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subsection (a)(2) of this section. It may revoke such rule only if it determines that the rule is not reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product. Sec- Applicability. tion 11 shall apply to any amendment of a consumer product safety rule which involves a material change and to any revocation of a consumer product safety rule, in the same manner and to the same extent as such section applies to the Commission's action in promulgating such a rule. COMMISSION RESPONSIBILITY—PETITION FOR CONSUMER PRODUCT SAFETY RULE

SEC. 10. (a) Any interested person, including a consumer or consumer organization, may petition the Commission to commence a proceeding for the issuance, amendment, or revocation of a consumer product safety rule. (b) Such petition shall be filed in the principal office of the Commission and shall set forth (1) facts which it is claimed establish that 'A consumer product safety rule or an amendment or revocation thereof is necessarj'^, and (2) a brief description of the substance of the consumer product safety rule or amendment thereof which it is claimed should be issued by the Commission. (c) The Commission may hold a public hearing or may conduct. bearing or \ '.

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•

1

,

investigation.

such investigation or proceeding as it deems appropriate m order to determine whether or not such petition should be granted. (d) Within 120 days after filing of a petition described in subsection (b), the Commission shall either grant or deny the petition. If the Commission grants such petition, it shall promptly commence an appropriate proceeding under section 7 or 8. If the Commission denies deniii"°ubiica such petition it shall publish in the Federal Register its reasons for ti^on^ln Federal such denial. Register. (e)(1) If the Commission denies a petition made under this section u.s. district (or if it fails to grant or deny such petition within the 120-day period) actTon.*''^^' the petitioner may commence a civil action in a United States district court to compel the Commission to initiate a proceeding to take the action requested. Any such action shall be filed within 60 days after the Commission's denial of the petition, or (if the Commission fails to grant or deny the petition within 120 days after filing the petition) within 60 days after the expiration of the 120-day period. (2) If the petitioner can demonstrate to the satisfaction of the court, by a preponderance of evidence in a de novo proceeding before such court, that the consumer product presents an unreasonable risk of injury, and that the failure of the Commission to initiate a rulemaking proceeding under section 7 or 8 unreasonably exposes the petitioner or other consumers to a risk of injury presented by the consumer product, the court shall order the Commission to initiate the action requested by the petitioner. (3) In any action under this subsection, the district court shall have no authority to compel the Commission to take any action other than the initiation of a rule-making proceeding in accordance with section 7 or 8. (f) The remedies under this section shall be in addition to, and not in lieu of, other remedies provided by law. (g) Subsection (e) of this section shall apply only with respect to Applicability, petitions filed more than 3 years after the date of enactment of this Act.

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PUBLIC LAW 92-573-OCT. 27, 1972

[86 STAT.

JUDICIAL REVIEW OF CONSUMER PRODUCT SAFETY RULES

72 Stat. 941; 80 Stat. 1323. "Record."

80 Stat. 392. 5 USC 701.

62 Stat. 928.

SEC. 11. (a) Not later than 60 days after a consumer product safety rule is promulgated by the Commission, any person adversely affected by such rule, or any consumer or consumer organization, may file a petition with the United States court of appeals for the District of Columbia or for the circuit in which such person, consumer, or organization resides or has his principal place of business for judicial review of such rule. Copies of the petition shall be forthwith transmitted by the clerk of the court to the Commission or other officer designated by it for that purpose and to the Attorney General. The Commission shall transmit to the Attorney General, who shall file in the court, the record of the proceedings on which the Commission based its rule, as provided in section 2112 of title 28 of the United States Code. For purposes of this section, the term "record" means such consumer product safety rule; any notice or proposal published pursuant to section 7, 8, or 9; the transcript required by section 9(a)(2) of any oral presentation; any written submission of interested parties; and any other information which the Commission considers relevant to such rule. (b) If the petitioner applies to the court for leave to adduce additional data, views, or arguments and shows to the satisfa,ction of the court that such additional data, views, or arguments are material and that there were reasonable grounds for the petitioner's failure to adduce such data, views, or arguments in the proceeding before the Commission, the court may order the Commission to provide additional opportunity for the oral presentation of data, views, or arguments and for written submissions. The Commission may modify its findings, or make new findings by reason of the additional data, views, or arguments so taken and shall file such modified or new findings, and its recommendation, if any, for the modification or setting aside of its original rule, with the return of such additional data, views, or arguments. (c) Upon the filing of the petition under subsection (a) of this section the court shall have jurisdiction to review the consumer product safety rule in accordance with chapter 7 of title 5, United States Code, and to grant appropriate relief, including interim relief, as provided in such chapter. The consumer product safety rule shall not be affirmed unless the Commission's findings under section 9(c) are supported by substantial evidence on the record taken as a whole. (d) The judgment of the court affirming or setting aside, in whole or in part, any consumer product safety rule 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. (e) The remedies provided for in this section shall be in addition to and not in lieu of any other remedies provided by law. I M M I N E N T HAZARDS

Petition for seizure.

•'Imminently hazardous consumer product."

SEC. 12. (a) The Commission may file in a United States district court an action (1) against an imminently hazardous consumer product for seizure of such product under subsection (b)(2), or (2) against any person who is a manufacturer, distributor, or retailer of such product, or (3) against both. Such an action may be filed notwithstanding the existence of a consumer product safety rule applicable to such product, or the pendency of any administrative or judicial proceedings under any other provision of this Act. As used in this section, and hereinafter in this Act, the term "imminently hazardous consumer product" means a consumer product which presents imminent and

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unreasonable risk of death, serious illness, or severe personal injury. (b)(1) The district court in which such action is filed shall have Relief. jurisdiction to declare such product an imminently hazardous consumer product, and (in the case of an action under subsection (a)(2)) to grant (as ancillary to such declaration or in lieu thereof) such temporary or permanent relief as may be necessary to protect the public from such risk. Such relief may include a mandatory order requiring the notification of such risk to purchasers of such product known to the defendant, public notice, the recall, the repair or the replacement of, or refund for, such product. (2) I n the case of an action under subsection (a)(1), the consumer condel^nition product may be proceeded against by process of libel for the seizure and seizure"" and condemnation of such product in any United States district court within the jurisdiction of which such consumer product is found. Proceedings and cases instituted under the authority of the preceding sentence shall conform as nearly as possible to proceedings in rem in admiralty. (c) Where appropriate, concurrently with the filing of such action J^^c^'^aLt or as soon thereafter as may be practicable, the Commission shall ini- rule. tiate a proceeding to promulgate a consumer product safety rule applicable to the consumer product with respect to which such action is filed. (d)(1) Prior to commencing an action under subsection (a), the ,.^1?"/... Commission may consult the Product Safety Advisory Council (established under section 28) with respect to its determination to commence such action, and request the Council's recommendations as to the type of temporary or permanent relief which may be necessary to protect the public. (2) The Council shall submit its recommendations to the Commission within one week of such request. (3) Subject to paragraph (2), the Council may conduct such hear- Hearing. ing or offer such opportunity for the presentation of views as it may .,.^ consider necessary or appropriate. (e)(1) An action under subsection (a)(2) of this section may be brought in the United States district court for the District of Columbia or in any judicial district in which any of the defendants is found, is an inhabitant or transacts business; and process in such an action may be served on a defendant in any other district in which such defendant resides or may be found. Subpenas requiring attendance of witnesses in such an action may run into any other district. I n determining the judicial district in which an action may be brought under this section in instances in which such action may be brought in more than one judicial district, the Commission shall take into account the convenience of the parties. (2) Whenever proceedings under this section involving substan- consolfd'^tu.n^' tially similar consumer products are pending in courts in two or more for trial. judicial districts, they shall be consolidated for trial by order of any such court upon application reasonably made by any party in interest, upon notice to all other parties in interest. (f) Notwithstanding any other provision of law, in any action under this section, the Commission may direct attorneys employed by it to appear and represent it. NEW PRODUCTS

SEC. 13. (a) The Commission may, by rule, prescribe procedures for de^cripuon.'^ the purpose of insuring that the manufacturer of any new consumer product furnish notice and a description of such product to the Commission before its distribution in commerce.

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 1220 '•New consumer product."

PUBLIC LAW 92-573-OCT. 27, 1972

Testing programs.

L a b e l s, form and c o n t e n t.

Marking and coding.

STAT.

(b) For purposes of this section, the term "new consumer product" means a consumer product which incorporates a design, material, or form of energy exchange which (1) has not previously been used substantially in consumer products and (2) as to which there exists a lack of information adequate to determine the safety of such product in use by consumers. PRODUCT C E R T I F I C A T I O N

Multiple manufacturers or l a b e l e r s.

[86

AND

LABELING

SEC. 14. (a)(1) Every manufacturer of a product which is subject to a consumer product safety standard under this Act and which is distributed in commerce (and the private labeler of such product if it bears a private label) shall issue a certificate which shall certify that such product conforms to all applicable consumer product safety standards, and shall specify any standard which is applicable. Such certificate shall accompany the product or shall otherwise be furnished to any distributor or retailer to whom the product is delivered. Any certificate under this subsection shall be based on a test of each product or upon a reasonable testing program; shall state the name of the manufacturer or private labeler issuing the certificate; and shall include the date and place of manufacture. (2) In the case of a consumer product for which there is more than one manufacturer or more than one private labeler, the Commission may by rule designate one or more of such manufacturers or one or more of such private labelers (as the case may be) as the persons who shall issue the certificate required by paragraph (1) of this subsection, and may exempt all other manufacturers of such product or all other private labelers of the product (as the case may be) from the requirement under paragraph (1) to issue a certificate with respect to such product. (b) The Commission may by rule prescribe reasonable testing programs for consumer products which are are subject to consumer product safety standards under this Act and for which a certificate is required under subsection (a). Any test or testing program on the basis of which a certificate is issued under subsection (a) may, at the option of the person required to certify the product, be conducted by an independent third party qualified to perform such tests or testing programs. (c) The Commission may by rule require the use and prescribe the form and content of labels which contain the following information (or that portion of it specified in the rule)— (1) The date and place of manufacture of any consumer product. (2) A suitable identification of the manufacturer of the consumer product, unless the product bears a private label in which case it shall identify the private labeler and shall also contain a code mark which will permit the seller of such product to identify the manufacturer thereof to the purchaser upon his request. (3) I n the case of a consumer product subject to a consumer product safety rule, a certification that the product meets all applicable consumer product safety standards and a specification of the standards which are applicable. Such labels, where practicable, may be required by the Commission to be permanently marked on or affixed to any such consumer product. The Commission may, in appropriate cases, permit information required under paragraphs (1) and (2) of this subsection to be coded.

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NOTIFICATION A N D REPAIR, R E P L A C E M E N T, OR R E F U N D

SEC. 15. (a) For purposes of this section, the term "substantial product hazard" means— (1) a failure to comply with an applicable consumer product safety rule which creates a substantial risk of injury to the public, or (2) a product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public. (b) Every manufacturer of a consumer product distributed in commerce, and every distributor and retailer of such product, who obtains information which reasonably supports the conclusion that such product— (1) fails to comply with an applicable consumer product safety rule; or (2) contains a defect which could create a substantial product hazard described in subsection (a)(2), shall immediately inform the Commission of such failure to comply or of such defect, unless such manufacturer, distributor, or retailer has actual knowledge that the Commission has been adequately informed of such defect or failure to comply. (c) If the Commission determines (after affording interested persons, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (f) of this section) that a product distributed in commerce presents a substantial product hazard and that notification is required in order to adequately protect the public from such substantial product hazard, the Commission may order the manufacturer or any distributor or retailer of the product to take any one or more of the following actions: (1) To give public notice of the defect or failure to comply. (2) To mail notice to each person who is a manufacturer, distributor, or retailer of such product. (3) To mail notice to every person to whom the person required to give notice knows such product was delivered or sold. Any such order shall specify the form and content of any notice required to be given under such order. (d) If the Commission determines (after affording interested parties, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (f)) that a product distributed in commerce presents a substantial product hazard and that action under this subsection is in the public interest, it may order the manufacturer or any distributor or retailer of such product to take whichever of the following actions the person to whom the order is directed elects: (1) To bring such product into conformity with the requirements of the applicable consumer product safety rule or to repair the defect in such product. (2) To replace such product with a like or equivalent product which complies with the applicable consumer product safety rule or which does not contain the defect. (3) To refund the purchase price of such product (less a reasonable allowance for use, if such product has been in the possession of a consumer for one year or more (A) at the time of public notice under subsection (c), or (B) at the time the consumer receives actual notice of the defect or noncompliance, whichever first occurs).

"Substantial product h a z a r d. "

None omplianc e.

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 1222 Action plan.

Reimbursement.

Hearing. 80 Stat. 384.

PUBLIC LAW 92-573-OCT. 27, 1972

[86

STAT.

An order under this subsection may also require the person to whom it applies to submit a plan, satisfactory to the Commission, for taking action under whichever of the preceding paragraphs of this subsection under which such person has elected to act. 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 m paragraph (3). If an order under this subsection is directed to more than one person, the Coi^mission shall specify which person has the election under this subsection. (e)(1) No charge shall be made to any person (other than a manufacturer, distributor, or retailer) who avails himself of any remedy provided under an order issued under subsection (d), and the person subject to the order shall reimburse each person (other than a manufacturer, distributor, or retailer) who is entitled to such a remedy for any reasonable and foreseeable expenses incurred by such person in availing himself of such remedy. (2) An order issued under subsection (c) or (d) with respect to a product may require any person who is a manufacturer, distributor, or retailer of the product to reimburse any other person who is a manufacturer, distributor, or retailer of such product for such other person's expenses in connection with carrying out the order, if the Commission determines such reimbursement to be in the public interest. (f) An order under subsection (c) or (d) 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 determines 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 hearing to participation through a single representative designated by such class (or by the Commission if such class fails to designate such a representative). INSPECTION A N D RECORDKEEPING

SEC. 16. (a) For purposes of implementing this Act, or rules or orders prescribed under this Act, officers or employees duly designated by the Commission, upon presenting appropriate credentials and a written notice from the Commission to the owner, operator, or agent in charge, are authorized— (1) to enter, at reasonable times, (A) any factory, warehouse, or establishment in which consumer products are manufactured or held, in connection with distribution in commerce, or (B) any convej^ance being used to transport consumer products in connection with distribution in commerce; and (2) to inspect, at reasonable times and in a reasonable manner such conveyance or those areas of such factory, warehouse, or establishment where such products are manufactured, held, or transported and which may relate to the safety of such products. Each such inspection shall be commenced and completed with reasonable promptness. (b) Every person who is a manufacturer, private labeler, or distributor of a consumer product shall establish and maintain such records, make such reports, and provide such information as the Commission may, by rule, reasonablv reauire for the purposes of implementing this Act, or to determine compliance with rules or orders prescribed under this Act. Upon request of an officer or employee duly designated by the Commission, every such manufacturer, private labeler, or distributor shall permit the inspection of appropriate books, records, and papers

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relevant to determining whether such manufacturer, private labeler, or distributor has acted or is acting in compliance with this Act and rules under this Act. IMPORTED PRODUCTS

'SEC. 17. (a) Any consumer product offered for importation into the customs territory of the United States (as defined in general headnote 2 to the Tariff Schedules of the United States) shall be refused admission into such customs territory if such product— (1) fails to comply with an applicable consumer product safety rule; (2) is not accompanied by a certificate required by section 14, or is not labeled in accordance with regulations under section 14 I(3) is or has been determined to be an imminently hazardous consumer product in a proceeding brought under section 1*2; (4) has a product defect which constitutes a substantial product hazard (within the meaning of section 15(a)(2)); or (5) is a product which was manufactured by a person who the Commission has informed the Secretary of the Treasury is in violation of subsection (g). (b) The Secretary of the Treasury shall obtain without charge and deliver to the Commission, upon the latter's request, a reasonable number of samples of consumer products being offered for import. Except for those owners or consignees who are or have been afforded an opportunity for a hearing in a proceeding under section 12 with respect to an imminently hazardous product, the owner or consignee of the product shall be afforded an opportunity by the Commission for a hearing in accordance with section 554 of title 5 of the United States Code with respect to the importation of such products into the customs territory of the United States. If it appears from examination of such samples or otherwise that a product m u ^ be refused admission under the terms of subsection (a), such product shall be refused admission, unless subsection (c) of this section applies and is complied with. (c) If it appears to the Commission that any consumer product which may be refused admission pursuant to supsection (a) of this section can be so modified that it need not (under the terms of paragraphs (1) through (4) of subsection (a)) be refused admission, the Commission may defer final determination as to the admission of such product and, in accordance with such regulations as the Commission and the Secretary of the Treasury shall jointly agree to, permit such product to be delivered from customs custody under bond for the purpose of permitting the owner or consignee an opportunity to so modify such product. (d) All actions taken by an owner or consignee to m^odify such product under subsection (c) shall be subject to the supervision of an officer or employee of the Commission and of the Department of the Treasury. If it appears to the Commission that the product cannot be so modified or that the owner or consignee is not proceeding satisfactorily to modify such product, it shall be refused admission into the customs territory of the United States, and the Commission may direct the Secretary to demand redelivery of the product into customs custody, and to seize the product in accordance with section 22(b) if it is not so redelivered. (e) Products refused admission into the customs territory of the United States under this section must be exported, except that upon application, the Secretary of the Treasury may permit the destruction of the product in lieu of exportation. If the owner or consignee does 2-081 O - 73 - 80

77A Stat. 11. 19 USC 1202.

Samples.

80 Stat. 384. Admission refusal.

Modification.

Supervision.

Destruction.

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Expenses ment.

PUBLIC LAW 92-573-OCT. 27, 1972

[86 STAT.

not export the product within a reasonable time, the Department of the Treasury may destroy the product. (f) 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 this section (the amount of such expenses to be determined in accordance with regulations of the Secretary of the Treasury) and all expenses in connection with the storage, cartage, or labor with respect to any consumer product refused admission under this section, shall be paid by the owner or consignee and, in default of such payment, shall constitute a lien against any future importations made by such owner or consignee. (g) The Commission may, by rule, condition the importation of a consumer product on the manufacturer's compliance with the inspection and recordkeeping requirements of this Act and the Commission's rules with respect to such requirements. EXPORTS

Nonapp 11 c a bi 1ity.

SEC. 18. This Act shall not apply to any consumer product if (1) it can be shown that such product is manufactured, sold, or held for sale for export from the United States (or that such product was imported for export), unless such consumer product is in fact distributed in commerce for use in the United States, and (2) such consumer product when distributed in commerce, or any container in which it is enclosed when so distributed, bears a stamp or label stating that such consumer product is intended for export; except that this Act shall apply to any consumer product manufactured for sale, offered for sale, or sold for shipment to any installation of the United States located outside of the United States. P R O H I B I T E D ACTS

NonappllcabilIty.

SEC. 19. (a) I t shall be unlawful for any person to— (1) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product which is not in conformity with an applicable consumer product safety standard under this Act; (2) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product which has been declared a banned hazardous product by a rule under this Act; (3) fail or refuse to permit access to or copying of records, or fail or refuse to make reports or provide information, or fail or refuse to permit entry or inspection, as required under this Act or rule thereunder; (4) fail to furnish information required by section 1 5 (b); (5) fail to comply with an order issued under section 15(c) or (d) (relating to notification, and to repair, replacement, and refund); (6) fail to furnish a certificate required by section 14 or issue a false certificate if such person in the exercise of due care has reason to know that such certificate is false or misleading in any material respect; or to fail to comply with any rule under section 14(c) (relating to labeling); or (7) fail to comply with any rule under section 9(d)(2) (relating to stockpiling). (b) Paragraphs (1) and (2) of subsection (a) of this section shall not applv to any person (1) who holds a certificate issued in accordance with section 14(a) to the effect that such consumer product conforms to all applicable consumer product safety rules, unless such person knows that such consumer product does not conform, or (2)

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who relies in good faith on the representation of the manufacturer or a distributor of such product that the product is not subject to an applicable product safety rule. CIVIL

PENALTIES

SEC. 20. (a)(1) Any person who knowingly violates section 19 of this Act shall be subject to a civil penalty not to exceed $2,000 for each such violation. Subject to paragraph (2), a violation of section 19(a) (1), (2), (4), (5), (6), or (7) shall constitute a separate offense with respect to each consumer product involved, except that the maximum civil penalty shall not exceed $500,000 for any related series of violations. A violation of section 19(a)(3) shall constitute a separate violation with respect to each failure or refusal to allow or perform an act required thereby; and, if such violation is a continuing one, each day of such violation shall constitute a separate offense, except that the maximum civil penalty shall not exceed $500,000 for any related series of violations. (2) The second sentence of paragraph (1) of this subsection shall not apply to violations of paragraph (1) or (2) of section 19(a)— (A) if the person who violated such paragraphs is not the manufacturer or private labeler or a distributor of the products involved, and (B) if such person did not have either (i) actual knowledge that his distribution or sale of the product violated such paragraphs or (ii) notice from the Commission that such distribution or sale would be a violation of such paragraphs. (b) Any civil penalty under this section may be compromised by the Commission. In determining the amount of such penalty or whether it should be remitted or mitigated and in what amount, the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be considered. 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. (c) As used in the first sentence of subsection (a)(1) of this section, the term "knowingly" means (1) the having of actual knowledge, or (2) the presumed having of knowledge deemed to be possessed by a reasonable man who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain the truth of representations. CRIMINAL

PENALTIES

SEC. 21. (a) Any person who knowingly and willfully violates section 19 of this Act after having received notice of noncompliance from the Commission shall be fined not more than $50,000 or be imprisoned not more than one year, or both. (b) Any individual director, officer, or agent of a corporation who knowingly and willfully authorizes, orders, or performs any of the acts or practices constituting in whole or in part a violation oi section 19, and who has knowledge of notice of noncompliance received by the corporation from the Commission, shall be subject to penalties under this section without regard to any penalties to which that corporation may be sub j ect under subsection (a). I N J U N C T IV E ENFORCEMENT A N D SEIZURE

SEC. 22. (a) The United States district courts shall have jurisdiction to restrain any violation of section 19, or to restrain any person from distributing in commerce a product which does not comply with a con-

Nonapplicability.

compromise.

"Knowingly.

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'

PUBLIC LAW 92-573-OCT. 27, 1972

'

sumer product safety rule, or both. Such actions may be brought by the Commission (with the concurrence of the Attorney General) or by the Attorney General in any United States district court for a district wherein any act, omission, or transaction constituting the violation occurred, or in such court for the district wherein the defendant is found or transacts business. In any action under this section process may be served on a defendant in any other district in which the defendant resides or may be found. (b) Any consumer product which fails to conform to an applicable consumer product safety rule when introduced into or while in commerce or while held for sale after shipment in commerce shall be liable to be proceeded against on libel of information and condemned in any United States district court within the jurisdiction of which such consumer product is found. Proceedings in cases instituted under the authority of this subsection shall conform as nearly as possible to proceedings in rem in admiralty. Whenever such proceedings involving substantially similar consumer products are pending in courts of two or more judicial districts they shall be consolidated for trial by, order of any such court upon application reasonably made by any party in interest upon notice to all other parties in interest. S U I T S FOR DAMAGES BY PERSONS

72 Stat. 415.

[86 STAT.

INJURED

SEC. 23. (a) Any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission may sue any person who knowingly (including willfully) violated any such rule or order in any district court of the United States in the district in which the defendant resides or is found or has an agent, subject to the provisions of section 1331 of title 28, United States Code as to the amount in controversy, and shall recover damages sustained, and the cost of suit, including a reasonable attorney's fee, if considered appropriate in the discretion of the court. (b) The remedies provided for in this section shall be in addition to and not in lieu of any other remedies provided by common law or under Federal or State law. PRIVATE ENFORCEMENT OF PRODUCT SAFETY RULES A N D OF SECTION ORDERS

Notice.

15

SEC. 24. Any interested person may bring an action in any United States district court for the district in which the defendant is found or transacts business to enforce a consumer product safety rule or an order under section 15, and to obtain appropriate injunctive relief. J^ot less than thirty days prior to the commencement of such action, such interested person shall give notice by registered mail to the Commission, to the Attorney General, and to the person against whom such action is directed. Such notice shall state the nature of the alleged violation of any such standard or order, the relief to be requested, and the court in which the action will be brought No separate suit shall be brought under this section if a t the time the suit is brought the same alleged violation is the subject of a pending civil or criminal action by the United States under this Act. I n any action under this section, such interested person may elect, by a demand for such relief in his complaint, to recover reasonable attorney's fees, in which case the court shall award the costs of suit, including a reasonable attorney's fee, to the prevailing party.

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EFFECT ON PRIVATE REMEDIES

SEC. 25. (a) Compliance with consumer product safety rules or other rules or orders under this Act shall not relieve any person from liability at common law or under State statutory law to any other person. (b) The failure of the Commission to take any action or commence a proceeding with respect to the safety of a consumer product shall not be admissible in evidence in litigation at common law or under State statutory law relating to such consumer product. (c) Subject to sections 6(a)(2) and 6(b) but notwithstanding section 6(a)(1), (1) any accident or investigation report made under this Act by an officer or employee of the Commission shall be made available to the public in a manner which will not identify any injured person or any person treating him, without the consent of the person so identified, and (2) all reports on research projects, demonstration projects, and other related activities shall be public information.

Liability.

Public Information.

EFFECT ON STATE STANDARDS

SEC. 26. (a) Whenever a consumer product safety standard under this Act is in eifect and applies to a risk of injury associated with a consumer product, no State or political subdivision of a State shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging, or labeling of such product which are designed to deal with the same risk of injury associated with such consumer product, unless such requirements are identical to the requirements of the Federal standard. (b) Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to a consumer product for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard. (c) Upon application of a State or political subdivision thereof, the Commission may by rule, after notice and opportunity for oral presentation of views, exempt from the provisions of subsection (a) (under such conditions as it may impose) a proposed safety standard or regulation described in such application, where the proposed standard or regulation (1) imposes a higher level of performance than the Federal standard, (2) is required by compelling local conditions, and (3) does not unduly burden interstate commerce.

State compliance to Federal standards.

Exemptions.

ADDITIONAL FUNCTIONS OF COMMISSION

SEC. 27. (a) The Commission may, by one or more of its members publication in''*' or by such agents or agency as it may designate, conduct any hearing Federal Register. or other inquiry necessary or appropriate to its functions anywhere in the United States. A Commissioner who participates in such a hearing or other inquiry shall not be disqualified solely by reason of such participation from subsequently participating in a decision of the Commission in the same matter. The Commission shall publish notice of any proposed hearing in the Federal Register and shall afford a reasonable opportunity for interested persons to present relevant testimony and data.

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PUBLIC LAW 92-573-OCT. 27, 1972

[86 STAT.

(b) The Commission shall also have the power— (1) to require, by special or general orders, any person to submit in writing such reports and answers to questions as the Commission may prescribe; and such submission shall be made within such reasonable period and under oath or otherwise as the Commission may determine; (2) to administer oaths; (3) to require by subpena the attendance and testimony of witnesses and the production of all documentary evidence relating to the execution of its duties; (4) in any proceeding or investigation to order testimony to be taken by deposition before any person who is designated by the Commission and has the power to administer oaths and, in such instances, to compel testimony and the production of evidence in the same manner as authorized under paragraph (3) of this subsection; (5) to pay witnesses the same fees and mileage as are paid in like circumstances in the courts of the United States; (6) to accept gifts and voluntary and uncompensated services, notwithstanding the provisions of section 3679 of the Revised Statutes (31 U.S.C. 665 (b)); (7) to initiate, prosecute, defend, or appeal any court action in the name of the Commission for the purpose of enforcing the laws subject to its jurisdiction, through its own legal representative with the concurrence of the Attorney General or through the Attorney General; and (8) to delegate any of its functions or powers, other than the power to issue subpenas under paragraph (3), to any officer or employee of the Commission. Noncompliance (c) Any United States district court within the jurisdiction of commi"^^on^o°der, which any iuquiry is carried on, may, upon petition by the Commission penalty. ' with the coucurreuce of the Attorney General or by the Attorney General, in case of refusal to obey a subpena or order of the Commission issued under subsection (b) of this section, issue an order requiring compliance therewith; and any failure to obey the order of the court may be punished by the court as a contempt thereof. Information (^) J^Q pcrsou shall bc subjcct to civil liability to any person (other ISC osure. thau the Commission or the United States) for disclosing information at the request of the Commission. Performance (c) The Commisslou may by rule require any manufacturer of connotificllion'^^*^' sumer products to provide to the Commission such performance and technical data related to performance and safety as may be required to carry out the purposes of this Act, and to give such notification of such performance and technical data at the time of original purchase to prospective purchasers and to the first purchaser of such product for purposes other than resale, as it determines necessary to carry out the purposes of this Act. (f) For purposes of carrying out this Act, the Commission may purchase any consumer product and it may require any manufacturer, distributor, or retailer of a consumer product to sell the product to the Commission at manufacturer's, distributor's, or retailer's cost. Contract au(g) The Commission is authorized to enter into contracts with govthority. ernmental entities, private organizations, or individuals for the conduct of activities authorized by this Act. devei^^m'ent^fa ^^^ '^^® Commission may plan, construct, and operate a facility cuiti^."'^" ^ or facilities suitable for research, development, and testing of consumer products in order to carry out this Act. Recordkeeping. (i)(1) Each recipient of assistance under this Act pursuant to grants or contracts entered into under other than competitive bidding

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STAT.]

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procedures shall keep such records as the Commission by rule shall prescribe, including records which fully disclose the amount and disposition by such recipient of the proceeds of such assistance, the total cost of the project undertaken in connection with which such assistance is given or used, and the amount of that portion of the cost of the project or undertaking supplied by other sources, and such other records as will facilitate an effective audit. (2) The Commission and the Comptroller General of the United States, or their duly authorized representatives, shall have access for the purpose of audit and examination to any books, documents, papers, and records of the recipients that are pertinent to the grants or contracts entered into under this Act under other than competitive bidding procedures. (j) The Commission shall prepare and submit to the President and the Congress on or before October 1 of each year a comprehensive report on the administration of this Act for the preceding fiscal year. Such report shall include— (1) a thorough appraisal, including statistical analyses, estimates, and long-term projections, of the incidence of injury and effects to the population resulting from consumer products, with a breakdown, insofar as practicable, among the various sources of such injury; (2) a list of consumer product safety rules prescribed or in effect during such year; (3) an evaluation of the degree of observance of consumer product safety rules, including a list of enforcement actions, court decisions, and compromises of alleged violations, by location and company name; (4) a summary of outstanding problems confronting the administration of this Act in order of priority; (5) an analysis and evaluation of public and private consumer product safety research activities; (6) a list, with a brief statement of the issues, of completed or pending judicial actions under this Act; (7) the extent to which technical information was disseminated to the scientific and commercial communities and consumer information was made available to the public; (8) the extent of cooperation between Commission officials and representatives of industry and other interested parties in the implementation of this Act, including a log or summary of meetings held between Commission officials and representatives of industry and other interested parties; (9) an appraisal of significant actions of State and local governments relating to the responsibilities of the Commission; and (10) such recommendations for additional legislation as the Commission deems necessary to carry out the purposes of this Act. (k)(1) Whenever the Commission submits any budget estimate or request to the President or the Office of Management and Budget, it shall concurrently transmit a copy of that estimate or request to the Congress. (2) Whenever the Commission submits any legislative recommendations, or testimony, or comments on legislation to the President or the Office of JNIanagement and Budget, it shall concurrently transmit a copy thereof to the Congress. No officer or agency of the United States shall have any authority to require the Commission to submit its legislative recommendations, or testimony, or comments on legislation, to Sinj officer or agency of the United States for approval, comments, or review, prior to the submission of such recommendations, testimony, or comments to the Congress.

1229

GAO audit.

Report to President and Congress.

Budget estimate, transmittal to C o n g r e s s * -

Legislative recommendations, transmittal to Congress.

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Page:United States Statutes at Large Volume 86.djvu/1272

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1230, Establishment; membership.

Compensation; travel pay.

5 USC 5332 note.

80 Stat. 499; 83 Stat. 190.

[86 STAT.

PRODUCT SAFETY ADVISORY COUNCIL

SEC. 28. (a) The Commission shall establish a Product Safety Advisory Council which it may consult before prescribing a consumer product safety rule or taking other action under this Act. The Council shall be appointed by the Commission and shall be composed of fifteen members, each of whom shall be qualified by training and experience in one or more of the fields applicable to the safety of products within the jurisdiction of the Commission. The Council shall be constituted as follows: (1) five members shall be selected from governmental agencies including Federal, State, and local governments; (2) five members shall be selected from consumer product industries including at least one representative of small business; and (3) five members shall be selected from among consumer organizations, community organizations, and recognized consumer leaders. (b) The Council shall meet at the call of the Commission, but not less often than four times during each calendar year. (c) The Council may propose consumer product safety rules to the Commission for its consideration and may function through subcommittees of its members. All proceedings of the Council shall be public, and a record of each proceeding shall be available for public inspection. (d) Members of the Council who are not officers or employees of the United States shall, while attending meetings or conferences of the Council or while otherwise engaged in the business of the Council, be entitled to receive compensation at a rate fixed by the Commission, not exceeding the daily equivalent of the annual rate of basic pay in effect for grade GS-18 of the General Schedule, including traveltlme, and while away from their homes or regular places of business they may be allowed travel expense, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code. Payments under this subsection shall not render members of the Council officers or employees of the United States for any purpose. COOPERATION W I T H STATES A N D W I T H OTHER FEDERAL AGENCIES

Separate State and local consolidation a g e n c i e s.

SEC. 29. (a) The Commission shall establish a program to promote Federal-State cooperation for the purposes of carrying out this Act. In implementing such program the Commission may— (1) accept from any State or local authorities engaged in activities relating to health, safety, or consumer protection assistance in such functions as injury data collection, investigation, and educational programs, as well as other assistance in the adminis|;ration and enforcement of this Act which such States or localities may be able and willing to provide and, if so agreed, may pay in advance or otherwise for the reasonable cost of such assistance, and (2) commission any qualified officer or employee of any State or local agency as an officer of the Commission for the purpose of conducting examinations, investigations, and inspections. (b) In determining whether such proposed State and local programs are appropriate in implementing the purposes of this Act, the Commission shall give favorable consideration to programs which establish separate State and local agencies to consolidate functions relating to product safety and other consumer protection activities.

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(c) The Commission may obtain from any Federal department or agency such statistics, data, program reports, and other materials as it may deem necessary to carty out its functions under this Act. Each such department or agency may cooperate with the Commission and, to the extent permitted by law, furnish such materials to it. The Commission and the heads of other departments and agencies engaged in administering programs related to product safety shall, to the maximum extent practicable, cooperate and consult in order to insure fully coordinated efforts. (d) The Commission shall, to the maximum extent practicable, utilize the resources and facilities of the National Bureau of Standards, on a reimbursable basis, to perform research and analyses related to risks of injury associated with consumer products (including fire and flammability risks), to develop test methods, to conduct studies and investigations, and to provide technical advice and assistance in connection with the f unctipns of the Commission.

1231 Data, availa* bility.

National Bureau of Standards, u s e of facilities.

TRANSFERS OF F U N C T I O N S

SEC. 30. (a) The functions of the Secretary of Health, Education, and Welfare under the Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) and the Poison Prevention Packaging Act of 1970 are transferred to the Commission. The functions of the Administrator of the Environmental Protection Agency and of the Secretary of Health, Education, and Welfare under the Acts amended by subsections (b) through (f) of section 7 of the Poison Prevention Packaging Act of 1970, to the extent such functions relate to the administration and enforcement of the Poison Prevention Packaging Act of 1970, are transferred to the Commission. (b) The functions of the Secretary of Health, Education, and Welfare, the Secretary of Commerce, and the Federal Trade Commission under the Flammable Fabrics Act (15 U.S.C. 1191 et seq.) are transferred to the Commission. The functions of the Federal Trade Commission under the Federal Trade Commission Act, to the extent such functions relate to the administration and enforcement of the Flammable Fabrics Act, are transferred to the Commission. (c) The functions of the Secretary of Commerce and the Federal Trade Commission under the Act of August 2, 1956 (15 U.S.C. 1211) are transferred to the Commission. (d) A risk of injury which is associated with consumer products and which could be eliminated or reduced to a sufficient extent by action taken under the Federal Hazardous Substances Act, the Poison Prevention Packaging Act of 1970, or the Flammable Fabrics Act may be regulated by the Commission only in accordance with the provisions of those Acts. (e)(1)(A) All personnel, property, records, obligations, and commitments, which are used primarily with respect to any function transferred under the provisions of subsections (a), (b) and (c) of this section shall be transferred to the Commission, except those associated with fire and flammability research in the National Bureau of Standards, The transfer of personnel pursuant to this paragraph shall be without reduction in classification or compensation for one year after such transfer, except that the Chairman of the Commission shall have full authority to assign personnel during such one-year period in order to efficiently carry out functions transferred to the Commission under this section.

74 Stat. 372. 84 Stat. 1670. 15 USC 14 71 note.

7 USC 135; 21 USC 343, 352, 362.

67 Stat. I l l; 81 Stat. 568. 15 USC 58.

70 Stat. 953. Risk of Injury.

Personnel, property, e t c., transfer.

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Page:United States Statutes at Large Volume 86.djvu/1274

 1232 Public Health Service officer, competitive status.

"Function."

PUBLIC LAW 92-573-OCT. 27, 1972

[86

STAT.

(B) Any commissioned officer of the Public Health Service who upon the day before the effective date of this section, is serving as such officer primarily in the performance of functions transferred by this Act to the Commission, may, if such officer so elects, acquire competitive status and be transferred to a competitive position in the Commission subject to subparagraph (A) of this paragraph, under the terms prescribed in paragraphs (3) through (8)(A) of section 15(b) of the Clean Air Amendments of 1970 (84 Stat. 1676; 42 U.S.C. 215 n t). (2) All orders, determinations, rules, regulations, permits, contracts, certificates, licenses, and privileges (A) which have been issued, made, granted, or allowed to become effective in the exercise of functions which are transferred under this section by any department or agency, any functions of which are transferred by this section, and (B) which are in effect at the time this section takes effect, shall continue in effect according to their terms until modified, terminated, superseded, set aside, or repealed by the Commission, by any court of competent jurisdiction, or by operation of law. (3) The provisions of this section shall not affect any proceedings pending at the time this section takes effect before any department or agency, functions of which are transferred by this section; except that such proceedings, to the extent that they relate to functions so transferred, shall be continued before the Commission. Orders shall be issued in such proceedings, appeals shall be taken therefrom, and payments shall be made pursuant to such orders, as if this section had not been enacted; and orders issued in any such proceedings shall continue in effect until modified, terminated, superseded, or repealed by the Commission, by a court of competent jurisdiction, or by operation of law. (4) The provisions of this section shall not affect suits commenced prior to the date this section takes effect and in all such suits proceedings shall be had, appeals taken, and judgments rendered, in the same manner and effect as if this section had not been enacted; except that if before the date on which this section takes effect, any department or agency (or officer thereof in his official capacity) is a party to a suit involving functions transferred to the Commission, then such suit shall be continued by the Commission. No cause of action, and no suit, action, or other proceeding, by or against any department or agency (or officer thereof in his official capacity) functions of which are transferred by this section, shall abate by reason of the enactment of this section. Causes of actions, suits, actions, or other proceedings may be asserted by or against the United States or the Commission as may be appropriate and, in any litigation pending when this section takes effect, the court may at any time, on its own motion or that of any party, enter an order which will give effect to the provisions of this paragraph. (f) For purposes of this section, (1) the term "function" includes power and duty, and (2) the transfer of a function, under any provision of law, of an agency or the head of a department shall also be a transfer of all functions under such law which are exercised by any office or officer of such agency or department. LIMITATION ON JURISDICTION

29 USC 651 note^ 42 USC 2011 note, 1857 note.

SEC. 31. The Commission shall have no authority under this Act to regulate any risk of injury associated with a consumer product if such risk could be eliminated or reduced to a sufficient extent by actions taken under the Occupational Safety and Health Act of 1970; the Atomic Energy Act of 1954; or the Clean Air Act, The Commission shall have no authority under this Act to regulate any risk of injury

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associated with electronic product radiation emitted from an electronic product (as such terms are defined by sections 355(1) and (2) of the Public Health Service Act) if such risk of injury may be subjected to regulation under subpart 3 of part F of title III of the Public Health Service Act.

1233

82 Stat. 1174. ^ ^ use 263c. ^ 42 USC 263b.

AUTHORIZATION OF APPROPRIATIONS

SEC. 32. (a) There are hereby authorized to be appropriated for the purpose of carrying out the provisions of this Act (other than the provisions of section 27(h) which authorize the planning and construction of research, development, and testing facilities), and for the purpose of carrying out the functions, powers, and duties transferred to the Commission under section 30, not to exceed— (1) $55,000,000 for the fiscal year ending June 30, 1973; (2) $59,000,000 for the fiscal year ending June 30, 1974; and (3) $64,000,000 for the fiscal year ending June 30, 1975. (b)(1) There are authorized to be appropriated such sums as may be necessary for the planning and construction of research, development and testing facilities described in section 2 7 (h); except that no Limitation, appropriation shall be made for any such planning or construction involving an expenditure in excess of $100,000 if such planning or construction has not been approved by resolutions adopted in substantially the same form by the Committee on Interstate and Foreign Commerce of the House of Representatives, and by the Committee on Commerce of the Senate. For the purpose of securing considera- trTi^tuiTo tion of such approval the Commission shall transmit to Congress a Congress. prospectus of the proposed facility including (but not limited to)— (A) a brief description of the facility to be planned or constructed; (B) the location of the facility, and an estimate of the maximum cost of the facility; (C) a statement of those agencies, private and public, which will use such facility, together with the contribution to be made by each such agency toward the cost of such facility; and (D) a statement of justification of the need for such facility. (2) The estima-ted maximum cost of any facility approved under '^m^^stHmi-''* this subsection as set forth in the prospectus may be increased by the tation. amount equal to the percentage increase, if any, as determined by the Commission, in construction costs, from the date of the transmittal of such prospectus to Congress, but in no event shall the increase authorized by this paragraph exceed 10 per centum of such estimated maximum cost. SEPARABILITY

SEC. 33. If any provision of this Act, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Act, or the application of such provisions to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby. EFFECTIVE DATE

SEC. 34. This Act shall take effect on the sixtieth day following the date of its enactment, except— (1) sections 4 and 32 shall take effect on the date of enactment of this Act, and (2) section 30 shall take effect on the later of (A) 150 days after the date of enactment of this Act, or (B) the date on which at least three members of the Commission first take office. Approved October 27, 1972.

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PUBLIC LAW 92-574-OCT. 27, 1972 Public Law 92-574

'

'

'^^:

[86 STAT. i:

October 27, 1972 -^^ ACT [H.R. 11021] To control the emission of noise detrimental to the human environment, and for other purposes. Noise Control Act of 1972.

Be it enacted by the Senate and House of Representatives United States of America in Congress assembled,

of the

SHORT TITLE SECTION

1. This Act may be cited as the "Noise Control Act of 1972". FINDINGS AND POLICY

SEC. 2. (a) The Congress finds— (1) that inadequately controlled noise presents a growing danger to the health and welfare of the Nation's population, particularly in urban areas; (2) that the major sources of noise include transportation vehicles and equipment, machinery, appliances, and other products in commerce; and (3) that, while primary responsibility for control of noise rests with State and local governments, Federal action is essential to deal with major noise sources in commerce control of which require national uniformity of treatment. (b) The Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare. To that end, it is the purpose of this Act to establish a means for effective coordination of Federal research and activities in noise control, to authorize the establishment of Federal noise emission standards for products distributed in commerce, and to provide information to the public respecting the noise emission and noise reduction characteristics of such products. DEFINITIONS

" Stat. 73 7.

49 Tier- 1 a m AQ u s e 1301.

SEC. 3. For purposes of this Act: (1) The term "Administrator" means the Administrator of the Environmental Protection Agency. (2) The term "person" means an individual, corporation, partnership, or association, and (except as provided in sections 11(e) and 12(a)) includes any officer, employee, department, agency, or instrumentality of the United States, a State, or any political subdivision of a State. (3) The term "product" means any manufactured article or goods or component thereof; except that such term does not include— (A) any aircraft, aircraft engine, propeller, or appliance, as such terms are defined in section 101 of the Federal Aviation Act of 1958; or /-r-k\ /•\

•!•

•

1 - 1

(B)(i) any military weapons or equipment which are designed for combat use; (ii) any rockets or equipment which are designed for researcn, experimental, or developmental work to be performed by the National Aeronautics and Space Administration; or (iii) to the extent provided by regulations of the Administrator, any other machinery or equipment designed for use in experimental work done by or for the Federal Government. (4) The term "ultimate purchaser" means the first person who in good faith purchases a product for purposes other than resale.

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(5) The term "new product" means (A) a product the equitable or legal title of which has never been transferred to an ultimate purchaser, or (B) a product which is imported or offered for importation into the United States and which is manufactured after the effective date of a regulation under section 6 or section 8 which would have been applicable to such product had it been manufactured in the United States. (6) The term "manufacturer" means any person engaged in the manufacturing or assembling of new products, or the importing of new products for resale, or who acts for, and is controlled by, any such person in connection with the distribution of such products. (7) The term "commerce" means trade, traffic, commerce, or transportation— (A) between a place in a State and any place outside thereof, or (B) which affects trade, traffic, commerce, or transportation described in subparagraph (A). (8) The term "distribute in commerce" means sell in, offer for sale in, or introduce or deliver for introduction into, commerce. (9) The term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Trust Territory of the Pacific Islands. (10) The term "Federal agency" means an executive agency (as defined in section 105 of title 5, United States Code) and includes the United States Postal Service. (11) The term "environmental noise" means the intensity, duration, and the character of sounds from all sources.

1235

• u so Stat. 379.

FEDERAL PROGRAMS

SEC. 4. (a) The Congress authorizes and directs that Federal agencies shall, to the fullest extent consistent with their authority under Federal laws administered by them, carry out the programs within their control in such a manner as to further the policy declared in section 2(b). (b) Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government— (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the emission of noise, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of environmental noise to the same extent that any person is subject to such requirements. The President compliance exmay exempt any single activity or facility, including noise emission d^ntiaravrthofity. sources or classes thereof, of any department, agency, or instrumentality in the executive branch from compliance with any such requirement if he determines it to be in the paramount interest of the United States to do so; except that no exemption, other than for those products referred to in section 3(3)(B) of this Act, may be granted from the requirements of sections 6, 17, and 18 of this Act. No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President's making a new determination. The President shall report Report to Coneach January to the Congress all exemptions from the requirements *'*''^'

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Page:United States Statutes at Large Volume 86.djvu/1278

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Standards or regulations.

R e v i s i o n report r e q u e s t, publication in Federal R e g i s t e r.

Report, publication in Federal Register.

Status report.

PUBLIC LAW 92-574-OCT. 27, 1972

[86

STAT.

of this section granted during the preceding calendar year, together with his reason for granting such exemption. (c)(1) The Administrator shall coordinate the programs of all Federal agencies relating to noise research and noise control. Each Federal agency shall, upon request, furnish to the Administrator such information as he may reasonably require to determine the nature, scope, and results of the noise-research and noise-control programs of the agency. (2) Each Federal agency shall consult with the Administrator in prescribing standards or regulations respecting noise. If at any time the Administrator has reason to believe that a standard or regulation, or any proposed standard or regulation, of any Federal agency respecting noise does not protect the public health and welfare to the extent he believes to be required and feasible, he may request such agency to review and report to him on the advisability of revising such standard or regulation to provide such protection. Any such request may be published in the Federal Register and shall be accompanied by a detailed statement of the information on which it is based. Such agency shall complete the requested review and report to the Administrator within such time as the Administrator specifies in the request, but such time specified may not be less than ninety days from the date the request was made. The report shall be published in the Federal Register and shall be accompanied by a detailed statement of the findings and conclusions of the agency respecting the revision of its standard or regulation. With respect to the Federal Aviation Administration, section 611 of the Federal Aviation Act of 1958 (as amended by section 7 of this Act) shall apply in lieu of this paragraph. (3)' On the basis of regular consultation with appropriate Federal agencies, the Administrator shall compile and publish, from time to time, a report on the status and progress of Federal activities relating to noise research and noise control. This report shall describe the noisecontrol programs of each Federal agency and assess the contributions of those programs to the Federal Government's overall efforts to control noise. I D E N T I F I C A T I O N OF M A J O R N O I S E SOURCES; N O I S E CRITERIA A N D CONTROL TECHNOLOGY

Reports;

SEC. 5. (a)(1) The Administrator shall, after consultation with appropriate Federal agencies and within nine months of the date of the enactment of this Act, develop and publish criteria with respect to noise. Such criteria shall reflect the scientific knowledge most useful in indicating the kind and extent of all identifiable effects on the public health or welfare which may be expected from differing quantities and qualities of noise. (2) The Administrator shall, after consultation with appropriate Federal agencies and within twelve months of the date of the enactment of this Act, publish information on the levels of environmental noise the attainment and maintenance of which in defined areas under various conditions are requisite to protect the public health and welfare with an adequate margin of safety. (b) The Administrator shall, after consultation with appropriate Federal agencies, compile and publish a report or series of reports (1) identifying products (or classes of products) which in his judgment are major sources of noise, and (2) giving information on techniques for control of noise from such products, including available data on the technology, costs, and alternative methods of noise control. The first such report shall be published not later than eighteen months after the date of enactment of this Act.

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1237

(c) The Administrator shall from time to time review and, as Review. Appropriate, revise or supplement any criteria or reports published under this section. (d) Any report (or revision thereof) under subsection (b)(1) iden- iiJ^^fo°n*fn Ped" tifying major noise sources shall be published in the Federal Register, eral R" g"ster. The publication or revision under this section of any criteria, or information on control techniques shall be announced in the Federal Register, and copies shall be made available to the general public. NOISE EMISSION STANDARDS FOR PRODUCTS DISTRIBUTED I N COMMERCE

SEC. 6. (a)(1) The Administrator shall publish proposed regulations, meeting the requirements of subsection (c), for each product— (A) which is identified (or is part of a class identified) in any report published under section 5(b)(1) as a major source of noise, (B) for which, in his judgment, noise emission standards are feasible, and (C) which falls in one of the following categories: (i) Construction equipment. (ii) Transportation equipment (including recreational vehicles and related equipment). (iii) Any motor or engine (including any equipment of which an engine or motor is an integral part). (iv) Electrical or electronic equipment. (2)(A) Initial proposed regulations under paragraph (1) shall be Proposed regupublished not later than eighteen months after the date of enactment ^3*4°"^' ^^^^"* of this Act, and shall apply to any product described in paragraph (1) which is identified (or is a part of a class identified) as a major source of noise in any report published under section 5(b)(1) on or before the date of publication of such initial proposed regulations. (B) I n the case of any product described in paragraph (1) which is identified (or is part of a class identified) as a major source of noise in a report published under section 5(b)(1) after publication of the initial proposed regulations under subparagraph (A) of this paragraph, regulations under paragraph (1) for such product shall be proposed and published by the Administrator not later than eighteen months after such report is published. (3) After proposed regulations respecting a product have been published under paragraph (2), the Administrator shall, unless in his judgment noise emission standards are not feasible for such product, l^rescribe regulations, meeting the requirements of subsection (c), for such product— (A) not earlier than six months after publication of such proloosed regulations, and (B) not later than— (i) twenty-four months after the date of enactment of this Act, in the case of a product subject to proposed regulations published under paragraph (2)(A), or (ii) in the case of any other product, twenty-four months after the publication of the report under section 5(b)(1) identifying it (or a class of products of which it is a part) as a major source of noise. (b) The Administrator may publish proposed regulations, meeting the requirements of subsection (c), for any product for which he is not required by subsection (a) to prescribe regulations but for which, in his judgment, noise emission standards are feasible and are requisite to protect the public health and welfare. Not earlier than six months after the date of publication of such proposed regulations respecting such product, he may prescribe regulations, meeting the requirements of subsection (c), for such product.

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80 Stat. 718. 15 USC 1381 Jiote. 81 Stat. 485. 42 USC 1857 note. Ante, p. 816.

80 Stat. 383.

e o s t obligations, transfer prohibition.

81 Stat. 505; 84 Stat. 1705. 42 USC 18S7J. Prohibitions.

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(c)(1) Any regulation prescribed under subsection (a) or (b) of this section (and any revision thereof) respecting a product shall include a noise emission standard which shall set limits on noise emissions from such product and shall be a standard which in the Administrator's judgment, based on criteria published under section 5, is requisite to protect the public health and welfare, taking into account the magnitude and conditions of use of such product (alone or in combination with other noise sources), the degree of noise reduction achievable through the application of the best available technology, and the cost of compliance. I n establishing such a standard for any product, the Administrator shall give appropriate consideration to standards under other laws designed to safeguard the health and welfare of persons, including any standards under the National Traffic and Motor Vehicle Safety Act of 1966, the Clean Air Act, and the Federal Water Pollution Control Act. Any such noise emission standards shall be a performance standard. I n addition, any regulation under subsection (a) or (b) (and any revision thereof) may contain testing procedures necessary to assure compliance with the emission standard in such regulation, and may contain provisions respecting instructions of the manufacturer for the maintenance, use, or repair of the product. (2) After publication of any proposed regulations under this section, the Administrator shall allow interested persons an opportunity to participate in rulemaking in accordance with the first sentence of section 553(c) of title 5, United States Code. (3) The Administrator may revise any regulation prescribed by him under this section by (A) publication of proposed revised regulations, and (B) the promulgation, not earlier than six months after the date of such publication, of regulations making the revision; except that a revision which makes only technical or clerical corrections in a regulation under this section may be promulgated earlier than six months after such date if the Administrator finds that such earlier promulgation is in the public interest. (d)(1) On and after the effective date of any regulation prescribed under subsection (a) or (b) of this section, the manufacturer of each new product to which such regulation applies shall warrant to the ultimate purchaser and each subsequent purchaser that such product is designed, built, and equipped so as to conform at the time of sale with such regulation. (2) Any cost obligation of any dealer incurred as a result of any requirement imposed by paragraph (1) of this subsection shall be borne by the manufacturer. The transfer of any such cost obligation from a manufacturer to any dealer through franchise or other agreement is prohibited. (3) If a manufacturer includes in any advertisement a statement respecting the cost or value of noise emission control devices or systems, such manufacturer shall set forth in such statement the cost or value attributed to such devices or systems by the Secretary of Labor (through the Bureau of Labor Statistics). The Secretary of Labor, and his representatives, shall have the same access for this purpose to the books, documents, papers, and records of a manufacturer as the Comptroller General has to those of a recipient of assistance for purposes of section 311 of the Clean Air Act. (e)(1) No State or political subdivision thereof may adopt or enforce— (A) with respect to any new product for which a regulation has been prescribed by the Administrator under this section, anv law or regulation which sets a limit on noise emissions from such

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new product and which is not identical to such regulation of the Administrator; or (B) with respect to any component incorporated into such new product by the manufacturer of such product, any law or regulation setting a limit on noise emissions from such component when so incorporated. (2) Subject to sections 17 and 18, nothing in this section precludes or denies the right of any State or political subdivision thereof to establish and enforce controls on environmental noise (or one or more sources thereof) through the licensing, regulation, or restriction of the use, operation, or movement of any product or combination of products. AIRCRAFT N O I S E

STANDARDS

SEC. 7. (a) The Administrator, after consultation with appropriate Federal, State, and local agencies and interested persons, shall conduct a study of the (1) adequacy of Federal Aviation Administration flight and operational noise controls; (2) adequacy of noise emission standards on new and existing aircraft, together with recommendations on the retrofitting and phaseout of existing aircraft; (3) implications of identifying and achieving levels of cumulative noise exposure around airports; and (4) additional measures available to airport operators and local governments to control aircraft noise.,He shall report on such study to the Committee on Interstate and Foreign Commerce of the House of Representatives and the Committees on Commerce and Public Works of the Senate within nine months alter the date of (b) Section 611 of the Federal Aviation Act of 1958 (49 U.S.C. 1431) is amended to read as follows: ((CONTROL

82 Stat. 395.

A N D A B A T E M E N T OF AIRCRAFT NOISE A N D SONIC BOOM

"SEC. 611. (a) For purposes of this section: "(1) The term ' F A A ' means Administrator of the Federal "FAA," Aviation Administration. "(2) The term ' E P A ' means the Administrator of the Environ- " E P A " mental Protection Agency. " (b)(1) In order to afford present and future relief and protection ^ standards and egulations to the public health and welfare from aircraft noise and sonic boom, r"""'"*''"". the F A A, after consultation with the Secretary of Transportation and with E P A, shall prescribe and amend standards for the measurement of aircraft noise and sonic boom and shall prescribe and amend such regulations as the F A A may find necessary to provide for the control and abatement of aircraft noise and sonic boom^ including the application of such standards and regulations in the issuance, ar^endment, modification, suspejision, or revocation of any certificate authorized by this title. No exemption with respect to any standard or regulation under this section may be granted under any provision of this Act unless the F A A shall have consulted with E P A before such exemption is granted, except that if the F A A determines that safety in air commerce or air transportation requires that such an exemption be granted before E P A can be consulted, the F A A shall consult with E P A as soon as practicable after the exemption is granted. " (2) The F A A shall not issue an original type certificate under section 603(a) of this Act for any aircraft for which substantial noise ^^ ^^^ ^^• abatement can be achieved by prescribing standards and regulations in accordance with this section, unless he shall have prescribed standards and regulations in accordance with this section which apply to such aircraft and which protect the public from aircraft noise and sonic boom, consistent with the considerations listed in subsection (d).

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 1240 Proposed regulations, submittal to FA A.

Publication.

Hearing.

Notice, publication in Federal Register.

Report request, publication in Federal Register.

83 Stat. 853. 42 USC 4332.

Report, publication in Federal Register.

Supplemental report, publication in Federal Register.

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" (c)(1) Xot earlier than the date of submission of the report required by section 7(a) of the Noise Control Act of 1972, E P A shall submit to the F A A proposed regulations to provide such control and abatement of aircraft noise and sonic boom (including control and abatement through the exercise of any of the F A A ' s regulatory authority over air commerce or transportation or over aircraft or airport operations) as E P A determines is necessary to protect the public health and welfare. The F A A shall consider such proposed regulations submitted by E P A under this paragraph and shall, within thirty days of the date of its submission to the F A A, publish the proposed regulations in a notice of proposed rulemaking. Within sixty days after such publication, the F A A shall commence a hearing at which interested persons shall be afforded an opportunity for oral (as well as written) presentations of data, views, and arguments. Within a reasonable time after the conclusion of such hearing and after consultation with E P A, the F A A shall— " (A) in accordance with subsection (b), prescribe regulations (i) substantially as they were submitted by E P A, or (ii) which are a modification of the proposed regulations submitted by E P A, or " (B) publish in the Federal Register a notice that it is not prescribing any regulation in response to E P A ' s submission of proposed regulations, together with a detailed explanation providing reasons for the decision not to prescribe such regulations. "(•2) If E P A has reason to believe that the F A A ' s action with respect to a regulation proposed by E P A under paragraph (1)(A) (ii) or (1)(B) of this subsection does not protect the public health and welfare from aircraft noise or sonic boom, consistent with the considerations listed in subsection (d) of this section, E P A shall consult w ith the F A A and may request the F A A to review, and report to E P A on, the advisability of prescribing the regulation originally proposed by E P A. Any such request shall be published in the Federal Register and shall include a detailed statement of the information on which it is based. The F A A shall complete the review requested and shall report to E P A within such time as E P A specifies in the request, but such time specified may not be less than ninety days from the date the request was made. The FAA's report shall be accompanied by a detailed statement of the FAA's findings and the reasons for the FAA's conclusions; shall identify any statement filed pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969 with respect to such action of the F A A under paragraph (1) of this subsection; and shall specify whether (and where) such statements are available for public inspection. The FAA's report shall be published in the Federal Register, except in a case in which E P A ' s request proposed specific action to be taken by the F A A, and the FAA's report indicates such action will be taken. "(3) If, in the case of a matter described in paragraph (2) of this subsection with respect to which no statement is required to be filed under such section 102(2)(C), the report of the F A A indicates that the proposed regulation originally submitted by E P A should not be made, then E P A may request the F A A to file a supplemental report, which shall be published in the Federal Register within such a period as E P A may specify (but such time specified shall not be less than ninety days from the date the request was made), and which shall contain a comparison of (A) the environmental effects (including those which cannot be avoided) of the action actually taken by the F A A in response to E P A ' s proposed regulations, and (B) E P A ' s proposed regulations.

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" (d) In prescribing and amending standards and regulations under this section, the F A A shall— "(1) consider relevant available data relating to aircraft noise and sonic boom, including the results of research, development, testing, and evaluation activities conducted pursuant to this Act and the Department of Transportation Act; s o Stat. 931. 49 USC 1651 "(2) consult with such Federal, State, and interstate agencies note. as he deems appropriate; "(3) consider whether any proposed ^ and a r d or regulation is consistent with the highest degree of safety in air commerce or air transportation in the public interest; "(4) consider whether any proposed standard or regulation is economically reasonable, technologically practicable, and appropriate for the particular type of aircraft, aircraft engine, appliance, or certificate to which it will apply; and "(5) consider the extent to which such standard or regulation will contribute to carrying out the purposes of this section. "(e) I n any action to amend, modify, suspend, or revoke a certifi- Notice and cate in which violation of aircraft noise or sonic boom standards or ^PP*«^regulations is at issue, the certificate holder shall have the same notice and appeal rights as are contained in section 609, and in any appeal gs'statAsV' to the National Transportation Safety Board, the Board may amend, 49 USC 1429. modify, or reverse the order of the F A A if it finds that control or abatement of aircraft noise or sonic boom and the public health and welfare do not require the affirmation of such order, or that such order is not consistent with safety in air commerce or air transportation." (c) All— (1) standards, rules, and regulations prescribed under section 611 of the Federal Aviation Act of 1958, and Ante, p. 1239. (2) exemptions, granted under any provision of the Federal Aviation Act of 1958, with respect to such standards, rules, and H ftf*- 7^^ 49 US C 1301

1 i•

regulations, note, which are in effect on the date of the enactment of this Act, shall continue in effect according to their terms until modified, terminated, superseded, set aside, or repealed by the Administrator of the Federal Aviation Administration in the exercise of any authority vested in him, by a court of competent jurisdiction, or by operation of law. LABELING

SEC. 8. (a) The Administrator shall by regulation designate any Regulations, product (or class thereof)— (1) which emits noise capable of adversely affecting the public health or welfare; or (2) which is sold wholly or in part on the basis of its effectiveness in reducing noise. (b) For each product (or class thereof) designated under subsection (a) the Administrator shall by regulation require that notice be given to the prospective user of the level of the noise the product emits, or of its effectiveness in reducing noise, as the case may be. Such regulations shall specify (1) whether such notice shall be affixed to the product or to the outside of its container, or to both, at the time of its sale to the ultimate purchaser or whether such notice shall be given to the prospective user in some other manner, (2) the form of the notice, and (3) the methods and units of measurement to be used. Sections 6(c)(2) shall apply to the prescribing of any regulation under this section. (c) This section does not prevent any State or political subdivision thereof from regulating product labeling or information respecting products in any way not in conflict with regulations prescribed by the Administrator under this section.

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IMPORTS

Regulations.

SEC. 9. The Secretary of the Treasury shall, in consultation with the Administrator, issue regulations to carry out the provisions of this Act with respect to new products imported or offered for importation. PROHIBITED ACTS

Exemptions.

SEC. 10. (a) Except as otherwise provided in subsection (b), the following acts or the causing thereof are prohibited: (1) I n the case of a manufacturer, to distribute in commerce any new product manufactured after the- effective date of a regulation prescribed under section 6 which is applicable to such product, except in conformity with such regulation. (2)(A) The removal or rendering inoperative by any person, other than for purposes of maintenance, repair, or replacement, of any device or element of design incorporated into any product in compliance with regulations under section 6, prior to its sale or delivery to the ultimate purchaser or while it is in use, or (B) the use of a product after such device or element of design has been removed or rendered inoperative by any person. (3) I n the case of a manufacturer, to distribute in commerce any new product manufactured after the effective date of a regulation prescribed under section 8(b) (requiring information respecting noise) which is applicable to such product, except in conformity with such regulation. (4) The removal by any person of any notice affixed to a product or container pursuant to regulations prescribed under section 8(b), prior to sale of the product to the ultimate purchaser. (5) The importation into the United States by any person of any new product in violation of a regulation prescribed under section 9 which is applicable to such product. (6) The failure or refusal by any person to comply with any requirement of section 11(d) or 13(a) or regulations prescribed under section 13(a), 17, or 18. (b)(1) For the purpose of research, investigations, studies, demonstrations, or training, or for reasons of national security, the Administrator may exempt for a specified period of time any product, or class thereof, from paragraphs (1), (2), (3), and (5) of subsection (a), upon such terms and conditions as he may find necessary to protect the public health or welfare. (2) Paragraphs (1), (2), (3), and (4) of subsection (a) shall not apply with respect to any product which is manufactured solely for use outside any State and which (and the container of which) is labeled or otherwise marked to show that it is manufactured solely for use outside any State; except that such paragraphs shall apply to such product if it is in fact distributed in commerce for use in any State. ENFORCEMENT

Penalty.

SEC. 11. (a) Any person who willfully or knowingly violates paragraph (1), (3), (5), or (6) of subsection (a) of section 10 of this Act shall be punished by a fine of not more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both. If the conviction is for a violation committed after a first conviction of such person under this subsection, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment for not more than two years, or by both. (b) For the purpose of this section, each day of violation of any paragraph of section 10(a) shall constitute a separate violation of that section.

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(c) The district courts of the United States shall have jurisdiction of actions brought by and in the name of the United States to restrain any violations of section 10(a) of this Act. (d)(1) Whenever any person is in violation of section 10(a) of this Act, the Administrator may issue an order specifying such relief as he determines is necessary to protect the public health and welfare. (2) Any order under this subsection shall be issued only after notice and opportunity for a hearing in accordance with section 554 of title 5 of the United States Code. (e) The term "person," as used in this section, does not include a department, agency, or instrumentality of the United States.

1243 jurisdiction.

so Stat. 384. "Person."

CITIZEN syrrs SEC. 12. (a) Except as provided in subsection (b), any person (other than the United States) may commence a civil action on his own behalf— (1) against any person (including (A) the United States, and (B) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any noise control requirement (as defined in subsection (e)), or (2) against— (A) the Administrator of the Environmental Protection Agency where there is alleged a failure of such Administrator to perform any act or duty under this Act which is not discretionary with such Administrator, or (B) the Administrator of the Federal Aviation Administration where there is alleged a failure of such Administrator to perform any act or duty under section 611 of the Federal Aviation Act of 1958 which is not discretionary with such Administrator. The district courts of the United States shall have jurisdiction, without regard to the aipount in controversy, to restrain such person from violating such noise control requirement or to order such Administrator to perform such act or duty, as the case may be. (b) No action may be commenced— (1) under subsection (a) (1')— (A) prior to sixty days after the plaintiff has given notice of the violation (i) to the Administrator of the Environmental Protection Agency (and to the Federal Aviation Administrator in the case of a violation of a noise control requirement under such section 611) and (ii) to any alleged violator of such requirement, or (B) if an Administrator has commenced and is diligently prosecuting a civil action to require compliance with the noise control requirement, but in amy such action in a court of the United States any person may intervene as a matter of right, or (2) under subsection (a)(2) prior to sixty days after the plaintiff has given notice to the defendant that he will commence such action. Notice under this subsection shall be given in such manner as the Administrator of the Environmental Protection Agency shall prescribe by regulation. (c) I n an action under this section, the Administrator of the Environmental Protection Agency, if not a party, may intervene as a matter of right. I n an action under this section respecting a noise control requirement under section 611 of the Federal Aviation Act of 1958,

use prec.

^^te, p. 1239. Jurisdiction.

Notice.

Intervention.

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