§ 1262. — Declaration of hazardous substances.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC1262]
TITLE 15--COMMERCE AND TRADE
CHAPTER 30--HAZARDOUS SUBSTANCES
Sec. 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.
(Pub. L. 86-613, Sec. 3, July 12, 1960, 74 Stat. 374; Pub. L. 89-756,
Sec. 2(d), (e), Nov. 3, 1966, 80 Stat. 1303, 1304; Pub. L. 91-113,
Sec. 2(b), Nov. 6, 1969, 83 Stat. 187; Pub. L. 92-573, Sec. 30(a), Oct.
27, 1972, 86 Stat. 1231; Pub. L. 97-35, title XII, Sec. 1203(b)(1), Aug.
13, 1981, 95 Stat. 708; Pub. L. 101-608, title I, Secs. 107(b), 108(b),
110(b), Nov. 16, 1990, 104 Stat. 3112, 3113.)
Amendments
1990--Subsec. (g)(2). Pub. L. 101-608, Sec. 108(b), 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. (g)(3). Pub. L. 101-608, Sec. 107(b), added par. (3).
Subsec. (j). Pub. L. 101-608, Sec. 110(b), added subsec. (j).
1981--Subsecs. (f) to (i). Pub. L. 97-35 added subsecs. (f) to (i).
1969--Subsec. (e). Pub. L. 91-113 added subsec. (e).
1966--Subsec. (b). Pub. L. 89-756, Sec. 2(d), substituted ``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'' for ``any container of such hazardous substance, intended or
suitable for household use, which fails to bear a label in accordance
with such regulations shall be deemed to be a misbranded package of a
hazardous substance''.
Subsec. (d). Pub. L. 89-756, Sec. 2(e), inserted ``hazardous
substance or'' before ``container of a hazardous substance''.
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 25 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 as a note under section 2052 of
this title.
Effective Date of 1969 Amendment
Amendment by Pub. L. 91-113 effective on sixtieth day following Nov.
6, 1969, see section 5 of Pub. L. 91-113, set out as a note under
section 1261 of this title.
Transfer of Functions
``Commission'' substituted for ``Secretary'', ``Commission's'' for
``Secretary's'', ``it'' for ``he'', and ``it'' or ``its'' for ``him''
wherever appearing in subsecs. (a) to (e) pursuant to section 30(a) of
Pub. L. 92-573, which is classified to section 2079(a) of this title and
which transferred functions of Secretary of Health, Education, and
Welfare under this chapter to Consumer Product Safety Commission.
National Commission on Product Safety
Pub. L. 90-146, Nov. 20, 1967, 81 Stat. 466, as amended by Pub. L.
91-51, Aug. 4, 1969, 83 Stat. 86, established a National Commission on
Product Safety to study and investigate the scope and adequacy of
measures to protect consumers against unreasonable risk of injuries
which may be caused by hazardous household products and required the
Commission to transmit its final report to the President and to the
Congress by June 30, 1970. Ninety days after submission of its final
report the Commission ceased to exist by the express terms of Pub. L.
90-146.
Section Referred to in Other Sections
This section is referred to in sections 1261, 1275, 1276, 1277 of
this title.
