice
required to be given under such order.
(d)(1) If the Commission determines (after affording
interested parties, including consumers and consumer
organizations, an opportunity for a hearing in accordance with
subsection (f)) that a product distributed in commerce presents
a substantial product hazard and that action under this
subsection is in the public interest, it may order the
manufacturer or any distributor or retailer of such product to
take [whichever of the following actions the person to whom the
order is directed elects:] any one or more of the following
actions it determines to be in the public interest:
[(1)] (A) To bring such product into conformity with
the requirements of the applicable consumer product
safety rule or to repair the defect in such product.
[(2)] (B) To replace such product with a like or
equivalent product which complies with the applicable
consumer product safety rule or which does not contain
the defect.
[(3)] (C) To refund the purchase price of such
product (less a reasonable allowance for use, if such
product has been in the possession of a consumer for
one year or [more (A)] more (i) at the time of public
notice under subsection (c), [or (B)] or (ii) at the
time the consumer receives actual notice of the defect
or noncompliance, whichever first occurs).
(2) An order under this subsection may also require the
person to whom it applies to submit a plan, [satisfactory to
the Commission,] for approval by the Commission, for taking
action under whichever of the preceding paragraphs of this
subsection under which such person has elected to act. The
Commission shall specify in the order the persons to whom
refunds must be made if the person to whom the order is
directed elects to take the action [described in paragraph
(3).] described in paragraph (1)(C). If an order under this
subsection is directed to more than one person, the Commission
shall specify which person has the election under this
subsection. An order under this subsection may prohibit the
person to whom it applies from manufacturing for sale, offering
for sale, distributing in commerce, or importing into the
customs territory of the United States (as defined in general
note 2 of the Harmonized Tariff Schedule of the United States),
or from doing any combination of such actions, the product with
respect to which the order was issued.
(3)(A) If the Commission approves an action plan, it shall
indicate its approval in writing.
(B) If the Commission finds that an approved action plan is
not effective, or that the manufacturer, retailer, or
distributor is not executing an approved action plan
effectively, the Commission may by order amend, or require
amendment of, the action plan.
(C) If the Commission determines, after notice and
opportunity for comment, that a manufacturer, retailer, or
distributor has failed to comply substantially with its
obligations under its action plan, the Commission may revoke
its approval of the action plan. The manufacturer, retailer, or
distributor to which the action plan applies may not distribute
the product to which the action plan relates in commerce after
receipt of notice of a revocation of the action plan.
(e)(1) No charge shall be made to any person (other than a
manufacturer, distributor, or retailer) who avails himself of
any remedy provided under an order issued under subsection (d),
and the person subject to the order shall reimburse each person
(other than a manufacturer, distributor, or retailer) who is
entitled to such a remedy for any reasonable and foreseeable
expenses incurred by such person in availing himself of such
remedy.
(2) An order issued under subsection (c) or (d) with respect
to a product may require any person who is a manufacturer,
distributor, or retailer of the product to reimburse any other
person who is a manufacturer, distributor, or retailer of such
product for such other person's expenses in connection with
carrying out the order, if the Commission determines such
reimbursement to be in the public interest.
(f) An order under subsection (c) or (d) may be issued only
after an opportunity for a hearing in accordance with section
554 of title 5, United States Code, except that, if the
Commission determines that any person who wishes to participate
in such hearing is a part of a class of participants who share
an identity of interest, the Commission may limit such person's
participation in such hearing to participation through a single
representative designated by such class (or by the Commission
if such class fails to designate such a representative). Any
settlement offer which is submitted to the presiding officer at
a hearing under this subsection shall be transmitted by the
officer to the Commission for its consideration unless the
settlement offer is clearly frivolous or duplicative of offers
previously made.
(g)(1) If the Commission has initiated a proceeding under
this section for the issuance of an order under subsection (d)
with respect to a product which the Commission has reason to
believe presents a substantial product hazard, the Commission
(without regard to section 27(b)(7)), or the Attorney General
may, in accordance with 12(d)(1), apply to a district court of
the United States for the issuance of a preliminary injunction
to restrain the distribution in commerce of such product
pending the completion of such proceeding. If such a
preliminary injunction has been issued, the Commission (or the
Attorney General if the preliminary injunction was issued upon
an application of the Attorney General) may apply to the
issuing court for extensions of such preliminary injunction.
(2) Any preliminary injunction, and any extension of a
preliminary injunction, issued under this subsection with
respect to a product shall be in effect for such period as the
issuing court prescribes not to exceed a period which extends
beyond the thirtieth day from the date of the issuance of the
preliminary injunction (or, in the case of a preliminary
injunction which has been extended, the date of its extension)
or the date of the completion or termination of the proceeding
under this section respecting such product, whichever date
occurs first.
(3) The amount in controversy requirement of section 1331 of
title 28, United States Code, does not apply with respect to
the jurisdiction of a district court of the United States to
issue or extend a preliminary injunction under this subsection.
(h) Nothing in this section shall be construed to require the
Commission, in determining that a product distributed in
commerce presents a substantial product hazard and that
notification or other action under this section should be
taken, to prepare a comparison of the costs that would be
incurred in providing notification or taking other action under
this section with the benefits from such notification or
action.
INSPECTION AND RECORDKEEPING
[15 U.S.C. 2065]
Sec. 16. (a) For purposes of implementing this Act, or rules
or orders prescribed under this Act, officers or employees duly
designated by the Commission, upon presenting appropriate
credentials and a written notice from the Commission to the
owner, operator, or agent in charge, are authorized--
(1) to enter, at reasonable times, (A) any factory,
warehouse, or establishment in which consumer products
are manufactured or held, in connection with
distribution in commerce, or (B) any conveyance being
used to transport consumer products in connection with
distribution in commerce; and
(2) to inspect, at reasonable times and in a
reasonable manner such conveyance or those areas of
such factory, warehouse, or establishment where such
products are manufactured, held, or transported and
which may relate to the safety of such products. Each
such inspection shall be commenced and completed with
reasonable promptness.
(b) Every person who is a manufacturer, private labeler, or
distributor of a consumer product shall establish and maintain
such records, make such reports, and provide such information
as the Commission may, by rule, reasonably require for the
purposes of implementing this Act, or to determine compliance
with rules or orders prescribed under this Act. Upon request of
an officer or employee duly designated by the Commission, every
such manufacturer, private labeler, or distributor shall permit
the inspection of appropriate books, records, and papers
relevant to determining whether such manufacturer, private
labeler, or distributor has acted or is acting in compliance
with this Act and rules under this Act.
(c) Upon request by an officer or employee duly designated by
the Commission--
(1) every importer, retailer, or distributor of a
consumer product (or other product or substance over
which the Commission has jurisdiction under this or any
other Act) shall identify the manufacturer of that
product by name, address, or such other identifying
information as the officer or employee may request; and
(2) every manufacturer shall identify by name,
address, or such other identifying information as the
officer or employee may request--
(A) each retailer or distributor to which it
supplied a given consumer product (or other
product or substance over which the Commission
has jurisdiction under this or any other Act);
(B) each subcontractor involved in the
production or fabrication or such product or
substance; and
(C) each subcontractor from which it obtained
a component thereof.
IMPORTED PRODUCTS
[15 U.S.C. 2066]
Sec. 17. (a) Any consumer product offered for importation
into the customs territory of the United States (as defined in
general note 2 of the Harmonized Tariff Schedule of the United
States) shall be refused admission into such customs territory
if such product--
(1) fails to comply with an applicable consumer
product safety rule;
(2) is not accompanied by a certificate required by
section 14, or is not labeled in accordance with
regulations under section 14(c);
(3) is or has been determined to be an imminently
hazardous consumer product in a proceeding brought
under section 12;
(4) has a product defect which constitutes a
substantial product hazard (within the meaning of
section 15(a)(2)); [or]
(5) is a product which was manufactured by a person
who the Commission has informed the Secretary of the
Treasury is in violation of subsection [(g).] (g); or
(6) is a children's product, as that term is defined
in section 14(e), or a product for which the
Commission, under section 14(d)(1), has required
certification under section 14(a)(2)), that is not
accompanied by a certificate from a third party as
required by section 14(a)(2).
(b) The Secretary of the Treasury shall obtain without charge
and deliver to the Commission, upon the latter's request, a
reasonable number of samples of consumer products being offered
for import. Except for those owners or consignees who are or
have been afforded an opportunity for a hearing in a proceeding
under section 12 with respect to an imminently hazardous
product, the owner or consignee of the product shall be
afforded an opportunity by the Commission for a hearing in
accordance with section 554 of title 5 of the United States
Code with respect to the importation of such products into the
customs territory of the United States. If it appears from
examination of such samples or otherwise that a product must be
refused admission under the terms of subsection (a), such
product shall be refused admission, unless subsection (c) of
this section applies and is complied with.
(c) If it appears to the Commission that any consumer product
which may be refused admission pursuant to subsection (a) of
this section can be so modified that it need not (under the
terms of paragraphs (1) through (4) of subsection (a)) be
refused admission, the Commission may defer final determination
as to the admission of such product and, in accordance with
such regulations as the Commission and the Secretary of the
Treasury shall jointly agree to, permit such product to be
delivered from customs custody under bond for the purpose of
permitting the owner or consignee an opportunity to so modify
such product.
(d) All actions taken by an owner or consignee to modify such
product under subsection (c) shall be subject to the
supervision of an officer or employee of the Commission and of
the Department of the Treasury. If it appears to the Commission
that the product cannot be so modified or that the owner or
consignee is not proceeding satisfactorily to modify such
product, it shall be refused admission into the customs
territory of the United States, and the Commission may direct
the Secretary to demand redelivery of the product into customs
custody, and to seize the product in accordance with section
22(b) if it is not so redelivered.
(e) Products refused admission into the customs territory of
the United States under this section must be exported, except
that upon application, the Secretary of the Treasury may permit
the destruction of the product in lieu of exportation. If the
owner or consignee does not export the product within a
reasonable time, the Department of the Treasury may destroy the
product.
(f) 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 this section
(the amount of such expenses to be determined in accordance
with regulations of the Secretary of the Treasury) and all
expenses in connection with the storage, cartage, or labor with
respect to any consumer product refused admission under this
section, shall be paid by the owner or consignee and, in
default of such payment, shall constitute a lien against any
future importations made by such owner or consignee.
(g) The Commission may, by rule, condition the importation of
a consumer product on the manufacturer's compliance with the
inspection and recordkeeping requirements of this Act and the
Commission's rules with respect to such requirements.
(h)(1) The Commission shall establish and maintain a
permanent product surveillance program, in cooperation with
other appropriate Federal agencies, for the purpose of carrying
out the Commission's responsibilities under this Act and the
other Acts administered by the Commission and preventing the
entry of unsafe consumer products into the commerce of the
United States.
(2) The Commission may provide to the agencies with which it
is cooperating under paragraph (1) such information, data,
violator lists, test results, and other support, guidance, and
documents as may be necessary or helpful for such agencies to
cooperate with the Commission to carry out the product
surveillance program under paragraph (1).
(3) The Commission shall periodically report to the Congress
the results of the surveillance program under paragraph (1).
(i)(1) The Commission may--
(A) designate as a repeat offender, after notice and
an opportunity for a hearing, any customs broker found
by the Commission to have aided and abetted the
importation of a consumer product in violation of
subsection (a) on multiple occasions (disregarding de
minimus violations thereof); and
(B) refer any such customs broker to United States
Customs and Border Protection with a recommendation
that its customs broker license be revoked in
accordance with that agency's procedures.
(2) The United States Customs and Border Protection shall
revoke the customs broker license of any customs broker
referred to it under paragraph (1)(B).
EXPORTS
[15 U.S.C. 2067]
Sec. 18. (a) This Act shall not apply to any consumer product
if (1) it can be shown that such product is manufactured, sold,
or held for sale for export from the United States (or that
such product was imported for export), unless (A) such consumer
product is in fact distributed in commerce for use in the
United States, or (B) the Commission determines that
exportation of such product presents an unreasonable risk of
injury to consumers within the United States, and (2) such
consumer product when distributed in commerce, or any container
in which it is enclosed when so distributed, bears a stamp or
label stating that such consumer product is intended for
export; except that this Act shall apply to any consumer
product manufactured for sale, offered for sale, or sold for
shipment to any installation of the United States located
outside the United States.
(b) Not less than thirty days before any person exports to a
foreign country any product--
(1) which is not in conformity with an applicable
consumer product safety standard in effect under this
Act, or
(2) which is declared to be a banned hazardous
substance by a rule promulgated under section 9,
such person shall file a statement with the Commission
notifying the Commission of such exportation, and the
Commission, upon receipt of such statement, shall promptly
notify the government of such country of such exportation and
the basis for such safety standard or rule. Any statement filed
with the Commission under the preceding sentence shall specify
the anticipated date of shipment of such product, the country
and port of destination of such product, and the quantity of
such product that will be exported, and shall contain such
other information as the Commission may by regulation require.
Upon petition filed with the Commission by any person required
to file a statement under this subsection respecting an
exportation, the Commission may, for good cause shown, exempt
such person from the requirement of this subsection that such a
statement be filed no less than thirty days before the date of
the exportation, except that in no case shall the Commission
permit such a statement to be filed later than the tenth day
before such date.
(c) Notwithstanding any other provision of law, the
Commission may prohibit a person from exporting from the United
States for purpose of sale any consumer product, or other
product or substance that is regulated under this Act or any
other Act enforced by the Commission, that the Commission
determines, after notice to the manufacturer--
(1) is not in conformity with an applicable consumer
product safety standard under this Act or with a
similar rule under any such other Act and does not
violate applicable safety standards established by the
importing country;
(2) is subject to an order issued under section 12 or
15 of this Act or designated as a banned hazardous
substance under the Federal Hazardous Substances Act
(15 U.S.C. 1261 et seq.); or
(3) is subject to voluntary corrective action taken
by the manufacturer, in consultation with the
Commission, of which action the Commission has notified
the public and that would have been subject to
mandatory corrective action under this Act or any other
Act enforced by the Commission if voluntary corrective
action had not been taken by the manufacturer, except
that the Commission may permit such a product to be
exported if it meets applicable safety standards
established by the importing country.
PROHIBITED ACTS
[15 U.S.C. 2068]
Sec. 19. (a) It shall be unlawful for any person to--
[(1) manufacture for sale, offer for sale, distribute
in commerce, or import into the United States any
consumer product which is not in conformity with an
applicable consumer product safety standard under this
Act;]
(1) sell, offer for sale, manufacture for sale,
distribute in commerce, or import into the United
States any consumer product, or other product or
substance that is regulated under this Act or any other
Act enforced by the Commission, that is--
(A) not in conformity with an applicable
consumer product safety standard under this
Act, or any similar rule under any such other
Act;
(B) subject to voluntary corrective action
taken by the manufacturer, in consultation with
the Commission, of which action the Commission
has notified the public, but only if the
seller, distributor, or manufacturer knew or
should have known of such voluntary corrective
action; or
(C) subject to an order issued under section
12 or 15 of this Act, designated a banned
hazardous substance under the Federal Hazardous
Substances Act (15 U.S.C. 1261 et seq.);
(2) manufacture for sale, offer for sale, distribute
in commerce, or import into the United States any
consumer product which has been declared a banned
hazardous product by a rule under this Act;
(3) fail or refuse to permit access to or copying of
records, or fail or refuse to establish or maintain
records, or fail or refuse to make reports or provide
information, or fail or refuse to permit entry or
inspection, as required under this Act or rule
thereunder;
(4) fail to furnish information required by section
15(b);
(5) fail to comply with an order issued under section
15 (c) or (d) (relating to notification, and to repair,
replacement, and refund, and to prohibited acts);
[(6) fail to furnish a certificate required by
section 14 or issue a false certificate if such person
in the exercise of due care has reason to know that
such certificate is false or misleading in any material
respect; or to fail to comply with any rule under
section 14(c) (relating to labeling);]
(6) fail to furnish a certificate required by this
Act or any other Act enforced by the Commission, or to
issue a false certificate if such person in the
exercise of due care has reason to know that the
certificate is false or misleading in any material
respect; or to fail to comply with any rule under
section 14(c);
(7) fail to comply with any rule under section
9(g)(2) (relating to stockpiling); [or]
(8) fail to comply with any rule under section 27(e)
(relating to provision of performance and technical
data); [and]
(9) fail to comply with any rule or requirement under
section 35 (relating to labeling and testing of
cellulose [insulation).] insulation;
(10) fail to file a statement with the Commission
pursuant to section [18(b).] 18(b);
(11) fail to furnish information required by section
[37.] 37;
(12) violate an order of the Commission under section
18(c);
(13) sell, offer for sale, distribute in commerce, or
import into the United States any consumer product
bearing a false certification mark of compliance with a
safety standard established by a nationally recognized
testing laboratory if such person knew or should have
known that the certification mark was false;
(14) misrepresent to any officer or employee of the
Commission the scope of consumer products subject to an
action required under section 12 or 15, or to make a
material misrepresentation to such an officer or
employee in the course of an investigation under this
Act or any other Act enforced by the Commission; or
(15) exercise, or attempt to exercise, undue
influence on a third party laboratory (as defined in
section 14(e)(2)) with respect to the testing, or
reporting of the results of testing, of any product for
compliance with a standard under this Act or any other
Act enforced by the Commission.
(b) Paragraphs (1) and (2) of subsection (a) of this section
shall not apply to any person (1) who holds a certificate
issued in accordance with section 14(a) to the effect that such
consumer product conforms to all applicable consumer product
safety rules, unless such person knows that such consumer
product does not conform, or (2) who relies in good faith on
the representation of the manufacturer or a distributor of such
product that the product is not subject to an applicable
product safety rule.
CIVIL PENALTIES
[15 U.S.C. 2069]
Sec. 20. (a)(1) Any person who knowingly violates section 19
of this Act shall be subject to a civil penalty not to exceed
[$5,000] $250,000 for each such violation. Subject to paragraph
(2), a violation of section 19(a) (1), (2), (4), (5), (6), (7),
(8), (9), (10), or (11) shall constitute a separate offense
with respect to each consumer product involved, except that the
maximum civil penalty shall not exceed [$1,250,000]
$100,000,000 for any related series of violations. A violation
of section 19(a)(3) shall constitute a separate violation with
respect to each failure or refusal to allow or perform an act
required thereby; and, if such violation is a continuing one,
each day of such violations shall constitute a separate
offense, except that the maximum civil penalty shall not exceed
[$1,250,000] $100,000,000 for any related series of violations.
(2) The second sentence of paragraph (1) of this subsection
shall not apply to violations of paragraph (1) or (2) of
section 19(a)--
(A) if the person who violated such paragraphs is not
the manufacturer or private labeler or a distributor of
the products involved, and
(B) if such person did not have either (i) actual
knowledge that his distribution or sale of the product
violated such paragraphs or (ii) notice from the
Commission that such distribution or sale would be a
violation of such paragraphs.
(3)(A) The maximum penalty amounts authorized in paragraph
(1) shall be adjusted for inflation as provided in this
paragraph.
(B) Not later than [December 1, 1994,] December 1, 2011, and
December 1 of each fifth calendar year thereafter, the
Commission shall prescribe and publish in the Federal Register
a schedule of maximum authorized penalties that shall apply for
violations that occur after January 1 of the year immediately
following such publication.
(C) The schedule of maximum authorized penalties 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
preceding 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 consumers published
by the Department of Labor.
(ii) The term ``cost-of-living adjustment for the
preceding five years'' means the percentage by which--
(I) the Consumer Price Index for the month of
June of the calendar year preceding 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.
(b) In determining the amount of any penalty to be sought
upon commencing an action seeking to assess a penalty for a
violation of section 19(a), the Commission shall consider the
nature of the product defect, the severity of the risk of
injury, the occurrence of absence of injury, the number of
defective products distributed, and the appropriateness of such
penalty in relation to the size of the business of the person
charged.
(c) Any civil penalty under this section may be compromised
by the Commission. In determining the amount of such penalty or
whether it should be remitted or mitigated and in what amount,
the Commission shall consider the appropriateness of such
penalty to the size of the business of the person charged, the
nature of the product defect, the severity of the risk of
injury, the occurrence or absence of injury, and the number of
defective products distributed. 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.
(d) As used in the first sentence of subsection (a)(1) of
this section, the term ``knowingly'' means (1) the having of
actual knowledge, 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 to ascertain the truth of representations.
CRIMINAL PENALTIES
[15 U.S.C. 2070]
Sec. 21. [(a) Any person who knowingly and willfully violates
section 19 of this Act after having received notice of
noncompliance from the Commission shall be fined not more than
$50,000 or be imprisoned not more than one year, or both.] (a)
Violation of section 19 of this Act is punishable by--
(1) imprisonment for not more than--
(A) 1 year for a knowing violation of that
section; or
(B) 5 years for a knowing and willful
violation of that section; and
(2) a fine determined under section 3571 of title 18,
United States Code.
(b) Any individual director, officer, or agent of a
corporation who knowingly [and willfully] authorizes, orders,
or performs any of the acts or practices constituting in whole
or in part a violation of section [19, and who has knowledge of
notice of noncompliance received by the corporation from the
Commission,] 19 shall be subject to penalties under this
section without regard to any penalties to which that
corporation may be subject under subsection (a).
(c)(1) In addition to the penalties provided by subsection
(a), the penalty for a criminal violation of this Act or any
other Act enforced by the Commission may include the forfeiture
of assets associated with the violation.
(2) In this subsection, the term `criminal violation' means a
violation of this Act of any other Act enforced by the
Commission for which the violator is sentenced to pay a fine,
be imprisoned, or both.
* * * * * * *
ENFORCEMENT BY STATE ATTORNEYS GENERAL
Sec. 26A. (a) Except as provided in subsection (f), a State,
as parens patriae, may bring a civil action on behalf of its
residents in an appropriate State or district court of the
United States to enforce the provisions of this Act or any
other Act enforced by the Commission to obtain penalties and
relief provided under such Acts whenever the attorney general
of the State has reason to believe that the interests of the
residents of the State have been or are being threatened or
adversely affected by a manufacturer, distributor, or retailer
entity that violates this Act or a regulation under this Act.
(b) The State shall serve written notice to the Commission of
any civil action under subsection (a) at least 60 days prior to
initiating such civil action. The notice shall include a copy
of the complaint to be filed to initiate such civil action,
except that if it is not feasible for the State to provide such
prior notice, the State shall provide notice immediately upon
instituting such civil action.
(c) Upon receiving the notice required by subsection (b), the
Commission may intervene in such civil action and upon
intervening--
(1) be heard on all matters arising in such civil
action; and
(2) file petitions for appeal of a decision in such
civil action.
(d) Nothing in this section shall prevent the attorney
general of a State from exercising the powers conferred on the
attorney general by the laws of such State to conduct
investigations or to administer oaths or affirmations or to
compel the attendance of witnesses or the production of
documentary and other evidence.
(e) In a civil action brought under subsection (a)--
(1) the venue shall be a judicial district in which--
(A) the manufacturer, distributor, or
retailer operates; or
(B) the manufacturer, distributor, or
retailer is authorized to do business;
(2) process may be served without regard to the
territorial limits of the district or of the State in
which the civil action is instituted; and
(3) a person who participated with a manufacturer,
distributor, or retailer in an alleged violation that
is being litigated in the civil action may be joined in
the civil action without regard to the residence of the
person.
(f) If the Commission has instituted a civil action or an
administrative action for violation of this Act or any other
Act enforced by the Commission, no State attorney general, or
other official or agency of a State, may bring an action under
this section during the pendency of that action against any
defendant named in the complaint of the Commission for any
violation of this Act alleged in the complaint.
(g) If the attorney general of the State prevails in any
civil action under subsection (a), it can recover reasonable
costs and attorney fees from the manufacturer, distributor, or
retailer.
* * * * * * *
COOPERATION WITH STATES AND WITH OTHER FEDERAL AGENCIES
[15 U.S.C. 2078]
Sec. 29. (a) The Commission shall establish a program to
promote Federal-State cooperation for the purposes of carrying
out this Act. In implementing such program the Commission may--
(1) accept from any State or local authorities
engaged in activities relating to health, safety, or
consumer protection assistance in such functions as
injury data collection, investigation, and educational
programs, as well as other assistance in the
administration and enforcement of this Act which such
States or localities 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) commission any qualified officer or employee of
any State or local agency as an officer of the
Commission for the purpose of conducting examinations,
investigations, and inspections.
(b) In determining whether such proposed State and local
programs are appropriate in implementing the purposes of this
Act, the Commission shall give favorable consideration to
programs which establish separate State and local agencies to
consolidate functions relating to product safety and other
consumer protection activities.
(c) The Commission may obtain from any Federal department or
agency such statistics, data, program reports, and other
materials as it may deem necessary to carry out its functions
under this Act. Each such department or agency may cooperate
with the Commission and, to the extent permitted by law,
furnish such materials to it. The Commission and the heads of
other departments and agencies engaged in administering
programs related to product safety shall, to the maximum extent
practicable, cooperate and consult in order to insure fully
coordinated efforts.
(d) The Commission shall, to the maximum extent practicable,
utilize the resources and facilities of the National Bureau of
Standards, on a reimbursable basis, to perform research and
analyses related to risks of injury associated with consumer
products (including fire and flammability risks), to develop
test methods, to conduct studies and investigations, and to
provide technical advice and assistance in connection with the
functions of the Commission.
(e) The Commission may provide to another Federal agency or a
State or local agency or authority engaged in activities
relating to health, safety, or consumer protection, copies of
any accident or investigation report made under this Act by any
officer, employee, or agent of the Commission only if (1)
information which under section 6(a)(2) is to be considered
confidential is not included in any copy of such report which
is provided under this subsection; and (2) each Federal agency
and State and local agency and authority which is to receive
under this subsection a copy of such report provides assurances
satisfactory to the Commission that the identity of any injured
person and any person who treated an injured person will not,
without the consent of the person identified, be included in--
(A) any copy of any such report, or
(B) any information contained in any such report,
which the agency or authority makes available to any
member of the public. No Federal agency or State or
local agency or authority may disclose to the public
any information contained in a report received by the
agency or authority under this subsection unless with
respect to such information the Commission has complied
with the applicable requirements of section 6(b).
(f)(1) The Commission may make information obtained by the
Commission under section 6 available to any Federal, State,
local, or foreign government agency upon the prior
certification of an appropriate official of any such agency,
either by a prior agreement or memorandum of understanding with
the Commission or by other written certification, that such
material will be maintained in confidence and will be used only
for official law enforcement or consumer protection purposes,
if--
(A) the agency has set forth a bona fide legal basis
for its authority to maintain the material in
confidence;
(B) the materials are to be used for purposes of
investigating, or engaging in enforcement proceedings
related to, possible violations of--
(i) laws regulating the manufacture,
importation, distribution, or sale of defective
or unsafe consumer products, or other practices
substantially similar to practices prohibited
by any law administered by the Commission;
(ii) a law administered by the Commission, if
disclosure of the material would further a
Commission investigation or enforcement
proceeding; or
(iii) with respect to a foreign law
enforcement agency, with the approval of the
Attorney General, other foreign criminal laws,
if such foreign criminal laws are offenses
defined in or covered by a criminal mutual
legal assistance treaty in force between the
government of the United States and the foreign
law enforcement agency's government; and
(C) the foreign government agency is not from a
foreign state that the Secretary of State has
determined, in accordance with section 6(j) of the
Export Administration Act of 1979 (50 U.S.C. App.
2405(j)), has repeatedly provided support for acts of
international terrorism, unless and until such
determination is rescinded pursuant to section 6(j)(4)
of that Act (50 U.S.C. App. 2405(j)(4)).
(2) Except as provided in paragraph (3) of this subsection,
the Commission shall not be required to disclose under section
552 of title 5, United States Code, or any other provision of
law--
(A) any material obtained from a foreign government
agency, if the foreign government agency has requested
confidential treatment, or has precluded such
disclosure under other use limitations, as a condition
of providing the material;
(B) any material reflecting a consumer complaint
obtained from any other foreign source, if the foreign
source supplying the material has requested
confidential treatment as a condition of providing the
material; or
(C) any material reflecting a consumer complaint
submitted to a Commission reporting mechanism sponsored
in part by foreign government agencies.
(3) Nothing in this subsection shall authorize the Commission
to withhold information from the Congress or prevent the
Commission from complying with an order of a court of the
United States in an action commenced by the United States or
the Commission.
(4) The Commission may terminate a memorandum of
understanding or other agreement with another agency if it
determines that the other agency has not handled information
made available by the Commission under paragraph (1) or has
failed to maintain confidentiality with respect to the
information.
(5) In this subsection, the term ``foreign government
agency'' means--
(A) any agency or judicial authority of a foreign
government, including a foreign state, a political
subdivision of a foreign state, or a multinational
organization constituted by and comprised of foreign
states, that is vested with law enforcement or
investigative authority in civil, criminal, or
administrative matters; and
(B) any multinational organization, to the extent
that it is acting on behalf of an entity described in
subparagraph (A).
AUTHORIZATION OF APPROPRIATIONS
[15 U.S.C. 2081]
Sec. 32. [(a) There are authorized to be appropriated for the
purposes of carrying out the provisions of this Act (other than
the provisions of section 27(h) which authorize the planning
and construction of research, development, and testing
facilities) and for the purpose of carrying out the functions,
powers, and duties transferred to the Commission under section
30, not to exceed--
[(1) $42,000,000 for fiscal year 1991, and
[(2) $45,000,000 for fiscal year 1992.
For payment of accumulated and accrued leave under section 5551
of title 5, United States Code, severance pay under section
5595 under such title, and any other expense related to a
reduction in force in the Commission, there are authorized to
be appropriated such sums as may be necessary.
[(b)(1) There are authorized to be appropriated such sums as
may be necessary for the planning and construction of research,
development and testing facilities described in section 27(h);
except that no appropriation shall be made for any such
planning or construction involving an expenditure in excess of
$100,000 if such planning or construction has not been approved
by resolutions adopted in substantially the same form by the
Committee on Energy and Commerce of the House of
Representatives, and by the Committee on Commerce, Science, and
Transportation of the Senate. For the purpose of securing
consideration of such approval the Commission shall transmit to
Congress a prospectus of the proposed facility including (but
not limited to)--
[(A) a brief description of the facility to be
planned or constructed;
[(B) the location of the facility, and an estimate of
the maximum cost of the facility;
[(C) a statement of those agencies, private and
public, which will use such facility, together with the
contribution to be made by each such agency toward the
cost of such facility; and
[(D) a statement of justification of the need for
such facility.
[(2) The estimated maximum cost of any facility approved
under this subsection as set forth in the prospectus may be
increased by the amount equal to the percentage increase, if
any, as determined by the Commission, in construction costs,
from the date of the transmittal of such prospectus to
Congress, but in no event shall the increase authorized by this
paragraph exceed 10 per centum of such estimated maximum cost.]
(a) There are authorized to be appropriated to the Commission
for the purpose of carrying out the provisions of this Act and
any other provision of law the Commission is authorized or
directed to carry out--
(1) $80,000,000 for fiscal year 2009;
(2) $88,500,000 for fiscal year 2010;
(3) $96,800,000 for fiscal year 2011;
(4) $106,480,000 for fiscal year 2012;
(5) $117,128,000 for fiscal year 2013;
(6) $128,841,000 for fiscal year 2014; and
(7) $141,725,000 for fiscal year 2015.
(b) There are authorized to be appropriated to the Commission
for the Office of Inspector General--
(1) $1,600,000 for fiscal year 2009;
(2) $1,770,000 for fiscal year 2010;
(3) $1,936,000 for fiscal year 2011;
(4) $2,129,600 for fiscal year 2012;
(5) $2,342,560 for fiscal year 2013;
(6) $2,576,820 for fiscal year 2014; and
(7) $2,834,500 for fiscal year 2015.
(c) There are authorized to be appropriated to the Commission
for the purpose of renovation, repair, construction, equipping,
and making other necessary capital improvements to the
Commission's research, development, and testing facility
(including bringing the facility into compliance with
applicable environmental, safety, and accessibility standards),
$40,000,000 for fiscal years 2009 and 2010.
(d) There are authorized to be appropriated to the Commission
for research, in cooperation with the National Institute of
Science and Technology, the Food and Drug Administration, and
other relevant Federal agencies into safety issues related to
the use of nanotechnology in consumer products, $1,000,000 for
fiscal years 2009 and 2010.
[(c)] (e) No funds appropriated under subsection (a) may be
used to pay any claim described in section 4(i) whether
pursuant to a judgment of a court or under any award,
compromise, or settlement of such claim made under section 2672
of title 28, United States Code, or under any other provision
of law.
* * * * * * *
BOND AUTHORITY
Sec. 39. (a) The Commission, in a rulemaking proceeding, may
require the posting of a bond (or other security acceptable to
the Commission) by--
(1) a person that has committed multiple significant
violations of this Act or any rule or Act enforced by
the Commission;
(2) the manufacturer or distributor of a category or
class of consumer products; or
(3) the manufacturer or distributor of any consumer
product or any product or substance regulated under any
other Act enforced by the Commission.
(b) Amount.--The bond or other security required by the
Commission under subsection (a) shall be in an amount
sufficient--
(1) to cover the costs of an effective recall of the
product or substance; or
(2) in the case of an imported product or substance,
to cover the costs of holding the product or substance
at the port and the destruction of the product should
such action be required by the Commission under this
Act or any other Act enforced by the Commission.
WHISTLEBLOWER PROTECTION
Sec. 40. (a) No manufacturer, private labeler, distributor,
or retailer, nor any Federal, State, or local government
agency, may discharge an employee or otherwise discriminate
against an employee with respect to compensation, terms,
conditions, or privileges of employment because the employee,
whether at the employee's initiative or in the ordinary course
of the employee's duties (or any person acting pursuant to a
request of the employee)--
(1) provided, caused to be provided, or is about to
provide or cause to be provided to the employer, the
Federal Government, or the attorney general of a State
information relating to any violation or alleged
violation of any order, regulation, or consumer product
safety standard under this Act or any other law
enforced by the Commission (or by the attorney general
of a State under section 21);
(2) testified or is about to testify in such a
proceeding;
(3) assisted or participated or is about to assist or
participate in such a proceeding; or
(4) objected to, or refused to participate in, any
activity, policy, practice, or assigned task that the
employee (or other such person) reasonably believed to
be in violation of an applicable law or to be a
substantial and specific danger to public health or
safety.
(b)(1) If the Commission, or the attorney general of a State,
proceeds with an action against a manufacturer, private
labeler, distributor, or retailer for a violation of this Act
or any other Act enforced by the Commission, on the basis of
information provided by such an employee, the employee shall
receive at least 15 percent but not more than 25 percent of any
civil penalty assessed and collected by the Commission, or
attorney general, for the violation, depending upon the extent
to which the information provided by the employee substantially
contributed to the enforcement action, as determined by the
Commission.
(2) If the Commission's action is based primarily on
disclosures of specific information (other than information
provided by the employee) relating to allegations or
transactions in a criminal, civil, or administrative hearing,
in a congressional, administrative, or Government
Accountability Office report, hearing, audit, or investigation,
or from the news media, the Commission may award such sums as
it considers appropriate to the employee, but in no case more
than 10 percent of the civil penalty assessed and collected,
taking into account the significance of the information and the
role of the employee.
(3) In the case of an action brought by the attorney general
of a State under section 21, the amount of any civil penalty to
which such an employee may be entitled shall be determined by
the Commission, subject to the limitations in paragraph (1) and
(2), in consultation with the attorney general that brought the
action.
(c)(1) A person who believes that he or she has been
discharged or otherwise discriminated against by any person in
violation of subsection (a) may, not later than 1 year after
the date on which such violation occurs, file (or have any
person file on his or her behalf) a complaint with the
Secretary of Labor alleging such discharge or discrimination
and identifying the person responsible for such act. Upon
receipt of such a complaint, the Secretary shall notify, in
writing, the person named in the complaint of the filing of the
complaint, of the allegations contained in the complaint, of
the substance of evidence supporting the complaint, and of the
opportunities that will be afforded to such person under
paragraph (2).
(2)(A) Not later than 60 days after the date of receipt of a
complaint filed under paragraph (1) and after affording the
complainant and the person named in the complaint an
opportunity to submit to the Secretary a written response to
the complaint and an opportunity to meet with a representative
of the Secretary to present statements from witnesses, the
Secretary shall initiate an investigation and determine whether
there is reasonable cause to believe that the complaint has
merit and notify, in writing, the complainant and the person
alleged to have committed a violation of subsection (a) of the
Secretary's findings. If the Secretary concludes that there is
reasonable cause to believe that a violation of subsection (a)
has occurred, the Secretary shall accompany the Secretary's
findings with a preliminary order providing the relief
prescribed by paragraph (3)(B). Not later than 30 days after
the date of notification of findings under this paragraph,
either the person alleged to have committed the violation or
the complainant may file objections to the findings or
preliminary order, or both, and request a hearing on the
record. The filing of such objections shall not operate to stay
any reinstatement remedy contained in the preliminary order.
Any such hearing shall be conducted expeditiously. If a hearing
is not requested in such 30-day period, the preliminary order
shall be deemed a final order that is not subject to judicial
review.
(B)(i) The Secretary shall dismiss a complaint filed under
this subsection and shall not conduct an investigation
otherwise required under subparagraph (A) unless the
complainant makes a prima facie showing that any behavior
described in paragraphs (1) through (4) of subsection (a) was a
contributing factor in the unfavorable personnel action alleged
in the complaint.
(ii) Notwithstanding a finding by the Secretary that the
complainant has made the showing required under clause (i), no
investigation otherwise required under subparagraph (A) shall
be conducted if the employer demonstrates, by clear and
convincing evidence, that the employer would have taken the
same unfavorable personnel action in the absence of that
behavior.
(iii) The Secretary may determine that a violation of
subsection (a) has occurred only if the complainant
demonstrates that any behavior described in paragraphs (1)
through (4) of subsection (a) was a contributing factor in the
unfavorable personnel action alleged in the complaint.
(iv) Relief may not be ordered under subparagraph (A) if the
employer demonstrates by clear and convincing evidence that the
employer would have taken the same unfavorable personnel action
in the absence of that behavior.
(3)(A) Not later than 120 days after the date of conclusion
of any hearing under paragraph (2), the Secretary shall issue a
final order providing the relief prescribed by this paragraph
or denying the complaint. At any time before issuance of a
final order, a proceeding under this subsection may be
terminated on the basis of a settlement agreement entered into
by the Secretary, the complainant, and the person alleged to
have committed the violation.
(B) If, in response to a complaint filed under paragraph (1),
the Secretary determines that a violation of subsection (a) has
occurred, the Secretary shall order the person who committed
such violation--
(i) to take affirmative action to abate the
violation;
(ii) to reinstate the complainant to his or her
former position together with compensation (including
back pay) and restore the terms, conditions, and
privileges associated with his or her employment; and
(iii) to provide compensatory damages to the
complainant.
If such an order is issued under this paragraph, the Secretary,
at the request of the complainant, shall assess against the
person against whom the order is issued a sum equal to the
aggregate amount of all costs and expenses (including
attorneys' and expert witness fees) reasonably incurred, as
determined by the Secretary, by the complainant for, or in
connection with, the bringing of the complaint upon which the
order was issued.
(C) If the Secretary finds that a complaint under paragraph
(1) is frivolous or has been brought in bad faith, the
Secretary may award to the prevailing employer a reasonable
attorneys' fee, not exceeding $1,000, to be paid by the
complainant.
(4) If the Secretary has not issued a final decision within
180 days after the filing of the complaint, or within 90 days
after receiving a written determination, the complainant may
bring an action at law or equity for de novo review in the
appropriate district court of the United States with
jurisdiction, which shall have jurisdiction over such an action
without regard to the amount in controversy, and which action
shall, at the request of either party to such action, be tried
by the court with a jury. The proceedings shall be governed by
the same legal burdens of proof specified in paragraph (2)(B).
The court shall have jurisdiction to grant all appropriate
relief to the employee available by law or equity, including
injunctive relief, compensatory and consequential damages,
reasonable attorneys and expert witness fees, court costs, and
punitive damages up to $250,000.
(5)(A) Any person adversely affected or aggrieved by a final
order issued under paragraph (3) may obtain review of the order
in the United States Court of Appeals for the circuit in which
the violation, with respect to which the order was issued,
allegedly occurred or the circuit in which the complainant
resided on the date of such violation. The petition for review
must be filed not later than 60 days after the date of the
issuance of the final order of the Secretary. Review shall
conform to chapter 7 of title 5, United States Code. The
commencement of proceedings under this subparagraph shall not,
unless ordered by the court, operate as a stay of the order.
(B) An order of the Secretary with respect to which review
could have been obtained under subparagraph (A) shall not be
subject to judicial review in any criminal or other civil
proceeding.
(6) Whenever any person has failed to comply with an order
issued under paragraph (3), the Secretary may file a civil
action in the United States district court for the district in
which the violation was found to occur, or in the United States
district court for the District of Columbia, to enforce such
order. In actions brought under this paragraph, the district
courts shall have jurisdiction to grant all appropriate relief
including, but not limited to, injunctive relief and
compensatory damages.
(7)(A) A person on whose behalf an order was issued under
paragraph (3) may commence a civil action against the person to
whom such order was issued to require compliance with such
order. The appropriate United States district court shall have
jurisdiction, without regard to the amount in controversy or
the citizenship of the parties, to enforce such order.
(B) The court, in issuing any final order under this
paragraph, may award costs of litigation (including reasonable
attorneys' and expert witness fees) to any party whenever the
court determines such award is appropriate.
(d) Any nondiscretionary duty imposed by this section shall
be enforceable in a mandamus proceeding brought under section
1361 of title 28, United States Code.
(e) Subsection (a) shall not apply with respect to an
employee of a manufacturer, private labeler, distributor, or
retailer who, acting without direction from such manufacturer,
private labeler, distributor, or retailer (or such person's
agent), deliberately causes a violation of any requirement
relating to any violation or alleged violation of any order,
regulation, or consumer product safety standard under this Act
or any other law enforced by the Commission.
ALL-TERRAIN VEHICLE SAFETY STANDARD.
Sec. 41. (a) In General.--
(1) Mandatory standard.--Notwithstanding any other
provision of law, within 90 days after the date of
enactment of the CPSC Reform Act of 2007 the Commission
shall publish in the Federal Register as a mandatory
consumer product safety standard the American National
Standard for Four Wheel All-Terrain Vehicles Equipment
Configuration, and Performance Requirements developed
by the Specialty Vehicle Institute of America (American
National Standard ANSI/SVIA-1-2007). The standard shall
take effect 150 days after it is published.
(2) Compliance with standard.--After the standard
takes effect, it shall be unlawful for any manufacturer
or distributor to import into or distribute in commerce
in the United States any new assembled or unassembled
all-terrain vehicle unless--
(A) the vehicle complies with each applicable
provision of the standard;
(B) the vehicle is subject to an ATV action
plan filed with the Commission before January
1, 2008, or subsequently filed with and
approved by the Commission, and bears a label
certifying such compliance and identifying the
manufacturer, importer or private labeler and
the ATV action plan to which it is subject; and
(C) the manufacturer or distributor is in
compliance with all provisions of the
applicable ATV action plan.
(3) Violation.--The failure to comply with any
requirement of paragraph (2) shall be deemed to be a
failure to comply with a consumer product safety rule
under this Act and subject to all of the penalties and
remedies available under this Act.
(4) Compliant models with additional features.--
Paragraph (2) shall not be construed to prohibit the
distribution in interstate commerce of new all-terrain
vehicles that comply with the requirements of that
paragraph but also incorporate characteristics or
components that are not covered by those requirements.
Any such characteristics or components shall be subject
to the requirements of section 15 of this Act.
(b) Modification of All-Terrain Vehicle Safety Standard.--
(1) ANSI revisions.--If the American National
Standard ANSI/SVIA-1-2007 is revised through the
applicable consensus standards development process
after the date on which the product safety standard for
all-terrain vehicles is published in the Federal
Register, the American National Standards Institute
shall notify the Commission of the revision.
(2) Commission action.--Within 120 days after it
receives notice of such a revision by the American
National Standards Institute, the Commission shall
issue a notice of proposed rulemaking in accordance
with section 553 of title 5, United States Code, to
amend the product safety standard for all-terrain
vehicles to include any such revision that the
Commission determines is reasonably related to the safe
performance of all-terrain vehicles, and notify the
Institute of any provision it has determined not to be
so related. The Commission shall promulgate an
amendment to the standard for all-terrain vehicles
within 180 days after the date on which the notice of
proposed rulemaking for the amendment is published in
the Federal Register.
(3) Unreasonable risk of injury.--Notwithstanding any
other provision of this Act, the Commission may,
pursuant to sections 7 and 9 of this Act, amend the
product safety standard for all-terrain vehicles to
include any additional provision that the Commission
determines is reasonably necessary to reduce an
unreasonable risk of injury associated with the
performance of all-terrain vehicles.
(4) Certain provisions not applicable.--Sections 7,
9, 11, and 30(d) of this Act shall not apply to
promulgation of any amendment of the product safety
standard under paragraph (2). Judicial review of any
amendment of the standard under paragraph (2) shall be
in accordance with chapter 7 of title 5, United States
Code.
(c) Requirements for 3-Wheeled All-Terrain Vehicles.--Until a
mandatory consumer product safety rule applicable to 3-wheeled
all-terrain vehicles promulgated pursuant to this Act is in
effect, new 3-wheeled all-terrain vehicles may not be imported
into or distributed in commerce in the United States. Any
violation of this subsection shall be considered to be a
violation of section 19(a)(1) of this Act and may also be
enforced under section 17 of this Act.
(d) Further Proceedings.--
(1) Deadline.--The Commission shall issue a final
rule in its proceeding entitled ``Standards for All
Terrain Vehicles and Ban of Three-wheeled All Terrain
Vehicles''.
(2) Categories of youth atvs.--In the final rule, the
Commission may provide for a multiple factor method of
categorization that, at a minimum, takes into account--
(A) the weight of the vehicle;
(B) the maximum speed of the vehicle;
(C) the velocity at which a vehicle of a
given weight is travelling at the maximum speed
of the vehicle;
(D) the age of children for whose operation
the vehicle is designed or who may reasonably
be expected to operate the vehicle; and
(E) the average weight of children for whose
operation the vehicle is designed or who may
reasonably be expected to operate the vehicle.
(e) Definitions.--In this section:
(1) All-terrain vehicle or atv.--The term ``all-
terrain vehicle'' or ``ATV'' means--
(A) any motorized, off-highway vehicle
designed to travel on 3 or 4 wheels, having a
seat designed to be straddled by the operator
and handlebars for steering control; but
(B) does not include a prototype of a
motorized, off-highway, all-terrain vehicle or
other motorized, off-highway, all-terrain
vehicle that is intended exclusively for
research and development purposes unless the
vehicle is offered for sale.
(2) ATV action plan.--The term ``ATV action plan''
means a written plan or letter of undertaking that
describes actions the manufacturer or distributor
agrees to take to promote ATV safety, including rider
training, dissemination of safety information, age
recommendations, other policies governing marketing and
sale of the vehicles, the monitoring of such sales, and
other safety related measures, and that is
substantially similar to the plans described under the
heading The Undertakings of the Companies in the
Commission Notice published in the Federal Register on
September 9, 1998 (63 FR 48199-48204).
DEPARTMENTS OF VETERANS AFFAIRS AND HOUSING AND URBAN DEVELOPMENT, AND
INDEPENDENT AGENCIES APPROPRIATIONS ACT, 1993
* * * * * * *
CONSUMER PRODUCT SAFETY COMMISSION, SALARIES AND EXPENSES
For necessary expenses of the Consumer Product Safety
Commission, including hire of passenger motor vehicles,
services as authorized by 5 U.S.C. 3109, but at rates for
individuals not to exceed the per diem rate equivalent to the
rate for GS-18, purchase of nominal awards to recognize non-
Federal officials' contributions to Commission activities, and
not to exceed $500 for official reception and representation
expenses, $48,400,000: [Provided, That funds shall not be
available for the personnel compensation and benefits of more
than three Commissioners of the Consumer Product Safety
Commission for fiscal year 1993 and thereafter:] Provided
further, That of the funds provided under this heading,
$6,300,000 shall be for the relocation of the headquarters
staff of the Commission and shall be available until expended.
FEDERAL REPORTS ELIMINATION AND SUNSET ACT OF 1995
* * * * * * *
SEC. 3003 TERMINATION OF REPORTING REQUIREMENTS
[31 U.S.C. 1113 note]
(a) Termination.--
(1) In general.--Subject to the provisions of
paragraph (2) of this subsection and subsection (d),
each provision of law requiring the submittal to
Congress (or any committee of the Congress) of any
annual, semiannual, or other regular periodic report
specified on the list described under subsection (c)
shall cease to be effective, with respect to that
requirement, May 15, 2000.
(2) Exception.--The provisions of paragraph (1) shall
not apply to any report required under--
(A) the Inspector General Act of 1978 (5
U.S.C. App.); or
(B) the Chief Financial Officers Act of 1990
(Public Law 101-576), including provisions
enacted by the amendments made by that Act.
(b) Identification of wasteful reports.--The President shall
include in the first annual budget submitted pursuant to
section 1105 of title 31, United States Code, after the date of
enactment of this Act a list of reports that the President has
determined are unnecessary or wasteful and the reasons for such
determination.
(c) List of Reports.--The list referred to under subsection
(a) is the list prepared by the Clerk of the House of
Representatives for the first session of the One Hundred Third
Congress under clause 2 of rule III of the Rules of the House
of Representatives (House Document No. 103-7).
(d) Specific Reports Exempted.--Subsection (a)(1) shall not
apply to any report required under--
(1) section 116 of the Foreign Assistance Act of 1961
(22 U.S.C. 2151n);
(2) section 306 of that Act (22 U.S.C. 2226);
(3) section 489 of that Act (22 U.S.C. 2291h);
(4) section 502B of that Act (22 U.S.C. 2304);
(5) section 634 of that Act (22 U.S.C. 2394);
(6) section 406 of the Foreign Relations
Authorization Act, Fiscal Years 1990 and 1991 (22
U.S.C. 2414a);
(7) section 25 of the Arms Export Control Act (22
U.S.C. 2765);
(8) section 28 of that Act (22 U.S.C. 2768);
(9) section 36 of that Act (22 U.S.C. 2776);
(10) section 6 of the Multinational Force and
Observers Participation Resolution (22 U.S.C. 3425);
(11) section 104 of the FREEDOM Support Act (22
U.S.C. 5814);
(12) section 508 of that Act (22 U.S.C. 5858);
(13) section 4 of the War Powers Resolution (50
U.S.C. 1543);
(14) section 204 of the International Emergency
Economic Powers Act (50 U.S.C. 1703);
(15) section 14 of the Export Administration Act of
1979 (50 U.S.C. App. 2413);
(16) section 207 of the International Economic Policy
Act of 1972 (Public Law 92-412; 86 Stat. 648);
(17) section 4 of Public Law 93-121 (87 Stat. 448);
(18) section 108 of the National Security Act of 1947
(50 U.S.C. 404a);
(19) section 704 of the Support for East European
Democracy (SEED) Act of 1989 (22 U.S.C. 5474);
(20) section 804 of the Foreign Relations
Authorization Act, Fiscal Years 1990 and 1991 (Public
Law 101-246; 104 Stat. 72);
(21) section 140 of the Foreign Relations
Authorization Act, Fiscal Years 1988 and 1989 (22
U.S.C. 2656f);
(22) section 2 of the Act of September 21, 1950
(Chapter 976; 64 Stat. 903);
(23) section 3301 of the Panama Canal Act of 1979 (22
U.S.C. 3871);
(24) section 2202 of the Export Enhancement Act of
1988 (15 U.S.C. 4711);
(25) section 1504 of Public Law 103-160 (10 U.S.C.
402 note);
(26) section 502 of the International Security and
Development Coordination Act of 1985 (22 U.S.C. 2349aa-
7);
(27) section 23 of the Act of August 1, 1956 (Chapter
841; 22 U.S.C. 2694(2));
(28) section 5(c)(5) of the Export Administration Act
of 1979 (50 U.S.C. App. 2404(c)(5));
(29) section 14 of the Export Administration Act of
1979 (50 U.S.C. App. 2413);
(30) section 50 of Public Law 87-297 (22 U.S.C.
2590);
(31) section 240A of the Foreign Assistance Act of
1961 (22 U.S.C. 2200a); [or]
(32) section 27(k) of the Consumer Product Safety Act
(15 U.S.C. 2076(k); or
[(32)] (33) section 604 of the United States
Information and Educational Exchange Act of 1948 (22
U.S.C. 1469).
FLAMMABLE FABRICS ACT
SHORT TITLE
[15 U.S.C. 1191 note]
Section 1. This Act may be cited as the ``Flammable Fabrics
Act''.
DEFINITIONS
[15 U.S.C. 1191]
Sec. 2. As used in this Act--
(a) The term ``person'' means an individual, partnership,
corporation, association, or any other form of business
enterprise.
(b) The term ``commerce'' means commerce among the several
States or with foreign nations or in any territory of the
United States or in the District of Columbia or between any
such territory and another, or between any such territory and
any State or foreign nation, or between the District of
Columbia or the Commonwealth of Puerto Rico and any State or
territory or foreign nation, or between the Commonwealth of
Puerto Rico and any State or territory or foreign nation or the
District of Columbia.
(c) The term ``territory'' includes the insular possessions
of the United States and also any territory of the United
States.
(d) The term ``article of wearing apparel'' means any costume
or article of clothing worn or intended to be worn by
individuals.
(e) The term ``interior furnishing'' means any type of
furnishing made in whole or in part of fabric or related
material and intended for use or which may reasonably be
expected to be used, in homes, offices, or other places of
assembly or accommodation.
(f) The term ``fabric'' means any material (except fiber,
filament, or yarn for other than retail sale) woven, knitted,
felted, or otherwise produced from or in combination with any
natural or synthetic fiber, film, or substitute therefor which
is intended for use or which may reasonably be expected to be
used, in any product as defined in subsection (h).
(g) The term ``related material'' means paper, plastic,
rubber, synthetic film, or synthetic foam which is intended for
use or which may reasonably be expected to be used in any
product as defined in subsection (h).
(h) The term ``product'' means any article of wearing apparel
or interior furnishing.
[(i) The term ``Commission'' means the Federal Trade
Commission.]
(i) The term ``Commission'' means the Consumer Product Safety
Commission.
(j) The term ``Federal Trade Commission Act'' means the Act
of Congress entitled ``An Act to create a Federal Trade
Commission, to define its powers and duties, and for other
purposes'' approved September 26, 1914, as amended.
PROHIBITED TRANSACTIONS
[15 U.S.C. 1192]
Sec. 3. (a) The manufacture for sale, the sale, or the
offering for sale, in commerce, or the importation into the
United States, or the introduction, delivery for introduction,
transportation or causing to be transported, in commerce, or
the sale or delivery after a sale or shipment in commerce, of
any product, fabric, or related material which fails to conform
to an applicable standard or regulation issued or amended under
the provisions of section 4 of this Act, 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.
(b) The manufacture for sale, the sale, or the offering for
sale, of any product made of fabric or related material which
fails to conform to an applicable standard or regulation issued
or amended under section 4 of this Act, and which has been
shipped or received in commerce 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.
REGULATION OF FLAMMABLE FABRICS
[15 U.S.C. 1193]
Sec. 4. (a) Whenever the [Secretary of Commerce] Commission
finds on the basis of the investigations or research conducted
pursuant to section 14 of this Act that a new or amended
flammability standard or other regulation, including labeling,
for a fabric, related material, or product may be needed to
protect the public against unreasonable risk of the occurrence
of fire leading to death or personal injury, or significant
property damage, [he] it shall institute proceedings for the
determination of an appropriate flammability standard
(including conditions and manner of testing) or other
regulation or amendment thereto for such fabric, related
material, or product.
(b) Each standard, regulation, or amendment thereto
promulgated pursuant to this section shall be based on findings
that such standard, regulation, or amendment thereto is needed
to adequately protect the public against unreasonable risk of
the occurrence of fire leading to death, injury, or significant
property damage, is reasonable, technologically practicable,
and appropriate, is limited to such fabrics, related materials,
or products which have been determined to present such
unreasonable risks, and shall be stated in objective terms.
Each such standard, regulation, or amendment thereto, shall
become effective twelve months from the date on which such
standard, regulation, or amendment is promulgated, unless the
[Secretary of Commerce] Commission finds for good cause shown
that an earlier or later effective date is in the public
interest and publishes the reason for such finding. Each such
standard or regulation or amendment thereto shall exempt
fabrics, related materials, or products in inventory or with
the trade as of the date on which the standard, regulation, or
amendment thereto, becomes effective except that, if the
[Secretary] Commission finds that any such fabric, related
material, or product is so highly flammable as to be dangerous
when used by consumers for the purpose for which it is
intended, [he] it may under such conditions as the [Secretary]
Commission may prescribe, withdraw, or limit the exemption for
such fabric, related material, or product.
(c) The [Secretary of Commerce] Commission may obtain from
any person by regulation or subpena issued pursuant thereto
such information in the form of testimony, books, records, or
other writings as is pertinent to the findings or
determinations which [he] it is required or authorized to make
pursuant to this Act. All information reported to or otherwise
obtained by the [Secretary] Commission or [his] its
representative pursuant to this subsection which information
contains or relates to a trade secret or other matter referred
to in section 1905 of title 18 of the United States Code, shall
be considered confidential for the purpose of that section,
except that such information may be disclosed to other officers
or employees concerned with carrying out this Act or when
relevant in any proceeding under this Act. Nothing in this
section shall authorize the withholding of information by the
[Secretary] Commission or any officer or employee under [his]
its control, from the duly authorized committees of the
Congress.
(d) Standards, regulations, and amendments to standards and
regulations under this section shall be made in accordance with
section 553 of title 5, United States Code, except that
interested persons shall be given an opportunity for the oral
presentation of data, views, or arguments in addition to an
opportunity to make written submissions. A transcript shall be
kept of any oral presentation.
(e)(1) Any person who will be adversely affected by any such
standard or regulation or amendment thereto when it is
effective may at any time prior to the sixtieth day after such
standard or regulation or amendment thereto is issued file a
petition with the United States court of appeals for the
circuit wherein such person resides or has his principal place
of business, for a judicial review thereof. A copy of the
petition shall be forthwith transmitted by the clerk of the
court to the [Secretary] Commission or other officer designated
by [him] it for that purpose. The [Secretary] Commission
thereupon shall file in the court the record of the proceedings
on which the [Secretary] Commission based the standard or
regulation, as provided in section 2112 of title 28 of the
United States Code.
(2) If the petitioner applies to the court for leave to
adduce additional evidence, and shows to the satisfaction of
the court that such additional evidence is material and that
there were reasonable grounds for the failure to adduce such
evidence in the proceeding before the [Secretary] Commission,
the court may order such additional evidence (and evidence in
rebuttal thereof) to be taken before the [Secretary]
Commission, and to be adduced upon the hearing, in such manner
and upon such terms and conditions as to the court may seem
proper. The [Secretary] Commission may modify [his] its
findings or make new findings, by reason of the additional
evidence so taken, and [he] it shall file such modified or new
findings, and [his] its recommendations, if any, for the
modification or setting aside of [his] its original standard or
regulation or amendment thereto, with the return of such
additional evidence.
(3) Upon the filing of the petition referred to in paragraph
(1) of this subsection, the court shall have jurisdiction to
review the standard or regulation in accordance with chapter 7
of title 5 of the United States Code and to grant appropriate
relief as provided in such chapter. The standard or regulation
shall not be affirmed unless the findings required by the first
sentence of subsection (b) are supported by substantial
evidence on the record taken as a whole. For purposes of this
paragraph, the term ``record'' means the standard or
regulation, any notice published with respect to the
promulgation of such standard or regulation, the transcript
required by subsection (d) of any oral presentation, any
written submission of interested parties, and any other
information which the Commission considers relevant to such
standard or regulation.
(4) The judgment of the court affirming or setting aside, in
whole or in part, any such standard or regulation of the
[Secretary] Commission shall be final, subject to review by the
Supreme Court of the United States upon certiorari or
certification as provided in section 1254 of title 28 of the
United States Code.
[(5) Any action instituted under this subsection shall
survive, notwithstanding any change in the person occupying the
office of Secretary or any vacancy in such office.]
[(6)] (5) The remedies provided for in this subsection shall
be in addition to and not in substitution for any other
remedies provided by law.
(f) A certified copy of the transcript of the record and
proceedings under subsection (e) shall be furnished by the
[Secretary] Commission to any interested party at his request,
and payment of the costs thereof, and shall be admissible in
any criminal, exclusion of imports, or other proceeding arising
under or in respect of this Act, irrespective of whether
proceedings with respect to the standard or regulation or
amendment thereto have previously been initiated or become
final under subsection (e).
(g) A proceeding for the promulgation of a regulation under
this section for a fabric, related material, or product [shall
be commenced] may be commenced by a notice of proposed
rulemaking or by the publication in the Federal Register of an
advance notice of proposed rulemaking which shall--
(1) identify the fabric, related material, or product
and the nature of the risk of injury associated with
the fabric, related material, or product;
(2) include a summary of each of the regulatory
alternatives under consideration by the Commission
(including voluntary standards);
(3) include information with respect to any existing
standard known to the Commission which may be relevant
to the proceedings, together with a summary of the
reasons why the Commission believes preliminarily that
such standard does not eliminate or adequately reduce
the risk of injury identified in paragraph (1);
(4) invite interested persons to submit to the
Commission, within such period as the Commission shall
specify in the notice (which period shall not be less
than 30 days or more than 60 days after the date of
publication of the notice), comments with respect to
the risk of injury identified by the Commission, the
regulatory alternatives being considered, and other
possible alternatives for addressing the risk;
(5) invite any person (other than the Commission) to
submit to the Commission, within such period as the
Commission shall specify in the notice (which period
shall not be less than 30 days after the date of
publication of the notice), an existing standard or a
portion of a standard as a proposed regulation.
(6) invite any person (other than the Commission) to
submit to the Commission, within such period as the
Commission shall specify in the notice (which period
shall not be less than 30 days after the date of
publication of the notice), a statement of intention to
modify or develop a voluntary standard to address the
risk of injury identified in paragraph (1) together
with a description of a plan to modify or develop the
standard.
The Commission shall transmit such notice within 10 calendar
days to the Committee on Commerce, Science, and Transportation
of the Senate and the Committee on Energy and Commerce of the
House of Representatives.
(h)(1) If the Commission determines that any standard
submitted to it in response to an invitation in a notice
published under subsection (g)(5) if promulgated (in whole, in
part, or in combination with any other standard submitted to
the Commission or any part of such a standard) as a regulation,
would eliminate or adequately reduce the risk of injury
identified in the notice provided under subsection (g)(1), the
Commission may publish such standard, in whole, in part, or in
such combination and with nonmaterial modifications, as a
proposed regulation under this section.
(2) If the Commission determines that--
(A) compliance with any standard submitted to it in
response to an invitation in a notice published under
subsection (g)(6) is likely to result in the
elimination or adequate reduction of the risk of injury
identified in the notice, and
(B) it is likely that there will be substantial
compliance with such standard,
the Commission shall terminate any proceeding to promulgate a
regulation respecting such risk of injury and shall publish in
the Federal Register a notice which includes the determination
of the Commission and which notifies the public that the
Commission will rely on the voluntary standard to eliminate or
reduce the risk of injury, except that the Commission shall
terminate any such proceeding and rely on a voluntary standard
only if such voluntary standard is in existence. For purposes
of this section, a voluntary 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 consumer product safety standard, the Commission
shall afford interested persons (including manufacturers,
consumers, and consumer organizations) a reasonable opportunity
to submit written comments regarding such standard. The
Commission shall consider such comments in making any
determination regarding reliance on the involved voluntary
standard under this subsection.
(3) The Commission shall devise procedures to monitor
compliance with any voluntary standards--
(A) upon which the Commission has relied under
paragraph (2) of this subsection;
(B) which were developed with the participation of
the Commission; or
(C) whose development the Commission has monitored.
(i) No regulation may be proposed by the Commission under
this section [unless, not less than 60 days after publication
of the notice required in subsection (g), the] unless the
Commission publishes in the Federal Register the text of the
proposed rule, including any alternatives, which the Commission
proposes to promulgate, together with a preliminary regulatory
analysis containing--
(1) a preliminary description of the potential
benefits and potential costs of the proposed
regulation, including any benefits or costs that cannot
be quantified in monetary terms, and an identification
of those likely to receive the benefits and bear the
costs;
(2) a discussion of the reasons any standard or
portion of a standard submitted to the Commission under
subsection (g)(5) was not published by the Commission
as the proposed regulation or part of the proposed
regulation;
(3) a discussion of the reasons for the Commission's
preliminary determination that efforts proposed under
subsection (g)(6) and assisted by the Commission as
required by section 5(a)(3) of the Consumer Product
Safety Act would not, within a reasonable period of
time, be likely to result in the development of a
voluntary standard that would eliminate or adequately
reduce the risk of injury identified in the notice
provided under subsection (g)(1); and
(4) a description of any reasonable alternatives to
the proposed regulation, together with a summary
description of their potential costs and benefits, and
a brief explanation of why such alternatives should not
be published as a proposed regulation.
The Commission shall transmit such notice within 10 calendar
days to the Committee on Commerce, Science, and Transportation
of the Senate and the Committee on Energy and Commerce of the
House of Representatives.
(j)(1) The Commission shall not promulgate a regulation under
this section unless it has prepared a final regulatory analysis
of the regulation containing the following information:
(A) A description of the potential benefits and
potential costs of the regulation, including costs and
benefits that cannot be quantified in monetary terms,
and the identification of those likely to receive the
benefits and bear the costs.
(B) A description of any alternatives to the final
regulation which were considered by the Commission,
together with a summary description of their potential
benefits and costs and brief explanation of the reasons
why these alternatives were not chosen.
(C) A summary of any significant issues raised by the
comments submitted during the public comment period in
response to the preliminary regulatory analysis, and a
summary of the assessment by the Commission of such
issues.
The Commission shall publish its final regulatory analysis with
the regulation.
(2) The Commission shall not promulgate a regulation under
this section unless it finds (and includes such finding in the
regulation)--
(A) in the case of a regulation which relates to a
risk of injury with respect to which persons who would
be subject to such regulation have adopted and
implemented a voluntary standard, that--
(i) compliance with such voluntary standard
is not likely to result in the elimination or
adequate reduction of such risk of injury; or
(ii) it is unlikely that there will be
substantial compliance with such voluntary
standard;
(B) that the benefits expected from the regulation
bear a reasonable relationship to its costs; and
(C) that the regulation imposes the least burdensome
requirement which prevents or adequately reduces the
risk of injury for which the regulation is being
promulgated.
(3)(A) Any regulatory analysis prepared under subsection (i)
or paragraph (1) shall not be subject to independent judicial
review, except that when an action for judicial review of a
regulation is instituted, the contents of any such regulatory
analysis shall constitute part of the whole rulemaking record
of agency action in connection with such review.
(B) The provisions of subparagraph (A) shall not be construed
to alter the substantive or procedural standards otherwise
applicable to judicial review of any action by the Commission.
(k) The Commission shall grant, in whole or in part, or deny
any petition under section 553(e) of title 5, United States
Code, requesting the Commission to initiate a rulemaking,
within a reasonable time after the date on which such petition
is filed. The Commission shall state the reasons for granting
or denying such petition. The Commission may not deny any such
petition on the basis of a voluntary standard unless the
voluntary standard is in existence at the time of the denial of
the petition, the Commission has determined that the voluntary
standard is likely to result in the elimination or adequate
reduction of the risk of injury identified in the petition, and
it is likely that there will be substantial compliance with the
standard.
ADMINISTRATION AND ENFORCEMENT
[15 U.S.C. 1194]
Sec. 5. (a) Except as otherwise specifically provided herein,
sections 3, 5, 6, and 8(b) of this Act shall be enforced by the
Commission under rules, regulations and procedures provided for
in the Federal Trade Commission Act. In the case of an attorney
general of a State alleging a violation of a standard or
regulation under section 4 that affects 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 requirements of section
24 of the Consumer Product Safety Act shall apply to any such
action.
(b) The Commission is authorized and directed to prevent any
person from violating the provisions of section 3 of this Act
in the same manner, by the same means and with the same
jurisdiction, powers and duties as though all applicable terms
and provisions of the Federal Trade Commission Act were
incorporated into and made a part of this Act; and any such
person violating any provision of section 3 of this Act shall
be subject to the penalties and entitled to the privileges and
immunities provided in said Federal Trade Commission Act as
though the applicable terms and provisions of the said Federal
Trade Commission Act were incorporated into and made a part of
this Act.
(c) 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 Act. 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.
(d) The Commission is authorized to--
(1) cause inspections, analyses, tests, and
examinations to be made of any product, fabric or
related material which it has reason to believe falls
within the prohibitions of this Act; and
(2) cooperate on matters related to the purposes of
this Act 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
subdivision thereof; or with any person.
(e)(1) Any person who knowingly violates a regulation or
standard under section 4 shall be subject to a civil penalty
not to exceed [$5,000] $250,000 for each such violation, except
that the maximum civil penalty shall not exceed [$1,250,000]
$100,000,000 for any related series of violations.
(2) In determining the amount of any penalty to be sought
upon commencing an action seeking to assess a penalty for a
violation of a regulation or standard under section 4, the
Commission shall consider the nature and number of the
violations, the severity of the risk of injury, the occurrence
or absence of injury, and the appropriateness of such penalty
in relation to the size of the business of the person charged.
(3) Any civil penalty under this subsection may be
compromised by the Commission. In determining the amount of
such penalty or whether it should be remitted or mitigated, and
in what amount, the Commission shall consider the nature and
number 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 the occurrence or absence
of injury. 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 ``knowingly'' 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 obtainable upon
the exercise of due care to ascertain the truth of
representations.
(5)(A) The maximum penalty amounts authorized in paragraph
(1) shall be adjusted for inflation as provided in this
paragraph.
(B) Not later than [December 1, 1994,] December 1, 2011, and
December 1 of each fifth calendar year thereafter, the
Commission shall prescribe and publish in the Federal Register
a schedule of maximum authorized penalties that shall apply for
violations that occur after January 1 of the year immediately
following such publication.
(C) The schedule of maximum authorized penalties 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
preceding 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 consumers published
by the Department of Labor.
(ii) The term ``cost-of-living adjustment for the
preceding five years'' means the percentage by which--
(I) the Consumer Price Index for the month of
June of the calendar year preceding 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.
* * * * * * *
PENALTIES
[15 U.S.C. 1196]
[Sec. 7. Any person who willfully violates section 3 or 8(b)
of this Act, or who fails to comply with section 15(c) of this
Act, shall be guilty of a misdemeanor, and upon conviction
thereof shall be fined not more than $5,000 or be imprisoned
not more than one year or both in the discretion of the court:
Provided, That nothing herein shall limit other provisions of
this Act.]
Sec. 7. Violation of section 3 or 8(b) of this Act, or
failure to comply with section 15(c) of this Act, is punishable
by--
(1) imprisonment for not more than--
(A) 1 year for a knowing violation of that
section; or
(B) 5 years for a knowing and willful
violation of that section; and
(2) a fine determined under section 3571 of title 18,
United States Code.
* * * * * * *
INVESTIGATIONS
[15 U.S.C. 1201]
Sec. 14. (a) The Secretary of Health, Education, and Welfare
in cooperation with the [Secretary of Commerce] Commission
shall conduct a continuing study and investigation of the
deaths, injuries, and economic losses resulting from accidental
burning of products, fabrics, or related materials.
(b) In cooperation with appropriate public and private
agencies, the [Secretary of Commerce] Commission is authorized
to--
(1) conduct research into the flammability of
products, fabrics, and materials;
(2) conduct feasibility studies on reduction of
flammability of products, fabrics, and materials;
(3) develop flammability test methods and testing
devices; and
(4) offer appropriate training in the use of
flammability test methods and testing devices.5
EXPORTS
[15 U.S.C. 1202]
Sec. 15. (a) This Act shall not apply to any fabric, related
material, or product which is to be exported from the United
States, if such fabric, related material, or product, and any
container in which it is enclosed, bears a stamp or label
stating that such fabric, related material, or product is
intended for export and such fabric, related material, or
product is in fact exported from the United States; unless the
[Consumer Product Safety Commission (hereinafter in this
section referred to as the ``Commission'')] Commission
determines that exportation of such fabric, related material,
or product presents an unreasonable risk of injury to persons
residing within the United States; except that this Act shall
apply to any fabric, related material, or product manufactured
for sale, offered for sale, or intended for shipment to any
installation of the United States located outside of the United
States.
(b) This Act shall not apply to any fabric, related material,
or product which is imported into the United States for dyeing,
finishing, other processing, or storage in bond, and export
from the United States, if such fabric, related material, or
product, any container in which it is enclosed, bears a stamp
or label stating that such fabric, related material, or product
is intended for export, and such fabric, related material, or
product is in fact exported from the United States, unless the
Commission determines that exportation of such fabric, related
material, or product presents an unreasonable risk of injury to
persons residing within the United States; except that this Act
shall apply to any such imported fabric, related material, or
product manufactured for sale, offered for sale, or intended
for shipment to any installation of the United States located
outside of the United States.
(c) Not less than thirty days before any person exports to a
foreign country any fabric, related material, or product that
fails to conform to an applicable flammability standard or
regulation in effect under this Act, such person shall file a
statement with the Commission notifying the Commission of such
exportation, and the Commission, upon receipt of such
statement, shall promptly notify the government of such country
of such exportation and the basis for such flammability
standard or regulation. Any statement filed with the Commission
under the preceding sentence shall specify the anticipated date
of shipment of such fabric, related material, or product, the
country and port of destination of such fabric, related
material, or product, and the quantity of such fabric, related
material, or product that will be exported, and shall contain
such other information as the Commission may by regulation
require. Upon petition filed with the Commission by any person
required to file a statement under this subsection respecting
an exportation, the Commission may, for good cause shown,
exempt such person from the requirement of this subsection that
such a statement be filed in no less than thirty days before
the date of the exportation, except that in no case shall the
Commission permit such a statement to be filed later than the
tenth day before such date.
(d) Notwithstanding any other provision of law, the Consumer
Product Safety Commission may prohibit a person from exporting
from the United States for purpose of sale any fabric, related
material, or product that the Commission determines, after
notice to the manufacturer--
(1) is not in conformity with an applicable consumer
product safety standard under the Consumer Product
Safety Act or with a rule under this Act;
(2) is subject to an order issued under section 12 or
15 of the Consumer Product Safety Act or designated as
a banned hazardous substance under the Federal
Hazardous Substances Act (15 U.S.C. 1261 et seq.); or
(3) is subject to voluntary corrective action taken
by the manufacturer, in consultation with the
Commission, of which action the Commission has notified
the public and that would have been subject to
mandatory corrective action under this or another Act
enforced by the Commission if voluntary corrective
action had not been taken by the manufacturer.
PREEMPTION
[15 U.S.C. 1203]
Sec. 16. (a) Except as provided in subsections (b) and (c),
whenever a flammability standard or other regulation for a
fabric, related material, or product is in effect under this
Act, no State or political subdivision of a State may establish
or continue in effect a flammability standard or other
regulation for such fabric, related material, or product if the
standard or other regulation is designed to protect against the
same risk of occurrence of fire with respect to which the
standard or other regulation under this Act is in effect unless
the State or political subdivision standard or other regulation
is identical to the Federal standard or other regulation.
(b) The Federal Government and the government of any State or
political subdivision of a State may establish and continue in
effect a flammability standard or other regulation applicable
to a fabric, related material, or product for its own use which
standard or other regulation is designed to protect against a
risk of occurrence of fire with respect to which a flammability
standard or other regulation is in effect under this Act and
which is not identical to such standard or other regulation if
the Federal, State, or political subdivision standard or other
regulation provides a higher degree of protection from such
risk of occurrence of fire than the standard or other
regulation in effect under this Act.
(c)(1) Upon application of a State or political subdivision
of a State, the Commission may, by regulation promulgated in
accordance with paragraph (2), exempt from subsection (a),
under such conditions as may be prescribed in such regulation,
any flammability standard or other regulation of such State or
political subdivision applicable to a fabric, related material,
or product subject to a standard or other regulation in effect
under this Act, if--
(A) compliance with the State or political
subdivision requirement would not cause the fabric,
related material, or product to be in violation of the
standard or other regulation in effect under this Act,
and
(B) the State or political subdivision standard or
other regulation (i) provides a significantly higher
degree of protection from the risk of occurrence of
fire with respect to which the Federal standard or
other regulation is in effect, and (ii) does not unduly
burden interstate commerce.
In determining the burden, if any, of a State or political
subdivision flammability standard or other regulation on
interstate commerce the Commission shall consider and make
appropriate (as determined by the Commission in its discretion)
findings on the technological and economic feasibility of
complying with such flammability standard or other regulation,
the cost of complying with such flammability standard or other
regulation, the geographic distribution of the fabric, related
material, or product to which the flammability standard or
other regulation would apply, the probability of other States
or political subdivisions applying for an exemption under this
subsection for a similar flammability standard or other
regulation, and the need for a national, uniform flammability
standard or other regulation under this Act for such fabric,
related material, or product.
(2) A regulation under paragraph (1) granting an exemption
for a flammability standard or other regulation of a State or
political subdivision of a State may be promulgated by the
Commission only after it has provided, in accordance with
section 553(b) of title 5, United States Code, notice with
respect to the promulgation of the regulation and has provided
opportunity for the oral presentation of views respecting its
promulgation.
[(d) For purposes of this section--
[(1) a reference to a flammability standard or other
regulation for a fabric, related material, or product
in effect under this Act includes a standard of
flammability continued in effect by section 11 of the
Act of December 14, 1967 (Public Law 90-189); and
[(2) the term ``Commission'' means the Consumer
Product Safety Commission.]
(d) In this section, a reference to a flammability standard
or other regulation for a fabric, related material, or product
in effect under this Act includes a standard of flammability
continued in effect by section 11 of the Act of December 14,
1967 (Public Law 90-189).
POISON PREVENTION PACKAGING ACT OF 1970
* * * * * * *
[SPECIAL PACKAGING STANDARDS]
[15 U.S.C. 1472]
Sec. 3. (a) The Secretary, may establish in accordance with
the provisions of this Act, by regulation, standards for the
special packaging of any household substance if he finds that--
(1) the degree or nature of the hazard to children in
the availability of such substance, by reason of its
packaging, is such that special packaging is required
to protect children from serious personal injury or
serious illness resulting from handling, using, or
ingesting such substance; and
(2) the special packaging to be required by such
standard is technically feasible, practicable, and
appropriate for such substance.
(b) In establishing a standard under this section, the
Secretary shall consider--
(1) the reasonableness of such standard;
(2) available scientific, medical, and engineering
data concerning special packaging and concerning
childhood accidental ingestions, illness, and injury
caused by household substances;
(3) the manufacturing practices of industries
affected by this Act; and
(4) the nature and use of the household substance.
(c) In carrying out this Act, the Secretary shall publish his
findings, his reasons therefor, and citation of the sections of
statutes which authorize his action.
(d) Nothing in this Act shall authorize the Secretary to
prescribe specific packaging designs, product content, package
quantity, or, with the exception of authority granted in
section 4(a)(2) of this Act, labeling. In the case of a
household substance for which special packaging is required
pursuant to a regulation under this section, the Secretary may
in such regulation prohibit the packaging of such substance in
packages which he determines are unnecessarily attractive to
children.
(e) Nothing in this Act shall be construed to require the
Secretary, in establishing a standard under this section, to
prepare a comparison of the costs that would be incurred in
complying with such standard with the benefits of such
standard.
FEDERAL HAZARDOUS SUBSTANCES ACT
SHORT TITLE
[15 U.S.C. 1261 note]
Section 1. This Act may be cited as the ``Federal Hazardous
Substances Act''.
DEFINITIONS
[15 U.S.C. 1261]
Sec. 2. For the purposes of this Act--
(a) The term ``territory'' means any territory or possession
of the United States, including the District of Columbia and
the Commonwealth of Puerto Rico but excluding the Canal Zone.
(b) The term ``interstate commerce'' means (1) commerce
between any State or territory and any place outside thereof,
and (2) commerce within the District of Columbia or within any
territory not organized with a legislative body.
[(c) The term ``Department'' means the Department of Health,
Education, and Welfare.]
[(d) The term ``Secretary'' means the Secretary of Health,
Education, and Welfare.]
(c) The term ``Commission'' means the Consumer Product Safety
Commission.
(e) The term ``person'' includes an individual, partnership,
corporation, and association.
(f) The term ``hazardous substance'' means:
1. (A) Any substance or mixture of substances which
(i) is toxic, (ii) is corrosive, (iii) is an irritant,
(iv) is a strong sensitizer, (v) is flammable or
combustible, or (vi) generates pressure through
decomposition, heat, or other means, if such substance
or mixture of substances may cause substantial personal
injury or substantial illness during or as a proximate
result of any customary or reasonably foreseeable
handling or use, including reasonably foreseeable
ingestion by children.
(B) Any substances which the [Secretary] Commission
by regulation finds, pursuant to the provisions of
section 3(a), meet the requirements of subparagraph
1(A) of this paragraph.
(C) Any radioactive substance, if, with respect to
such substance as used in a particular class of article
or as packaged, the [Secretary] Commission determines
by regulation that the substance is sufficiently
hazardous to require labeling in accordance with this
Act in order to protect the public health.
(D) Any toy or other article intended for use by
children which the [Secretary] Commission by regulation
determines, in accordance with section 3(e) of this
Act, presents an electrical, mechanical, or thermal
hazard.
(E) Any solder which has a lead content in excess of
0.2 percent.
2. The term ``hazardous substance'' shall not apply
to pesticides subject to the Federal Insecticide,
Fungicide, and Rodenticide Act, nor to foods, drugs,
and cosmetics subject to the Federal Food, Drug, and
Cosmetic Act, nor to substances intended for use as
fuels when stored in containers and used in the
heating, cooking, or refrigeration system of a house,
nor to tobacco and tobacco products, but such term
shall apply to any article which is not itself a
pesticide within the meaning of the Federal
Insecticide, Fungicide, and Rodenticide Act but which
is a hazardous substance within the meaning of
subparagraph 1 of this paragraph by reason of bearing
or containing such an economic poison.
3. The term ``hazardous substance'' shall not include
any source material, special nuclear material, or
byproduct material as defined in the Atomic Energy Act
of 1954, as amended, and regulations issued pursuant
thereto by the Atomic Energy Commission.
(g) The term ``toxic'' shall apply to any substance (other
than a radioactive substance) which has the capacity to produce
personal injury or illness to man through ingestion,
inhalation, or absorption through any body surface.
(h)(1) The term ``highly toxic'' means any substance which
falls within any of the following categories: (a) Produces
death within fourteen days in half or more than half of a group
of ten or more laboratory white rats each weighing between two
hundred and three hundred grams, at a single dose of fifty
milligrams or less per kilogram of body weight, when orally
administered; or (b) produces death within fourteen days in
half or more than half of a group of ten or more laboratory
white rats each weighing between two hundred and three hundred
grams, when inhaled continuously for a period of one hour or
less at an atmospheric concentration of two hundred parts per
million by volume or less of gas or vapor or two milligrams per
liter by volume or less of mist or dust, provided such
concentration is likely to be encountered by man when the
substance is used in any reasonably foreseeable manner; or (c)
produces death within fourteen days in half or more than half
of a group of ten or more rabbits tested in a dosage of two
hundred milligrams or less per kilogram of body weight, when
administered by continuous contact with the bare skin for
twenty-four hours or less.
(2) If the [Secretary] Commission finds that available data
on human experience with any substance indicate results
different from those obtained on animals in the above-named
dosages or concentrations, the human data shall take
precedence.
(i) The term ``corrosive'' means any substance which in
contact with living tissue will cause destruction of tissue by
chemical action; but shall not refer to action on inanimate
surfaces.
(j) The term ``irritant'' means any substance not corrosive
within the meaning of subparagraph (i) which on immediate,
prolonged, or repeated contact with normal living tissue will
induce a local inflammatory reaction.
(k) The term ``strong sensitizer'' means a substance which
will cause on normal living tissue through an allergic or
photodynamic process a hypersensitivity which becomes evident
on reapplication of the same substance and which is designated
as such by the [Secretary] Commission. Before designating any
substance as a strong sensitizer, the [Secretary] Commission,
upon consideration of the frequency of occurrence and severity
of the reaction, shall find that the substance has a
significant potential for causing hypersensitivity.
(l)(1) The terms ``extremely flammable'', ``flammable'', and
``combustible'' as applied to any substance, liquid, solid, or
the content of a self-publicized container shall be defined by
regulations issued by the Commission.
(2) The test methods found by the Commission to be generally
applicable for defining the flammability or combustibility
characteristics of any such substance shall also be specified
in such regulations.
(3) In establishing definitions and test methods related to
flammability and combustibility, the Commission shall consider
the existing definitions and test methods of other Federal
agencies involved in the regulation of flammable and
combustible substances in storage, transportation and use; and
to the extent possible, shall establish compatible definitions
and test methods.
(4) Until such time as the Commission issues a regulation
under paragraph (1) defining the term ``combustible'' as
applied to liquids, such term shall apply to any liquid which
has a flash point above eighty degrees Fahrenheit to and
including one hundred and fifty degrees, as determined by the
Tagliabue Open Cup Tester.
(m) The term ``radioactive substance'' means a substance
which emits ionizing radiation.
(n) The term ``label'' means a display of written, printed,
or graphic matter upon the immediate container of any substance
or, in the case of an article which is unpackaged or is not
packaged in an immediate container intended or suitable for
delivery to the ultimate consumer, a display of such matter
directly upon the article involved or upon a tag or other
suitable material affixed thereto; and a requirement made by or
under authority of this Act that any word, statement, or other
information appearing on the label shall not be considered to
be complied with unless such word, statement, or other
information also appears (1) on the outside container or
wrapper, if any there be, unless it is easily legible through
the outside container or wrapper and (2) on all accompanying
literature where there are directions for use, written or
otherwise.
(o) The term ``immediate container'' does not include package
liners.
(p) The term ``misbranded hazardous substance'' means a
hazardous substance (including a toy, or other article intended
for use by children, which is a hazardous substance, or which
bears or contains a hazardous substance in such manner as to be
susceptible of access by a child to whom such toy or other
article is entrusted) intended, or packaged in a form suitable,
for use in the household or by children, if the packaging or
labeling of such substance is in violation of an applicable
regulation issued pursuant to section 3 or 4 of the Poison
Prevention Packaging Act of 1970 or if such substance, except
as otherwise provided by or pursuant to section 3, fails to
bear a label--
(1) which states conspicuously (A) the name and place
of business of the manufacturer, packer, distributor or
seller; (B) the common or usual name or the chemical
name (if there be no common or usual name) of the
hazardous substance or of each component which
contributes substantially to its hazard, unless the
[Secretary] Commission by regulation permits or
requires the use of a recognized generic name; (C) the
signal word ``DANGER'' on substances which are
extremely flammable, corrosive, or highly toxic, (D)
the signal word ``WARNING'' or ``CAUTION'' on all other
hazardous substances; (E) an affirmative statement of
the principal hazard or hazards, such as ``Flammable'',
``Combustible,'' ``Vapor Harmful'', ``Causes Burns'',
``Absorbed Through Skin'', or similar wording
descriptive of the hazard; (F) precautionary measures
describing the action to be followed or avoided, except
when modified by regulation of the [Secretary]
Commission pursuant to section 3; (G) instruction, when
necessary or appropriate, for first-aid treatment; (H)
the word ``poison'' for any hazardous substance which
is defined as ``highly toxic'' by subsection (h); (I)
instructions for handling and storage of packages which
require special care in handling or storage; and (J)
the statement (i) ``Keep out of the reach of children''
or its practical equivalent, or, (ii) if the article is
intended for use by children and is not a banned
hazardous substance, adequate directions for the
protection of children from the hazard, and
(2) on which any statements required under
subparagraph (1) of this paragraph are located
prominently and are in the English language in
conspicuous and legible type in contrast by typography,
layout, or color with other printed matter on the
label.
The term ``misbranded hazardous substance'' also includes a
household substance as defined in section 2(2)(D) of the Poison
Prevention Packaging Act of 1970 if it is a substance described
in paragraph 1 of section 2(f) of this Act and its packaging or
labeling is in violation of an applicable regulation issued
pursuant to section 3 or 4 of the Poison Prevention Packaging
Act of 1970.
(q)(1) The term ``banned hazardous substance'' means (A) any
toy, or other article intended for use by children, which is a
hazardous substance, or which bears or contains a hazardous
substance in such manner as to be susceptible of access by a
child to whom such toy or other article is entrusted; or (B)
any hazardous substance intended, or packaged in a form
suitable, for use in the household, which the [Secretary]
Commission by regulation classifies as a ``banned hazardous
substance'' on the basis of a finding that, notwithstanding
such cautionary labeling as is or may be required under this
Act for that substance, the degree or nature of the hazard
involved in the presence or use of such substance in households
is such that the objective of the protection of the public
health and safety can be adequately served only by keeping such
substance, when so intended or packaged, out of the channels of
interstate commerce: Provided, That the [Secretary] Commission,
by regulation, (i) shall exempt from clause (A) of this
paragraph articles, such as chemical sets, which by reason of
their functional purpose require the inclusion of the hazardous
substance involved, or necessarily present an electrical,
mechanical, or thermal hazard and which bear labeling giving
adequate directions and warnings for safe use and are intended
for use by children who have attained sufficient maturity, and
may reasonably be expected, to read and heed such directions
and warnings, and (ii) shall exempt from clause (A), and
provide for the labeling of, common fireworks (including toy
paper caps, cone fountains, cylinder fountains, whistles
without report, and sparklers) to the extent that [he] it
determines that such articles can be adequately labeled to
protect the purchasers and users thereof.
(2) [Proceedings for the issuance, amendment, or repeal of
regulations pursuant to clause (B) of subparagraph (1) of this
paragraph shall be governed by the provisions of sections 701
(e), (f), and (g) of the Federal Food, Drug, and Cosmetic Act:
Provided, That if] Proceedings for the issuance, amendment, or
repeal of regulations pursuant to clause (B) of subparagraph
(1) of this paragraph shall be governed by the provisions of
subsections (f) through (i) of section 3 of this Act, except
that if the [Secretary] Commission finds that the distribution
for household use of the hazardous substance involved presents
an imminent hazard to the public health, [he] it may by order
published in the Federal Register give notice of such finding,
and thereupon such substance when intended or offered for
household use, or when so packaged as to be suitable for such
use, shall be deemed to be a ``banned hazardous substance''
pending the completion of proceedings relating to the issuance
of such regulations.
(r) An article may be determined to present an electrical
hazard if, in normal use or when subjected to reasonably
foreseeable damage or abuse, its design or manufacture may
cause personal injury or illness by electric shock.
(s) An article may be determined to present a mechanical
hazard if, in normal use or when subjected to reasonably
foreseeable damage or abuse, its design or manufacture presents
an unreasonable risk of personal injury or illness (1) from
fracture, fragmentation, or disassembly of the article, (2)
from propulsion of the article (or any part or accessory
thereof), (3) from points or other protrusions, surfaces,
edges, openings, or closures, (4) from moving parts, (5) from
lack or insufficiency of controls to reduce or stop motion, (6)
as a result of self-adhering characteristics of the article,
(7) because the article (or any part or accessory thereof) may
be aspirated or ingested, (8) because of instability, or (9)
because of any other aspect of the article's design or
manufacture.
(t) An article may be determined to present a thermal hazard
if, in normal use or when subjected to reasonably foreseeable
damage or abuse, its design or manufacture presents an
unreasonable risk of personal injury or illness because of heat
as from heated parts, substances, or surfaces.
REGULATIONS DECLARING HAZARDOUS SUBSTANCES AND ESTABLISHING VARIATIONS
AND EXEMPTIONS
[15 U.S.C. 1262]
Sec. 3. [(a) 1. Whenever in the judgment of the Secretary
such action will promote the objectives of this Act by avoiding
or resolving uncertainty as to its application, the Secretary
may by regulation declare to be a hazardous substance, for the
purposes of this Act, any substance or mixture of substances
which he finds meets the requirements of subparagraph (1)(A) of
section 2(f).
[2. Proceedings for the issuance, amendment, or repeal of
regulations under this subsection and the admissibility of the
record of such proceedings in other proceedings, shall in all
respects be governed by the provisions of sections 701(e), (f),
and (g) of the Federal Food, Drug, and Cosmetic Act, except
that--
[(A) the Secretary's order after public hearing
(acting upon objections filed to an order made prior to
hearing) shall be subject to the requirements of
section 409(f)(2) of the Federal Food, Drug, and
Cosmetic Act; and
[(B) the scope of judicial review of such order shall
be in accordance with the fourth sentence of paragraph
(2), and with the provisions of paragraph (3), of
section 409(g) of the Federal Food, Drug, and Cosmetic
Act.]
(a) Rulemaking.--
(1) In general.--Whenever in the judgment of the
Commission such action will promote the objectives of
this Act by avoiding or resolving uncertainty as to its
application, the Commission may by regulation declare
to be a hazardous substance, for the purposes of this
Act, any substance or mixture of substances, which it
finds meets the requirements of section 2(f)(1)(A).
(2) Procedure.--Proceedings for the issuance,
amendment, or repeal of regulations under this
subsection and the admissibility of the record of such
proceedings in other proceedings, shall be governed by
the provisions of subsections (f) through (i) of this
section.
(b) If the [Secretary] Commission finds that the requirements
of section 2(p)(1) are not adequate for the protection of the
public health and safety in view of the special hazard
presented by any particular hazardous substance, [he] it may by
regulation establish such reasonable variations or additional
label requirements as [he] it finds necessary for the
protection of the public health and safety; and any such
hazardous substance intended, or packaged in a form suitable,
for use in the household or by children, which fails to bear a
label in accordance with such regulations shall be deemed to be
a misbranded hazardous substance.
(c) If the [Secretary] Commission finds that, because of the
size of the package involved or because of the minor hazard
presented by the substance contained therein, or for other good
and sufficient reasons, full compliance with the labeling
requirements otherwise applicable under this Act is
impracticable or is not necessary for the adequate protection
of the public health and safety, the [Secretary] Commission
shall promulgate regulations exempting such substance from
these requirements to the extent [he] it determines to be
consistent with adequate protection of the public health and
safety.
(d) The [Secretary] Commission may exempt from the
requirements established by or pursuant to this Act any
hazardous substance or container of a hazardous substance with
respect to which [he] it finds that adequate requirements
satisfying the purposes of this Act have been established by or
pursuant to any other Act of Congress.
(e)(1) A determination by the [Secretary] Commission that a
toy or other article intended for use by children presents an
electrical, mechanical, or thermal hazard shall be made by
regulation in accordance with the procedures prescribed by
section 553 (other than clause (B) of the last sentence of
subsection (b) of such section) of title 5 of the United States
Code unless the [Secretary] Commission elects the procedures
prescribed by subsection (e) of section 701 of the Federal
Food, Drug, and Cosmetic Act, in which event such subsection
and subsections (f) and (g) of such section 701 shall apply to
the making of such determination. If the [Secretary] Commission
makes such election, [he] it shall publish that fact with the
proposal required to be published under paragraph (1) of such
subsection (e).
(2) If, before or during a proceeding pursuant to paragraph
(1) of this subsection, the [Secretary] Commission finds that,
because of an electrical, mechanical, or thermal hazard,
distribution of the toy or other article involved presents an
imminent hazard to the public health and [he] it, by order
published in the Federal Register, gives notice of such
finding, such toy or other article shall be deemed to be a
banned hazardous substance for purposes of this Act until the
proceeding has been completed. If not yet initiated when such
order is published, such a proceeding shall be initiated as
promptly as possible.
(3)(A) In the case of any toy or other article intended for
use by children which is determined by the [Secretary]
Commission, in accordance with section 553 of title 5 of the
United State Code, to present an electrical, mechanical, or
thermal hazard, any person who will be adversely affected by
such a determination may, at any time prior to the 60th day
after the regulation making such determination is issued by the
[Secretary] Commission, file a petition with the United States
Court of Appeals for the circuit in which such person resides
or has his principal place of business for a judicial review of
such determination. A copy of the petition shall be forthwith
transmitted by the clerk of the court to the [Secretary]
Commission or other officer designated by him for that purpose.
The [Secretary] Commission shall file in the court the record
of the proceedings on which the [Secretary] Commission based
[his] its determination, as provided in section 2112 of title
28 of the United States Code.
(B) If the petitioner applies to the court for leave to
adduce additional evidence, and shows to the satisfaction of
the court that such additional evidence is material and that
there was no opportunity to adduce such evidence in the
proceeding before the [Secretary] Commission, the court may
order such additional evidence (and evidence in rebuttal
thereof) to be taken before the [Secretary] Commission in a
hearing or in such other manner, and upon such terms and
conditions, as to the court may seem proper. The [Secretary]
Commission may modify [his] its findings as to the facts, or
make new findings, by reason of the additional evidence so
taken, and [he] it shall file such modified or new findings,
and [his] its recommendation, if any, for the modification or
setting aside of [his] its original determination, with the
return of such additional evidence.
(C) Upon the filing of the petition under this paragraph, the
court shall have jurisdiction to review the determination of
the [Secretary] Commission in accordance with subparagraphs
(A), (B), (C), and (D) of paragraph (2) of the second sentence
of section 706 of title 5 of the United States Code. If the
court ordered additional evidence to be taken under
subparagraph (B) of this paragraph, the court shall also review
the [Secretary's] Commission's determination to determine if,
on the basis of the entire record before the court pursuant to
subparagraphs (A) and (B) of this paragraph, it is supported by
substantial evidence. If the court finds the determination is
not so supported, the court may set it aside. With respect to
any determination reviewed under this paragraph, the court may
grant appropriate relief pending conclusion of the review
proceedings, as provided in section 705 of such title.
(D) The judgment of the court affirming or setting aside, in
whole or in part, any such determination of the [Secretary]
Commission shall be final, subject to review by the Supreme
Court of the United States upon certiorari or certification, as
provided in section 1254 of title 28 of the United States Code.
(f) A proceeding for the promulgation of a regulation under
section 2(q)(1) classifying an article or substance as a banned
hazardous substance or a regulation under subsection (e) of
this section [shall be commenced] may be commenced by the
publication in the Federal Register of an advance notice of
proposed rulemaking which shall--
(1) identify the article or substance and the nature
of the risk of injury associated with the article or
substance;
(2) include a summary of each of the regulatory
alternatives under consideration by the Commission
(including voluntary standards);
(3) include information with respect to any existing
standard known to the Commission which may be relevant
to the proceedings, together with a summary of the
reasons why the Commission believes preliminarily that
such standard does not eliminate or adequately reduce
the risk of injury identified in paragraph (1);
(4) invite interested persons to submit to the
Commission, within such period as the Commission shall
specify in the notice (which period shall not be less
than 30 days or more than 60 days after the date of
publication of the notice), comments with respect to
the risk of injury identified by the Commission, the
regulatory alternatives being considered, and other
possible alternatives for addressing the risk;
(5) invite any person (other than the Commission) to
submit to the Commission, within such period as the
Commission shall specify in the notice (which period
shall not be less than 30 days after the date of
publication of the notice), an existing standard or a
portion of a standard as a proposed regulation under
section 2(q)(1) or subsection (e) of this section; and
(6) invite any person (other than the Commission) to
submit to the Commission, within such period as the
Commission shall specify in the notice (which period
shall not be less than 30 days after the date of
publication of the notice), a statement of intention to
modify or develop a voluntary standard to address the
risk of injury identified in paragraph (1) together
with a description of a plan to modify or develop the
standard.
The Commission shall transmit such notice within 10 calendar
days to the Committee on Commerce, Science, and Transportation
of the Senate and the Committee on Energy and Commerce of the
House of Representatives.
(g)(1) If the Commission determines that any standard
submitted to it in response to an invitation in a notice
published under subsection (f)(5) if promulgated (in whole, in
part, or in combination with any other standard submitted to
the Commission or any part of such a standard) as a regulation
under section 2(q)(1) or subsection (e) of this section, as the
case may be, would eliminate or adequately reduce the risk of
injury identified [in the notice] in a notice provided under
subsection (f)(1), the Commission may publish such standard, in
whole, in part, or in such combination and with nonmaterial
modifications, as a proposed regulation under such section or
subsection.
(2) If the Commission determines that--
(A) compliance with any standard submitted to it in
response to an invitation in a notice published under
subsection (f)(6) is likely to result in the
elimination or adequate reduction of the risk of injury
identified in the notice, and
(B) it is likely that there will be substantial
compliance with such standard,
the Commission shall terminate any proceeding to promulgate a
regulation under section 2(q)(1) or subsection (e) of this
section, respecting such risk of injury and shall publish in
the Federal Register a notice which includes the determination
of the Commission and which notifies the public that the
Commission will rely on the voluntary standard to eliminate or
reduce the risk of injury, except that the Commission shall
terminate any such proceeding and rely on a voluntary standard
only if such voluntary standard is in existence. For purposes
of this section, a voluntary 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, consumers, and consumer
organizations) a reasonable opportunity to submit written
comments regarding such standard. The Commission shall consider
such comments in making any determination regarding reliance on
the involved voluntary standard under this subsection.
(3) The Commission shall devise procedures to monitor
compliance with any voluntary standards--
(A) upon which the Commission has relied under
paragraph (2) of this subsection;
(B) which were developed with the participation of
the Commission; or
(C) whose development the Commission has monitored.
(h) No regulation under section 2(q)(1) classifying an
article or substance as a banned hazardous substance and no
regulation under subsection (e) of this section may be proposed
by the Commission [unless, not less than 60 days after
publication of the notice required in subsection (f), the]
unless the Commission publishes in the Federal Register the
text of the proposed rule, including any alternatives which the
Commission proposes to promulgate, together with a preliminary
regulatory analysis containing--
(1) a preliminary description of the potential
benefits and potential costs of the proposed
regulation, including any benefits or costs that cannot
be quantified in monetary terms, and an identification
of those likely to receive the benefits and bear the
costs;
(2) a discussion of the reasons any standard or
portion of a standard submitted to the Commission under
subsection (f)(5) was not published by the Commission
as the proposed regulation or part of the proposed
regulation;
(3) a discussion of the reasons for the Commission's
preliminary determination that efforts proposed under
subsection (f)(6) and assisted by the Commission as
required by section 5(a)(3) of the Consumer Product
Safety Act would not, within a reasonable period of
time, be likely to result in the development of a
voluntary standard that would eliminate or adequately
reduce the risk of injury identified in the notice
provided under subsection (f)(1); and
(4) a description of any reasonable alternatives to
the proposed regulation, together with a summary
description of their potential costs and benefits, and
a brief explanation of why such alternatives should not
be published as a proposed regulation.
The Commission shall transmit such notice within 10 calendar
days to the Committee on Commerce, Science, and Transportation
of the Senate and the Committee on Energy and Commerce of the
House of Representatives.
(i)(1) The Commission shall not promulgate a regulation under
section 2(q)(1) classifying an article or substance as a banned
hazardous substance or a regulation under subsection (e) of
this section unless it has prepared a final regulatory analysis
of the regulation containing the following information:
(A) A description of the potential benefits and
potential costs of the regulation, including costs and
benefits that cannot be quantified in monetary terms,
and the identification of those likely to receive the
benefits and bear the costs.
(B) A description of any alternatives to the final
regulation which were considered by the Commission,
together with a summary description of their potential
benefits and costs and a brief explanation of the
reasons why these alternatives were not chosen.
(C) A summary of any significant issues raised by the
comments submitted during the public comment period in
response to the preliminary regulatory analysis, and a
summary of the assessment by the Commission of such
issues.
The Commission shall publish its final regulatory analysis with
the regulation.
(2) The Commission shall not promulgate a regulation under
section 2(q)(1) classifying an article or substance as a banned
hazardous substance or a regulation under subsection (e) of
this section unless it finds (and includes such finding in the
regulation)--
(A) in the case of a regulation which relates to a
risk of injury with respect to which persons who would
be subject to such regulation have adopted and
implemented a voluntary standard, that--
(i) compliance with such voluntary standard
is not likely to result in the elimination or
adequate reduction of such risk of injury; or
(ii) it is unlikely that there will be
substantial compliance with such voluntary
standard;
(B) that the benefits expected from the regulation
bear a reasonable relationship to its costs; and
(C) that the regulation imposes the least burdensome
requirement which prevents or adequately reduces the
risk of injury for which the regulation is being
promulgated.
(3)(A) Any regulatory analysis prepared under subsection (h)
or paragraph (1) shall not be subject to independent judicial
review, except that when an action for judicial review of a
regulation is instituted, the contents of any such regulatory
analysis shall constitute part of the whole rulemaking record
of agency action in connection with such review.
(B) The provisions of subparagraph (A) shall not be construed
to alter the substantive or procedural standards otherwise
applicable to judicial review of any action by the Commission.
(j) The Commission shall grant, in whole or in part, or deny
any petition under section 553(e) of title 5, United States
Code, requesting the Commission to initiate a rulemaking,
within a reasonable time after the date on which such petition
is filed. The Commission shall state the reasons for granting
or denying such petition. The Commission may not deny any such
petition on the basis of a voluntary standard unless the
voluntary standard is in existence at the time of the denial of
the petition, the Commission has determined that the voluntary
standard is likely to result in the elimination or adequate
reduction of the risk of injury identified in the petition, and
it is likely that there will be substantial compliance with the
standard.
PROHIBITED ACTS
[15 U.S.C. 1263]
Sec. 4. The following acts and the causing thereof are hereby
prohibited:
(a) The introduction or delivery for introduction into
interstate commerce of any misbranded hazardous substance or
banned hazardous substance.
(b) The alteration, mutilation, destruction, obliteration, or
removal of the whole or any part of the label of, or the doing
of any other act with respect to, a hazardous substance, if
such act is done while the substance is in interstate commerce,
or while the substance is held for sale (whether or not the
first sale) after shipment in interstate commerce, and results
in the hazardous substance being a misbranded hazardous
substance or banned hazardous substance.
(c) The receipt in interstate commerce of any misbranded
hazardous substance or banned hazardous substance and the
delivery or proffered delivery thereof for pay or otherwise.
(d) The giving of a guarantee or undertaking referred to in
section 5(b)(2) which guarantee or undertaking is false, except
by a person who relied upon a guarantee or undertaking to the
same effect signed by, and containing the name and address of,
the person residing in the United States from whom he received
in good faith the hazardous substance.
(e) The failure to permit entry or inspection as authorized
by section 11(b) or to permit access to and copying of any
record as authorized by section 12.
(f) The introduction or delivery for introduction into
interstate commerce, or the receipt in interstate commerce and
subsequent delivery or proffered delivery for pay or otherwise,
of a hazardous substance in a reused food, drug, or cosmetic
container or in a container which, though not a reused
container, is identifiable as a food, drug, or cosmetic
container by its labeling or by other identification. The reuse
of a food, drug, or cosmetic container as a container for a
hazardous substance shall be deemed to be an act which results
in the hazardous substance being a misbranded hazardous
substance. As used in this paragraph, the terms ``food'',
``drug'', and ``cosmetic'' shall have the same meaning as in
the Federal Food, Drug, and Cosmetic Act.
(g) The manufacture of a misbranded hazardous substance or
banned hazardous substance within the District of Columbia or
within any territory not organized with a legislative body.
(h) The use by any person to his own advantage, or revealing
other than to the [Secretary] Commission or officers or
employees of the [Department,] Commission, or to the courts
when relevant in any judicial proceeding under this Act, of any
information acquired under authority of section 11 concerning
any method of process which as a trade secret is entitled to
protection.
(i) The failure to notify the [Consumer Product Safety]
Commission with respect to exports, pursuant to section 14(d).
(j) The failure to comply with an order issued under section
15.
(k) The introduction or delivery for introduction into
interstate commerce of any lead solder which has a lead content
in excess of 0.2 percent which does not prominently display a
warning label stating the lead content of the solder and
warning that the use of such solder in the making of joints or
fittings in any private or public potable water supply system
is prohibited.
PENALTIES
[15 U.S.C. 1264]
Sec. 5. [(a) Any person who violates any of the provisions of
section 4 shall be guilty of a misdemeanor and shall on
conviction thereof be subject to a fine of not more than $500
or to imprisonment for not more than ninety days, or both; but
for offenses committed with intent to defraud or mislead, or
for second and subsequent offenses, the penalty shall be
imprisonment for not more than one year, or a fine of not more
than $3,000, or both such imprisonment and fine.]
(a) In General.--Violation of section 4 of this Act is
punishable by--
(1) imprisonment for not more than--
(A) 1 year for a knowing violation of that
section; or
(B) 5 years for a knowing and willful
violation of that section; and
(2) a fine determined under section 3571 of title 18,
United States Code.
(b) No person shall be subject to the penalties of subsection
(a) of this section, (1) for having violated section 4(c), if
the receipt, delivery, or proffered delivery of the hazardous
substance was made in good faith, unless he refuses to furnish
on request of an officer or employee duly designated by the
[Secretary] Commission, the name and address of the person from
whom he purchased or received such hazardous substance, and
copies of all documents, if any there be, pertaining to the
delivery of the hazardous substance to him; or (2) for having
violated section 4(a), if he establishes a guarantee or
undertaking signed by, and containing the name and address of,
the person residing in the United States from whom he received
in good faith the hazardous substance, to the effect that the
hazardous substance is not a misbranded hazardous substance or
a banned hazardous substance within the meaning of those terms
in this Act; or (3) for having violated subsection (a) or (c)
of section 4 with respect to any hazardous substance shipped or
delivered for shipment for export to any foreign country, in a
package marked for export on the outside of the shipping
container and labeled in accordance with the specifications of
the foreign purchaser and in accordance with the laws of the
foreign country, but if such hazardous substance is sold or
offered for sale in domestic commerce or if the [Consumer
Product Safety] Commission determines that exportation of such
[substance presents an unreasonable risk of injury to persons
residing within the United States,] substance is prohibited
under section 18(c) of the Consumer Product Safety Act, this
clause shall not apply.
(c)(1) Any person who knowingly violates section 4 shall be
subject to a civil penalty not to exceed [$5,000] $250,000 for
each such violation. Subject to paragraph (2), a violation of
subsections (a), (b), (c), (d), (f), (g), (i), (j), and (k) of
section 4 shall constitute a separate offense with respect to
each substance involved, except that the maximum civil penalty
shall not exceed [$1,250,000] $100,000,000 for any related
series of violations. A violation of section 4(e) shall
constitute a separate violation with respect to each failure or
refusal to allow or perform an act required by section 4(e);
and, if such violation is a continuing one, each day of such
violation shall constitute a separate offense, except that the
maximum civil penalty shall not exceed [$1,250,000]
$100,000,000 for any related series of violations.
(2) The second sentence of paragraph (1) of this subsection
shall not apply to violations of subsection (a) or (c) of
section 4--
(A) if the person who violated such subsection is not
the manufacturer, importer, or private labeler or a
distributor of the substances involved; and
(B) if such person did not have either (i) actual
knowledge that such person's distribution or sale of
the substance violated such subsection, or (ii) notice
from the Commission that such distribution or sale
would be a violation of such subsection.
(3) In determining the amount of any penalty to be sought
upon commencing an action seeking to assess a penalty for a
violation of section 4, the Commission shall consider the
nature of the substance, the severity of the risk of injury,
the occurrence or absence of injury, the amount of the
substance distributed, and the appropriateness of such penalty
in relation to the size of the business of the person charged.
(4) Any civil penalty under this subsection may be
compromised by the Commission. In determining the amount of
such penalty or whether it should be remitted or mitigated, and
in what amount, the Commission shall consider the
appropriateness of such penalty to the size of the business of
the persons charged, the nature of the substance involved, the
severity of the risk of injury, the occurrence or absence of
injury, and the amount of the substance distributed. 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.
(5) As used in the first sentence of paragraph (1), the term
``knowingly'' 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 obtainable upon the exercise of due care to ascertain
the truth of representations.
(6)(A) The maximum penalty amounts authorized in paragraph
(1) shall be adjusted for inflation as provided in this
paragraph.
(B) Not later than [December 1, 1994,] December 1, 2011, and
December 1 of each fifth calendar year thereafter, the
Commission shall prescribe and publish in the Federal Register
a schedule of maximum authorized penalties that shall apply for
violations that occur after January 1 of the year immediately
following such publication.
(C) The schedule of maximum authorized penalties 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
preceding 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 consumers published
by the Department of Labor.
(ii) The term ``cost-of-living adjustment for the
preceding five years'' means the percentage by which--
(I) the Consumer Price Index for the month of
June of the calendar year preceding 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.
(d) In the case of an attorney general of a State alleging a
violation that affects or may affect such State or its
residents, such attorney general may bring a civil action for
an injunction to enforce any requirement of this Act relating
to misbranded or banned hazardous substances. The procedural
requirements of section 24 of the Consumer Product Safety Act
shall apply to any such action.
SEIZURES
[15 U.S.C. 1265]
Sec. 6. (a) Any misbranded hazardous substance or banned
hazardous substance when introduced into or while in interstate
commerce or while held for sale (whether or not the first sale)
after shipment in interstate commerce, or which may not, under
the provisions of section 4(f), be introduced into interstate
commerce, or which has been manufactured in violation of
section 4(g), shall be liable to be proceeded against while in
interstate commerce or at any time thereafter, on libel of
information and condemned in any district court in the United
States within the jurisdiction of which the hazardous substance
is found: Provided, That this section shall not apply to a
hazardous substance intended for export to any foreign country
if it (1) is in a package branded in accordance with the
specifications of the foreign purchaser, (2) is labeled in
accordance with the laws of the foreign country, and (3) is
labeled on the outside of the shipping package to show that it
is intended for export, and (4) is so exported.
(b) Such hazardous substance shall be liable to seizure by
process pursuant to the libel, and the procedure in cases under
this section shall conform, as nearly as may be, to the
procedure in admiralty; except that on demand of either party
any issue of fact joined in any such case shall be tried by
jury. When libel for condemnation proceedings under this
section, involving the same claimant and the same issues of
misbranding, are pending in two or more jurisdictions, such
pending proceedings, upon application of the United States or
the claimant seasonably made to the court of one such
jurisdiction, shall be consolidated for trial by order of such
court, and tried in (1) any district selected by the applicant
where one of such proceedings is pending; or (2) a district
agreed upon by stipulation between the parties. If no order for
consolidation is so made within a reasonable time, the United
States or the claimant may apply to the court of one such
jurisdiction, and such court (after giving the other party, the
claimant, or the United States attorney for such district,
reasonable notice and opportunity to be heard) shall by order,
unless good cause to the contrary is shown, specify a district
of reasonable proximity to the claimant's principal place of
business, in which all such pending proceedings shall be
consolidated for trial and tried. Such order of consolidation
shall not apply so as to require the removal of any case the
date for trial of which has been fixed. The court granting such
order shall give prompt notification thereof to the other
courts having jurisdiction of the cases covered thereby.
(c) Any hazardous substance condemned under this section
shall, after entry of the decree, be disposed of by destruction
or sale as the court may, in accordance with the provisions of
this section, direct and the proceeds thereof, if sold, less
the legal costs and charges, shall be paid into the Treasury of
the United States; but such hazardous substance shall not be
sold under such decree contrary to the provisions of this Act
or the laws of the jurisdiction in which sold: Provided, That,
after entry of the decree and upon payment of the costs of such
proceedings and the execution of a good and sufficient bond
conditioned that such hazardous substance shall not be sold or
disposed of contrary to the provisions of this Act or the laws
of any State or territory in which sold, the court may by order
direct that such hazardous substance be delivered to the owner
thereof to be destroyed or brought into compliance with the
provisions of this Act under the supervision of an officer or
employee duly designated by the [Secretary] Commission, and the
expense of such supervision shall be paid by the person
obtaining release of the hazardous substance under bond.
(d) When a decree of condemnation is entered against the
hazardous substance, court costs and fees, and storage and
other proper expenses, shall be awarded against the person, if
any, intervening as claimant of the hazardous substance.
(e) In the case of removal for trial of any case as provided
by subsection (b)--
(1) the clerk of the court from which removal is made
shall promptly transmit to the court in which the case
is to be tried all records in the case necessary in
order that such court may exercise jurisdiction;
(2) the court to which such case is removed shall
have the powers and be subject to the duties, for
purposes of such case, which the court from which
removal was made would have had, or to which such court
would have been subject, if such case had not been
removed.
HEARING BEFORE REPORT OF CRIMINAL VIOLATION
[15 U.S.C. 1266]
Sec. 7. Before any violation of this Act is reported by the
[Secretary] Commission to any United States attorney for
institution of a criminal proceeding, the person against whom
such proceeding is contemplated shall be given appropriate
notice and an opportunity to present his views, either orally
or in writing, with regard to such contemplated proceeding.
* * * * * * *
REGULATIONS
[15 U.S.C. 1269]
Sec. 10. (a) The authority to promulgate regulations for the
efficient enforcement of this Act, except as otherwise provided
in this section, is hereby vested in the [Secretary]
Commission.
(b) The Secretary of the Treasury and the [Secretary of
Health, Education, and Welfare] Commission shall jointly
prescribe regulations for the efficient enforcement of the
provisions of section 14, except as otherwise provided therein.
Such regulations shall be promulgated in such manner and take
effect at such time, after due notice, as the [Secretary of
Health, Education, and Welfare] Commission shall determine.
EXAMINATIONS AND INVESTIGATIONS
[15 U.S.C. 1270]
Sec. 11. (a) The [Secretary] Commission is authorized to
conduct examinations, inspections, and investigations for the
purposes of this Act through officers and employees of the
[Department] Commission or through any health officer or
employee of any State, territory, or political subdivision
thereof, duly commissioned by the [Secretary] Commission as an
officer of the [Department] Commission.
(b) For purposes of enforcement of this Act, officers or
employees duly designated by the [Secretary] Commission, upon
presenting appropriate credentials and a written notice to the
owner, operator, or agent in charge, are authorized (1) to
enter, at reasonable times, any factory, warehouse, or
establishment in which hazardous substances are manufactured,
processed, packed, or held for introduction into interstate
commerce or are held after such introduction, or to enter any
vehicle being used to transport or hold such hazardous
substances in interstate commerce; (2) to inspect, at
reasonable times and within reasonable limits and in a
reasonable manner, such factory, warehouse, establishment, or
vehicle, and all pertinent equipment, finished and unfinished
materials, and labeling therein; and (3) to obtain samples of
such materials or packages thereof, or of such labeling. A
separate notice shall be given for each such inspection, but a
notice shall not be required for each entry made during the
period covered by the inspection. Each such inspection shall be
commenced and completed with reasonable promptness.
(c) If the officer or employee obtains any sample, prior to
leaving the premises, he shall give to the owner, operator, or
agent in charge a receipt describing the samples obtained. If
an analysis is made of such sample, a copy of the results of
such analysis shall be furnished promptly to the owner,
operator, or agent in charge.
RECORDS OF INTERSTATE SHIPMENT
[15 U.S.C. 1271]
Sec. 12. For the purpose of enforcing the provisions of this
Act, carriers engaged in interstate commerce, and persons
receiving hazardous substances in interstate commerce or
holding such hazardous substances so received shall, upon the
request of an officer or employee duly designated by the
[Secretary] Commission, permit such officer or employee, at
reasonable times, to have access to and to copy all records
showing the movement in interstate commerce of any such
hazardous substance, or the holding thereof during or after
such movement, and the quantity, shipper, and consignee
thereof; and it shall be unlawful for any such carrier or
person to fail to permit such access to and copying of any
record so requested when such request is accompanied by a
statement in writing specifying the nature or kind of such
hazardous substance to which such request relates: Provided,
That evidence obtained under this section, or any evidence
which is directly or indirectly derived from such evidence,
shall not be used in a criminal prosecution of the person from
whom obtained: Provided further, That carriers shall not be
subject to the other provisions of this Act by reason of their
receipt, carriage, holding, or delivery of hazardous substances
in the usual course of business as carriers.
PUBLICITY
[15 U.S.C. 1272]
Sec. 13. (a) The [Secretary] Commission may cause to be
published from time to time reports summarizing any judgments,
decrees, or court orders which have been rendered under this
Act, including the nature of the charge and the disposition
thereof.
(b) The [Secretary] Commission may also cause to be
disseminated information regarding hazardous substances in
situations involving, in the opinion of the [Secretary]
Commission, imminent danger to health. Nothing in this section
shall be construed to prohibit the [Secretary] Commission from
collecting, reporting, and illustrating the results of the
investigations of the [Department] Commission.
IMPORTS AND EXPORTS
[15 U.S.C. 1273]
Sec. 14. (a) The Secretary of the Treasury shall deliver to
the [Secretary of Health, Education, and Welfare,] Commision,
upon [his] its request, samples of hazardous substances which
are being imported or offered for import into the United
States, giving notice thereof to the owner or consignee, who
may appear before the [Secretary of Health, Education, and
Welfare] Commission and have the right to introduce testimony.
If it appears from the examination of such samples or otherwise
that such hazardous substance is a misbranded hazardous
substance or banned hazardous substance or in violation of
section 4(f), then such hazardous substance shall be refused
admission, except as provided in subsection (b) of this
section. The Secretary of the Treasury shall cause the
destruction of any such hazardous substance refused admission
unless such hazardous substance is exported, under regulations
prescribed by the Secretary of the Treasury, within ninety days
of the date of notice of such refusal or within such additional
time as may be permitted pursuant to such regulations.
(b) Pending decision as to the admission of a hazardous
substance being imported or offered for import, the Secretary
of the Treasury may authorize delivery of such hazardous
substance to the owner or consignee upon the execution by him
of a good and sufficient bond providing for the payment of such
liquidated damages in the event of default as may be required
pursuant to regulations of the Secretary of the Treasury. If it
appears to the [Secretary of Health, Education, and Welfare]
Commission that the hazardous substance can, by relabeling or
other action, be brought into compliance with this Act, final
determination as to admission of such hazardous substance may
be deferred and, upon filing of timely written application by
the owner or consignee and the execution by him of a bond as
provided in the preceding provisions of this subsection, the
[Secretary] Commission may, in accordance with regulations,
authorize the applicant to perform such relabeling or other
action specified in such authorization (including destruction
or export of rejected hazardous substances or portions thereof,
as may be specified in the [Secretary's] Commission's
authorization). All such relabeling or other action pursuant to
such authorization shall, in accordance with regulations, be
under the supervision of an officer or employee of the
[Department of Health, Education, and Welfare] Commission
designated by the Secretary, or an officer or employee of the
Department of the Treasury designated by the Secretary of the
Treasury.
(c) 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 the relabeling or other
action authorized under the provisions of subsection (b) of
this section, the amount of such expenses to be determined in
accordance with regulations, and all expenses in connection
with the storage, cartage, or labor with respect to any
hazardous substance refused admission under subsection (a) of
this section, shall be paid by the owner or consignee and, in
default of such payment, shall constitute a lien against any
future importations made by such owner or consignee.
(d) Not less than thirty days before any person exports to a
foreign country any misbranded hazardous substance or banned
hazardous substance, such person shall file a statement with
the [Consumer Product Safety Commission (hereinafter in this
section referred to as the ``Commission'')] Commission
notifying the Commission of such exportation, and the
Commission, upon receipt of such statement, shall promptly
notify the government of such country of such exportation and
the basis upon which such substance is considered misbranded or
has been banned under this Act. Any statement filed with the
Commission under the preceding sentence shall specify the
anticipated date of shipment of such substance, the country and
port of destination of such substance, and the quantity of such
substance that will be exported, and shall contain such other
information as the Commission may by regulation require. Upon
petition filed with the Commission by any person required to
file a statement under this subsection respecting an
exportation, the Commission may, for good cause shown, exempt
such person from the requirement of this subsection that such a
statement be filed no less than thirty days before the date of
the exportation, except that in no case shall the Commission
permit such a statement to be filed later than the tenth day
before such date.
NOTICE AND REPAIR, REPLACEMENT, OR REFUND
[15 U.S.C. 1274]
Sec. 15. (a) If any article or substance sold in commerce is
defined as a banned hazardous substance (whether or not it was
such at the time of its sale) and the Commission determines
(after affording interested persons, including consumers and
consumer organizations, an opportunity for a hearing) that
notification is required to adequately protect the public from
such article or substance, the Commission may order the
manufacturer or any distributor or dealer of the article or
substance to take any one or more of the following actions:
(1) To give public notice that the article or
substance is a banned hazardous substance.
(2) To mail such notice to each person who is a
manufacturer, distributor, or dealer of such article or
substance.
(3) To mail such notice to every person to whom the
person giving the notice knows such article or
substance was delivered or sold.
An order under this subsection shall specify the form and
content of any notice required to be given under the order.
(b) If any article or substance sold in commerce is defined
as a banned hazardous substance (whether or not it was such at
the time of its sale) and the Commission determines (after
affording interested persons, including consumers and consumer
organizations, an opportunity for a hearing) that action under
this subsection is in the public interest, the [Consumer
Product Safety] Commission may order the manufacturer,
distributor, or dealer to take whichever of the following
actions the person to whom the order is directed elects:
(1) If repairs to or changes in the article or
substance may be made so that it will not be a banned
hazardous substance, to make such repairs or changes.
(2) To replace such article or substance with a like
or equivalent article or substance which is not a
banned hazardous substance.
(3) To refund the purchase price of the article or
substance (less a reasonable allowance for use, if the
article or substance has been in the possession of the
consumer for one year or more--
(A) at the time of public notice under
subsection (a), or
(B) at the time the consumer receives actual
notice that the article or substance is a
banned hazardous substance, whichever first
occurs).
An order under this subsection may also require the person to
whom it applies to submit a plan, satisfactory to the
Commission, for taking the action which such person has elected
to take. The Commission shall specify in the order the persons
to whom refunds must be made if the person to whom the order is
directed elects to take the action described in paragraph (3).
If an order under this subsection is directed to more than one
person, the Commission shall specify which person has the
election under this subsection. An order under this subsection
may prohibit the person to whom it applies from manufacturing
for sale, offering for sale, distributing in commerce, or
importing into the customs territory of the United States (as
defined in general note 2 of the Harmonized Tariff Schedule of
the United States), or from doing any combination of such
actions, with respect to the article or substance with respect
to which the order was issued.
(c)(1) If the Commission determines (after affording
interested persons, including consumers and consumer
organizations, an opportunity for a hearing in accordance with
subsection (e) of this section) that any toy or other article
intended for use by children that is not a banned hazardous
substance contains a defect which creates a substantial risk of
injury to children (because of the pattern of defect the number
of defective toys or such articles distributed in commerce, the
severity of the risk, or otherwise) and that notification is
required to protect adequately the public from such toy or
article, the Commission may order the manufacturer or any
distributor or dealer of such toy or article to take any one or
more of the following actions:
(A) To give public notice that such defective toy or
article contains a defect which creates a substantial
risk of injury to children.
(B) To mail such notice to each person who is a
manufacturer, distributor, or dealer of such toy or
article.
(C) To mail such notice to every person to whom the
person giving notice knows such toy or article was
delivered or sold.
An order under this paragraph shall specify the form and
content of any notice required to be given under the order.
(2) If the Commission determines (after affording interested
persons, including consumers and consumer organizations, an
opportunity for a hearing in accordance with subsection (e) of
this section) that any toy or other article intended for use by
children that is not a banned hazardous substance contains a
defect which creates a substantial risk of injury to children
(because of the pattern of defect, the number of defective toys
or such articles distributed in commerce, the severity of the
risk, or otherwise) and that action under this paragraph is in
the public interest, the Commission may order the manufacturer,
distributor, or dealer to take whichever of the following
actions the person to whom the order is directed elects:
(A) If repairs to or changes in the toy or article
can be made so that it will not contain a defect which
creates a substantial risk of injury to children, to
make such repairs or changes.
(B) To replace such toy or article with a like or
equivalent toy or article which does not contain a
defect which creates a substantial risk of injury to
children.
(C) To refund the purchase price of such toy or
article (less a reasonable allowance for use, if such
toy or article has been in the possession of the
consumer for 1 year or more (i) at the time of public
notice under paragraph (1)(A), or (ii) at the time the
consumer receives actual notice that the toy or article
contains a defect which creates a substantial risk of
injury to children, whichever first occurs).
An order under this paragraph may also require the person to
whom it applies to submit a plan, satisfactory to the
Commission, for taking the action which such person has elected
to take. The Commission shall specify in the order the person
to whom refunds must be made if the person to whom the order is
directed elects to take the action described in subparagraph
(C). If an order under this paragraph is directed to more than
one person, the Commission shall specify which person has the
election under this paragraph. An order under this paragraph
may prohibit the person to whom it applies from manufacturing
for sale, offering for sale, distributing in commerce, or
importing into the customs territory of the United States (as
defined in general note 2 of the Harmonized Tariff Schedule of
the United States), or from doing any combination of such
actions, with respect to the toy or article respect to which
the order was issued.
(d)(1) No charge shall be made to any person (other than a
manufacturer, distributor, or dealer) who avails himself of any
remedy provided under an order issued under subsection (b) or
(c), and the person subject to the order shall reimburse each
person (other than a manufacturer, distributor, or dealer) who
is entitled to such a remedy for any reasonable and foreseeable
expenses incurred by such person in availing himself of such
remedy.
(2) An order issued under subsection (a), (b), or (c) with
respect to a toy, article or substance may require any person
who is a manufacturer, distributor, or dealer of the toy,
article or substance to reimburse any other person who is a
manufacturer, distributor, or dealer of such article or
substance for such other person's expenses in connection with
carrying out the order, if the Commission determines such
reimbursement to be in the public interest.
(e) An order under subsection (a), (b), or (c) may be issued
only after an opportunity for a hearing in accordance with
section 554 of title 5, United States Code, except that, if the
Commission determines that any person who wishes to participate
in such hearing is a part of a class of participants who share
an identity of interest, the Commission may limit such person's
participation in such hearing to participation through a single
representative designated by such class (or by the Commission
if such class fails to designate such a representative).
(f) For purposes of this section (1) the term
``manufacturer'' includes an importer for resale, and (2) a
dealer who sells at wholesale an article or substance shall
with respect to that sale be considered the distributor of that
article or substance.
(g) Nothing in this section shall be construed to require the
Commission, in determining that an article or substance
distributed in commerce presents a substantial product hazard
and that notification or other action under this section should
be taken, to prepare a comparison of the costs that would be
incurred in providing notification or taking other action under
this section with the benefits from such notification or
action.
* * * * * * *
[15 U.S.C. 1261 note]
Sec. 17. This Act shall take effect upon the date of its
enactment; but no penalty or condemnation shall be enforced for
any violation of this Act which occurs--
(a) prior to the expiration of the sixth calendar
month after the month in which this Act is enacted, or
(b) prior to the expiration of such additional period
or periods, ending not more than eighteen months after
the month of enactment of this Act, as the [Secretary]
Commission may prescribe on the basis of a finding that
conditions exist which necessitate the prescribing of
such additional period or periods: Provided, That the
[Secretary] Commission may limit the application of
such additional period or periods to violations related
to specified provisions of this Act, or to specified
kinds of hazardous substances or packages thereof.
EFFECT UPON FEDERAL AND STATE LAW
[15 U.S.C. 1261 note]
Sec. 18. (a) Nothing in this Act shall be construed to modify
or affect the provisions of the Flammable Fabrics Act, as
amended (15 U.S.C. 1191-1200), or any regulations promulgated
thereunder; or of chapter 39, title 18, United States Code, as
amended (18 U.S.C. 831 et seq.), or any regulations promulgated
thereunder, or under sections 204(a)(2) and 204(a)(3) of the
Interstate Commerce Act, as amended (relating to the
transportation of dangerous substances and explosives by
surface carriers); or of section 1716, title 18, United States
Code, or any regulations promulgated thereunder (relating to
mailing of dangerous substances); or of section 902 or
regulations promulgated under section 601 of the Federal
Aviation Act of 1958 (relating to transportation of dangerous
substances and explosives in aircraft); or of the Federal Food,
Drug, and Cosmetic Act; or of the Public Health Service Act; or
of the Federal Insecticide, Fungicide, and Rodenticide Act; or
of the Dangerous Drug Act for the District of Columbia (70
Stat. 612), or the Act entitled ``An Act to regulate the
practice of pharmacy and the sale of poisons in the District of
Columbia, and for other purposes'', approved May 7, 1906 (34
Stat. 175), as amended; or of any other Act of Congress, except
as specified in section 19.
(b)(1)(A) Except as provided in paragraphs (2) and (3), if a
hazardous substance or its packaging is subject to a cautionary
labeling requirement under section 2(p) or 3(b) designated to
protect against a risk of illness or injury associated with the
substance, no State or political subdivision of a State may
establish or continue in effect a cautionary labeling
requirement applicable to such substance or packaging and
designed to protect against the same risk of illness or injury
unless such cautionary labeling requirement is identical to the
labeling requirement under section 2(p) or 3(b).
(B) Except as provided in paragraphs (2), (3), and (4), if
under regulations of the Commission promulgated under or for
the enforcement of section 2(q) a requirement is established to
protect against a risk of illness or injury associated with a
hazardous substance, no State or political subdivision of a
State may establish or continue in effect a requirement
applicable to such substance and designed to protect against
the same risk of illness or injury unless such requirement is
identical to the requirement established under such
regulations.
(2) The Federal Government and the government of any State or
political subdivision of a State may establish and continue in
effect a requirement applicable to a hazardous substance for
its own use (or to the packaging of such a substance) which
requirement is designed to protect against a risk of illness or
injury associated with such substance and which is not
identical to a requirement described in paragraph (1)
applicable to such substance (or packaging) and designed to
protect against the same risk of illness or injury if the
Federal, State, or political subdivision requirement provides a
higher degree of protection from such risk of illness or injury
than the requirement described in paragraph (1).
(3)(A) Upon application of a State or political subdivision
of a State, the Commission may, by regulation promulgated in
accordance with subparagraph (B), exempt from paragraph (1),
under such conditions as may be prescribed in such regulation,
any requirement of such State or political subdivision designed
to protect against a risk of illness or injury associated with
a hazardous substance if--
(i) compliance with the requirement would not cause
the hazardous substance (or its packaging) to be in
violation of the applicable requirement described in
paragraph (1), and
(ii) the State or political subdivision requirement
(I) provides a significantly higher degree of
protection from such risk of illness or injury than the
requirement described in paragraph (1), and (II) does
not unduly burden interstate commerce.
In determining the burden, if any, of a State or political
subdivision requirement on interstate commerce the Commission
shall consider and make appropriate (as determined by the
Commission in its discretion) findings on the technological and
economic feasibility of complying with such requirement, the
cost of complying with such requirement, the geographic
distribution of the substance to which the requirement would
apply, the probability of other States or political
subdivisions applying for an exemption under this paragraph for
a similar requirement, and the need for a national, uniform
requirement under this Act for such substance (or its
packaging).
(B) A regulation under subparagraph (A) granting an exemption
for a requirement of a State or political subdivision of a
State may be promulgated by the Commission only after it has
provided, in accordance with section 553(b) of title 5, United
States Code, notice with respect to the promulgation of the
regulation and has provided opportunity for the oral
presentation of views respecting its promulgation.
(4) Paragraph (1)(B) does not prohibit a State or a political
subdivision of a State from establishing or continuing in
effect a requirement which is designed to protect against a
risk of illness or injury associated with fireworks devices or
components thereof and which provides a higher degree of
protection from such risk of illness or injury than a
requirement in effect under a regulation of the Commission
described in such paragraph.
[(5) As used in this subsection, the term ``Commission''
means the Consumer Product Safety Commission.]
REPEAL OF FEDERAL CAUSTIC POISON ACT
[15 U.S.C. 401 note]
Sec. 19. The Federal Caustic Poison Act (44 Stat. 1406) is
repealed effective at the close of the sixth calendar month
after the month of enactment of this Act, except that the
Federal Caustic Poison Act shall remain in full force and
effect with respect to any ``dangerous caustic or corrosive
substance'' (as defined by that Act) which is an article
subject to the Federal Food, Drug, and Cosmetic Act and which
is, by virtue of paragraph 2 of section 2(f) of this Act,
excluded from the term ``hazardous substance'' as defined in
this Act: Provided, That, if the [Secretary] Commission,
pursuant to section 17(b) of this Act, prescribes an additional
period or periods during which violations of this Act shall not
be enforceable and if such additional period or periods are
applicable to violations of this Act involving one or more
substances defined as ``dangerous caustic or corrosive
substances'' by the Federal Caustic Poison Act, that Act shall,
with respect to such substance or substances, remain in full
force and effect during such additional period or periods:
Provided further, That, with respect to violations, liabilities
incurred or appeals taken prior to the close of said sixth
month or, if applicable, prior to the expiration of the
additional period or periods referred to in the preceding
proviso, all provisions of the Federal Caustic Poison Act shall
be deemed to remain in full force for the purpose of sustaining
any proper suit, action, or other proceeding with respect to
any such violations, liabilities, and appeals.
* * * * * * *
SEC. 24. REQUIREMENTS FOR LABELING CERTAIN TOYS AND GAMES.
[15 U.S.C. 1278]
(a) Toys or Games for Children Who Are at Least 3.--
(1) Requirement.--The packaging of any toy or game
intended for use by children who are at least 3 years
old but not older than 6 years (or such other upper age
limit as the Commission may determine, which may not be
less than 5 years old), any descriptive material which
accompanies such toy or game, and, in the case of bulk
sales of such toy or game when unpackaged, any bin,
container for retail display, or vending machine from
which the unpackaged toy or game is dispensed shall
bear or contain the cautionary statement described in
paragraph (2) if the toy or game--
(A) is manufactured for sale, offered for
sale, or distributed in commerce in the United
States, and
(B) includes a small part, as defined by the
Commission.
(2) Label.--The cautionary statement required by
paragraph (1) for a toy or game shall be as follows:
[ILLUSTRATION OMITTED]
(b) Balloons, Small Balls, and Marbles.--
(1) Requirement.--In the case of any latex balloon,
any ball with a diameter of 1.75 inches or less
intended for children 3 years of age or older, any
marble intended for children 3 years of age or older,
or any toy or game which contains such a balloon, ball,
or marble, which is manufactured for sale, offered for
sale, or distributed in commerce in the United States--
(A) the packaging of such balloon, ball,
marble, toy, or game,
(B) any descriptive material which
accompanies such balloon, ball, marble, toy, or
game, and
(C) in the case of bulk sales of any such
product when unpackaged, any bin, container for
retail display, or vending machine from which
such unpackaged balloon, ball, marble, toy, or
game is dispensed,
shall bear or contain the cautionary statement
described in paragraph (2).
(2) Label.--The cautionary statement required under
paragraph (1) for a balloon, ball, marble, toy, or game
shall be as follows:
(A) Balloons.--In the case of balloons, or
toys or games that contain latex balloons, the
following cautionary statement applies:
[ILLUSTRATION OMITTED]
(D) Toys and games.--In the case of toys or
games containing balls, the following
cautionary statement applies:
[ILLUSTRATION OMITTED]
(c) Internet, Catalogue, and Other Advertising.--
(1) Requirement.--
(A) Cautionary statement.--Any advertisement
posted by a manufacturer, retailer,
distributor, private labeler, or licensor for
any toy, game, balloon, small ball, or marble
that requires a cautionary statement under
subsections (a) and (b), including any
advertisement on Internet websites or in
catalogues or other distributed materials,
shall include the appropriate cautionary
statement required under such subsections in
its entirety displayed on or immediately
adjacent to such advertisement.
(B) Display.--The cautionary statement
described in subparagraph (A) shall be
prominently displayed--
(i) in the primary language used in
the advertisement, catalogue, or
Internet website;
(ii) in conspicuous and legible type
in contrast by typography, layout, or
color with other material printed or
displayed in such advertisement; and
(iii) in a manner consistent with
part 1500 of title 16, Code of Federal
Regulations.
(C) Definitions.--In this paragraph, the
terms `manufacturer, retailer, distributor,
private labeler, and licensor'--
(i) mean any individual who, by such
individual's occupation holds himself
or herself out as having knowledge or
skill peculiar to consumer products,
including any person who is in the
business of manufacturing, selling,
distributing, labeling, licensing, or
otherwise placing in the stream of
commerce consumer products; but
(ii) do not include an individual
whose selling activity is intermittent
and does not constitute a trade or
business.
(2) Enforcement.--The requirement under paragraph (1)
shall be treated as a consumer product safety standard
promulgated under section 7 of the Consumer Product
Safety Act (15 U.S.C. 2056). The publication or
distribution of any advertisement that is not in
compliance with paragraph (1) shall be treated as a
prohibited act under section 19 of such Act (15 U.S.C.
2068).
[(c)] (d) General Labeling Requirements.--
(1) In general.--Except as provided in paragraphs (2)
and (3), any cautionary statement required under
subsection (a) or (b) shall be--
(A) displayed in its entirety on the
principal display panel of the product's
package, and on any descriptive material which
accompanies the product, and, in the case of
bulk sales of such product when unpackaged, on
the bin, container for retail display of the
product, and any vending machine from which the
unpackaged product is dispensed, and
(B) displayed in the English language in
conspicuous and legible type in contrast by
typography, layout, or color with other printed
matter on such package, descriptive materials,
bin, container, and vending machine, and in a
manner consistent with part 1500 of title 16,
Code of Federal Regulations (or successor
regulations thereto).
(2) Exception for products manufactured outside
united states.--In the case of a product manufactured
outside the United States and directly shipped from the
manufacturer to the consumer by United States mail or
other delivery service, the accompanying material
inside the package of the product may fail to bear the
required statement if other accompanying material
shipped with the product bears such statement.
(3) Special rules for certain packages.--(A) A
cautionary statement required by subsection (a) or (b)
may, in lieu of display on the principal display panel
of the product's package, be displayed on another panel
of the package if--
(i) the package has a principal display panel
of 15 square inches or less and the required
statement is displayed in three or more
languages; and
(ii) the statement specified in subparagraph
(B) is displayed on the principal display panel
and is accompanied by an arrow or other
indicator pointing toward the place on the
package where the statement required by
subsection (a) or (b) appears.
(B)(i) In the case of a product to which subsection
(a), subsection (b)(2)(B), subsection (b)(2)(C), or
subsection (b)(2)(D) applies, the statement specified
by this subparagraph is as follows:
[ILLUSTRATION OMITTED]
(ii) In the case of a product to which subsection
(b)(2)(A) applies, the statement specified by this
subparagraph is as follows:
[ILLUSTRATION OMITTED]
[(d)] (e) Treatment as Misbranded Hazardous Substance.--A
balloon, ball, marble, toy, or game, that is not in compliance
with the requirements of this subsection shall be considered a
misbranded hazardous substance under section 2(p).