|
U.S. Code as of:
01/19/04
Section 1262. Declaration of hazardous substances
(a) Declaration of hazardous substances by regulation; review
(1) Whenever in the judgment of the Commission such action will
promote the objectives of this chapter 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
chapter, any substance or mixture of substances which it finds
meets the requirements of subparagraph (1)(A) of section 1261(f) of
this title.
(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 section 371(e), (f), and
(g) of title 21, except that -
(A) the Commission's order after public hearing (acting upon
objections filed to an order made prior to hearing) shall be
subject to the requirements of section 348(f)(2) of title 21; 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 348(g) of title 21.
(b) Reasonable variations or additional label requirements
If the Commission finds that the requirements of section
1261(p)(1) of this title are not adequate for the protection of the
public health and safety in view of the special hazard presented by
any particular hazardous substance, it may by regulation establish
such reasonable variations or additional label requirements as 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) Exemption from requirements by regulation
If the 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 chapter is impracticable or is not necessary for the
adequate protection of the public health and safety, the Commission
shall promulgate regulations exempting such substance from these
requirements to the extent it determines to be consistent with
adequate protection of the public health and safety.
(d) Exemption from requirements of this chapter of substances or
containers adequately regulated by other provisions of law
The Commission may exempt from the requirements established by or
pursuant to this chapter any hazardous substance or container of a
hazardous substance with respect to which it finds that adequate
requirements satisfying the purposes of this chapter have been
established by or pursuant to any other Act of Congress.
(e) Regulation of toys or articles intended for use by children
(1) A determination by the 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 unless
the Commission elects the procedures prescribed by subsection (e)
of section 371 of title 21, in which event such subsection and
subsections (f) and (g) of such section 371 of title 21 shall apply
to the making of such determination. If the Commission makes such
election, 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 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 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 chapter
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 Commission, in accordance
with section 553 of title 5, 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
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 Commission or other officer designated by it for
that purpose. The Commission shall file in the court the record of
the proceedings on which the Commission based its determination, as
provided in section 2112 of title 28.
(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
Commission, the court may order such additional evidence (and
evidence in rebuttal thereof) to be taken before the Commission in
a hearing or in such other manner, and upon such terms and
conditions, as to the court may seem proper. The Commission may
modify its findings as to the facts, or make new findings, by
reason of the additional evidence so taken, and it shall file such
modified or new findings, and its recommendation, if any, for the
modification or setting aside of 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
Commission in accordance with subparagraphs (A), (B), (C), and (D),
of paragraph (2) of the second sentence of section 706 of title 5.
If the court ordered additional evidence to be taken under
subparagraph (B) of this paragraph, the court shall also review the
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
title 5.
(D) The judgment of the court affirming or setting aside, in
whole or in part, any such determination 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.
(f) Commencement of proceeding for promulgation of regulation;
notice
A proceeding for the promulgation of a regulation under section
1261(q)(1) of this title classifying an article or substance as a
banned hazardous substance or a regulation under subsection (e) of
this section shall 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 1261(q)(1) of this title 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) Publication of standard; termination of proceeding for
promulgation of regulation; monitoring of compliance
(1) If the Commission determines that any standard submitted to
it in response to an invitation in a notice published under
subsection (f)(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 under
section 1261(q)(1) of this title or subsection (e) of this section,
as the case may be, would eliminate or adequately reduce the risk
of injury identified in the notice provided under subsection (f)(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 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) 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 under section 1261(q)(1) of this title 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) Publication of proposed rule together with preliminary
regulatory analysis
No regulation under section 1261(q)(1) of this title 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) 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 (f)(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
(f)(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 (f)(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.
(i) Publication of final regulatory analysis with regulation;
required findings; judicial review
(1) The Commission shall not promulgate a regulation under
section 1261(q)(1) of this title 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 1261(q)(1) of this title 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) 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.
(j) 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.
|
|