Title 16—Commercial Practices--Volume 1
PART 1061—APPLICATIONS FOR EXEMPTION FROM PREEMPTION
§ 1061.1   Scope and purpose.
(a) This part applies to the submission and consideration of applications by State and local governments for exemption from preemption by statutes, standards, and regulations of the Consumer Product Safety Commission.
(b) This part implements section 26 of the Consumer Product Safety Act (CPSA) (15 U.S.C. 2075), section 18 of the Federal Hazardous Substances Act (FHSA) (15 U.S.C. 1261n), section 16 of the Flammable Fabrics Act (FFA) (15 U.S.C. 1203), and section 7 of the Poison Prevention Packaging Act (PPPA) (15 U.S.C. 1476), all as amended.
§ 1061.2   Definitions.
For the purposes of this part:
(a) Commission means the Consumer Product Safety Commission.
(b) Commission's statutory preemption provisions and statutory preemption provisions means section 26 of the CPSA (15 U.S.C. 2075), section 18 of the FHSA (15 U.S.C. 1261n), section 16 of the FFA (15 U.S.C. 1203) and section 7 of the PPPA (15 U.S.C. 1476).
(c) Commission statute, standard, or regulation means a statute, standard, regulation, or requirement that is designated as having a preemptive effect by the Commission's statutory preemption provisions.
(d) State means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, Wake Island, Midway Island, Kingman Reef, Johnston Island, the Canal Zone, American Samoa, or the Trust Territory of the Pacific Islands.
(e) Local government means any political subdivision of a State having the authority to establish or continue in effect any standard, regulation, or requirement that has the force of law and is applicable to a consumer product.
(f) State or local requirement means any statute, standard, regulation, ordinance, or other requirement that applies to a product regulated by the Commission, that is issued by a State or local government, and that is intended to have the force of law when in effect.
§ 1061.3   Statutory considerations.
(a) The Commission's statutory preemption provisions provide, generally, that whenever consumer products are subject to certain Commission statutes, standards, or regulations, a State or local requirement applicable to the same product is preempted, i.e., superseded and made unenforceable, if both are designed to protect against the same risk of injury or illness, unless the State or local requirement is identical to the Commission's statutory requirement, standard, or regulation. A State or local requirement is not preempted if the product it is applicable to is for the State or local government's own use and the requirement provides a higher degree of protection than the Commission's statutory requirement, standard, or regulation.
(b) The Commission's statutory preemption provisions provide, generally, that if a State or local government wants to enforce its own requirement that is preempted, the State or local government must seek an exemption from the Commission before any such enforcement. The Commission may, by regulation, exempt a State or local requirement from preemption if it finds that the State or local requirement affords a significantly higher degree of protection than the Commission's statute, standard, or regulation, and that it does not unduly burden interstate commerce. Such findings must be included in any exemption regulation.
§ 1061.4   Threshold requirements for applications for exemption.
(a) The Commission will consider an application for preemption on its merits, only if the application demonstrates all of the following:
(1) The State or local requirement has been enacted or issued in final form by an authorized official or instrumentality of the State or local government. For purposes of this section, a State or local requirement may be considered to have been enacted or issued in final form even though it is preempted by a Commission standard or regulation.
(2) The applicant is an official or instrumentality of a State or local government having authority to act for, or on behalf of, that government in applying for an exemption from preemption for the safety requirement referred to in the application.
(3) The State or local requirement is preempted under a Commission statutory preemption provision by a Commission statute, standard, or regulation. A State or local requirement is preempted if the following tests are met:
(i) There is a Commission statute, standard, or regulation in effect that is applicable to the product covered by the State or local requirement.
(ii) The Commission statute, standard, or regulation is designated as having a preemptive effect under a statutory preemption provision.
(iii) The State or local requirement is designed to protect against the same risk of injury or illness as that addressed by the Commission statute, standard, or regulation.
(iv) The State or local requirement is not identical to the Commission statute, standard, or regulation.
(b) State and local governments may contact the Commission's Office of the General Counsel to obtain informal advice on whether a State or local requirement meets the threshold requirements of paragraph (a) of this section.
§ 1061.5   Form of applications for exemption.
An application for exemption shall:
(a) Be written in the English language.
(b) Clearly indicate that it is an application for an exemption from preemption by a Commission statute, standard, or regulation.
(c) Identify the State or local requirement that is the subject of the application and give the date it was enacted or issued in final form.
(d) Identify the specific Commission statute, standard, or regulation that is believed to preempt the State or local requirement.
(e) Contain the name and address of the person, branch, department, agency, or other instrumentality of the State or local government that should be notified of the Commission's actions concerning the application.
(f) Document the applicant's authority to act for, or on behalf of, the State or local government in applying for an exemption from preemption for the particular safety requirement in question.
(g) Be signed by an individual having authority to apply for the exemption from federal preemption on behalf of the applicant.
(h) Be submitted, in five copies, to the Secretary, Consumer Product Safety Commission, Washington, DC 20207.
§ 1061.6   Contents of applications for exemption.
Applications for exemption shall include the information specified in §§ 1061.7 through 1061.10. More generally, a State or local government seeking an exemption should provide the Commission with the most complete information possible in support of the findings the Commission is required to make in issuing an exemption regulation. If any of the specified information is omitted because it is unavailable or not relevent, such omission should be explained in the application.
§ 1061.7   Documentation of the State or local requirement.
An application for an exemption from preemption shall contain the following information:
(a) A copy of the State or local requirement that is the subject of the application. Where available, the application shall also include copies of any legislative history or background materials used in issuing the requirement, including hearing reports or studies concerning the development or consideration of the requirement.
(b) A written explanation of why compliance with the State or local requirement would not cause the product to be in violation of the applicable Commission statute, standard, or regulation.
§ 1061.8   Information on the heightened degree of protection afforded.
An application for an exemption from preemption shall also contain information demonstrating that the State or local requirement provides a significantly higher degree of protection from the risk of injury or illness than the preempting Commission statute, standard, or regulation. More specifically, an application shall contain:
(a) A description of the risk of injury or illness addressed by the State or local requirement.
(b) A detailed explanation of the State or local requirement and its rationale.
(c) An analysis of differences between the State or local requirement and the Commission statute, standard, or regulation.
(d) A detailed explanation of the State or local test method and its rationale.
(e) Information comparing available test results for the Commission statute, standard, or regulation and the State or local requirement.
(f) Information to show hazard reduction as a result of the State or local requirement, including injury data and results of accident simulation.
(g) Any other information that is relevant to applicant's contention that the State or local requirement provides a significantly higher degree of protection than does the Commission statute, standard, or regulation.
(h) Information regarding enforcement of the State or local requirement and sanctions that could be imposed for noncompliance.
§ 1061.9   Information about the effect on interstate commerce.
An application for exemption from preemption shall provide information on the effect on interstate commerce a granting of the requested exemption would be expected to cause, including the extent of the burden and the benefit to public health and safety that would be provided by the State or local requirement. More specifically, applications for exemption shall include, where available, information showing:
(a) That it is technologically feasible to comply with the State or local requirement. Evidence of technological feasibility could take the form of:
(1) Statements by affected persons indicating ability to comply with the State or local government requirement.
(2) Statements indicating that other jurisdictions have established similar requirements that have been, or could be, met by persons affected by the requirement that is the subject of the application.
(3) Information as to technological product or process modifications necessary to achieve compliance with the State or local requirement.
(4) Any other information indicating the technological feasibility of compliance with the State or local requirement.
(b) That it is economically feasible to comply with the State or local requirement, i.e., that there would not be significant adverse effects on the production and distribution of the regulated products. Evidence of economic feasibility could take the form of:
(1) Information showing that the State or local requirement would not result in the unavailability (or result in a significant decline in the availability) of the product, either in the interstate market or within the geographic boundary of the State or local government imposing the requirement.
(2) Statements from persons likely to be affected by the State or local requirement concerning the anticipated effect of the requirement on the availability or continued marketing of the product.
(3) Any other information indicating the economic impact of compliance with the State or local requirement, such as projections of the anticipated effect of the State or local requirement on the sales and prices of the product, both in interstate commerce and within the geographic area of the State or local government.
(c) The present geographic distribution of the product to which the State or local requirement would apply, and projections of future geographic distribution. Evidence of the geographic distribution could take the form of governmental or private information or data (including statements from manufacturers, distributors, or retailers of the product) showing advertising in the interstate market, interstate retailing, or interstate distribution.
(d) The probability of other States or local governments applying for an exemption for a similar requirement. Evidence of the probability that other States or local governments would apply for an exemption could take the form of statements from other States or local governments indicating their intentions.
(e) That specified local conditions require the State or local government to apply with the exemption in order to adequately protect the public health or safety of the State or local area.
§ 1061.10   Information on affected parties.
An application for an exemption from preemption shall include a statement which identifies in general terms, parties potentially affected by the State or local requirement, especially small businesses, including manufacturers, distributors, retailers, consumers, and consumer groups.
§ 1061.11   Incomplete or insufficient applications.
(a) If an application fails to meet the threshold requirements of § 1061.4(a) of this part, the Office of General Counsel will inform the applicant and return the application without prejudice to its being resubmitted.
(b) If an application fails to provide all the information specified in §§ 1061.5 through 1061.10 of this part, and fails to fully explain why it has not been provided, the Office of General Counsel will either:
(1) Return it to the applicant without prejudice to its being resubmitted,
(2) Notify the applicant and allow it to provide the missing information, or
(3) If the deficiencies are minor and the applicant concurs, forward it to the Commission for consideration on its merits.
(c) If the Commission or the Commission staff believes that additional information is necessary or useful for a proper evaluation of the application, the Commission or Commission staff will promptly request the applicant to furnish such additional information.
(d) If an application is not returned under paragraphs (a) or (b) of this section, the Commission will consider it on its merits.
§ 1061.12   Commission consideration on merits.
(a) If the Commission proposes to grant an application for exemption it will, in accordance with 5 U.S.C. 553, publish a notice of that fact in the Federal Register, including a proposed exemption regulation, and provide an opportunity for written and oral comments on the proposed exemption by any interested party.
(b) The Commission will evaluate all timely written and oral submissions received from interested parties, as well as any other available and relevant information on the proposal.
(c) The Commission's evaluation will focus on:
(1) Whether the State or local requirement provides a significantly higher degree of protection than the Commission statute or regulation from the risk of injury or illness that they both address.
(2) Whether the State or local requirement would unduly burden interstate commerce if the grant of the exemption from preemption allows it to go into effect. The Commission will evaluate these factors in accordance with the Commission's statutory preemption provisions and their legislative history.
(3) Whether compliance with the State or local requirements would not cause the product to be in violation of the applicable Commission statute, standard, or regulation.
(d) If, after evaluating the record, the Commission determines to grant an exemption, it will publish a final exemption regulation, including the findings required by the statutory preemption provisions, in the Federal Register.
(e) If the Commission denies an application, whether or not published for comment, it will publish its reasons for doing so in the Federal Register.