- (a) Proceedings by Commission for determination
Whenever the Consumer Product Safety Commission finds on the basis of the
investigations or research conducted pursuant to section 1201 of this title 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, 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) Necessary findings; effective date; exemptions
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 Consumer Product Safety 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 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, it may under such conditions as the Commission may prescribe, withdraw, or limit the exemption for such fabric, related material, or product.
- (c) Collection of information by Commission; confidential status of
trade secrets and related information; disclosure of confidential information The Consumer Product Safety 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 it is required or authorized to make pursuant to this chapter. All information reported to or otherwise obtained by the Commission or its representative pursuant to this subsection which information contains or relates to a trade secret or other matter referred to in section 1905 title 18, 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 chapter or when relevant in any proceeding under this chapter. Nothing in this section shall authorize the withholding of information by the Commission or any officer or employee under its control, from the duly authorized committees of the Congress.
- (d) Applicability of section 553 of title 5; oral presentation
Standards, regulations, and amendments to standards and regulations under this
section shall be made in accordance with section 553 of title 5, 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) Judicial review; additional information before Commission; applicability
of sections 701 to 706 of title 5; finality of judgment; survival of action
- (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 Commission or other officer designated by it for that purpose. The Commission thereupon shall file in the court the record of the proceedings on which the Commission based the standard or regulation, as provided in section 2112 of title 28.
- (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 Commission, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the 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 Commission may modify its findings, or make new findings, by reason of the additional evidence so taken, and it shall file such modified or new findings, and its recommendations, if any, for the modification or setting aside of 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 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) of this section 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 this section 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 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.
- (5) Any action instituted under this subsection shall survive, notwithstanding
any change in the persons occupying the office of Commissioner or any vacancy in such office.
- (6) The remedies provided for in this subsection shall be in addition to and
not in substitution for any other remedies provided by law.
- (f) Transcript of proceedings
A certified copy of the transcript of the record and proceedings under
subsection (e) of this section shall be furnished by the Commission to any interested party at its 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 chapter, irrespective of whether proceedings with respect to the standard or regulation or amendment thereto have previously been initiated or become final under subsection (e) of this section.
- (g) Promulgation of regulation; commencement of proceeding; publication
of prescribed notice of proposed rulemaking
A proceeding for the promulgation of a regulation under this section for a
fabric, related material, or product shall be commenced by the publication in the Federal Register of an advance notice of proposed rulemaking which shall -
- (h) Voluntary standard; publication as proposed regulation; prerequisites
for reliance by Commission
- (1) If the Commission determines that any standard submitted to it in
response to an invitation in a notice published under subsection (g)(5) of this section 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) of this section, 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) of this section 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 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) Publication of proposed rule by Commission; preliminary regulatory
analysis; contents; transmission of notice by Commission to Committees 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) of this section, 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) of this section 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) of this section and assisted by the Commission as required by section 2054(a)(3) of this title 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) of this section; 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) Final regulatory analysis; contents; publication; judicial review of
regulation
- (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 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 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) of this section
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) Petition to initiate rulemaking
The Commission shall grant, in whole or in part, or deny any petition under
section 553(e) of title 5 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.