§ 1193. — Flammability standards or regulations.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC1193]
TITLE 15--COMMERCE AND TRADE
CHAPTER 25--FLAMMABLE FABRICS
Sec. 1193. Flammability standards or regulations
(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--
(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.\1\
---------------------------------------------------------------------------
\1\ So in original. Probably should be ``regulation; 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.
(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.
(June 30, 1953, ch. 164, Sec. 4, 67 Stat. 112; Aug. 23, 1954, ch. 833,
68 Stat. 770; Pub. L. 90-189, Sec. 3, Dec. 14, 1967, 81 Stat. 569; Pub.
L. 92-573, Sec. 30(b), Oct. 27, 1972, 86 Stat. 1231; Pub. L. 94-284,
Sec. 20(a), May 11, 1976, 90 Stat. 515; Pub. L. 97-35, title XII,
Sec. 1203(b)(2), Aug. 13, 1981, 95 Stat. 711; Pub. L. 101-608, title I,
Secs. 107(c), 108(c), 110(c), Nov. 16, 1990, 104 Stat. 3112-3114.)
Amendments
1990--Subsec. (h)(2). Pub. L. 101-608, Sec. 108(c), struck out
period at end and inserted ``, 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.''
Subsec. (h)(3). Pub. L. 101-608, Sec. 107(c), added par. (3).
Subsec. (k). Pub. L. 101-608, Sec. 110(c), added subsec. (k).
1981--Subsecs. (g) to (j). Pub. L. 97-35 added subsecs. (g) to (j).
1976--Subsec. (d). Pub. L. 94-284, Sec. 20(a)(1), provided that
standards, regulations, and amendments made thereto, be made in
accordance with section 553 of title 5, except that oral presentation be
available with a transcript of such oral presentation kept.
Subsec. (e)(3). Pub. L. 94-284, Sec. 20(a)(2), provided that the
court not affirm a standard or regulation unless the findings of the
Secretary are supported by substantial evidence on the record.
1967--Pub. L. 90-189 revised section generally to achieve greater
flexibility in the promulgation of flammability standards by
substituting provisions authorizing the Secretary of Commerce to issue
standards of flammability or regulations (including labeling) for
fabrics, related materials or products after observing certain specified
procedural requirements for provisions which prescribed certain fixed
standards of flammability which could be updated only by legislation.
1954--Subsec. (c). Act Aug. 23, 1954, added subsec. (c).
Change of Name
Committee on Energy and Commerce of House of Representatives treated
as referring to Committee on Commerce of House of Representatives by
section 1(a) of Pub. L. 104-14, set out as a note preceding section 21
of Title 2, The Congress. Committee on Commerce of House of
Representatives changed to Committee on Energy and Commerce of House of
Representatives, and jurisdiction over matters relating to securities
and exchanges and insurance generally transferred to Committee on
Financial Services of House of Representatives by House Resolution No.
5, One Hundred Seventh Congress, Jan. 3, 2001.
Effective Date of 1981 Amendment
Amendment by Pub. L. 97-35 applicable with respect to regulations
under this chapter and chapters 30 and 47 of this title for which
notices of proposed rulemaking are issued after Aug. 14, 1981, see
section 1215 of Pub. L. 97-35, set out a note under section 2052 of this
title.
Effective Date of 1976 Amendment
Section 20(b) of Pub. L. 94-284 provided that: ``The amendments made
by subsection (a) [amending this section] shall apply with respect to
standards, regulations, and amendments to standards and regulations,
under section 4 of the Flammable Fabrics Act [this section] the
proceedings for the promulgation of which were begun after the date of
the enactment of this Act [May 11, 1976].''
Transfer of Functions
``Consumer Product Safety Commission'' substituted for ``Secretary
of Commerce'', ``Commission'' substituted for ``Secretary'', ``it''
substituted for ``he'', and ``its'' substituted for ``his'' wherever
appearing in subsecs. (a) to (f) except in subsec. (e)(5), where
``persons occupying the office of Commissioner'' was substituted for
``person occupying the office of Secretary'', pursuant to section 30(b)
of Pub. L. 92-573, which is classified to section 2079(b) of this title
and which transferred functions of Secretary of Health, Education, and
Welfare, Secretary of Commerce, and Federal Trade Commission under this
chapter to Consumer Product Safety Commission.
Section Referred to in Other Sections
This section is referred to in sections 1192, 1194, 1197, 1200, 1204
of this title.
