Federal Hazardous Substances Act (15 U.S.C 1261-1278a)

1 1 So in law. There is no paragraph (d). FEDERAL HAZARDOUS SUBSTANCES ACT [Public Law 86–613, 74 Stat. 372, July 12, 1960] [As amended through Public Law 110–314, Enacted August 14, 2008] AN ACT To regulate the interstate distribution and sale of packages of hazardous substances intended or suitable for household use. SHORT TITLE SECTION 1. ø15 U.S.C. 1261 note¿ This Act may be cited as the ‘‘Federal Hazardous Substances Act’’. DEFINITIONS SEC. 2. ø15 U.S.C. 1261¿ 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 Com monwealth of Puerto Rico but excluding the Canal Zone. (b) The term ‘‘interstate commerce’’ means (1) commerce be tween 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) 1 The term ‘‘Commission’’ means the Consumer Product Safety Commission. (e) The term ‘‘person’’ includes an individual, partnership, cor poration, 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 sen sitizer, (v) is flammable or combustible, or (vi) generates pres sure through decomposition, heat, or other means, if such sub stance or mixture of substances may cause substantial per sonal injury or substantial illness during or as a proximate re sult of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children. (B) Any substances which the Commission by regulation finds, pursuant to the provisions of section 3(a), meet the re quirements of subparagraph 1(A) of this paragraph. (C) Any radioactive substance, if, with respect to such sub stance as used in a particular class of article or as packaged, the 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 Commission by regulation determines, in accordance VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00001 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 2 Sec. 2 FEDERAL HAZARDOUS SUBSTANCES ACT 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 pes ticides 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 sub paragraph 1 of this paragraph by reason of bearing or con taining such an economic poison. 3. The term ‘‘hazardous substance’’ shall not include any source material, special nuclear material, or byproduct mate rial 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 hun dred and three hundred grams, when inhaled continuously for a pe riod 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) pro duces 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 mil ligrams 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 Commission finds that available data on human expe rience with any substance indicate results different from those ob tained 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 ac tion; but shall not refer to action on inanimate surfaces. (j) The term ‘‘irritant’’ means any substance not corrosive with in the meaning of subparagraph (i) which on immediate, prolonged, or repeated contact with normal living tissue will induce a local in flammatory reaction. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00002 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 3 Sec. 2 FEDERAL HAZARDOUS SUBSTANCES ACT (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 Com mission. Before designating any substance as a strong sensitizer, the Commission, upon consideration of the frequency of occurrence and severity of the reaction, shall find that the substance has a sig nificant potential for causing hypersensitivity. (l)(1) The terms ‘‘extremely flammable’’, ‘‘flammable’’, and ‘‘combustible’’ as applied to any substance, liquid, solid, or the con tent 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 charac teristics of any such substance shall also be specified in such regu lations. (3) In establishing definitions and test methods related to flam mability and combustibility, the Commission shall consider the ex isting definitions and test methods of other Federal agencies in volved 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 arti cle involved or upon a tag or other suitable material affixed there to; and a requirement made by or under authority of this Act that any word, statement, or other information appear 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 out side 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 haz ardous substance (including a toy, or other article intended for use by children, which is a hazardous substance, or which bears or con tains 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 sub VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00003 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 4 Sec. 2 FEDERAL HAZARDOUS SUBSTANCES ACT 2 Comma omitted in law. stance, 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 2 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 Commission by regulation permits or requires the use of a recognized generic name; (C) the signal word ‘‘DAN GER’’ on substances which are extremely flammable, corrosive, or highly toxic, (D) the signal word ‘‘WARNING’’ or ‘‘CAU TION’’ on all other hazardous substances; (E) an affirmative statement of the principal hazard or hazards, such as ‘‘Flam mable’’, ‘‘Combustible,’’‘‘Vapor Harmful’’, ‘‘Causes Burns’’, ‘‘Ab sorbed 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 Commission pursuant to section 3; (G) instruction, when nec essary 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 in tended for use by children and is not a banned hazardous sub stance, 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 house hold substance as defined in section 2(2)(D) of the Poison Preven tion Packaging Act of 1970 if it is a substance described in para graph 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 haz ardous substance, or which bears or contains a hazardous sub stance 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 Commission by regulation classifies as a ‘‘banned hazardous substance’’ on the basis of a finding that, not withstanding such cautionary labeling as is or may be required under this Act for that substance, the degree or nature of the haz ard 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 VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00004 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 5 Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT commerce: Provided, That the 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 inclu sion 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 in tended 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 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 regu lations pursuant to clause (B) of subparagraph (1) of this para graph shall be governed by the provisions of subsections (f) through (i) of section 3 of this Act, except that if the Commission finds that the distribution for household use of the hazardous substance in volved presents an imminent hazard to the public health, it may by order published in the Federal Register give notice of such find ing, 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 regula tions. (r) An article may be determined to present an electrical haz ard if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture may cause personal in jury or illness by electric shock. (s) An article may be determined to present a mechanical haz ard if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreason able risk of personal injury or illness (1) from fracture, fragmenta tion, or disassembly of the article, (2) from propulsion of the article (or any part or accessory thereof), (3) from points or other protru sions, 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) be cause the article (or any part or accessory thereof) may be aspi rated 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 dam age 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 SEC. 3. ø15 U.S.C. 1262¿ (a) RULEMAKING.— (1) IN GENERAL.—Whenever in the judgment of the Com mission such action will promote the objectives of this Act by avoiding or resolving uncertainty as to its application, the VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00005 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 6 Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT Commission may by regulation declare to be a hazardous sub stance, 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, amend ment, or repeal of regulations under this subsection and the admissibility of the record of such proceedings in other pro ceedings, shall be governed by the provisions of subsections (f) through (i) of this section. (b) If the 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, it may by regulation establish such reason able variations or additional label requirements as it finds nec essary 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 mis branded hazardous substance. (c) 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 rea sons, full compliance with the labeling requirements otherwise ap plicable under this Act is impracticable or is not necessary for the adequate protection of the public health and safety, the Commis sion 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) The Commission may exempt from the requirements estab lished by or pursuant to this Act any hazardous substance or con tainer of a hazardous substance with respect to which 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 Commission that a toy or other article intended for use by children presents an electrical, mechan ical, 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 Commission elects the proce dures 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 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 elec trical, 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 no tice 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 VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00006 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 7 Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT 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 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 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 deter mination. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Commission or other officer designated by him for that purpose. The Commission shall file in the court the record of the proceedings on which the Commission based its deter mination, 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 ad ditional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there was no oppor tunity to adduce such evidence in the proceeding before the Com mission, the court may order such additional evidence (and evi dence in rebuttal thereof) to be taken before the Commission in a hearing or in such other manner, and upon such terms and condi tions, as to the court may seem proper. The Commission may mod ify 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 of the United States Code. If the court ordered additional evi dence to be taken under subparagraph (B) of this paragraph, the court shall also review the Secretary’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 deter mination reviewed under this paragraph, the court may grant ap propriate 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 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 sec tion 2(q)(1) classifying an article or substance as a banned haz ardous substance or a regulation under subsection (e) of this sec tion may be commenced by the publication in the Federal Register of an advance notice of proposed rulemaking which shall— VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00007 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 8 Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT (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 alter natives under consideration by the Commission (including vol untary standards); (3) include information with respect to any existing stand ard 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 no tice (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 pos sible alternatives for addressing the risk; (5) invite any person (other than the Commission) to sub mit 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 sub mit 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 ad dress 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 sub mitted to it in response to an invitation in a notice published under subsection (f)(5) if promulgated (in whole, in part, or in combina tion 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 a notice pro vided under subsection (f)(1), the Commission may publish such standard, in whole, in part, or in such combination and with non material 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 re sponse 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, VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00008 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 9 Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT the Commission shall terminate any proceeding to promulgate a regulation under section 2(q)(1) or subsection (e) of this section, re specting such risk of injury and shall publish in the Federal Reg ister 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 exist ence. For purposes of this section, a voluntary standard shall be considered to be in existence when it is finally approved by the or ganization or other person which developed such standard, irre spective of the effective date of the standard. Before relying upon any voluntary standard, the Commission shall afford interested persons (including manufacturers, consumers, and consumer orga nizations) a reasonable opportunity to submit written comments re garding such standard. The Commission shall consider such com ments in making any determination regarding reliance on the in volved voluntary standard under this subsection. (3) The Commission shall devise procedures to monitor compli ance with any voluntary standards— (A) upon which the Commission has relied under para graph (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 Com mission 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 bene fits 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 pre liminary 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 develop ment of a voluntary standard that would eliminate or ade quately reduce the risk of injury identified in the notice pro vided under subsection (f)(1); and (4) a description of any reasonable alternatives to the pro posed 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 regu lation. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00009 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 10 Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT The Commission shall transmit such notice within 10 calendar days to the appropriate Congressional committees. Nothing in this subsection shall preclude any person from submitting an existing standard or portion of a standard as a proposed regulation. (i)(1) The Commission shall not promulgate a regulation under section 2(q)(1) classifying an article or substance as a banned haz ardous substance or a regulation under subsection (e) of this sec tion unless it has prepared a final regulatory analysis of the regu lation 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 com ments 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 haz ardous substance or a regulation under subsection (e) of this sec tion 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 compli ance 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 re quirement which prevents or adequately reduces the risk of in jury 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 in stituted, the contents of any such regulatory analysis shall con stitute part of the whole rulemaking record of agency action in con nection with such review. (B) The provisions of subparagraph (A) shall not be construed to alter the substantive or procedural standards otherwise applica ble 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, re questing the Commission to initiate a rulemaking, within a reason VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00010 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 11 Sec. 4 FEDERAL HAZARDOUS SUBSTANCES ACT able time after the date on which such petition is filed. The Com mission shall state the reasons for granting or denying such peti tion. The Commission may not deny any such petition on the basis of a voluntary standard unless the voluntary standard is in exist ence 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 compli ance with the standard. PROHIBITED ACTS SEC. 4. ø15 U.S.C. 1263¿ 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 haz ardous substance. (b) The alteration, mutilation, destruction, obliteration, or re moval 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 sub stance 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 sub stance. (c) The receipt in interstate commerce of any misbranded haz ardous 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 sec tion 5(b)(2) which guarantee or undertaking is false, except by a person who relied upon a guarantee or undertaking to the same ef fect 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 con tainer which, though not a reused container, is identifiable as a food, drug, or cosmetic container by its labeling or by other identi fication. The reuse of a food, drug, or cosmetic container as a con tainer for a hazardous substance shall be deemed to be an act which results in the hazardous substance being a misbranded haz ardous substance. As used in this paragraph, the terms ‘‘food’’, ‘‘drug’’, and ‘‘cosmetic’’ shall have the same meaning as in the Fed eral 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 Commission or officers or employees of the Com VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00011 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 12 Sec. 5 FEDERAL HAZARDOUS SUBSTANCES ACT 3 Section 217(a)(2)(A) and (B) of Public Law 110–314 provides for amendments to section 5(c)(1) as follows: (A) by striking ‘‘$5,000’’ in paragraph (1) and inserting ‘‘$100,000’’; (B) by striking ‘‘$1,250,000’’ both places it appears and inserting ‘‘$15,000,000’’; and Paragraph (4) of section 217(a) of such Public Law reads as follows: mission, or to the courts when relevant in any judicial proceeding under this Act, of any information acquired under authority of sec tion 11 concerning any method of process which as a trade secret is entitled to protection. (i) The failure to notify the Commission with respect to ex ports, 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 SEC. 5. ø15 U.S.C. 1264¿ (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 5 years, a fine determined under section 3571 of title 18, United States Code, or both. (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, de livery, 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 Commission, the name and ad dress of the person from whom he purchased or received such haz ardous substance, and copies of all documents, if any there be, per taining to the delivery of the hazardous substance to him; or (2) for having violated section 4(a), if he establishes a guarantee or under taking signed by, and containing the name and address of, the per son residing in the United States from whom he received in good faith the hazardous substance, to the effect that the hazardous sub stance is not a misbranded hazardous substance or a banned haz ardous 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 sub stance is sold or offered for sale in domestic commerce or if the Commission determines that exportation of such substance pre sents an unreasonable risk of injury to persons residing within the United States, 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 3 for each such viola VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00012 Fmt 9001 Sfmt 5601 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 13 Sec. 5 FEDERAL HAZARDOUS SUBSTANCES ACT (4) EFFECTIVE DATE.—The amendments made by this subsection shall take effect on the date that is the earlier of the date on which final regulations are issued under subsection (b)(2) or 1 year after the date of enactment of this Act. tion. 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 3 for any related series of violations. A violation of section 4(e) shall constitute a sep arate 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 sepa rate offense, except that the maximum civil penalty shall not ex ceed $1,250,000 3 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 viola tion of section 4, the Commission shall consider the nature, cir cumstances, extent, and gravity of the violation, including the na ture of the substance, the severity of the risk of injury, the occur rence or absence of injury, the amount of the substance distributed, the appropriateness of such penalty in relation to the size of the business of the person charged, including how to mitigate undue adverse economic impacts on small businesses, and such other fac tors as appropriate. (4) Any civil penalty under this subsection may be com promised 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 na ture of the substance involved, the severity of the risk of injury, the occurrence or absence of injury, and the amount of the substance distributed, and such other factors as appropriate. 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, including how to mitigate undue ad verse economic impacts on small businesses, the nature, cir cumstances, extent, and gravity of the violation, including. (5) As used in the first sentence of paragraph (1), the term ‘‘knowingly’’ means (A) having actual knowledge, or (B) the pre sumed having of knowledge deemed to be possessed by a reason able person who acts in the circumstances, including knowledge ob tainable upon the exercise of due care to ascertain the truth of rep resentations. (6)(A) The maximum penalty amounts authorized in paragraph (1) shall be adjusted for inflation as provided in this paragraph. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00013 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 14 Sec. 6 FEDERAL HAZARDOUS SUBSTANCES ACT 4 Section 217(a)(2)(C) of Public Law 110–314 amends ‘‘[s]ection 5(c)(1)...by striking ‘December 1, 1994,’ in paragraph (3)(B) and inserting ‘December 1, 2011,’ ’’. See effective date for the amendment provided in paragraph (4) in a footnote to paragraph (1) of section 5(c). The ref erence to paragraph (1) in the amendment instruction probably should not appear. (B) Not later than December 1, 1994, 5 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 para graph (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 Depart ment 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 pen alty was last adjusted. (d) In the case of an attorney general of a State alleging a vio lation that affects or may affect such State or its residents, such attorney general may bring a civil action for an injunction to en force 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 SEC. 6. ø15 U.S.C. 1265¿ (a) Any misbranded hazardous sub stance 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 inter state commerce, or which has been manufactured in violation of section 4(g), shall be liable to be proceeded against while in inter state 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: Pro vided, That this section shall not apply to a hazardous substance intended for export to any foreign country if it (1) is in a package VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00014 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 15 Sec. 6 FEDERAL HAZARDOUS SUBSTANCES ACT branded in accordance with the specifications of the foreign pur chaser, (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 proc ess pursuant to the libel, and the procedure in cases under this sec tion shall conform, as nearly as may be, to the procedure in admi ralty; except that on demand of either party any issue of fact joined in any such case shall be tried by jury. When libel for condemna tion 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 at torney 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 con trary to the provisions of this Act or the laws of the jurisdiction in which sold: Provided, That, after entry of the decree and upon pay ment 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 em ployee duly designated by the 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 haz ardous substance, court costs and fees, and storage and other prop er expenses, shall be awarded against the person, if any, inter vening as claimant of the hazardous substance. (e) In the case of removal for trial of any case as provided by subsection (b)— VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00015 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 16 Sec. 7 FEDERAL HAZARDOUS SUBSTANCES ACT (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 SEC. 7. ø15 U.S.C. 1266¿ Before any violation of this Act is re ported by the Commission to any United States attorney for insti tution of a criminal proceeding, the person against whom such pro ceeding 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. INJUNCTIONS SEC. 8. ø15 U.S.C. 1267¿ (a) The United States district courts and the United States courts of the territories shall have jurisdic tion, for cause shown and subject to the provisions of rule 65 (a) and (b) of the Federal Rules of Civil Procedure, to restrain viola tions of this Act. (b) In any proceeding for criminal contempt for violation of an injunction or restraining order issued under this section, which vio lation also constitutes a violation of this Act, trial shall be by the court or, upon demand of the accused, by a jury. Such trial shall be conducted in accordance with the practice and procedure appli cable in the case of proceedings subject to the provisions of rule 42(b) of the Federal Rules of Criminal Procedure. STYLE OF ENFORCEMENT PROCEEDINGS—SUBPOENAS SEC. 9. ø15 U.S.C. 1268¿ All criminal proceedings and all libel or injunction proceedings for the enforcement, or to restrain viola tions, of this Act shall be by and in the name of the United States. Subpoenas for witnesses who are required to attend a court of the United States in any district may run into any other district in any such proceeding. REGULATIONS SEC. 10. ø15 U.S.C. 1269¿ (a) The authority to promulgate reg ulations for the efficient enforcement of this Act, except as other wise provided in this section, is hereby vested in the Commission. (b) The Secretary of the Treasury and the 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 Commission shall determine. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00016 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 17 Sec. 12 FEDERAL HAZARDOUS SUBSTANCES ACT EXAMINATIONS AND INVESTIGATIONS SEC. 11. ø15 U.S.C. 1270¿ (a) The Commission is authorized to conduct examinations, inspections, and investigations for the pur poses of this Act through officers and employees of the Commission or through any health officer or employee of any State, territory, or political subdivision thereof, duly commissioned by the Commis sion as an officer of the Commission. (b) For purposes of enforcement of this Act, officers or employ ees duly designated by the Commission, upon presenting appro priate 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 sub stances are manufactured, processed, packed, or held for introduc tion into interstate commerce or are held after such introduction, or to enter any vehicle being used to transport or hold such haz ardous substances in interstate commerce; (2) to inspect, at reason able times and within reasonable limits and in a reasonable man ner, such factory, warehouse, establishment, or vehicle, and all per tinent 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 leav ing 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 SEC. 12. ø15 U.S.C. 1271¿ For the purpose of enforcing the pro visions 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 re quest of an officer or employee duly designated by the Commission, permit such officer or employee, at reasonable times, to have access to and to copy all records showing the movement in interstate com merce of any such hazardous substance, or the holding thereof dur ing or after such movement, and the quantity, shipper, and con signee thereof; and it shall be unlawful for any such carrier or per son 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 pros ecution 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. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00017 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 18 Sec. 13 FEDERAL HAZARDOUS SUBSTANCES ACT PUBLICITY SEC. 13. ø15 U.S.C. 1272¿ (a) The Commission may cause to be published from time to time reports summarizing any judg ments, decrees, or court orders which have been rendered under this Act, including the nature of the charge and the disposition thereof. (b) The Commission may also cause to be disseminated infor mation regarding hazardous substances in situations involving, in the opinion of the Commission, imminent danger to health. Noth ing in this section shall be construed to prohibit the Commission from collecting, reporting, and illustrating the results of the inves tigations of the Commission. IMPORTS AND EXPORTS SEC. 14. ø15 U.S.C. 1273¿ (a) The Secretary of the Treasury shall deliver to the Commission, upon its request, samples of haz ardous substances which are being imported or offered for import into the United States, giving notice thereof to the owner or con signee, who may appear before the 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 mis branded hazardous substance or banned hazardous substance or in violation of section 4(f), then such hazardous substance shall be re fused admission, except as provided in subsection (b) of this sec tion. The Secretary of the Treasury shall cause the destruction of any such hazardous substance refused admission unless such haz ardous 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 sub stance 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 dam ages in the event of default as may be required pursuant to regula tions of the Secretary of the Treasury. If it appears to the Commis sion that the hazardous substance can, by relabeling or other ac tion, 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 of a bond as provided in the preceding provi sions of this subsection, the Secretary may, in accordance with reg ulations, 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 authorization). All such re labeling or other action pursuant to such authorization shall, in ac cordance with regulations, be under the supervision of an officer or employee of the Commission designated by the Secretary, or an of ficer or employee of the Department of the Treasury designated by the Secretary of the Treasury. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00018 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 19 Sec. 15 FEDERAL HAZARDOUS SUBSTANCES ACT (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 con signee 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 for eign country any misbranded hazardous substance or banned haz ardous substance, such person shall file a statement with the Com mission 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 ex ported, and shall contain such other information as the Commis sion may by regulation require. Upon petition filed with the Com mission by any person required to file a statement under this sub section respecting an exportation, the Commission may, for good cause shown, exempt such person from the requirement of this sub section that such a statement be filed no less than thirty days be fore 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 SEC. 15. ø15 U.S.C. 1274¿ (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 de termines (after affording interested persons, including consumers and consumer organizations, an opportunity for a hearing) that no tification is required to adequately protect the public from such ar ticle 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 manufac turer, 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 VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00019 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 20 Sec. 15 FEDERAL HAZARDOUS SUBSTANCES ACT time of its sale) and the Commission determines (after affording in terested persons, including consumers and consumer organizations, an opportunity for a hearing) that action under this subsection is in the public interest, the Commission may order the manufac turer, distributor, or dealer to take whichever of the following ac tions 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 haz ardous 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 sub stance, 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, distrib uting in commerce, or importing into the customs territory of the United States (as defined in general note 2 of the Harmonized Tar iff Schedule of the United States), or from doing any combination of such actions, with respect to the article or substance with re spect to which the order was issued. (c)(1) If the Commission determines (after affording interested persons, including consumers and consumer organizations, an op portunity 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 pat tern of defect the number of defective toys or such articles distrib uted 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 manufac turer, distributor, or dealer of such toy or article. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00020 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 21 Sec. 15 FEDERAL HAZARDOUS SUBSTANCES ACT (C) To mail such notice to every person to whom the per son 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 op portunity 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 pat tern of defect, the number of defective toys or such articles distrib uted in commerce, the severity of the risk, or otherwise) and that action under this paragraph is in the public interest, the Commis sion 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 sub stantial 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 con tains a defect which creates a substantial risk of injury to chil dren, 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 Commis sion shall specify which person has the election under this para graph. An order under this paragraph may prohibit the person to whom it applies from manufacturing for sale, offering for sale, dis tributing 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 combina tion 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 in curred by such person in availing himself of such remedy. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00021 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 22 Sec. 16 FEDERAL HAZARDOUS SUBSTANCES ACT 5 Designation so in law. Subsections (a) and (b) of section 17 probably should have been para graphs (1) and (2). (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 man ufacturer, 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 deter mines 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 deter mines 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 hear ing 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’’ in cludes an importer for resale, and (2) a dealer who sells at whole sale an article or substance shall with respect to that sale be con sidered 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 distrib uted 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 pro viding notification or taking other action under this section with the benefits from such notification or action. SEPARABILITY CLAUSE SEC. 16. ø15 U.S.C. 1261 note¿ If any provision of this Act is declared unconstitutional, or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remain der of the Act and the applicability thereof to other persons and cir cumstances shall not be affected thereby. TIME OF TAKING EFFECT SEC. 17. ø15 U.S.C. 1261 note¿ 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) 5 prior to the expiration of the sixth calendar month after the month in which this Act is enacted, or (b) 5 prior to the expiration of such additional period or pe riods, ending not more than eighteen months after the month of enactment of this Act, as the 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 Commission may limit the application of such addi tional period or periods to violations related to specified provi sions of this Act, or to specified kinds of hazardous substances or packages thereof. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00022 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 23 Sec. 18 FEDERAL HAZARDOUS SUBSTANCES ACT EFFECT UPON FEDERAL AND STATE LAW SEC. 18. ø15 U.S.C. 1261 note¿ (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 pro mulgated thereunder, or under sections 204(a)(2) and 204(a)(3) of the Interstate Commerce Act, as amended (relating to the transpor tation 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 sub stances); 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 Fed eral 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 phar macy 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 haz ardous substance or its packaging is subject to a cautionary label ing 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 sub stance 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 en forcement of section 2(q) a requirement is established to protect against a risk of illness or injury associated with a hazardous sub stance, 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 ef fect 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 pack aging) 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 accord ance with subparagraph (B), exempt from paragraph (1), under VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00023 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 24 Sec. 19 FEDERAL HAZARDOUS SUBSTANCES ACT such conditions as may be prescribed in such regulation, any re quirement of such State or political subdivision designed to protect against a risk of illness or injury associated with a hazardous sub stance 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) pro vides a significantly higher degree of protection from such risk of illness or injury than the requirement described in para graph (1), and (II) does not unduly burden interstate com merce. In determining the burden, if any, of a State or political subdivi sion 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 feasi bility of complying with such requirement, the cost of complying with such requirement, the geographic distribution of the sub stance 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 exemp tion 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, no tice with respect to the promulgation of the regulation and has pro vided 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 re quirement 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 ill ness or injury than a requirement in effect under a regulation of the Commission described in such paragraph. REPEAL OF FEDERAL CAUSTIC POISON ACT SEC. 19. ø15 U.S.C. 401 note¿ The Federal Caustic Poison Act (44 Stat. 1406) is repealed effective at the close of the sixth cal endar 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 sub stance’’ as defined in this Act: Provided, That, if the Commission, pursuant to section 17(b) of this Act, prescribes an additional pe riod or periods during which violations of this Act shall not be en forceable 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 VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00024 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 25 Sec. 20 FEDERAL HAZARDOUS SUBSTANCES ACT Poison Act, that Act shall, with respect to such substance or sub stances, remain in full force and effect during such additional pe riod 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 pe riod 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 ap peals. TOXICOLOGICAL ADVISORY BOARD SEC. 20. ø15 U.S.C. 1275¿ (a)(1) Within 180 days after the date of the enactment of this section, the Commission shall establish, in accordance with subsection (b), a Toxicological Advisory Board (hereinafter in this section referred to as the ‘‘Board’’) to advise the Commission on precautionary labeling for hazardous substances. The Board shall provide scientific and technical advice to the Com mission concerning— (A) proper labeling under sections 2(p)(1) and 3(b), with special attention to— (i) the description of precautionary measures required under section 2(p)(1)(F); (ii) the statement describing the hazards associated with a hazardous substance as required under section 2(p)(1)(E); and (iii) instructions for first-aid treatment under section 2(p)(1)(G); and (B) the exemption of certain substances from labeling re quirements under this Act as permitted under section 3(c). (2) In carrying out its duties under paragraph (1)(A), the Board shall review any labeling requirements or guidelines which have been established by the Commission under section 2(p)(1) or 3(b). Based upon its review the Board shall develop and submit to the Commission, within one year after the date that the Board is estab lished, any recommendations for revisions in such labeling require ments or guidelines which the Board considers to be appropriate, including any general recommendations which may be of assistance to the Commission in carrying out its responsibilities under section 2(p)(1) or section 3(b). The Board shall periodically review the la beling requirements and guidelines established by the Commission under such sections to determine whether such requirements and guidelines reflect relevant changes in scientific knowledge and shall revise any general recommendations submitted to the Com mission under this paragraph to reflect such changes. (b)(1) The Board shall be composed of nine members appointed by the Commission. Each member of the Board shall be qualified by training and experience in one or more fields applicable to the duties of the Board and at least three of the members of the Board shall be members of the American Board of Medical Toxicology. The Chairman of the Board shall be elected by the Board from among its members. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00025 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 26 Sec. 21 FEDERAL HAZARDOUS SUBSTANCES ACT (2) The members of the Board shall be appointed for terms of three years. Members of the Board may be reappointed. (3) Any vacancy in the Board shall be filled in the same man ner in which the original appointment was made. Any member ap pointed to fill a vacancy occurring before the expiration of the term for which his predecessor was appointed shall serve only for the re mainder of such term. (4) The Board shall meet at such times and places as may be designated by the Commission on consultation with the Chairman, but not less than two times each year. (5) Members of the Board who are not officers or employees of the United States shall, while attending meetings or conferences of the Board or while otherwise engaged in the business of the Board, be entitled to receive compensation at a rate fixed by the Commis sion, not exceeding the daily equivalent of the annual rate of basic pay payable for grade GS–18 of the General Schedule under section 5332 of title 5, United States Code. While away from their homes or regular places of business, such members may be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed under section 5703(b) of such title. Individuals serving as members on the Board shall not be considered officers or employees of the United States by reason of receiving payments under this paragraph. (c) The Board shall terminate on the date six years after the date it is established under this section. CONGRESSIONAL VETO OF REGULATIONS SEC. 21. ø15 U.S.C. 1276¿ (a) The Commission shall transmit to the Secretary of the Senate and the Clerk of the House of Rep resentatives a copy of any regulation promulgated by the Commis sion under section 2(q)(1) or subsection (e) of section 3. (b) Any regulation specified in subsection (a) shall not take ef fect if— (1) within the ninety calendar days of continuous session of the Congress which occur after the date of the promulgation of such regulation, both Houses of the Congress adopt a con current resolution, the matter after the resolving clause of which is as follows (with the blank spaces appropriately filled): ‘‘That the Congress disapproves the regulation which was pro mulgated under the Federal Hazardous Substances Act by the Consumer Product Safety Commission with respect to and which was transmitted to the Congress on and disapproves the regulation for the following reasons:.’’; or (2) within the sixty calendar days of continuous session of the Congress which occur after the date of the promulgation of such regulation, one House of the Congress adopts such con current resolution and transmits such resolution to the other House and such resolution is not disapproved by such other House within the thirty calendar days of continuous session of the Congress which occur after the date of such transmittal. (c) Congressional inaction on, or rejection of, a concurrent reso lution of disapproval under this section shall not be construed as VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00026 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 27 Sec. 23 FEDERAL HAZARDOUS SUBSTANCES ACT 6 Section designation so in law. Probably should be ‘‘SEC. 22.’’ an expression of approval of the regulation involved, and shall not be construed to create any presumption of validity with respect to such regulation. (d) For purposes of this section— (1) continuity of session is broken only by an adjournment of the Congress sine die; and (2) the days on which either House is not in session be cause of an adjournment of more than three days to a day cer tain are excluded in the computation of the periods of contin uous session of the Congress specified in subsection (b). LABELING OF ART MATERIALS SEC. 23. 6 ø15 U.S.C. 1277¿ (a) On and after the last day of the 2-year period beginning on the date of the enactment of this sec tion, the requirements for the labeling of art materials set forth in the version of the standard of the American Society for Testing and Materials designated D–4236 that is in effect on the date of the en actment of this section and as modified by subsection (b) shall be deemed to be a regulation issued by the Commission under section 3(b). (b) The following shall apply with respect to the standard of the American Society for Testing and Materials referred to in sub section (a): (1) The term ‘‘art material or art material product’’ shall mean any substance marketed or represented by the producer or repackager as suitable for use in any phase of the creation of any work of visual or graphic art of any medium. The term does not include economic poisons subject to the Federal Insec ticide, Fungicide, and Rodenticide Act or drugs, devices, or cos metics subject to the Federal Food, Drug, and Cosmetics Act. (2) The standard referred to in subsection (a) as modified by this subsection applies to art materials intended for users of any age. (3) Each producer or repackager of art materials shall de scribe in writing the criteria used to determine whether an art material has the potential for producing chronic adverse health effects. Each producer or repackager shall be responsible for submitting to the Commission these criteria and a list of art materials that require hazard warning labels under this sec tion. (4) Upon the request of the Commission, a producer or re packager of art materials shall submit to the Commission prod uct formulations and the criteria used to determine whether the art material or its ingredients have the potential for pro ducing chronic adverse health effects. (5) All art materials that require chronic hazard labeling pursuant to this section must include on the label the name and address of the producer or repackager of the art materials and an appropriate telephone number and a statement signi fying that such art materials are inappropriate for use by chil dren. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00027 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 28 Sec. 23 FEDERAL HAZARDOUS SUBSTANCES ACT (6) If an art material producer or repackager becomes newly aware of any significant information regarding the haz ards of an art material or ways to protect against the hazard, this new information must be incorporated into the labels of such art materials that are manufactured after 12 months from the date of discovery. If a producer or repackager refor mulates an art material, the new formulation must be evalu ated and labeled in accordance with the standard referred to in subsection (a) as modified by this subsection. (7) If the Commission determines that an art material in a container equal to or smaller than one fluid ounce (30 ml) (if the product is sold by volume) or one ounce net weight (28 g) (if the product is sold by weight) has the potential for pro ducing chronic adverse health effects with customary or rea sonably foreseeable use despite its small size, the Commission may require the art material to carry a label which conveys all the information required under the standard referred to in sub section (a) as modified by this subsection for art materials in a container greater than one fluid ounce or one ounce net weight. If the information cannot fit on the package label, the Commission shall require the art material to have a package insert which conveys all this information. If the art material has a package insert, the label on the product shall include a signal word in conformance with paragraph 5 of the standard referred to in subsection (a), a list of potentially harmful or sensitizing components, and the statement ‘‘see package insert before use’’. For purposes of this subsection, the term ‘‘package insert’’ means a display of written, printed, or graphic matter upon a leaflet or suitable material accompanying the art mate rial. This requirement is in addition to, and is not meant to su persede, the requirement of paragraph 5.8 of the standard des ignated D–4236. (8) In determining whether an art material has the poten tial for producing chronic adverse health effects, including car cinogenicity and potential carcinogenicity, a toxicologist shall take into account opinions of various regulatory agencies and scientific bodies. (c) If the Commission determines that a revision proposed by the American Society for Testing and Materials is in the public in terest, it shall incorporate the revision into the standard referred to in subsection (a) as modified by subsection (b) after providing no tice and an opportunity for comment. If at any time the Commis sion finds that the standard referred to in subsection (a) as modi fied by subsection (b) is inadequate for the protection of the public interest, it shall promulgate an amendment to the standard which will adequately protect the public interest. Such final standard shall be promulgated pursuant to section 553 of title 5, United States Code, except that the Commission shall give interested per sons an opportunity for the oral presentation of data, views, or ar guments, in addition to an opportunity to make written submis sions. A transcript shall be kept of any oral presentation. (d)(1) Within 1 year of the date of the enactment of this sec tion, the Commission shall issue guidelines which specify criteria for determining when any customary or reasonably foreseeable use VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00028 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 29 Sec. 24 FEDERAL HAZARDOUS SUBSTANCES ACT of an art material can result in a chronic hazard. In developing such guidelines the Commission shall conduct a public hearing and provide reasonable opportunity for the submission of comments. (2) The guidelines established under paragraph (1) shall in clude— (A) criteria for determining when art materials may produce chronic adverse health effects in children and criteria for determining when art materials may produce such health effects in adults, (B) criteria for determining which substances contained in art materials have the potential for producing chronic adverse health effects and what those effects are, (C) criteria for determining the bioavailability of chron ically hazardous substances contained in art materials when the products are used in a customary or reasonably foreseeable manner, and (D) criteria for determining acceptable daily intake levels for chronically hazardous substances contained in art mate rials. Where appropriate, criteria used for assessing risks to children may be the same as those used for adults. (3) The Commission shall periodically review the guidelines es tablished under paragraph (1) to determine whether the guidelines reflect relevant changes in scientific knowledge and in the formula tions of art materials, and shall amend the guidelines to reflect such changes. (e) The Commission shall develop informational and edu cational materials about art materials and shall distribute the in formational and educational materials to interested persons. (f) The Commission may bring an action under section 8 to en join the purchase of any art material required to be labeled under this Act which is for use by children in pre-kindergarten, kinder garten, or grades 1 through 6. SEC. 24. ø15 U.S.C. 1278¿ REQUIREMENTS FOR LABELING CERTAIN TOYS AND GAMES. (a) TOYS OR GAMES FOR CHILDREN WHO ARE AT LEAST 3.— (1) REQUIREMENT.—The packaging of any toy or game in tended 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 Com mission 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 dis tributed in commerce in the United States, and (B) includes a small part, as defined by the Commis sion. (2) LABEL.—The cautionary statement required by para graph (1) for a toy or game shall be as follows: VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00029 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 30 Sec. 24 FEDERAL HAZARDOUS SUBSTANCES ACT (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, of fered 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 vend ing 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: (B) BALLS.—In the case of balls, the following cau tionary statement applies: VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00030 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 f: \s e a ls \H 9 6 5 0 9 a .e p s f: \s e a ls \H 9 6 5 1 0 a .e p s 31 Sec. 24 FEDERAL HAZARDOUS SUBSTANCES ACT (C) MARBLES.—In the case of marbles, the following cautionary statement applies: (D) TOYS AND GAMES.—In the case of toys or games containing balls, the following cautionary statement ap plies: In the case of toys or games containing marbles, the fol lowing cautionary statement applies: (c) ADVERTISING.— (1) REQUIREMENT.— (A) CAUTIONARY STATEMENT.—Any advertisement by a retailer, manufacturer, importer, distributor, or private la beler (including advertisements on Internet websites or in catalogues or other printed materials) that provides a di rect means for the purchase or order of a product for which a cautionary statement is required under subsection (a) or (b) shall include the appropriate cautionary statement dis VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00031 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 f: \s e a ls \H 9 6 5 1 1 a .e p s f: \s e a ls \H 9 6 5 1 2 a .e p s f: \s e a ls \H 9 6 5 1 3 a .e p s f: \s e a ls \H 9 6 5 1 4 a .e p s 32 Sec. 24 FEDERAL HAZARDOUS SUBSTANCES ACT played on or immediately adjacent to that advertisement, as modified by regulations issued under paragraph (3). (B) APPLICATION TO RETAILERS.— (i) REQUIREMENT TO INFORM.—A manufacturer, importer, distributor, or private labeler that provides such a product to a retailer shall inform the retailer of any cautionary statement requirement applicable to the product. (ii) RETAILER’S REQUIREMENT TO INQUIRE.—A re tailer is not in violation of subparagraph (A) if the re tailer requested information from the manufacturer, importer, distributor, or private labeler as to whether the cautionary statement required by subparagraph (A) applies to the product that is the subject of the ad vertisement and the manufacturer, importer, dis tributor, or private labeler provided false information or did not provide such information. (C) DISPLAY.—The cautionary statement required by subparagraph (A) shall be prominently displayed— (i) in the primary language used in the advertise ment; (ii) in conspicuous and legible type in contrast by typography, layout, or color with other material print ed or displayed in such advertisement; and (iii) in a manner consistent with part 1500 of title 16, Code of Federal Regulations. (D) DEFINITIONS.—In this subsection: (i) The terms ‘‘manufacturer’’, ‘‘distributor’’, and ‘‘private labeler’’ have the meaning given those terms in section 3 of the Consumer Product Safety Act (15 U.S.C. 2052). (ii) The term ‘‘retailer’’ has the meaning given that term in section 3 of the Consumer Product Safety Act (15 U.S.C. 2052), but does not include an indi vidual whose selling activity is intermittent and does not constitute a trade or business. (2) EFFECTIVE DATE.—The requirement in paragraph (1) shall take effect— (A) with respect to advertisements on Internet websites, 120 days after the date of enactment of the Con sumer Product Safety Improvement Act of 2008; and (B) with respect to catalogues and other printed mate rials, 180 days after such date of enactment. (3) RULEMAKING.—Notwithstanding any provision of chap ter 6 of title 5, United States Code, or the Paperwork Reduc tion Act of 1980 (44 U.S.C. 3501 et seq.), the Commission shall, not later than 90 days after the date of enactment of the Con sumer Product Safety Improvement Act of 2008, promulgate regulations to effectuate this section with respect to catalogues and other printed material. The Commission may, under such regulations, provide a grace period of no more than 180 days for catalogues and other printed material printed prior to the effective date of paragraph (1) during which time distribution of such catalogues and other printed material shall not be con VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00032 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 33 Sec. 24 FEDERAL HAZARDOUS SUBSTANCES ACT sidered a violation of such paragraph. The Commission may promulgate regulations concerning the size and placement of the cautionary statement required by paragraph (1) of this sub section as appropriate relative to the size and placement of the advertisements in such catalogues and other printed material. The Commission shall promulgate regulations that clarify the applicability of these requirements to catalogues and other printed material distributed solely between businesses and not to individual consumers. (4) ENFORCEMENT.—The requirements in paragraph (1) shall be treated as a consumer product safety standard pro mulgated under section 9 of the Consumer Product Safety Act (15 U.S.C. 2056). The publication or distribution of any adver tisement that is not in compliance with paragraph (1) shall be treated as a prohibited act under section 19(a)(1) of such Act (15 U.S.C. 2068). (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 ma terial 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 Fed eral 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 serv ice, the accompanying material inside the package of the prod uct may fail to bear the required statement if other accom panying material shipped with the product bears such state ment. (3) SPECIAL RULES FOR CERTAIN PACKAGES.—(A) A cau tionary statement required by subsection (a) or (b) may, in lieu of display on the principal display panel of the product’s pack age, 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 dis played in three or more languages; and (ii) the statement specified in subparagraph (B) is dis played 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 sub section (a) or (b) appears. VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00033 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 34 Sec. 24 FEDERAL HAZARDOUS SUBSTANCES ACT 7 So in law. Reference in subsection (e) probably should be to ‘‘this section’’. (B)(i) In the case of a product to which subsection (a), sub section (b)(2)(B), subsection (b)(2)(C), or subsection (b)(2)(D) ap plies, the statement specified by this subparagraph is as fol lows: (ii) In the case of a product to which subsection (b)(2)(A) applies, the statement specified by this subparagraph is as fol lows: (e) TREATMENT AS MISBRANDED HAZARDOUS SUBSTANCE.—A balloon, ball, marble, toy, or game, that is not in compliance with the requirements of this subsection 7 shall be considered a mis branded hazardous substance under section 2(p). VerDate Nov 24 2008 12:03 Nov 18, 2014 Jkt 000000 PO 00000 Frm 00034 Fmt 9001 Sfmt 9001 F:\COMP\CONSUMER\FEDERAL HAZARDOUS SUBSTANCES ACT.BEL HOLCPC November 18, 2014 f: \s e a ls \H 9 6 5 1 5 a .e p s f: \s e a ls \H 9 6 5 1 6 a .e p s