Please note: The compilations of law provided at this site 

are unofficial. They have been prepared by the House 

Office of Legislative Counsel for the use and convenience 

of the House Committee on Energy and Commerce. The 

official compilation of Federal law is the United States 

Code, and rules of evidence regarding the Code have 

been established by statute.
" ! COMMITTEE PRINT 107TH CONGRESS

1st Session

COMMITTEE

PRINT 107–K

COMPILATION OF SELECTED ACTS WITHIN

THE JURISDICTION OF THE COMMITTEE

ON ENERGY AND COMMERCE

CONSUMER PROTECTION LAW

As Amended Through December 31, 2000

INCLUDING

FEDERAL TRADE COMMISSION ACT

FEDERAL TRADE COMMISSION IMPROVEMENTS ACT OF

1980

FEDERAL CAUSTIC POISON ACT

FLAMMABLE FABRICS ACT

ACT OF AUGUST 2, 1956 (REFRIGERATOR SAFETY ACT)

AUTOMOBILE INFORMATION DISCLOSURE ACT

FEDERAL HAZARDOUS SUBSTANCES ACT

FAIR PACKAGING AND LABELING ACT

POISON PREVENTION PACKAGING ACT OF 1970

CONSUMER PRODUCT SAFETY ACT

MAGNUSON-MOSS WARRANTY—FEDERAL TRADE COMMISSION IMPROVEMENT ACT

SELECTED PROVISIONS OF THE ANTI CAR THEFT ACT OF

1992

SELECTED PROVISIONS OF TITLE 49, UNITED STATES CODE

PREPARED FOR THE USE OF THE

COMMITTEE ON ENERGY AND COMMERCE

U.S. HOUSE OF REPRESENTATIVES

JULY 2001

COMPILATION OF SELECTED ACTS — CONSUMER PROTECTION LAW

(As Amended Through December 31, 2000)


To use this index, bend the

publication over and locate the

desired section by following the

black markers.

Federal Trade Commission Act

Federal Trade Commission Improvements Act of 1980

Federal Caustic Poison Act

Flammable Fabrics Act

Refrigerator Safety Act

Automobile Information Disclosure Act

Federal Hazardous Substances

Act

Fair Packaging and Labeling Act

Poison Prevention Packaging Act

of 1970

Consumer Product Safety Act

Magnuson-Moss Warranty—Federal Trade Commission Improvement Act

Anti Car Theft Act of 1992 (selected provisions)

Title 49, United States Code (selected provisions)

Appendix: Administrative Procedure and Judicial Review
U.S. GOVERNMENT PRINTING OFFICE

70–534 WASHINGTON : 

" ! COMMITTEE PRINT 107TH CONGRESS

1st Session

COMMITTEE

2001

PRINT 107–K

COMPILATION OF SELECTED ACTS WITHIN

THE JURISDICTION OF THE COMMITTEE

ON ENERGY AND COMMERCE

CONSUMER PROTECTION LAW

As Amended Through December 31, 2000

INCLUDING

FEDERAL TRADE COMMISSION ACT

FEDERAL TRADE COMMISSION IMPROVEMENTS ACT OF

1980

FEDERAL CAUSTIC POISON ACT

FLAMMABLE FABRICS ACT

ACT OF AUGUST 2, 1956 (REFRIGERATOR SAFETY ACT)

AUTOMOBILE INFORMATION DISCLOSURE ACT

FEDERAL HAZARDOUS SUBSTANCES ACT

FAIR PACKAGING AND LABELING ACT

POISON PREVENTION PACKAGING ACT OF 1970

CONSUMER PRODUCT SAFETY ACT

MAGNUSON-MOSS WARRANTY—FEDERAL TRADE COMMIS- SION IMPROVEMENT ACT

SELECTED PROVISIONS OF THE ANTI CAR THEFT ACT OF

1992

SELECTED PROVISIONS OF TITLE 49, UNITED STATES CODE

PREPARED FOR THE USE OF THE

COMMITTEE ON ENERGY AND COMMERCE

U.S. HOUSE OF REPRESENTATIVES

JULY 2001

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Washington, DC 20402–0001
COMMITTEE ON ENERGY AND COMMERCE

W.J. ‘‘BILLY’’ TAUZIN, Louisiana, Chairman

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

BARBARA CUBIN, Wyoming

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES ‘‘CHIP’’ PICKERING, Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

TOM DAVIS, Virginia

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

STEVE BUYER, Indiana

GEORGE RADANOVICH, California

CHARLES F. BASS, New Hampshire

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

TOM SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

MICHAEL F. DOYLE, Pennsylvania

CHRISTOPHER JOHN, Louisiana

JANE HARMAN, California

DAVID V. MARVENTANO, Staff Director

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

(II)
CONTENTS

Page

Federal Trade Commission Act (15 U.S.C. 41 et seq.) ............. 1

Federal Trade Commission Improvements Act of 1980 (15

U.S.C. 58 et seq.) ..................................................................... 43

Federal Caustic Poison Act (15 U.S.C. 401 et seq.) .................. 49

Flammable Fabrics Act (15 U.S.C. 1191 et seq.) ...................... 57

Act of August 2, 1956 (commonly known as the Refrigerator

Safety Act) (15 U.S.C. 1211 et seq.) ....................................... 75

Automobile Information Disclosure Act (15 U.S.C. 1231 et

seq.) ........................................................................................... 79

Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) .. 85

Fair Packaging and Labeling Act (15 U.S.C. 1451 et seq.) ..... 119

Poison Prevention Packaging Act of 1970 (15 U.S.C. 1471

et seq.) ...................................................................................... 129

Consumer Product Safety Act (15 U.S.C. 2051 et seq.) ........... 137

Magnuson-Moss Warranty—Federal Trade Commission Improvement Act (15 U.S.C. 2301 et seq.) ................................. 187

Anti Car Theft Act of 1992 (selected provisions) ...................... 201

Title 49, United States Code: Subtitle VI—Motor Vehicle

and Driver Safety Programs (selected provisions) ................

Part A—General ................................................................... 209

Chapter 301—Motor Vehicle Safety (formerly the

National Traffic and Motor Vehicle Safety Act of

1966) ........................................................................... 209

Chapter 305—National Motor Vehicle Title Information System (formerly sections 201–204 of the Anti

Car Theft Act of 1992) .............................................. 251

Part C—Information, Standards, and Requirements (formerly the Motor Vehicle Information and Cost Savings

Act) .................................................................................... 259

Chapter 321—General .................................................. 261

Chapter 323—Consumer Information ......................... 262

Chapter 325—Bumper Standards ............................... 269

Chapter 327—Odometers ............................................. 276

Chapter 329—Automobile Fuel Economy ................... 284

Chapter 331—Theft Prevention ................................... 306

Appendix: Administrative Procedure and Judicial Review ..... 327

(III)
For changes after the closing date of this publication (December 31, 2000) to provisions of law in this publication that have been

classified in the U.S. Code, see the United States Code Classification Tables published by the Office of the Law Revision Counsel of

the House of Representatives at http://uscode.house.gov/uscct.htm.

(IV)
1

FEDERAL TRADE COMMISSION ACT

3

1Double period in third sentence of first section so in law.

FEDERAL TRADE COMMISSION ACT

[Chapter 311, 38 Stat. 717, September 26, 1914]

[As amended through Public Law 104–216, October 1, 1996]

CHAP. 311.—AN ACT TO CREATE A FEDERAL TRADE COMMISSION, TO DEFINE ITS

POWERS AND DUTIES, AND FOR OTHER PURPOSES.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø15 U.S.C. 41¿

That a commission is hereby created and established, to be known

as the Federal Trade Commission (hereinafter referred to as the

commission), which shall be composed of five commissioners, who

shall be appointed by the President, by and with the advice and

consent of the Senate. Not more than three of the commissioners

shall be members of the same political party. The first commissioners appointed shall continue in office for terms of three, four,

five, six, and seven years, respectively, from the date of the taking

effect of this Act, the term of each to be designated by the President, but their successors shall be appointed for terms of seven

years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he

shall succeed: Provided, however, That upon the expiration of his

term of office a Commissioner shall continue to serve until his successor shall have been appointed and shall have qualified.. 1 The

commission shall choose a chairman from its own membership. No

commissioner shall engage in any other business, vocation, or employment. Any commissioner may be removed by the President for

inefficiency, neglect of duty, or malfeasance in office. A vacancy in

the commission shall not impair the right of the remaining commissioners to exercise all the powers of the commission.

The commission shall have an official seal, which shall be judicially noticed.

SEC. 2. ø15 U.S.C. 42¿ That each commissioner shall receive

a salary of $10,000 a year, payable in the same manner as the salaries of the judges of the courts of the United States. The commission shall appoint a secretary, who shall receive a salary of $5,000

a year, payable in like manner, and it shall have authority to employ and fix the compensation of such attorneys, special experts,

examiners, clerks, and other employees as it may from time to time

find necessary for the proper performance of its duties and as may

be from time to time appropriated for by Congress.

With the exception of the secretary, a clerk to each commissioner, the attorneys, and such special experts and examiners as

the commission may from time to time find necessary for the conduct of its work, all employees of the commission shall be a part
Sec. 3 FEDERAL TRADE COMMISSION ACT 4

of the classified civil service, and shall enter the service under such

rules and regulations as may be prescribed by the commission and

by the Civil Service Commission.

All of the expenses of the commission, including all necessary

expenses for transportation incurred by the commissioners or by

their employees under their orders, in making any investigation, or

upon official business in any other places than in the city of Washington, shall be allowed and paid on the presentation of itemized

vouchers therefor approved by the commission.

Until otherwise provided by law, the commission may rent

suitable offices for its use.

The Auditor for the State and Other Departments shall receive

and examine all accounts of expenditures of the commission.

SEC. 3. ø15 U.S.C. 43¿ That upon the organization of the commission and election of its chairman, the Bureau of Corporations

and the offices of Commissioner and Deputy Commissioner of Corporations shall cease to exist; and all pending investigations and

proceedings of the Bureau of Corporations shall be continued by

the commission.

All clerks and employees of the said bureau shall be transferred to and become clerks and employees of the commission at

their present grades and salaries. All records, papers, and property

of the said bureau shall become records, papers, and property of

the commission, and all unexpended funds and appropriations for

the use and maintenance of the said bureau, including any allotment already made to it by the Secretary of Commerce from the

contingent appropriation for the Department of Commerce for the

fiscal year nineteen hundred and fifteen, or from the departmental

printing fund for the fiscal year nineteen hundred and fifteen, shall

become funds and appropriations available to be expended by the

commission in the exercise of the powers, authority, and duties conferred on it by this Act.

The principal office of the commission shall be in the city of

Washington, but it may meet and exercise all its powers at any

other place. The commission may, by one or more of its members,

or by such examiners as it may designate, prosecute any inquiry

necessary to its duties in any part of the United States.

SEC. 4. ø15 U.S.C. 44¿ The words defined in this section shall

have the following meaning when found in this Act, to wit:

‘‘Commerce’’ means commerce among the several States or

with foreign nations, or in any Territory of the United States or in

the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation.

‘‘Corporation’’ shall be deemed to include any company, trust,

so-called Massachusetts trust, or association, incorporated or unincorporated, which is organized to carry on business for its own

profit or that of its members, and has shares of capital or capital

stock or certificates of interest, and any company, trust, so-called

Massachusetts trust, or association, incorporated or unincorporated, without shares of capital or capital stock or certificates of

interest, except partnerships, which is organized to carry on business for its own profit or that of its members.
5 Sec. 5 FEDERAL TRADE COMMISSION ACT

1The reference to ‘‘ ‘An Act to regulate commerce,’ approved February 14, 1887, and all Acts

amendatory thereof and supplementary thereto’’ should be to ‘‘subtitle IV of title 49’’. Public Law

95–473, 92 Stat. 1337, October 17, 1978, codified title 49 of the United States Code. Section 3(b)

of that Act, 92 Stat. at 1466, provides as follows: ‘‘(b) A reference to a law replaced by sections 1 and 2 of this Act, including a reference in

a regulation, order, or other law, is deemed to refer to the corresponding provision enacted by

this Act.’’ 2 Indentation so in law.

‘‘Documentary evidence’’ includes all documents, papers, correspondence, books of account, and financial and corporate records.

‘‘Acts to regulate commerce’’ means the Act entitled ‘‘An Act to

regulate commerce,’’ approved February 14, 1887, and all Acts

amendatory thereof and supplementary thereto1 and the Communications Act of 1934 and all Acts amendatory thereof and supplementary thereto.

‘‘Antitrust Acts’’ means the Act entitled ‘‘An Act to protect

trade and commerce against unlawful restraints and monopolies,’’

approved July 2, 1890; also sections 73 to 77, inclusive, of an Act

entitled ‘‘An Act to reduce taxation, to provide revenue for the Government, and for other purposes,’’ approved August 27, 1894; also

the Act entitled ‘‘An Act to amend sections 73 and 76 of the Act

of August 27, 1894, entitled ‘An Act to reduce taxation, to provide

revenue for the Government, and for other purposes,’ ’’ approved

February 12, 1913; and also the Act entitled ‘‘An Act to supplement

existing laws against unlawful restraints and monopolies, and for

other purposes,’’ approved October 15, 1914.

‘‘Banks’’ 2 means the types of banks and other financial institutions referred to in section 18(f)(2).

SEC. 5. ø15 U.S.C. 45¿ (a)(1) Unfair methods of competition in

or affecting commerce, and unfair or deceptive acts or practices in

or affecting commerce, are hereby declared unlawful.

(2) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, savings

and loan institutions described in section 18(f)(3), Federal credit

unions described in section 18(f)(4), common carriers subject to the

Acts to regulate commerce, air carriers and foreign air carriers subject to the Federal Aviation Act of 1958, and persons, partnerships,

or corporations insofar as they are subject to the Packers and

Stockyards Act, 1921, as amended, except as provided in section

406(b) of said Act, from using unfair methods of competition in or

affecting commerce and unfair or deceptive acts or practices in or

affecting commerce.

(3) This subsection shall not apply to unfair methods of competition involving commerce with foreign nations (other than import commerce) unless—

(A) such methods of competition have a direct, substantial,

and reasonably foreseeable effect—

(i) on commerce which is not commerce with foreign

nations, or on import commerce with foreign nations; or

(ii) on export commerce with foreign nations, of a person engaged in such commerce in the United States; and

(B) such effect gives rise to a claim under the provisions

of this subsection, other than this paragraph.

If this subsection applies to such methods of competition only because of the operation of subparagraph (A)(ii), this subsection shall
Sec. 5 FEDERAL TRADE COMMISSION ACT 6

apply to such conduct only for injury to export business in the

United States.

(b) Whenever the Commission shall have reason to believe that

any such person, partnership, or corporation has been or is using

any unfair method of competition or unfair or deceptive act or practice in or affecting commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation a complaint stating its charges in that respect and containing a notice of a hearing upon a day and at a

place therein fixed at least thirty days after the service of said complaint. The person, partnership, or corporation so complained of

shall have the right to appear at the place and time so fixed and

show cause why an order should not be entered by the Commission

requiring such person, partnership, or corporation to cease and desist from the violation of the law so charged in said complaint. Any

person, partnership, or corporation may make application, and

upon good cause shown may be allowed by the Commission to intervene and appear in said proceeding by counsel or in person. The

testimony in any such proceeding shall be reduced to writing and

filed in the office of the Commission. If upon such hearing the

Commission shall be of the opinion that the method of competition

or the act or practice in question is prohibited by this Act, it shall

make a report in writing in which it shall state its findings as to

the facts and shall issue and cause to be served on such person,

partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist from using such method

of competition or such act or practice. Until the expiration of the

time allowed for filing a petition for review, if no such petition has

been duly filed within such time, or, if a petition for review has

been filed within such time then until the record in the proceeding

has been filed in a court of appeals of the United States, as hereinafter provided, the Commission may at any time, upon such notice

and in such manner as it shall deem proper, modify or set aside,

in whole or in part, any report or any order made or issued by it

under this section. After the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed

within such time, the Commission may at any time, after notice

and opportunity for hearing, reopen and alter, modify, or set aside,

in whole or in part, any report or order made or issued by it under

this section, whenever in the opinion of the Commission conditions

of fact or of law have so changed as to require such action or if the

public interest shall so require, except that (1) the said person,

partnership, or corporation may, within sixty days after service

upon him or it of said report or order entered after such a reopening, obtain a review thereof in the appropriate circuit court of appeals of the United States, in the manner provided in subsection

(c) of this section; and (2) in the case of an order, the Commission

shall reopen any such order to consider whether such order (including any affirmative relief provision contained in such order) should

be altered, modified, or set aside, in whole or in part, if the person,

partnership, or corporation involved files a request with the Commission which makes a satisfactory showing that changed conditions of law or fact require such order to be altered, modified, or

set aside, in whole or in part. The Commission shall determine
7 Sec. 5 FEDERAL TRADE COMMISSION ACT

1So in law. Reference in subsection (b) probably should be to ‘‘clause (2)’’.

whether to alter, modify, or set aside any order of the Commission

in response to a request made by a person, partnership, or corporation under paragraph (2) 1 not later than 120 days after the date

of the filing of such request.

(c) Any person, partnership, or corporation required by an

order of the Commission to cease and desist from using any method

of competition or act or practice may obtain a review of such order

in the circuit court of appeals of the United States, within any circuit where the method of competition or the act or practice in question was used or where such person, partnership, or corporation resides or carries on business, by filing in the court, within sixty days

from the date of the service of such order, a written petition praying that the order of the Commission be set aside. A copy of such

petition shall be forthwith transmitted by the clerk of the court to

the Commission, and thereupon the Commission shall file in the

court the record in the proceeding, as provided in section 2112 of

title 28, United States Code. Upon such filing of the petition the

court shall have jurisdiction of the proceeding and of the question

determined therein concurrently with the Commission until the filing of the record and shall have power to make and enter a decree

affirming, modifying, or setting aside the order of the Commission,

and enforcing the same to the extent that such order is affirmed

and to issue such writs as are ancillary to its jurisdiction or are

necessary in its judgment to prevent injury to the public or to competitors pendente lite. The findings of the Commission as to the

facts, if supported by evidence, shall be conclusive. To the extent

that the order of the Commission is affirmed, the court shall thereupon issue its own order commanding obedience to the terms of

such order of the Commission. If either party shall apply to the

court for leave to adduce additional evidence, and shall show to the

satisfaction of the court that such additional evidence is material

and that there were reasonable grounds for the failure to adduce

such evidence in the proceeding before the Commission, the court

may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon

such terms and conditions as to the court may seem proper. The

Commission may modify its findings as to the facts, or make new

findings, by reason of the additional evidence so taken, and it shall

file such modified or new findings, which if supported by evidence,

shall be conclusive, and its recommendation, if any, for the modification or setting aside of its original order, with the return of

such additional evidence. The judgment and decree of the court

shall be final, except that the same shall be subject to review by

the Supreme Court upon certiorari, as provided in section 240 of

the Judicial Code.

(d) Upon the filing of the record with it the jurisdiction of the

court of appeals of the United States to affirm, enforce, modify, or

set aside orders of the Commission shall be exclusive.

(e) No order of the Commission or judgment of court to enforce

the same shall in anywise relieve or absolve any person, partnership, or corporation from any liability under the Antitrust Acts.

(f) Complaints, orders, and other processes of the Commission

under this section may be served by anyone duly authorized by the
Sec. 5 FEDERAL TRADE COMMISSION ACT 8

Commission, either (a) by delivering a copy thereof to the person

to be served, or to a member of the partnership to be served, or

the president, secretary, or other executive officer or a director of

the corporation to be served; or (b) by leaving a copy thereof at the

residence or the principal office or place of business of such person,

partnership, or corporation; or (c) by mailing a copy thereof by registered mail or by certified mail addressed to such person, partnership, or corporation at his or its residence or principal office or

place of business. The verified return by the person so serving said

complaint, order, or other process setting forth the manner of said

service shall be proof of the same, and the return post office receipt

for said complaint, order, or other process mailed by registered

mail or certified mail as aforesaid shall be proof of the service of

the same.

(g) An order of the Commission to cease and desist shall become final—

(1) Upon the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within

such time; but the Commission may thereafter modify or set

aside its order to the extent provided in the last sentence of

subsection (b).

(2) Except as to any order provision subject to paragraph

(4), upon the sixtieth day after such order is served, if a petition for review has been duly filed; except that any such order

may be stayed, in whole or in part and subject to such conditions as may be appropriate, by—

(A) the Commission;

(B) an appropriate court of appeals of the United

States, if (i) a petition for review of such order is pending

in such court, and (ii) an application for such a stay was

previously submitted to the Commission and the Commission, within the 30-day period beginning on the date the

application was received by the Commission, either denied

the application or did not grant or deny the application; or

(C) the Supreme Court, if an applicable petition for

certiorari is pending.

(3) For purposes of subsection (m)(1)(B) and of section

19(a)(2), if a petition for review of the order of the Commission

has been filed— (A) upon the expiration of the time allowed for filing

a petition for certiorari, if the order of the Commission has

been affirmed or the petition for review has been dismissed by the court of appeals and no petition for certiorari has been duly filed;

(B) upon the denial of a petition for certiorari, if the

order of the Commission has been affirmed or the petition

for review has been dismissed by the court of appeals; or

(C) upon the expiration of 30 days from the date of

issuance of a mandate of the Supreme Court directing that

the order of the Commission be affirmed or the petition for

review be dismissed.

(4) In the case of an order provision requiring a person,

partnership, or corporation to divest itself of stock, other share

capital, or assets, if a petition for review of such order of the

Commission has been filed—
9 Sec. 5 FEDERAL TRADE COMMISSION ACT

(A) upon the expiration of the time allowed for filing

a petition for certiorari, if the order of the Commission has

been affirmed or the petition for review has been dismissed by the court of appeals and no petition for certiorari has been duly filed;

(B) upon the denial of a petition for certiorari, if the

order of the Commission has been affirmed or the petition

for review has been dismissed by the court of appeals; or

(C) upon the expiration of 30 days from the date of

issuance of a mandate of the Supreme Court directing that

the order of the Commission be affirmed or the petition for

review be dismissed.

(h) If the Supreme Court directs that the order of the Commission be modified or set aside, the order of the Commission rendered

in accordance with the mandate of the Supreme Court shall become

final upon the expiration of thirty days from the time it was rendered, unless within such thirty days either party has instituted

proceedings to have such order corrected to accord with the mandate, in which event the order of the Commission shall become

final when so corrected.

(i) If the order of the Commission is modified or set aside by

the circuit court of appeals, and if (1) the time allowed for filing

a petition for certiorari has expired and no such petition has been

duly filed, or (2) the petition for certiorari has been denied, or (3)

the decision of the court has been affirmed by the Supreme Court,

then the order of the Commission rendered in accordance with the

mandate of the circuit court of appeals shall become final on the

expiration of thirty days from the time such order of the Commission was rendered, unless within such thirty days either party has

instituted proceedings to have such order corrected so that it will

accord with the mandate, in which event the order of the Commission shall become final when so corrected.

(j) If the Supreme Court orders a rehearing; or if the case is

remanded by the circuit court of appeals to the Commission for a

rehearing, and if (1) the time allowed for filing a petition for certiorari has expired, and no such petition has been duly filed, or (2)

the petition for certiorari has been denied, or (3) the decision of the

court has been affirmed by the Supreme Court, then the order of

the Commission rendered upon such rehearing shall become final

in the same manner as though no prior order of the Commission

had been rendered.

(k) As used in this section the term ‘‘mandate’’, in case a mandate has been recalled prior to the expiration of thirty days from

the date of issuance thereof, means the final mandate.

(l) Any person, partnership, or corporation who violates an

order of the Commission after it has become final, and while such

order is in effect, shall forfeit and pay to the United States a civil

penalty of not more than $10,000 for each violation, which shall accrue to the United States and may be recovered in a civil action

brought by the Attorney General of the United States. Each separate violation of such an order shall be a separate offense, except

that in the case of a violation through continuing failure to obey

or neglect to obey a final order of the Commission, each day of continuance of such failure or neglect shall be deemed a separate offense. In such actions, the United States district courts are empow-
Sec. 5 FEDERAL TRADE COMMISSION ACT 10

ered to grant mandatory injunctions and such other and further equitable relief as they deem appropriate in the enforcement of such

final orders of the Commission.

(m)(1)(A) The Commission may commence a civil action to recover a civil penalty in a district court of the United States against

any person, partnership, or corporation which violates any rule

under this Act respecting unfair or deceptive acts or practices

(other than an interpretive rule or a rule violation of which the

Commission has provided is not an unfair or deceptive act or practice in violation of subsection (a)(1)) with actual knowledge or

knowledge fairly implied on the basis of objective circumstances

that such act is unfair or deceptive and is prohibited by such rule.

In such action, such person, partnership, or corporation shall be

liable for a civil penalty of not more than $10,000 for each violation.

(B) If the Commission determines in a proceeding under subsection (b) that any act or practice is unfair or deceptive, and

issues a final cease and desist order, other than a consent order,

with respect to such act or practice, then the Commission may commence a civil action to obtain a civil penalty in a district court of

the United States against any person, partnership, or corporation

which engages in such act or practice—

(1) after such cease and desist order becomes final (whether or not such person, partnership, or corporation was subject

to such cease and desist order), and

(2) with actual knowledge that such act or practice is unfair or deceptive and is unlawful under subsection (a)(1) of this

section.

In such action, such person, partnership, or corporation shall be

liable for a civil penalty of not more than $10,000 for each violation.

(C)(1) In the case of a violation through continuing failure to

comply with a rule or with section 5(a)(1), each day of continuance

of such failure shall be treated as a separate violation, for purposes

of subparagraphs (A) and (B). In determining the amount of such

a civil penalty, the court shall take into account the degree of culpability, any history of prior such conduct, ability to pay, effect on

ability to continue to do business, and such other matters as justice

may require.

(2) If the cease and desist order establishing that the act or

practice is unfair or deceptive was not issued against the defendant

in a civil penalty action under paragraph (1)(B) the issues of fact

in such action against such defendant shall be tried de novo. Upon

request of any party to such an action against such defendant, the

court shall also review the determination of law made by the Commission in the proceeding under subsection (b) that the act or practice which was the subject of such proceeding constituted an unfair

or deceptive act or practice in violation of subsection (a).

(3) The Commission may compromise or settle any action for

a civil penalty if such compromise or settlement is accompanied by

a public statement of its reasons and is approved by the court.

(n) The Commission shall have no authority under this section

or section 18 to declare unlawful an act or practice on the grounds

that such act or practice is unfair unless the act or practice causes

or is likely to cause substantial injury to consumers which is not
11 Sec. 6 FEDERAL TRADE COMMISSION ACT

reasonably avoidable by consumers themselves and not outweighed

by countervailing benefits to consumers or to competition. In determining whether an act or practice is unfair, the Commission may

consider established public policies as evidence to be considered

with all other evidence. Such public policy considerations may not

serve as a primary basis for such determination.

SEC. 6. ø15 U.S.C. 46¿ That the commission shall also have

power—

(a) To gather and compile information concerning, and to investigate from time to time the organization, business, conduct,

practices, and management of any person, partnership, or corporation engaged in or whose business affects commerce, excepting

banks, savings and loan institutions described in section 18(f)(3),

Federal credit unions described in section 18(f)(4), and common carriers subject to the Act to regulate commerce, and its relation to

other persons, partnerships, and corporations.

(b) To require, by general or special orders, persons, partnerships, and corporations engaged in or whose business affects commerce, excepting banks, savings and loan institutions described in

section 18(f)(3), Federal credit unions described in section 18(f)(4),

and common carriers subject to the Act to regulate commerce, or

any class of them, or any of them, respectively, to file with the commission in such form as the commission may prescribe annual or

special, or both annual and special, reports or answers in writing

to specific questions, furnishing to the commission such information as it may require as to the organization, business, conduct,

practices, management, and relation to other corporations, partnerships, and individuals of the respective persons, partnerships, and

corporations filing such reports or answers in writing. Such reports

and answers shall be made under oath, or otherwise, as the commission may prescribe, and shall be filed with the commission

within such reasonable period as the commission may prescribe,

unless additional time be granted in any case by the commission.

(c) Whenever a final decree has been entered against any defendant corporation in any suit brought by the United States to

prevent and restrain any violation of the antitrust Acts, to make

investigation, upon its own initiative, of the manner in which the

decree has been or is being carried out, and upon the application

of the Attorney General it shall be its duty to make such investigation. It shall transmit to the Attorney General a report embodying

its findings and recommendations as a result of any such investigation, and the report shall be made public in the discretion of the

commission.

(d) Upon the direction of the President or either House of Congress to investigate and report the facts relating to any alleged violations of the antitrust Acts by any corporation.

(e) Upon the application of the Attorney General to investigate

and make recommendations for the readjustment of the business of

any corporation alleged to be violating the antitrust Acts in order

that the corporation may thereafter maintain its organization,

management, and conduct of business in accordance with law.

(f) To make public from time to time such portions of the information obtained by it hereunder as are in the public interest; and

to make annual and special reports to the Congress and to submit

therewith recommendations for additional legislation; and to pro-
Sec. 6 FEDERAL TRADE COMMISSION ACT 12

vide for the publication of its reports and decisions in such form

and manner as may be best adapted for public information and

use: Provided, That the Commission shall not have any authority

to make public any trade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential, except that the Commission may disclose

such information to officers and employees of appropriate Federal

law enforcement agencies or to any officer or employee of any State

law enforcement agency upon the prior certification of an officer of

any such Federal or State law enforcement agency that such information will be maintained in confidence and will be used only for

official law enforcement purposes.

(g) From time to time to classify corporations and (except as

provided in section 18(a)(2) of this Act) to make rules and regulations for the purpose of carrying out the provisions of this Act.

(h) To investigate, from time to time, trade conditions in and

with foreign countries where associations, combinations, or practices of manufacturers, merchants, or traders, or other conditions,

may affect the foreign trade of the United States, and to report to

Congress thereon, with such recommendations as it deems advisable.

(i) With respect to the International Antitrust Enforcement Assistance Act of 1994, to conduct investigations of possible violations

of foreign antitrust laws (as defined in section 12 of such Act).

Provided, That the exception of ‘‘banks, savings and loan institutions described in section 18(f)(3), Federal credit unions described

in section 18(f)(4), and common carriers subject to the Act to regulate commerce’’ from the Commission’s powers defined in clauses

(a) and (b) of this section, shall not be construed to limit the Commission’s authority to gather and compile information to investigate, or to require reports or answers from, any person, partnership, or corporation to the extent that such action is necessary to

the investigation of any person, partnership, or corporation, group

of persons, partnerships, or corporations, or industry which is not

engaged, or is engaged only incidentally in banking, in business as

a savings and loan institution, in business as a Federal credit

union, or in business as a common carrier subject to the Act to regulate commerce.

The Commission shall establish a plan designed to substantially reduce burdens imposed upon small businesses as a result of

requirements established by the Commission under clause (b) relating to the filing of quarterly financial reports. Such plan shall (1)

be established after consultation with small businesses and persons

who use the information contained in such quarterly financial reports; (2) provide for a reduction of the number of small businesses

required to file such quarterly financial reports; and (3) make revisions in the forms used for such quarterly financial reports for the

purpose of reducing the complexity of such forms. The Commission,

not later than December 31, 1980, shall submit such plan to the

Committee on Commerce, Science, and Transportation of the Senate and to the Committee on Energy and Commerce of the House

of Representatives. Such plan shall take effect not later than October 31, 1981.

No officer or employee of the Commission or any Commissioner

may publish or disclose information to the public, or to any Federal
13 Sec. 9 FEDERAL TRADE COMMISSION ACT

agency, whereby any line-of-business data furnished by a particular

establishment or individual can be identified. No one other than

designated sworn officers and employees of the Commission may

examine the line-of-business reports from individual firms, and information provided in the line-of-business program administered by

the Commission shall be used only for statistical purposes. Information for carrying out specific law enforcement responsibilities of

the Commission shall be obtained under practices and procedures

in effect on the date of the enactment of the Federal Trade Commission Improvements Act of 1980, or as changed by law.

Nothing in this section (other than the provisions of clause (c)

and clause (d)) shall apply to the business of insurance, except that

the Commission shall have authority to conduct studies and prepare reports relating to the business of insurance. The Commission

may exercise such authority only upon receiving a request which

is agreed to by a majority of the members of the Committee on

Commerce, Science, and Transportation of the Senate or the Committee on Energy and Commerce of the House of Representatives.

The authority to conduct any such study shall expire at the end of

the Congress during which the request for such study was made.

SEC. 7. ø15 U.S.C. 47¿ That in any suit in equity brought by

or under the direction of the Attorney General as provided in the

antitrust Acts, the court may, upon the conclusion of the testimony

therein, if it shall be then of opinion that the complainant is entitled to relief, refer said suit to the commission, as a master in

chancery, to ascertain and report an appropriate form of decree

therein. The commission shall proceed upon such notice to the parties and under such rules of procedure as the court may prescribe,

and upon the coming in of such report such exceptions may be filed

and such proceedings had in relation thereto as upon the report of

a master in other equity causes, but the court may adopt or reject

such report, in whole or in part, and enter such decree as the nature of the case may in its judgment require.

SEC. 8. ø15 U.S.C. 48¿ That the several departments and bureaus of the Government when directed by the President shall furnish the commission, upon its request, all records, papers, and information in their possession relating to any corporation subject to

any of the provisions of this Act, and shall detail from time to time

such officials and employees to the commission as he may direct.

SEC. 9. ø15 U.S.C. 49¿ That for the purposes of this Act the

commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and

the right to copy any documentary evidence of any corporation

being investigated or proceeded against; and the commission shall

have power to require by subpoena the attendance and testimony

of witnesses and the production of all such documentary evidence

relating to any matter under investigation. Any member of the

commission may sign subpoenas, and members and examiners of

the commission may administer oaths and affirmations, examine

witnesses, and receive evidence.

Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United

States, at any designated place of hearing. And in case of disobedience to a subpoena the commission may invoke the aid of any
Sec. 10 FEDERAL TRADE COMMISSION ACT 14

court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence.

Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any corporation or

other person, issue an order requiring such corporation or other

person to appear before the commission, or to produce documentary

evidence if so ordered, or to give evidence touching the matter in

question; and any failure to obey such order of the court may be

punished by such court as a contempt thereof.

Upon the application of the Attorney General of the United

States, at the request of the commission, the district courts of the

United States shall have jurisdiction to issue writs of mandamus

commanding any person or corporation to comply with the provisions of this Act or any order of the commission made in pursuance

thereof.

The commission may order testimony to be taken by deposition

in any proceeding or investigation pending under this Act at any

stage of such proceeding or investigation. Such depositions may be

taken before any person designated by the commission and having

power to administer oaths. Such testimony shall be reduced to

writing by the person taking the deposition, or under his direction,

and shall then be subscribed by the deponent. Any person may be

compelled to appear and depose and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the commission as hereinbefore provided.

Witnesses summoned before the commission shall be paid the

same fees and mileage that are paid witnesses in the courts of the

United States, and witnesses whose depositions are taken and the

persons taking the same shall severally be entitled to the same fees

as are paid for like services in the courts of the United States.

SEC. 10. ø15 U.S.C. 50¿ That any person who shall neglect or

refuse to attend and testify, or to answer any lawful inquiry, or to

produce any documentary evidence, if in his power to do so, in obedience to an order of a district court of the United States directing

compliance with the subpoena or lawful requirement of the commission, shall be guilty of an offense and upon conviction thereof

by a court of competent jurisdiction shall be punished by a fine of

not less than $1,000 nor more than $5,000, or by imprisonment for

not more than one year, or by both such fine and imprisonment.

Any person who shall willfully make, or cause to be made, any

false entry or statement of fact in any report required to be made

under this Act, or who shall willfully make, or cause to be made,

any false entry in any account, record, or memorandum kept by

any persons, partnership, or corporation subject to this Act, or who

shall willfully neglect or fail to make, or to cause to be made, full,

true, and correct entries in such accounts, records, or memoranda

of all facts and transactions appertaining to the business of such

corporation, or who shall willfully remove out of the jurisdiction of

the United States, or willfully mutilate, alter, or by any other

means falsify any documentary evidence of such persons, partnership, or corporation, or who shall willfully refuse to submit to the

commission or to any of its authorized agents, for the purpose of

inspection and taking copies, any documentary evidence of such
15 Sec. 13 FEDERAL TRADE COMMISSION ACT

persons, partnership, or corporation in his possession or within his

control, shall be deemed guilty of an offense against the United

States, and shall be subject, upon conviction in any court of the

United States of competent jurisdiction, to a fine of not less than

$1,000 nor more than $5,000, or to imprisonment for a term of not

more than three years, or to both such fine and imprisonment.

If any persons, partnership, or corporation required by this Act

to file any annual or special report shall fail so to do within the

time fixed by the commission for filing the same, and such failure

shall continue for thirty days after notice of such default, the corporation shall forfeit to the United States the sum of $100 for each

and every day of the continuance of such failure, which forfeiture

shall be payable into the Treasury of the United States, and shall

be recoverable in a civil suit in the name of the United States

brought in the case of a corporation or partnership in the district

where the corporation or partnership has its principal office or in

any district in which it shall do business, and in the case of any

person in the district where such person resides or has his principal place of business. It shall be the duty of the various district

attorneys, under the direction of the Attorney General of the

United States, to prosecute for the recovery of forfeitures. The costs

and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States.

Any officer or employee of the commission who shall make public any information obtained by the commission without its authority, unless directed by a court, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine

not exceeding $5,000, or by imprisonment not exceeding one year,

or by fine and imprisonment, in the discretion of the court.

SEC. 11. ø15 U.S.C. 51¿ Nothing contained in this Act shall be

construed to prevent or interfere with the enforcement of the provisions of the antitrust Acts or the Acts to regulate commerce, nor

shall anything contained in the Act be construed to alter, modify,

or repeal the said antitrust Acts or the Acts to regulate commerce

or any part or parts thereof.

SEC. 12. ø15 U.S.C. 52¿ (a) It shall be unlawful for any person,

partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement—

(1) By United States mails, or in or having an effect upon

commerce, by any means, for the purpose of inducing, or which

is likely to induce, directly or indirectly the purchase of food,

drugs, devices, services, or cosmetics; or

(2) By any means, for the purpose of inducing, or which is

likely to induce, directly or indirectly, the purchase in or having an effect upon commerce, of food, drugs, devices, services,

or cosmetics.

(b) The dissemination or the causing to be disseminated of any

false advertisement with the provisions of subsection (a) of this section shall be an unfair or deceptive act or practice in or affecting

commerce within the meaning of section 5.

SEC. 13. ø15 U.S.C. 53¿ (a) Whenever the Commission has reason to believe—

(1) that any person, partnership, or corporation is engaged

in, or is about to engage in, the dissemination or the causing
Sec. 13 FEDERAL TRADE COMMISSION ACT 16

of the dissemination of any advertisement in violation of section 12, and

(2) that the enjoining thereof pending the issuance of a

complaint by the Commission under section 5, and until such

complaint is dismissed by the Commission or set aside by the

court on review, or the order of the Commission to cease and

desist made thereon has become final within the meaning of

section 5, would be to the interest of the public,

the Commission by any of its attorneys designated by it for such

purpose may bring suit in a district court of the United States or

in the United States court of any Territory, to enjoin the dissemination or the causing of the dissemination of such advertisement.

Upon proper showing a temporary injunction or restraining order

shall be granted without bond. Any suit may be brought where

such person, partnership, or corporation resides or transacts business, or wherever venue is proper under section 1391 of title 28,

United States Code. In addition, the court may, if the court determines that the interests of justice require that any other person,

partnership, or corporation should be a party in such suit, cause

such other person, partnership, or corporation to be added as a

party without regard to whether venue is otherwise proper in the

district in which the suit is brought. In any suit under this section,

process may be served on any person, partnership, or corporation

wherever it may be found.

(b) Whenever the Commission has reason to believe—

(1) that any person, partnership, or corporation is violating, or is about to violate, any provision of law enforced by

the Federal Trade Commission, and

(2) that the enjoining thereof pending the issuance of a

complaint by the Commission and until such complaint is dismissed by the Commission or set aside by the court on review,

or until the order of the Commission made thereon has become

final, would be in the interest of the public— the Commission by any of its attorneys designated by it for such

purpose may bring suit in a district court of the United States to

enjoin any such act or practice. Upon a proper showing that, weighing the equities and considering the Commission’s likelihood of ultimate success, such action would be in the public interest, and after

notice to the defendant, a temporary restraining order or a preliminary injunction may be granted without bond: Provided, however,

That if a complaint is not filed within such period (not exceeding

20 days) as may be specified by the court after issuance of the temporary restraining order or preliminary injunction, the order or injunction shall be dissolved by the court and be of no further force

and effect: Provided further, That in proper cases the Commission

may seek, and after proper proof, the court may issue, a permanent

injunction. Any suit may be brought where such person, partnership, or corporation resides or transacts business, or wherever

venue is proper under section 1391 of title 28, United States Code.

In addition, the court may, if the court determines that the interests of justice require that any other person, partnership, or corporation should be a party in such suit, cause such other person,

partnership, or corporation to be added as a party without regard

to whether venue is otherwise proper in the district in which the

suit is brought. In any suit under this section, process may be
17 Sec. 14 FEDERAL TRADE COMMISSION ACT

served on any person, partnership, or corporation wherever it may

be found.

(c) Any process of the Commission under this section may be

served by any person duly authorized by the Commission— (1) by delivering a copy of such process to the person to be

served, to a member of the partnership to be served, or to the

president, secretary, or other executive officer or a director of

the corporation to be served;

(2) by leaving a copy of such process at the residence or

the principal office or place of business of such person, partnership, or corporation; or

(3) by mailing a copy of such process by registered mail or

certified mail addressed to such person, partnership, or corporation at his, or her, or its residence, principal office, or principal place or business.

The verified return by the person serving such process setting forth

the manner of such service shall be proof of the same.

(d) Whenever it appears to the satisfaction of the court in the

case of a newspaper, magazine, periodical, or other publication,

published at regular intervals— (1) that restraining the dissemination of a false advertisement in any particular issue of such publication would delay

the delivery of such issue after the regular time therefor, and

(2) that such delay would be due to the method by which

the manufacture and distribution of such publication is customarily conducted by the publisher in accordance with sound

business practice, and not to any method or device adopted for

the evasion of this section or to prevent or delay the issuance

of an injunction or restraining order with respect to such false

advertisement or any other advertisement,

the court shall exclude such issue from the operation of the restraining order or injunction.

SEC. 14. ø15 U.S.C. 54¿ (a) Any person, partnership, or corporation who violates any provision of section 12(a) shall, if the use

of the commodity advertised may be injurious to health because of

results from such use under the conditions prescribed in the advertisement thereof, or under such conditions as are customary or

usual, or if such violation is with intent to defraud or mislead, be

guilty of a misdemeanor, and upon conviction shall be punished by

a fine of not more than $5,000 or by imprisonment for not more

than six months, or by both such fine and imprisonment; except

that if the conviction is for a violation committed after a first conviction of such person, partnership, or corporation, for any violation

of such section, punishment shall be by a fine of not more than

$10,000 or by imprisonment for not more than one year, or by both

such fine and imprisonment: Provided, That for the purposes of

this section meats and meat food products duly inspected, marked,

and labeled in accordance with rules and regulations issued under

the Meat Inspection Act approved March 4, 1907, as amended,

shall be conclusively presumed not injurious to health at the time

the same leave official ‘‘establishments.’’

(b) No publisher, radio-broadcast licensee, or agency or medium for the dissemination of advertising, except the manufacturer,

packer, distributor, or seller of the commodity to which the false

advertisement relates, shall be liable under this section by reason
Sec. 15 FEDERAL TRADE COMMISSION ACT 18

of the dissemination by him of any false advertisement, unless he

has refused, on the request of the Commission, to furnish the Commission the name and post-office address of the manufacturer,

packer, distributor, seller, or advertising agency, residing in the

United States, who caused him to disseminate such advertisement.

No advertising agency shall be liable under this section by reason

of the causing by it of the dissemination of any false advertisement,

unless it has refused, on the request of the Commission, to furnish

the Commission the name and post-office address of the manufacturer, packer, distributor, or seller, residing in the United States,

who caused it to cause the dissemination of such advertisement.

SEC. 15. ø15 U.S.C. 55¿ For the purposes of sections 12, 13,

and 14—

(a)(1) The term ‘‘false advertisement’’ means an advertisement,

other than labeling, which is misleading in a material respect; and

in determining whether any advertisement is misleading, there

shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device,

sound, or any combination thereof, but also the extent to which the

advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may

result from the use of the commodity to which the advertisement

relates under the conditions prescribed in said advertisement, or

under such conditions as are customary or usual. No advertisement

of a drug shall be deemed to be false if it is disseminated only to

members of the medical profession, contains no false representation

of a material fact, and includes, or is accompanied in each instance

by truthful disclosure of, the formula showing quantitatively each

ingredient of such drug.

(2) In the case of oleomargarine or margarine an advertisement

shall be deemed misleading in a material respect if in such advertisement representations are made or suggested by statement,

word, grade designation, design, device, symbol, sound, or any combination thereof, that such oleomargarine or margarine is a dairy

product, except that nothing contained herein shall prevent a

truthful, accurate, and full statement in any such advertisement of

all the ingredients contained in such oleomargarine or margarine.

(b) The term ‘‘food’’ means (1) articles used for food or drink

for man or other animals, (2) chewing gum, and (3) articles used

for components of any such article.

(c) The term ‘‘drug’’ means (1) articles recognized in the official

United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any

supplement to any of them; and (2) articles intended for use in the

diagnosis, cure, mitigation, treatment, or prevention of disease in

man or other animals; and (3) articles (other than food) intended

to affect the structure or any function of the body of man or other

animals; and (4) articles intended for use as a component of any

article specified in clause (1), (2), or (3); but does not include devices or their components, parts, or accessories.

(d) The term ‘‘device’’ (except when used in subsection (a) of

this section) means an instrument, apparatus, implement, machine,

contrivance, implant, in vitro reagent, or other similar or related

article, including any component, part, or accessory, which is—
19 Sec. 16 FEDERAL TRADE COMMISSION ACT

(1) recognized in the official National Formulary, or the

United States Pharmacopeia, or any supplement to them,

(2) intended for use in the diagnosis of disease or other

conditions, or in the cure, mitigation, treatment, or prevention

of disease, in man or other animals, or

(3) intended to affect the structure or any function of the

body of man or other animals, and

which does not achieve any of its principal intended purposes

through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the

achievement of any of its principal intended purposes.

(e) The term ‘‘cosmetic’’ means (1) articles to be rubbed,

poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof intended for cleansing,

beautifying, promoting attractiveness, or altering the appearance,

and (2) articles intended for use as a component of any such article;

except that such term shall not include soap.

(f) For the purposes of this section and section 407 of the Federal Food, Drug, and Cosmetic Act, as amended, the term ‘‘oleomargarine’’ or ‘‘margarine’’ includes— (1) all substances, mixtures, and compounds known as oleomargarine or margarine;

(2) all substances, mixtures, and compounds which have a

consistence similar to that of butter and which contain any edible oils or fats other than milk fat if made in imitation or semblance of butter.

SEC. 16. ø15 U.S.C. 56¿ (a)(1) Except as otherwise provided in

paragraph (2) or (3), if—

(A) before commencing, defending, or intervening in, any

civil action involving this Act (including an action to collect a

civil penalty) which the Commission, or the Attorney General

on behalf of the Commission, is authorized to commence, defend, or intervene in, the Commission gives written notification

and undertakes to consult with the Attorney General with respect to such action; and

(B) the Attorney General fails within 45 days after receipt

of such notification to commence, defend, or intervene in, such

action;

the Commission may commence, defend, or intervene in, and supervise the litigation of, such action and any appeal of such action in

its own name by any of its attorneys designated by it for such purpose.

(2) Except as otherwise provided in paragraph (3), in any civil

action—

(A) under section 13 of this Act (relating to injunctive relief);

(B) under section 19 of this Act (relating to consumer redress);

(C) to obtain judicial review of a rule prescribed by the

Commission, or a cease and desist order issued under section

5 of this Act; or

(D) under the second paragraph of section 9 of this Act (relating to enforcement of a subpena) and under the fourth paragraph of such section (relating to compliance with section 6 of

this Act);
Sec. 16 FEDERAL TRADE COMMISSION ACT 20

the Commission shall have exclusive authority to commence or defend, and supervise the litigation of, such action and any appeal of

such action in its own name by any of its attorneys designated by

it for such purpose, unless the Commission authorizes the Attorney

General to do so. The Commission shall inform the Attorney General of the exercise of such authority and such exercise shall not

preclude the Attorney General from intervening on behalf of the

United States in such action and any appeal of such action as may

be otherwise provided by law.

(3)(A) If the Commission makes a written request to the Attorney General, within the 10-day period which begins on the date of

the entry of the judgment in any civil action in which the Commission represented itself pursuant to paragraph (1) or (2), to represent itself through any of its attorneys designated by it for such

purpose before the Supreme Court in such action, it may do so, if—

(i) the Attorney General concurs with such request; or

(ii) the Attorney General, within the 60-day period which

begins on the date of the entry of such judgment—

(a) refuses to appeal or file a petition for writ of certiorari with respect to such civil action, in which case he

shall give written notification to the Commission of the

reasons for such refusal within such 60-day period; or

(b) the Attorney General fails to take any action with

respect to the Commission’s request.

(B) In any case where the Attorney General represents the

Commission before the Supreme Court in any civil action in which

the Commission represented itself pursuant to paragraph (1) or (2),

the Attorney General may not agree to any settlement, compromise, or dismissal of such action, or confess error in the Supreme Court with respect to such action, unless the Commission

concurs.

(C) For purposes of this paragraph (with respect to representation before the Supreme Court), the term ‘‘Attorney General’’ includes the Solicitor General.

(4) If, prior to the expiration of the 45-day period specified in

paragraph (1) of this section or a 60-day period specified in paragraph (3), any right of the Commission to commence, defend, or intervene in, any such action or appeal may be extinguished due to

any procedural requirement of any court with respect to the time

in which any pleadings, notice of appeal, or other acts pertaining

to such action or appeal may be taken, the Attorney General shall

have one-half of the time required to comply with any such procedural requirement of the court (including any extension of such

time granted by the court) for the purpose of commencing, defending, or intervening in the civil action pursuant to paragraph (1) or

for the purpose of refusing to appeal or file a petition for writ of

certiorari and the written notification or failing to take any action

pursuant to paragraph 3(A)(ii).

(5) The provisions of this subsection shall apply notwithstanding chapter 31 of title 28, United States Code, or any other

provision of law.

(b) Whenever the Commission has reason to believe that any

person, partnership, or corporation is liable for a criminal penalty

under this Act, the Commission shall certify the facts to the Attor-
21 Sec. 18 FEDERAL TRADE COMMISSION ACT

ney General, whose duty it shall be to cause appropriate criminal

proceedings to be brought.

SEC. 17. ø15 U.S.C. 57¿ If any provision of this Act, or the application thereof to any person, partnership, corporation, or circumstance, is held invalid, the remainder of the Act and the application of such provision to any other person, partnership, corporation, or circumstance, shall not be affected thereby.

SEC. 18. ø15 U.S.C. 57a¿ (a)(1) Except as provided in subsection (h), the Commission may prescribe— (A) interpretive rules and general statements of policy

with respect to unfair or deceptive acts or practices in or affecting commerce (within the meaning of section 5(a)(1) of this

Act), and

(B) rules which define with specificity acts or practices

which are unfair or deceptive acts or practices in or affecting

commerce (within the meaning of such section 5(a)(1)), except

that the Commission shall not develop or promulgate any trade

rule or regulation with regard to the regulation of the development and utilization of the standards and certification activities pursuant to this section. Rules under this subparagraph

may include requirements prescribed for the purpose of preventing such acts or practices.

(2) The Commission shall have no authority under this Act,

other than its authority under this section, to prescribe any rule

with respect to unfair or deceptive acts or practices in or affecting

commerce (within the meaning of section 5(a)(1)). The preceding

sentence shall not affect any authority of the Commission to prescribe rules (including interpretive rules), and general statements

of policy, with respect to unfair methods of competition in or affecting commerce.

(b)(1) When prescribing a rule under subsection (a)(1)(B) of this

section, the Commission shall proceed in accordance with section

553 of title 5, United States Code (without regard to any reference

in such section to sections 556 and 557 of such title), and shall also

(A) publish a notice of proposed rulemaking stating with particularity the text of the rule, including any alternatives, which the

Commission proposes to promulgate, and the reason for the proposed rule; (B) allow interested persons to submit written data,

views, and arguments, and make all such submissions publicly

available; (C) provide an opportunity for an informal hearing in accordance with subsection (c); and (D) promulgate, if appropriate, a

final rule based on the matter in the rule-making record (as defined in subsection (e)(1)(B)), together with a statement of basis

and purpose.

(2)(A) Prior to the publication of any notice of proposed rulemaking pursuant to paragraph (1)(A), the Commission shall publish an advance notice of proposed rulemaking in the Federal Register. Such advance notice shall— (i) contain a brief description of the area of inquiry under

consideration, the objectives which the Commission seeks to

achieve, and possible regulatory alternatives under consideration by the Commission; and

(ii) invite the response of interested parties with respect to

such proposed rulemaking, including any suggestions or alternative methods for achieving such objectives.
Sec. 18 FEDERAL TRADE COMMISSION ACT 22

(B) The Commission shall submit such advance notice of proposed rulemaking to the Committee on Commerce, Science, and

Transportation of the Senate and to the Committee on Energy and

Commerce of the House of Representatives. The Commission may

use such additional mechanisms as the Commission considers useful to obtain suggestions regarding the content of the area of inquiry before the publication of a general notice of proposed rulemaking under paragraph (1)(A).

(C) The Commission shall, 30 days before the publication of a

notice of proposed rulemaking pursuant to paragraph (1)(A), submit such notice to the Committee on Commerce, Science, and

Transportation of the Senate and to the Committee on Energy and

Commerce of the House of Representatives.

(3) The Commission shall issue a notice of proposed rulemaking pursuant to paragraph (1)(A) only where it has reason to

believe that the unfair or deceptive acts or practices which are the

subject of the proposed rulemaking are prevalent. The Commission

shall make a determination that unfair or deceptive acts or practices are prevalent under this paragraph only if— (A) it has issued cease and desist orders regarding such

acts or practices, or

(B) any other information available to the Commission indicates a widespread pattern of unfair or deceptive acts or

practices.

(c) The Commission shall conduct any informal hearings required by subsection (b)(1)(c) of this section in accordance with the

following procedure:

(1)(A) The Commission shall provide for the conduct of proceedings under this subsection by hearing officers who shall perform their functions in accordance with the requirements of this

subsection.

(B) The officer who presides over the rulemaking proceedings

shall be responsible to a chief presiding officer who shall not be responsible to any other officer or employee of the Commission. The

officer who presides over the rulemaking proceeding shall make a

recommended decision based upon the findings and conclusions of

such officer as to all relevant and material evidence, except that

such recommended decision may be made by another officer if the

officer who presided over the proceeding is no longer available to

the Commission.

(C) Except as required for the disposition of ex parte matters

as authorized by law, no presiding officer shall consult any person

or party with respect to any fact in issue unless such officer gives

notice and opportunity for all parties to participate.

(2) Subject to paragraph (3) of this subsection, an interested

person is entitled— (A) to present his position orally or by documentary submissions (or both), and

(B) if the Commission determines that there are disputed

issues of material fact it is necessary to resolve, to present

such rebuttal submissions and to conduct (or have conducted

under paragraph (3)(B)) such cross-examination of persons as

the Commission determines (i) to be appropriate, and (ii) to be

required for a full and true disclosure with respect to such

issues.
23 Sec. 18 FEDERAL TRADE COMMISSION ACT

(3) The Commission may prescribe such rules and make such

rulings concerning proceedings in such hearings as may tend to

avoid unnecessary costs or delay. Such rules or rulings may include

(A) imposition of reasonable time limits on each interested person’s

oral presentations, and (B) requirements that any cross-examination to which a person may be entitled under paragraph (2) be conducted by the Commission on behalf of that person in such manner

as the Commission determines (i) to be appropriate, and (ii) to be

required for a full and true disclosure with respect to disputed

issues of material fact.

(4)(A) Except as provided in subparagraph (B), if a group of

persons each of whom under paragraphs (2) and (3) would be entitled to conduct (or have conducted) cross-examination and who are

determined by the Commission to have the same or similar interests in the proceeding cannot agree upon a single representative of

such interests for purposes of cross-examination, the Commission

may make rules and rulings (i) limiting the representation of such

interest, for such purposes, and (ii) governing the manner in which

such cross-examination shall be limited.

(B) When any person who is a member of a group with respect

to which the Commission has made a determination under subparagraph (A) is unable to agree upon group representation with

the other members of the group, then such person shall not be denied under the authority of subparagraph (A) the opportunity to

conduct (or have conducted) cross-examination as to issues affecting his particular interests if (i) he satisfies the Commission that

he has made a reasonable and good faith effort to reach agreement

upon group representation with the other members of the group

and (ii) the Commission determines that there are substantial and

relevant issues which are not adequately presented by the group

representative.

(5) A verbatim transcript shall be taken of any oral presentation, and cross-examination, in an informal hearing to which this

subsection applies. Such transcript shall be available to the public.

(d)(1) The Commission’s statement of basis and purpose to accompany a rule promulgated under subsection (a)(1)(B) shall include (A) a statement as to the prevalence of the acts or practices

treated by the rule; (B) a statement as to the manner and context

in which such acts or practices are unfair or deceptive; and (C) a

statement as to the economic effect of the rule, taking into account

the effect on small business and consumers.

(2)(A) The term ‘‘Commission’’ as used in this subsection and

subsections (b) and (c) includes any person authorized to act in behalf of the Commission in any part of the rulemaking proceeding.

(B) A substantive amendment to, or repeal of, a rule promulgated under subsection (a)(1)(B) shall be prescribed, and subject to

judicial review, in the same manner as a rule prescribed under

such subsection. An exemption under subsection (g) shall not be

treated as an amendment or repeal of a rule.

(3) When any rule under subsection (a)(1)(B) takes effect a subsequent violation thereof shall constitute an unfair or deceptive act

or practice in violation of section 5(a)(1) of this Act, unless the

Commission otherwise expressly provides in such rule.

(e)(1)(A) Not later than 60 days after a rule is promulgated

under subsection (a)(1)(B) by the Commission, any interested per-
Sec. 18 FEDERAL TRADE COMMISSION ACT 24

son (including a consumer or consumer organization) may file a petition, in the United States Court of Appeals for the District of Columbia circuit or for the circuit in which such person 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. The provisions of section 2112 of title 28, United States

Code, shall apply to the filing of the rulemaking record of proceedings on which the Commission based its rule and to the transfer of proceedings in the courts of appeals.

(B) For purposes of this section, the term ‘‘rulemaking record’’

means the rule, its statement of basis and purpose, the transcript

required by subsection (c)(5), any written submissions, and any

other information which the Commission considers relevant to such

rule.

(2) If the petitioner or the Commission applies to the court for

leave to make additional oral submissions or written presentations

and shows to the satisfaction of the court that such submissions

and presentations would be material and that there were reasonable grounds for the submissions and failure to make such submissions and presentations in the proceeding before the Commission,

the court may order the Commission to provide additional opportunity to make such submissions and presentations. The Commission may modify or set aside its rule or make a new rule by reason

of the additional submissions and presentations and shall file such

modified or new rule, and the rule’s statement of basis of purpose,

with the return of such submissions and presentations. The court

shall thereafter review such new or modified rule.

(3) Upon the filing of the petition under paragraph (1) of this

subsection, the court shall have jurisdiction to review the 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 court shall hold unlawful and set aside the rule

on any ground specified in subparagraphs (A), (B), (C), or (D) of

section 706(2) of title 5, United States Code (taking due account of

the rule of prejudicial error), or if—

(A) the court finds that the Commission’s action is not supported by substantial evidence in the rulemaking record (as defined in paragraph (1)(B) of this subsection) taken as a whole,

or

(B) the court finds that—

(i) a Commission determination under subsection (c)

that the petitioner is not entitled to conduct cross-examination or make rebuttal submissions, or

(ii) a Commission rule or ruling under subsection (c)

limiting the petitioner’s cross-examination or rebuttal submissions,

has precluded disclosure of disputed material facts which was

necessary for fair determination by the Commission of the rulemaking proceeding taken as a whole.

The term ‘‘evidence,’’ as used in this paragraph, means any matter

in the rulemaking record.

(4) The judgment of the court affirming or setting aside, in

whole or in part, any such rule shall be final, subject to review by
25 Sec. 18 FEDERAL TRADE COMMISSION ACT

the Supreme Court of the United States upon certiorari or certification, as provided in section 1254 of title 28, United States Code.

(5)(A) Remedies under the preceding paragraphs of this subsection are in addition to and not in lieu of any other remedies provided by law.

(B) The United States Courts of Appeals shall have exclusive

jurisdiction of any action to obtain judicial review (other than in an

enforcement proceeding) of a rule prescribed under subsection

(a)(1)(B), if any district court of the United States would have had

jurisdiction of such action but for this subparagraph. Any such action shall be brought in the United States Court of Appeals for the

District of Columbia circuit, or for any circuit which includes a judicial district in which the action could have been brought but for

this subparagraph.

(C) A determination, rule, or ruling of the Commission described in paragraph (3)(B) (i) or (ii) may be reviewed only in a proceeding under this subsection and only in accordance with paragraph (3)(B). Section 706(2)(E) of title 5, United States Code, shall

not apply to any rule promulgated under subsection (a)(1)(B). The

contents and adequacy of any statement required by subsection

(b)(1)(D) shall not be subject to judicial review in any respect.

(f)(1) In order to prevent unfair or deceptive acts or practices

in or affecting commerce (including acts or practices which are unfair or deceptive to consumers) by banks or savings and loan institutions described in paragraph (3), each agency specified in paragraph (2) or (3) of this subsection shall establish a separate division

of consumer affairs which shall receive and take appropriate action

upon complaints with respect to such acts or practices by banks or

savings and loan institutions described in paragraph (3), subject to

its jurisdiction. The Board of Governors of the Federal Reserve System (with respect to banks) and the Federal Home Loan Bank

Board (with respect to savings and loan institutions described in

paragraph (3)) and the National Credit Union Administration

Board (with respect to Federal credit unions described in paragraph (4)) shall prescribe regulations to carry out the purposes of

this section, including regulations defining with specificity such unfair or deceptive acts or practices, and containing requirements prescribed for the purpose of preventing such acts or practices. Whenever the Commission prescribes a rule under subsection (a)(1)(B) of

this section, then within 60 days after such rule takes effect each

such Board shall promulgate substantially similar regulations prohibiting acts or practices of banks or savings and loan institutions

described in paragraph (3), or Federal credit unions described in

paragraph (4), as the case may be, which are substantially similar

to those prohibited by rules of the Commission and which impose

substantially similar requirements, unless (A) any such Board finds

that such acts or practices of banks or savings and loan institutions

described in paragraph (3), as the case may be, are not unfair or

deceptive, or (B) the Board of Governors of the Federal Reserve

System finds that implementation of similar regulations with respect to banks, savings and loan institutions or Federal credit

unions would seriously conflict with essential monetary and payments systems policies of such Board, and publishes any such finding and the reasons therefor, in the Federal Register.
Sec. 18 FEDERAL TRADE COMMISSION ACT 26

1 Indentation of paragraph (2) so in law.

2 Indentation so in law.

(2) 1 ENFORCEMENT.—Compliance with regulations prescribed under this subsection shall be enforced under section

8 of the Federal Deposit Insurance Act, in the case of—

(A) national banks, banks operating under the code of

law for the District of Columbia, and Federal branches and

Federal agencies of foreign banks, by the division of consumer affairs established by the Office of the Comptroller

of the Currency;

(B) member banks of the Federal Reserve System

(other than national banks and banks operating under the

code of law for the District of Columbia), branches and

agencies of foreign banks (other than Federal branches,

Federal agencies, and insured State branches of foreign

banks), commercial lending companies owned or controlled

by foreign banks, and organizations operating under section 25 or 25(a) of the Federal Reserve Act, by the division

of consumer affairs established by the Board of Governors

of the Federal Reserve System; and

(C) banks insured by the Federal Deposit Insurance

Corporation (other banks referred to in subparagraph (A)

or (B)) and insured State branches of foreign banks, by the

division of consumer affairs established by the Board of Directors of the Federal Deposit Insurance Corporation.

(3) Compliance with regulations prescribed under this subsection shall be enforced under section 8 of the Federal Deposit Insurance Act with respect to savings associations as defined in section 3 of the Federal Deposit Insurance Act.

(4) Compliance with regulations prescribed under this subsection shall be enforced with respect to Federal credit unions

under sections 120 and 206 of the Federal Credit Union Act (12

U.S.C. 1766 and 1786).

(5) For the purpose of the exercise by any agency referred to

in paragraph (2) of its powers under any Act referred to in that

paragraph, a violation of any regulation prescribed under this subsection shall be deemed to be a violation of a requirement imposed

under that Act. In addition to its powers under any provision of

law specifically referred to in paragraph (2), each of the agencies

referred to in paragraph (2), each of the agencies referred to in that

paragraph may exercise, for the purpose of enforcing compliance

with any regulation prescribed under this subsection, any other authority conferred on it by law.

(6) The authority of the Board of Governors of the Federal Reserve System to issue regulations under this subsection does not

impair the authority of any other agency designated in this subsection to make rules respecting its own procedures in enforcing

compliance with regulations prescribed under this subsection.

(7) Each agency exercising authority under this subsection

shall transmit to the Congress not later than March 15 of each

year a detailed report on its activities under this paragraph during

the preceding calendar year.

The 2 terms used in this paragraph that are not defined in the

Federal Trade Commission Act or otherwise defined in section
27 Sec. 18 FEDERAL TRADE COMMISSION ACT

1So in law. Probably should be ‘‘of’’.

3(s) of the Federal Deposit Insurance Act (12 U.S.C. 1813(s))

shall have the meaning given to them in section 1(b) of the

International Banking Act of 1978 (12 U.S.C. 3101).

(g)(1) Any person to whom a rule under subsection (a)(1)(B) of

this section applies may petition the Commission for an exemption

from such rule.

(2) If, on its own motion or on the basis of a petition under

paragraph (1), the Commission finds that the application of a rule

prescribed under subsection (a)(1)(B) to any person or class or 1 persons is not necessary to prevent the unfair or deceptive act or practice to which the rule relates, the Commission may exempt such

person or class from all or part of such rule. Section 553 of title

5, United States Code, shall apply to action under this paragraph.

(3) Neither the pendency of a proceeding under this subsection

respecting an exemption from a rule, nor the pendency of judicial

proceedings to review the Commission’s action or failure to act

under this subsection, shall stay the applicability of such rule

under subsection (a)(1)(B).

(h) The Commission shall not have any authority to promulgate any rule in the children’s advertising proceeding pending on

the date of the enactment of the Federal Trade Commission Improvements Act of 1980 or in any substantially similar proceeding

on the basis of a determination by the Commission that such advertising constitutes an unfair act or practice in or affecting commerce.

(i)(1) For purposes of this subsection, the term ‘‘outside party’’

means any person other than (A) a Commissioner; (B) an officer or

employee of the Commission; or (C) any person who has entered

into a contract or any other agreement or arrangement with the

Commission to provide any goods or services (including consulting

services) to the Commission.

(2) Not later than 60 days after the date of the enactment of

the Federal Trade Commission Improvements Act of 1980, the

Commission shall publish a proposed rule, and not later than 180

days after such date of enactment the Commission shall promulgate a final rule, which shall authorize the Commission or any

Commissioner to meet with any outside party concerning any rulemaking proceeding of the Commission. Such rule shall provide

that— (A) notice of any such meeting shall be included in any

weekly calendar prepared by the Commission; and

(B) a verbatim record or a summary of any such meeting,

or of any communication relating to any such meeting, shall be

kept, made available to the public, and included in the rulemaking record.

(j) Not later than 60 days after the date of the enactment of

the Federal Trade Commission Improvements Act of 1980, the

Commission shall publish a proposed rule, and not later than 180

days after such date of enactment the Commission shall promulgate a final rule, which shall prohibit any officer, employee, or

agent of the Commission with any investigative responsibility or

other responsibility relating to any rulemaking proceeding within

any operating bureau of the Commission, from communicating or
Sec. 19 FEDERAL TRADE COMMISSION ACT 28

causing to be communicated to any Commissioner or to the personal staff of any Commissioner any fact which is relevant to the

merits of such proceeding and which is not on the rulemaking

record of such proceeding, unless such communication is made

available to the public and is included in the rulemaking record.

The provisions of this subsection shall not apply to any communication to the extent such communication is required for the disposition of ex parte matters as authorized by law.

SEC. 19. ø15 U.S.C. 57b¿ (a)(1) If any person, partnership, or

corporation violates any rule under this Act respecting unfair or deceptive acts or practices (other than an interpretive rule, or a rule

violation of which the Commission has provided is not an unfair or

deceptive act or practice in violation of section 5(a)), then the Commission may commence a civil action against such person, partnership, or corporation for relief under subsection (b) in a United

States district court or in any court of competent jurisdiction of a

State.

(2) If any person, partnership, or corporation engages in any

unfair or deceptive act or practice (within the meaning of section

5(a)(1)) with respect to which the Commission has issued a final

cease and desist order which is applicable to such person, partnership, or corporation, then the Commission may commence a civil

action against such person, partnership, or corporation in a United

States district court or in any court of competent jurisdiction of a

State. If the Commission satisfies the court that the act or practice

to which the cease and desist order relates is one which a reasonable man would have known under the circumstances was dishonest or fraudulent, the court may grant relief under subsection

(b).

(b) The court in an action under subsection (a) shall have jurisdiction to grant such relief as the court finds necessary to redress

injury to consumers or other persons, partnerships, and corporations resulting from the rule violation or the unfair or deceptive act

or practice, as the case may be. Such relief may include, but shall

not be limited to, rescission or reformation of contracts, the refund

of money or return of property, the payment of damages, and public notification respecting the rule violation or the unfair or deceptive act or practice, as the case may be; except that nothing in this

subsection is intended to authorize the imposition of any exemplary

or punitive damages.

(c)(1) If (A) a cease and desist order issued under section 5(b)

has become final under section 5(g) with respect to any person’s

partnership’s, or corporation’s rule violation or unfair or deceptive

act or practice, and (B) an action under this section is brought with

respect to such person’s, partnership’s, or corporation’s rule violation or act or practice, then the findings of the Commission as to

the material facts in the proceeding under section 5(b) with respect

to such person’s, partnership’s, or corporation’s rule violation or act

or practice, shall be conclusive unless (i) the terms of such cease

and desist order expressly provide that the Commission’s findings

shall not be conclusive, or (ii) the order became final by reason of

section 5(g)(1), in which case such finding shall be conclusive if

supported by evidence.

(2) The court shall cause notice of an action under this section

to be given in a manner which is reasonably calculated, under all
29 Sec. 20 FEDERAL TRADE COMMISSION ACT

of the circumstances, to apprise the persons, partnerships, and corporations allegedly injured by the defendant’s rule violation or act

or practice of the pendency of such action. Such notice may, in the

discretion of the court, be given by publication.

(d) No action may be brought by the Commission under this

section more than 3 years after the rule violation to which an action under subsection (a)(1) relates, or the unfair or deceptive act

or practice to which an action under subsection (a)(2) relates: except that if a cease and desist order with respect to any person’s,

partnership’s, or corporation’s rule violation or unfair or deceptive

act or practice has become final and such order was issued in a

proceeding under section 5(b) which was commenced not later than

3 years after the rule violation or act or practice occurred, a civil

action may be commenced under this section against such person,

partnership, or corporation at any time before the expiration of one

year after such order becomes final.

(e) Remedies provided in this section are in addition to, and

not in lieu of, any other remedy or right of action provided by State

or Federal law. Nothing in this section shall be construed to affect

any authority of the Commission under any other provision of law.

SEC. 20. ø15 U.S.C. 57b–1¿ (a) For purposes of this section:

(1) The terms ‘‘civil investigative demand’’ and ‘‘demand’’

mean any demand issued by the Commission under subsection

(c)(1).

(2) The term ‘‘Commission investigation’’ means any inquiry conducted by a Commission investigator for the purpose

of ascertaining whether any person is or has been engaged in

any unfair or deceptive acts or practices in or affecting commerce (within the meaning of section 5(a)(1)) or in any antitrust violations.

(3) The term ‘‘Commission investigator’’ means any attorney or investigator employed by the Commission who is

charged with the duty of enforcing or carrying into effect any

provisions relating to unfair or deceptive acts or practices in or

affecting commerce (within the meaning of section 5(a)(1)) or

any provisions relating to antitrust violations.

(4) The term ‘‘custodian’’ means the custodian or any deputy custodian designated under section 21(b)(2)(A).

(5) The term ‘‘documentary material’’ includes the original

or any copy of any book, record, report, memorandum, paper,

communication, tabulation, chart, or other document.

(6) The term ‘‘person’’ means any natural person, partnership, corporation, association, or other legal entity, including

any person acting under color or authority of State law.

(7) The term ‘‘violation’’ means any act or omission constituting an unfair or deceptive act or practice in or affecting

commerce (within the meaning of section 5(a)(1)) or any antitrust violation.

(8) The term ‘‘antitrust violation’’ means—

(A) any unfair method of competition (within the

meaning of section 5(a)(1));

(B) any violation of the Clayton Act or of any other

Federal statute that prohibits, or makes available to the

Commission a civil remedy with respect to, any restraint
Sec. 20 FEDERAL TRADE COMMISSION ACT 30

upon or monopolization of interstate or foreign trade or

commerce;

(C) with respect to the International Antitrust Enforcement Assistance Act of 1994, any violation of any of

the foreign antitrust laws (as defined in section 12 of such

Act) with respect to which a request is made under section

3 of such Act; or

(D) any activity in preparation for a merger, acquisition, joint venture, or similar transaction, which if consummated, may result in any such unfair method of competition or in any such violation.

(b) For the purpose of investigations performed pursuant to

this section with respect to unfair or deceptive acts or practices in

or affecting commerce (within the meaning of section 5(a)(1)), all

actions of the Commission taken under section 6 and section 9

shall be conducted pursuant to subsection (c).

(c)(1) Whenever the Commission has reason to believe that any

person may be in possession, custody, or control of any documentary material or tangible things, or may have any information, relevant to unfair or deceptive acts or practices in or affecting commerce (within the meaning of section 5(a)(1)), or to antitrust violations, the Commission may, before the institution of any proceedings under this Act, issue in writing, and cause to be served

upon such person, a civil investigative demand requiring such person to produce such documentary material for inspection and copying or reproduction, to submit such tangible things, to file written

reports or answers to questions, to give oral testimony concerning

documentary material or other information, or to furnish any combination of such material, answers, or testimony.

(2) Each civil investigative demand shall state the nature of

the conduct constituting the alleged violation which is under investigation and the provision of law applicable to such violation.

(3) Each civil investigative demand for the production of documentary material shall— (A) describe each class of documentary material to be produced under the demand with such definiteness and certainty

as to permit such material to be fairly identified;

(B) prescribe a return date or dates which will provide a

reasonable period of time within which the material so demanded may be assembled and made available for inspection

and copying or reproduction; and

(C) identify the custodian to whom such material shall be

made available.

(4) Each civil investigative demand for the submission of tangible things shall— (A) describe each class of tangible things to be submitted

under the demand with such definiteness and certainty as to

permit such things to be fairly identified;

(B) prescribe a return date or dates which will provide a

reasonable period of time within which the things so demanded

may be assembled and submitted; and

(C) identify the custodian to whom such things shall be

submitted.

(5) Each civil investigative demand for written reports or answers to questions shall—
31 Sec. 20 FEDERAL TRADE COMMISSION ACT

(A) propound with definiteness and certainty the reports to

be produced or the questions to be answered;

(B) prescribe a date or dates at which time written reports

or answers to questions shall be submitted; and

(C) identify the custodian to whom such reports or answers

shall be submitted.

(6) Each civil investigative demand for the giving of oral testimony shall—(A) prescribe a date, time, and place at which oral testimony shall be commenced; and

(B) identify a Commission investigator who shall conduct

the investigation and the custodian to whom the transcript of

such investigation shall be submitted.

(7)(A) Any civil investigative demand may be served by any

Commission investigator at any place within the territorial jurisdiction of any court of the United States.

(B) Any such demand or any enforcement petition filed under

this section may be served upon any person who is not found within the territorial jurisdiction of any court of the United States, in

such manner as the Federal Rules of Civil Procedure prescribe for

service in a foreign nation.

(C) To the extent that the courts of the United States have authority to assert jurisdiction over such person consistent with due

process, the United States District Court for the District of Columbia shall have the same jurisdiction to take any action respecting

compliance with this section by such person that such district court

would have if such person were personally within the jurisdiction

of such district court.

(8) Service of any civil investigative demand or any enforcement petition filed under this section may be made upon a partnership, corporation, association, or other legal entity by—

(A) delivering a duly executed copy of such demand or petition to any partner, executive officer, managing agent, or general agent of such partnership, corporation, association, or

other legal entity, or to any agent of such partnership, corporation, association, or other legal entity authorized by appointment or by law to receive service of process on behalf of such

partnership, corporation, association, or other legal entity;

(B) delivering a duly executed copy of such demand or petition to the principal office or place of business of the partnership, corporation, association, or other legal entity to be served;

or

(C) depositing a duly executed copy in the United States

mails, by registered or certified mail, return receipt requested,

duly addressed to such partnership, corporation, association, or

other legal entity at its principal office or place of business.

(9) Service of any civil investigative demand or of any enforcement petition filed under this section may be made upon any natural person by— (A) delivering a duly executed copy of such demand or petition to the person to be served; or

(B) depositing a duly executed copy in the United States

mails by registered or certified mail, return receipt requested,

duly addressed to such person at his residence or principal office or place of business.
Sec. 20 FEDERAL TRADE COMMISSION ACT 32

(10) A verified return by the individual serving any civil investigative demand or any enforcement petition filed under this section setting forth the manner of such service shall be proof of such

service. In the case of service by registered or certified mail, such

return shall be accompanied by the return post office receipt of delivery of such demand or enforcement petition.

(11) The production of documentary material in response to a

civil investigative demand shall be made under a sworn certificate,

in such form as the demand designates, by the person, if a natural

person, to whom the demand is directed or, if not a natural person,

by any person having knowledge of the facts and circumstances relating to such production, to the effect that all of the documentary

material required by the demand and in the possession, custody, or

control of the person to whom the demand is directed has been produced and made available to the custodian.

(12) The submission of tangible things in response to a civil investigative demand shall be made under a sworn certificate, in

such form as the demand designates, by the person to whom the

demand is directed or, if not a natural person, by any person having knowledge of the facts and circumstances relating to such production, to the effect that all of the tangible things required by the

demand and in the possession, custody, or control of the person to

whom the demand is directed have been submitted to the custodian.

(13) Each reporting requirement or question in a civil investigative demand shall be answered separately and fully in writing

under oath, unless it is objected to, in which event the reasons for

the objection shall be stated in lieu of an answer, and it shall be

submitted under a sworn certificate, in such form as the demand

designates, by the person, if a natural person, to whom the demand

is directed or, if not a natural person, by any person responsible

for answering each reporting requirement or question, to the effect

that all information required by the demand and in the possession,

custody, control, or knowledge of the person to whom the demand

is directed has been submitted.

(14)(A) Any Commission investigator before whom oral testimony is to be taken shall put the witness on oath or affirmation

and shall personally, or by any individual acting under his direction and in his presence, record the testimony of the witness. The

testimony shall be taken stenographically and transcribed. After

the testimony is fully transcribed, the Commission investigator before whom the testimony is taken shall promptly transmit a copy

of the transcript of the testimony to the custodian.

(B) Any Commission investigator before whom oral testimony

is to be taken shall exclude from the place where the testimony is

to be taken all other persons except the person giving the testimony, his attorney, the officer before whom the testimony is to be

taken, and any stenographer taking such testimony.

(C) The oral testimony of any person taken pursuant to a civil

investigative demand shall be taken in the judicial district of the

United States in which such person resides, is found, or transacts

business, or in such other place as may be agreed upon by the

Commission investigator before whom the oral testimony of such

person is to be taken and such person.
33 Sec. 20 FEDERAL TRADE COMMISSION ACT

(D)(i) Any person compelled to appear under a civil investigative demand for oral testimony pursuant to this section may be accompanied, represented, and advised by an attorney. The attorney

may advise such person, in confidence, either upon the request of

such person or upon the initiative of the attorney, with respect to

any question asked of such person.

(ii) Such person or attorney may object on the record to any

question, in whole or in part, and shall briefly state for the record

the reason for the objection. An objection may properly be made,

received, and entered upon the record when it is claimed that such

person is entitled to refuse to answer the question on grounds of

any constitutional or other legal right or privilege, including the

privilege against self-incrimination. Such person shall not otherwise object to or refuse to answer any question, and shall not himself or through his attorney otherwise interrupt the oral examination. If such person refuses to answer any question, the Commission may petition the district court of the United States pursuant

to this section for an order compelling such person to answer such

question.

(iii) If such person refuses to answer any question on grounds

of the privilege against self-incrimination, the testimony of such

person may be compelled in accordance with the provisions of section 6004 of title 18, United States Code.

(E)(i) After the testimony of any witness is fully transcribed,

the Commission investigator shall afford the witness (who may be

accompanied by an attorney) a reasonable opportunity to examine

the transcript. The transcript shall be read to or by the witness,

unless such examination and reading are waived by the witness.

Any changes in form or substance which the witness desires to

make shall be entered and identified upon the transcript by the

Commission investigator with a statement of the reasons given by

the witness for making such changes. The transcript shall then be

signed by the witness, unless the witness in writing waives the

signing, is ill, cannot be found, or refuses to sign.

(ii) If the transcript is not signed by the witness during the 30-

day period following the date upon which the witness is first afforded a reasonable opportunity to examine it, the Commission investigator shall sign the transcript and state on the record the fact

of the waiver, illness, absence of the witness, or the refusal to sign,

together with any reasons given for the failure to sign.

(F) The Commission investigator shall certify on the transcript

that the witness was duly sworn by him and that the transcript is

a true record of the testimony given by the witness, and the Commission investigator shall promptly deliver the transcript or send

it by registered or certified mail to the custodian.

(G) The Commission investigator shall furnish a copy of the

transcript (upon payment of reasonable charges for the transcript)

to the witness only, except that the Commission may for good cause

limit such witness to inspection of the official transcript of his testimony.

(H) Any witness appearing for the taking of oral testimony

pursuant to a civil investigative demand shall be entitled to the

same fees and mileage which are paid to witnesses in the district

courts of the United States.
Sec. 20 FEDERAL TRADE COMMISSION ACT 34

(d) Materials received as a result of a civil investigative demand shall be subject to the procedures established in section 21.

(e) Whenever any person fails to comply with any civil investigative demand duly served upon him under this section, or whenever satisfactory copying or reproduction of material requested pursuant to the demand cannot be accomplished and such person refuses to surrender such material, the Commission, through such officers or attorneys as it may designate, may file, in the district

court of the United States for any judicial district in which such

person resides, is found, or transacts business, and serve upon such

person, a petition for an order of such court for the enforcement of

this section. All process of any court to which application may be

made as provided in this subsection may be served in any judicial

district.

(f)(1) Not later than 20 days after the service of any civil investigative demand upon any person under subsection (c), or at any

time before the return date specified in the demand, whichever period is shorter, or within such period exceeding 20 days after service or in excess of such return date as may be prescribed in writing,

subsequent to service, by any Commission investigator named in

the demand, such person may file with the Commission a petition

for an order by the Commission modifying or setting aside the demand.

(2) The time permitted for compliance with the demand in

whole or in part, as deemed proper and ordered by the Commission, shall not run during the pendency of such petition at the

Commission, except that such person shall comply with any portions of the demand not sought to be modified or set aside. Such

petition shall specify each ground upon which the petitioner relies

in seeking such relief, and may be based upon any failure of the

demand to comply with the provisions of this section, or upon any

constitutional or other legal right or privilege of such person.

(g) At any time during which any custodian is in custody or

control of any documentary material, tangible things, reports, answers to questions, or transcripts of oral testimony given by any

person in compliance with any civil investigative demand, such person may file, in the district court of the United States for the judicial district within which the office of such custodian is situated,

and serve upon such custodian, a petition for an order of such court

requiring the performance by such custodian of any duty imposed

upon him by this section or section 21.

(h) Whenever any petition is filed in any district court of the

United States under this section, such court shall have jurisdiction

to hear and determine the matter so presented, and to enter such

order or orders as may be required to carry into effect the provisions of this section. Any final order so entered shall be subject to

appeal pursuant to section 1291 of title 28, United States Code.

Any disobedience of any final order entered under this section by

any court shall be punished as a contempt of such court.

(i) Notwithstanding any other provision of law, the Commission shall have no authority to issue a subpoena or make a demand

for information, under authority of this Act or any other provision

of law, unless such subpoena or demand for information is signed

by a Commissioner acting pursuant to a Commission resolution.

The Commission shall not delegate the power conferred by this sec-
35 Sec. 21 FEDERAL TRADE COMMISSION ACT

1So in law. The reference in section 21(a)(2) to section 552(e) of title 5, United States Code,

probably should be to section 552(f). Section 1802(b) of Public Law 99–570, 100 Stat. 3207–49,

October 27, 1986, redesignated subsection (e) of section 552 of that title as subsection (f). 2Section 8(4)(B) of Public Law 103–312, 108 Stat. 1694, August 26, 1994, amended paragraph

(3)(B) by inserting ‘‘, and may make tangible things available,’’ immediately after ‘‘oral testiContinued

tion to sign subpoenas or demands for information to any other

person.

(j) The provisions of this section shall not—

(1) apply to any proceeding under section 5(b), any proceeding under section 11(b) of the Clayton Act (15 U.S.C.

21(b)), or any adjudicative proceeding under any other provision of law; or

(2) apply to or affect the jurisdiction, duties, or powers of

any agency of the Federal Government, other than the Commission.

SEC. 21. ø15 U.S.C. 57b–2¿ (a) For purposes of this section:

(1) The term ‘‘material’’ means documentary material, tangible things, written reports or answers to questions, and transcripts of oral testimony.

(2) The term ‘‘Federal agency’’ has the meaning given it in

section 552(e) 1 of title 5, United States Code.

(b)(1) With respect to any document, tangible thing, or transcript of oral testimony received by the Commission pursuant to

compulsory process in an investigation, a purpose of which is to determine whether any person may have violated any provision of the

laws administered by the Commission, the procedures established

in paragraph (2) through paragraph (7) shall apply.

(2)(A) The Commission shall designate a duly authorized agent

to serve as custodian of documentary material, tangible things, or

written reports or answers to questions, and transcripts of oral testimony, and such additional duly authorized agents as the Commission shall determine from time to time to be necessary to serve as

deputies to the custodian.

(B) Any person upon whom any demand for the production of

documentary material has been duly served shall make such material available for inspection and copying or reproduction to the custodian designated in such demand at the principal place of business of such person (or at such other place as such custodian and

such person thereafter may agree and prescribe in writing or as the

court may direct pursuant to section 20(h)) on the return date specified in such demand (or on such later date as such custodian may

prescribe in writing). Such person may upon written agreement between such person and the custodian substitute copies for originals

of all or any part of such material.

(3)(A) The custodian to whom any documentary material, tangible things, written reports or answers to questions, and transcripts of oral testimony are delivered shall take physical possession of such material, reports or answers, and transcripts, and

shall be responsible for the use made of such material, reports or

answers, and transcripts, and for the return of material, pursuant

to the requirements of this section.

(B) The custodian may prepare such copies of the documentary

material, written reports or answers to questions, and transcripts

of oral testimony, and may make tangible things available, 2 as
Sec. 21 FEDERAL TRADE COMMISSION ACT 36

mony’’. The term ‘‘oral testimony’’ appears twice; the amendment was executed the first place

such term appears.

may be required for official use by any duly authorized officer or

employee of the Commission under regulations which shall be promulgated by the Commission. Notwithstanding subparagraph (C),

such material, things, and transcripts may be used by any such officer or employee in connection with the taking of oral testimony

under this section.

(C) Except as otherwise provided in this section, while in the

possession of the custodian, no documentary material, tangible

things, reports or answers to questions, and transcripts of oral testimony shall be available for examination by any individual other

than a duly authorized officer or employee of the Commission without the consent of the person who produced the material, things,

or transcripts. Nothing in this section is intended to prevent disclosure to either House of the Congress or to any committee or subcommittee of the Congress, except that the Commission immediately shall notify the owner or provider of any such information

of a request for information designated as confidential by the

owner or provider.

(D) While in the possession of the custodian and under such

reasonable terms and conditions as the Commission shall

prescribe—

(i) documentary material, tangible things, or written reports shall be available for examination by the person who produced the material, or by any duly authorized representative

of such person; and

(ii) answers to questions in writing and transcripts of oral

testimony shall be available for examination by the person who

produced the testimony or by his attorney.

(4) Whenever the Commission has instituted a proceeding

against a person, partnership, or corporation, the custodian may

deliver to any officer or employee of the Commission documentary

material, tangible things, written reports or answers to questions,

and transcripts of oral testimony for official use in connection with

such proceeding. Upon the completion of the proceeding, the officer

or employee shall return to the custodian any such material so delivered which has not been received into the record of the proceeding.

(5) If any documentary material, tangible things, written reports or answers to questions, and transcripts of oral testimony

have been produced in the course of any investigation by any person pursuant to compulsory process and—

(A) any proceeding arising out of the investigation has

been completed; or

(B) no proceeding in which the material may be used has

been commenced within a reasonable time after completion of

the examination and analysis of all such material and other information assembled in the course of the investigation;

then the custodian shall, upon written request of the person who

produced the material, return to the person any such material

which has not been received into the record of any such proceeding

(other than copies of such material made by the custodian pursuant

to paragraph (3)(B)).
37 Sec. 21 FEDERAL TRADE COMMISSION ACT

(6) The custodian of any documentary material, written reports

or answers to questions, and transcripts of oral testimony may deliver to any officers or employees of appropriate Federal law enforcement agencies, in response to a written request, copies of such

material for use in connection with an investigation or proceeding

under the jurisdiction of any such agency. The custodian of any

tangible things may make such things available for inspection to

such persons on the same basis. Such materials shall not be made

available to any such agency until the custodian receives certification of any officer of such agency that such information will be

maintained in confidence and will be used only for official law enforcement purposes. Such documentary material, results of inspections of tangible things, written reports or answers to questions,

and transcripts of oral testimony may be used by any officer or employee of such agency only in such manner and subject to such conditions as apply to the Commission under this section. The custodian may make such materials available to any State law enforcement agency upon the prior certification of any officer of such agency that such information will be maintained in confidence and will

be used only for official law enforcement purposes.

(7) In the event of the death, disability, or separation from

service in the Commission of the custodian of any documentary material, tangible things, written reports or answers to questions, and

transcripts of oral testimony produced under any demand issued

under this Act, or the official relief of the custodian from responsibility for the custody and control of such material, the Commission

promptly shall—

(A) designate under paragraph (2)(A) another duly authorized agent to serve as custodian of such material; and

(B) transmit in writing to the person who produced the

material or testimony notice as to the identity and address of

the successor so designated.

Any successor designated under paragraph (2)(A) as a result of the

requirements of this paragraph shall have (with regard to the material involved) all duties and responsibilities imposed by this section upon his predecessor in office with regard to such material, except that he shall not be held responsible for any default or dereliction which occurred before his designation.

(c)(1) All information reported to or otherwise obtained by the

Commission which is not subject to the requirements of subsection

(b) shall be considered confidential when so marked by the person

supplying the information and shall not be disclosed, except in accordance with the procedures established in paragraph (2) and

paragraph (3).

(2) If the Commission determines that a document marked confidential by the person supplying it may be disclosed because it is

not a trade secret or commercial or financial information which is

obtained from any person and which is privileged or confidential,

within the meaning of section 6(f), then the Commission shall notify such person in writing that the Commission intends to disclose

the document at a date not less than 10 days after the date of receipt of notification.

(3) Any person receiving such notification may, if he believes

disclosure of the document would cause disclosure of a trade secret,

or commercial or financial information which is obtained from any
Sec. 22 FEDERAL TRADE COMMISSION ACT 38

person and which is privileged or confidential, within the meaning

of section 6(f), before the date set for release of the document, bring

an action in the district court of the United States for the district

within which the documents are located or in the United States

District Court for the District of Columbia to restrain disclosure of

the document. Any person receiving such notification may file with

the appropriate district court or court of appeals of the United

States, as appropriate, an application for a stay of disclosure. The

documents shall not be disclosed until the court has ruled on the

application for a stay.

(d)(1) The provisions of subsection (c) shall not be construed to

prohibit—

(A) the disclosure of information to either House of the

Congress or to any committee or subcommittee of the Congress,

except that the Commission immediately shall notify the owner

or provider of any such information of a request for information designated as confidential by the owner or provider;

(B) the disclosure of the results of any investigation or

study carried out or prepared by the Commission, except that

no information shall be identified nor shall information be disclosed in such a manner as to disclose a trade secret of any

person supplying the trade secret, or to disclose any commercial or financial information which is obtained from any person

and which is privileged or confidential;

(C) the disclosure of relevant and material information in

Commission adjudicative proceedings or in judicial proceedings

to which the Commission is a party; or

(D) the disclosure to a Federal agency of disaggregated information obtained in accordance with section 3512 of title 44,

United States Code, except that the recipient agency shall use

such disaggregated information for economic, statistical, or policymaking purposes only, and shall not disclose such information in an individually identifiable form.

(2) Any disclosure of relevant and material information in

Commission adjudicative proceedings or in judicial proceedings to

which the Commission is a party shall be governed by the rules of

the Commission for adjudicative proceedings or by court rules or

orders, except that the rules of the Commission shall not be

amended in a manner inconsistent with the purposes of this section.

(e) Nothing in this section shall supersede any statutory provision which expressly prohibits or limits particular disclosures by

the Commission, or which authorizes disclosures to any other Federal agency.

(f) Any material which is received by the Commission in any

investigation, a purpose of which is to determine whether any person may have violated any provision of the laws administered by

the Commission, and which is provided pursuant to any compulsory process under this Act or which is provided voluntarily in

place of such compulsory process shall be exempt from disclosure

under section 552 of title 5, United States Code.

SEC. 22. ø15 U.S.C. 57b–3¿ (a) For purposes of this section:

(1) The term ‘‘rule’’ means any rule promulgated by the

Commission under section 6 or section 18, except that such

term does not include interpretive rules, rules involving Com-
39 Sec. 22 FEDERAL TRADE COMMISSION ACT

mission management or personnel, general statements of policy, or rules relating to Commission organization, procedure, or

practice. Such term does not include any amendment to a rule

unless the Commission—

(A) estimates that such amendment will have an annual effect on the national economy of $100,000,000 or

more;

(B) estimates that such amendment will cause a substantial change in the cost or price of goods or services

which are used extensively by particular industries, which

are supplied extensively in particular geographic regions,

or which are acquired in significant quantities by the Federal Government, or by State or local governments; or

(C) otherwise determines that such amendment will

have a significant impact upon persons subject to regulation under such amendment and upon consumers.

(2) The term ‘‘rulemaking’’ means any Commission process

for formulating or amending a rule.

(b)(1) In any case in which the Commission publishes notice of

a proposed rulemaking, the Commission shall issue a preliminary

regulatory analysis relating to the proposed rule involved. Each

preliminary regulatory analysis shall contain—

(A) a concise statement of the need for, and the objectives

of, the proposed rule;

(B) a description of any reasonable alternatives to the proposed rule which may accomplish the stated objective of the

rule in a manner consistent with applicable law; and

(C) for the proposed rule, and for each of the alternatives

described in the analysis, a preliminary analysis of the projected benefits and any adverse economic effects and any other

effects, and of the effectiveness of the proposed rule and each

alternative in meeting the stated objectives of the proposed

rule.

(2) In any case in which the Commission promulgates a final

rule, the Commission shall issue a final regulatory analysis relating to the final rule. Each final regulatory analysis shall contain—

(A) a concise statement of the need for, and the objectives

of, the final rule;

(B) a description of any alternatives to the final rule which

were considered by the Commission;

(C) an analysis of the projected benefits and any adverse

economic effects and any other effects of the final rule;

(D) an explanation of the reasons for the determination of

the Commission that the final rule will attain its objectives in

a manner consistent with applicable law and the reasons the

particular alternative was chosen; and

(E) a summary of any significant issues raised by the comments submitted during the public comment period in response

to the preliminary regulatory analysis, and a summary of the

assessment by the Commission of such issues.

(3)(A) In order to avoid duplication or waste, the Commission

is authorized to—

(i) consider a series of closely related rules as one rule for

purposes of this subsection; and
Sec. 22 FEDERAL TRADE COMMISSION ACT 40

(ii) whenever appropriate, incorporate any data or analysis

contained in a regulatory analysis issued under this subsection

in the statement of basis and purpose to accompany any rule

promulgated under section 18(a)(1)(B), and incorporate by reference in any preliminary or final regulatory analysis information contained in a notice of proposed rulemaking or a statement of basis and purpose.

(B) The Commission shall include, in each notice of proposed

rulemaking and in each publication of a final rule, a statement of

the manner in which the public may obtain copies of the preliminary and final regulatory analyses. The Commission may charge a

reasonable fee for the copying and mailing of regulatory analyses.

The regulatory analyses shall be furnished without charge or at a

reduced charge if the Commission determines that waiver or reduction of the fee is in the public interest because furnishing the information primarily benefits the general public.

(4) The Commission is authorized to delay the completion of

any of the requirements established in this subsection by publishing in the Federal Register, not later than the date of publication of the final rule involved, a finding that the final rule is being

promulgated in response to an emergency which makes timely compliance with the provisions of this subsection impracticable. Such

publication shall include a statement of the reasons for such finding.

(5) The requirements of this subsection shall not be construed

to alter in any manner the substantive standards applicable to any

action by the Commission, or the procedural standards otherwise

applicable to such action.

(c)(1) The contents and adequacy of any regulatory analysis

prepared or issued by the Commission under this section, including

the adequacy of any procedure involved in such preparation or

issuance, shall not be subject to any judicial review in any court,

except that a court, upon review of a rule pursuant to section 18(e),

may set aside such rule if the Commission has failed entirely to

prepare a regulatory analysis.

(2) Except as specified in paragraph (1), no Commission action

may be invalidated, remanded, or otherwise affected by any court

on account of any failure to comply with the requirements of this

section.

(3) The provisions of this subsection do not alter the substantive or procedural standards otherwise applicable to judicial review of any action by the Commission.

(d)(1) The Commission shall publish at least semiannually a

regulatory agenda. Each regulatory agenda shall contain a list of

rules which the Commission intends to propose or promulgate during the 12-month period following the publication of the agenda.

On the first Monday in October of each year, the Commission shall

publish in the Federal Register a schedule showing the dates during the current fiscal year on which the semiannual regulatory

agenda of the Commission will be published.

(2) For each rule listed in a regulatory agenda, the Commission

shall—

(A) describe the rule;

(B) state the objectives of and the legal basis for the rule;

and
41 Sec. 24 FEDERAL TRADE COMMISSION ACT

(C) specify any dates established or anticipated by the

Commission for taking action, including dates for advance notice of proposed rulemaking, notices of proposed rulemaking,

and final action by the Commission.

(3) Each regulatory agenda shall state the name, office address, and office telephone number of the Commission officer or

employee responsible for responding to any inquiry relating to each

rule listed.

(4) The Commission shall not propose or promulgate a rule

which was not listed on a regulatory agenda unless the Commission publishes with the rule an explanation of the reasons the rule

was omitted from such agenda.

SEC. 23. ø15 U.S.C. 57b–4¿ (a) For purposes of this section, the

term ‘‘Board of Governors’’ means the Board of Governors of the

Federal Reserve System.

(b) Notwithstanding any other provision of law, if— (1) any person, partnership, or corporation engages in any

conduct or practice which allegedly constitutes a violation of

any Federal law with respect to which the Board of Governors

of the Federal Reserve System has rulemaking authority; and

(2) such person, partnership, or corporation engaged in

such conduct or practice in good faith reliance upon, and in

conformity with, any rule, regulation, statement of interpretation, or statement of approval prescribed or issued by the

Board of Governors under such Federal law;

then such good faith reliance shall constitute a defense in any administrative or judicial proceeding commenced against such person,

partnership, or corporation by the Commission under this Act or in

any administrative or judicial proceeding commenced against such

person, partnership, or corporation by the Attorney General of the

United States, upon request made by the Commission, under any

provision of law.

(c) The provisions of subsection (b) shall apply regardless of

whether any rule, regulation, statement of interpretation, or statement of approval prescribed or issued by the Board of Governors

is amended, rescinded, or held to be invalid by judicial authority

or any other authority after a person, partnership, or corporation

has engaged in any conduct or practice in good faith reliance upon,

and in conformity with, such rule, regulation, statement of interpretation, or statement of approval.

(d) If, in any case in which— (1) the Board of Governors has rulemaking authority with

respect to any Federal law; and

(2) the Commission is authorized to enforce the requirements of such Federal law;

any person, partnership, or corporation submits a request to the

Board of Governors for the issuance of any statement of interpretation or statement of approval relating to any conduct or practice of

such person, partnership, or corporation which may be subject to

the requirements of such Federal law, then the Board of Governors

shall dispose of such request as soon as practicable after the receipt

of such request.

SEC. 24. ø15 U.S.C. 57b–5¿ (a) The Commission shall not have

any authority to conduct any study, investigation, or prosecution of

any agricultural cooperative for any conduct which, because of the
Sec. 25 FEDERAL TRADE COMMISSION ACT 42

provisions of the Act entitled ‘‘An Act to authorize association of

producers of agricultural products’’, approved February 18, 1922 (7

U.S.C. 291 et seq., commonly known as the Capper-Volstead Act),

is not a violation of any of the antitrust Acts or this Act.

(b) The Commission shall not have any authority to conduct

any study or investigation of any agricultural marketing orders.

SEC. 25. ø15 U.S.C. 57c¿ There are authorized to be appropriated to carry out the functions, powers, and duties of the Commission not to exceed $92,700,000 for fiscal year 1994; not to exceed $99,000,000 for fiscal year 1995; not to exceed $102,000,000

for fiscal year 1996; not to exceed $107,000,000 for fiscal year 1997;

and not to exceed $111,000,000 for fiscal year 1998.

SEC. 26. ø15 U.S.C. 58¿ This Act may be cited as the ‘‘Federal

Trade Commission Act’’.
43

FEDERAL TRADE COMMISSION IMPROVEMENTS ACT

OF 1980

45

1Sections 2 through 17 of this Act made amendments to the Federal Trade Commission Act

(15 U.S.C. 41 et seq.).

FEDERAL TRADE COMMISSION IMPROVEMENTS ACT

OF 19801

[Public Law 96–252, 94 Stat. 374, May 28, 1980]

[As amended through Public Law 98–620, November 8, 1984]

AN ACT To amend the Federal Trade Commission Act to extend the authorization

of appropriations contained in such Act, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

SHORT TITLE

SECTION 1. ø15 U.S.C. 58 note¿ This Act may be cited as the ‘‘Federal Trade Commission Improvements Act of 1980’’.

* * * * * * *

RESTRICTION OF COMMISSION AUTHORITY UNDER LANHAM

TRADEMARK ACT

SEC. 18. ø15 U.S.C. 57c note¿ The Federal Trade Commission

shall not have any authority to use any funds which are authorized

to be appropriated to carry out the Federal Trade Commission Act

(15 U.S.C. 41 et seq.) for fiscal year 1980, 1981, or 1982, under section 24 of such Act, as amended by section 17 and as so redesignated in section 13, for the purpose of taking any action under section 14 of the Act entitled ‘‘An Act to provide for the registration

and protection of trademarks used in commerce, to carry out the

provisions of certain international conventions, and for other purposes’’ (15 U.S.C. 1064), commonly referred to as the Lanham

Trademark Act, with respect to the cancellation of the registration

of any mark on the ground that such mark has become the common

descriptive name of an article or substance.

RESTRICTION OF COMMISSION REGULATION OF FUNERAL INDUSTRY

SEC. 19. ø15 U.S.C. 57a note¿ (a) For purposes of this section:

(1) The term ‘‘Commission’’ means the Federal Trade Commission.

(2) The term ‘‘funeral trade regulation rule’’ means the

proposed trade regulation rule which was published in the Federal Register of August 29, 1975, beginning at page 39901, and

which relates to the regulation of funeral industry practices.

(b) Except as provided in subsection (c), the Federal Trade

Commission shall not have any authority to use any funds which

are authorized to be appropriated to carry out the Federal Trade
Sec. 19 FTC IMPROVEMENTS ACT OF 1980 46

Commission Act (15 U.S.C. 41 et seq.) for fiscal year 1980, 1981,

or 1982, under section 24 of such Act, as amended by section 17

and as so redesignated in section 13, to issue—

(1) the funeral trade regulation rule in final form; or

(2) any other trade regulation rule, in proposed or final

form, which sets forth rules substantially similar to the rules

set forth in the funeral trade regulation rule.

(c)(1) The Commission shall have authority to use the funds

specified in subsection (b) to issue the funeral trade regulation rule

in final form only to the extent that the funeral trade regulation

rule (in its final form)—

(A) requires persons, partnerships, and corporations furnishing goods and services relating to funerals to disclose the

fees or prices charged for such goods and services in a manner

prescribed by the Commission; and

(B) prohibits or prevents such persons, partnerships, and

corporations from—

(i) engaging in any misrepresentation;

(ii) engaging in any boycott against, or making any

threat against, any other person, partnership, or corporation furnishing goods and services relating to funerals;

(iii) conditioning the furnishing of any such goods or

services to a consumer upon the purchase by such consumer of other such goods or services; or

(iv) furnishing any such goods or services to a consumer for a fee without obtaining the prior approval of

such consumer.

(2)(A) The Commission, before issuing the funeral trade regulation rule in final form—

(i) shall publish in the Federal Register for public comment a revised version of the funeral trade regulation rule

which contains the provisions specified in subparagraph (A)

and subparagraph (B) of paragraph (1);

(ii) shall allow interested persons to submit written data,

views, and arguments relating to such revised version of the

funeral trade regulation rule, and make all such submissions

publicly available; and

(iii) may permit interested persons, or, as appropriate, a

single representative of each group of such persons having the

same or similar interests with respect to such revised version

of the funeral trade regulation rule, to present their position

orally.

(B) The requirements established in subparagraph (A) are in

addition to, and not in lieu of, any other requirements established

in the Federal Trade Commission Act (15 U.S.C. 41 et seq.), or in

any other provision of law, and applicable to the promulgation of

trade regulation rules by the Commission. The requirements established in subparagraph (A) shall not be construed to vacate or otherwise affect any proceedings conducted by the Commission before

the date of the enactment of this Act with respect to the funeral

trade regulation rule.

(d) If, upon application to the Commission by an appropriate

State agency, the Commission determines (pursuant to rules prescribed by the Commission) that—
47 Sec. 23 FTC IMPROVEMENTS ACT OF 1980

1Section 21(i) provided that the provisions of this section ‘‘shall cease to have any force or

effect after September 30, 1982.’’ Section 101(d) of Public Law 97–377, 96 Stat. 1870, December

21, 1982, provided that section 21 was effective until September 30, 1983. 2Section 22 expired after fiscal year 1982.

(1) there is in effect a State requirement which applies to

any transaction to which this section applies; and

(2) such State requirement affords an overall level of protection to consumers which is as great as, or greater than, the

protection afforded by this section;

then only such State requirement shall be applicable to the extent

specified in such determination for so long as the State administers

and enforces effectively any such State requirement.

RESTRICTION OF COMMISSION AUTHORITY RELATING TO

AGRICULTURAL COOPERATIVES

SEC. 20. ø15 U.S.C. 57c note¿ (a) The Federal Trade Commission shall not have any authority to use any funds which are authorized to be appropriated to carry out the Federal Trade Commission Act (15 U.S.C. 41 et seq.) for fiscal year 1980, 1981, or 1982,

under section 24 of such Act, as amended by section 17 and as so

redesignated in section 13, for the purpose of conducting any study,

investigation, or prosecution of any agricultural cooperative for any

conduct which, because of the provisions of the Act entitled ‘‘An Act

to authorize association of producers of agricultural products’’, approved February 18, 1922 (7 U.S.C. 291 et seq.), commonly known

as the Capper-Volstead Act, is not a violation of any Federal antitrust Act or the Federal Trade Commission Act (15 U.S.C. 41 et

seq.).

(b) The Federal Trade Commission shall not have any authority to use any funds which are authorized to be appropriated to

carry out the Federal Trade Commission Act (15 U.S.C. 41 et seq.)

for fiscal year 1980, 1981, or 1982, under section 24 of such Act,

as amended by section 17 and as so redesignated in section 13, for

the purpose of conducting any study or investigation of any agricultural marketing orders.

CONGRESSIONAL REVIEW OF RULES

SEC. 21. ø15 U.S.C. 57a–1¿ [Omitted.] 1

OVERSIGHT HEARINGS

SEC. 22. ø15 U.S.C. 57a note¿ [Omitted.] 2

EFFECTIVE DATE

SEC. 23. ø15 U.S.C. 45 note¿ The provisions of this Act, and

the amendments made by this Act, shall take effect on the date of

the enactment of this Act.

49

FEDERAL CAUSTIC POISON ACT

NOTE.—Section 19 of the Federal Hazardous Substances Act

(15 U.S.C. 401 note) (p. 110) repealed the Federal Caustic Poison

Act (formerly 15 U.S.C. 401 to 411), except for any ‘‘dangerous

caustic or corrosive substance’’ (as defined by the Federal Caustic

Poison Act), which is subject to the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) and not a ‘‘hazardous substance’’ under the Federal Hazardous Substances Act (15 U.S.C. 1261 et

seq.).

51

FEDERAL CAUSTIC POISON ACT

[Chapter 489, 44 Stat. 1406, March 4, 1927]

[As amended through Public Law 91–113, November 6, 1969]

AN ACT To safeguard the distribution and sale of certain dangerous caustic or

corrosive acids, alkalies, and other substances in interstate and foreign commerce.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That this Act may

be cited as the Federal Caustic Poison Act.

DEFINITIONS

SEC. 2. As used in this Act, unless the context otherwise

requires—

(a) The term ‘‘dangerous caustic or corrosive substance’’ means:

(1) Hydrochloric acid and any preparation containing free or

chemically unneutralized acid (HCl) in a concentration of 10 per

centum or more;

(2) Sulfuric acid and any preparation containing free or chemically unneutralized sulfuric acid (H2SO4) in a concentration of 10

per centum or more;

(3) Nitric acid or any preparation containing free or chemically

unneutralized nitric acid (HNO3) in a concentration of 5 per centum or more;

(4) Carbolic acid (C6H5OH), otherwise known as phenol, and

any preparation containing carbolic acid in a concentration of 5 per

centum or more;

(5) Oxalic acid and any preparation containing free or chemically unneutralized oxalic acid (H2C2O4) in a concentration of 10

per centum or more;

(6) Any salt of oxalic acid and any preparation containing any

such salt in a concentration of 10 per centum or more;

(7) Acetic acid or any preparation containing free or chemically

unneutralized acetic acid (HC2H3O2) in a concentration of 20 per

centum or more;

(8) Hypochlorous acid, either free or combined, and any preparation containing the same in a concentration so as to yield 10 per

centum or more by weight of available chlorine, excluding calx

chlorinata, bleaching powder, and chloride of lime;

(9) Potassium hydroxide and any preparation containing free

or chemically unneutralized potassium hydroxide (KOH), including

caustic potash and Vienna paste, in a concentration of 10 per centum or more;

(10) Sodium hydroxide and any preparation containing free or

chemically unneutralized sodium hydroxide (NaOH), including

caustic soda and lye, in a concentration of 10 per centum or more;
Sec. 3 FEDERAL CAUSTIC POISON ACT 52

1For the purpose of determining whether an article containing ammonia is subject to the Federal Caustic Poison Act, the ammonia content is to be calculated as NH3. § 3.700, Definition of

ammonia under Federal Caustic Poison Act, Federal Register, November 30, 1957.

(11) Silver nitrate, sometimes known as lunar caustic, and any

preparation containing silver nitrate (AgNO3) in a concentration of

5 per centum or more; and

(12) Ammonia water and any preparation containing free or

chemically uncombined ammonia (NH3), including ammonium hydroxide and ‘‘hartshorn,’’ in a concentration of 5 per centum or

more.1

(b) The term ‘‘misbranded parcel, package, or container’’ means

a retail parcel, package, or container of any dangerous caustic or

corrosive substance not bearing a conspicuous, easily legible label

or sticker containing:

(1) The common name of the substance;

(2) The name and place of business of the manufacturer, packer, seller, or distributor;

(3) The word ‘‘poison,’’ running parallel with the main body of

reading matter on the label or sticker, on a clear, plain background

of a distinctly contrasting color, in uncondensed gothic capital letters, the letters to be not less than 24-point size unless there is on

the label or sticker no other type so large, in which event the type

shall be not smaller than the largest type on the label or sticker;

and

(4) Directions for treatment in case of accidental personal injury by any dangerous caustic or corrosive substance, except that

such directions need not appear on labels or stickers, on parcels,

packages, or containers at the time of shipment or of delivery for

shipment by manufacturers and wholesalers for other than household use.

(c) The term ‘‘interstate or foreign commerce’’ means commerce

between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the

same State, Territory, or possession, or the District of Columbia,

but through any place outside thereof; or within any Territory or

possession, or the District of Columbia.

(d) This Act is not to be construed as modifying or limiting in

any way the right of any person to manufacture, pack, ship, sell,

barter, and distribute dangerous caustic or corrosive substances in

parcels, packages, or containers, labeled as required by this Act.

PROHIBITION AGAINST MISBRANDING SHIPMENTS

SEC. 3. No person shall ship or deliver for shipment in interstate or foreign commerce or receive from shipment in such commerce any dangerous caustic or corrosive substance for sale or exchange, or sell or offer for sale any such substance in any Territory

or possession or in the District of Columbia, in a misbranded parcel, package, or container suitable for household use; except that

the preceding provisions of this section shall not apply—

(a) To any regularly established common carrier shipping or

delivering for shipment, or receiving from shipment, any such substance in the ordinary course of its business as a common carrier;

nor
53 Sec. 5 FEDERAL CAUSTIC POISON ACT

(b) To any person in respect of any such substance shipped or

delivered for shipment, or received from shipment, for export to

any foreign country, in a parcel package, or container branded in

accordance with the specifications of a foreign purchaser and in accordance with the laws of the foreign country;

(c) To any dealer when he can establish a guaranty signed by

the wholesaler, jobber, manufacturer, or other party residing in the

United States, from whom he purchases such articles, to the effect

that the article is not misbranded within the meaning of this Act.

This guaranty, to afford protection, shall contain the name and address of the party or parties making the sale of such article to such

dealer, and in such case said party or parties shall be amenable to

the prosecutions, fines, and other penalties which would attach, in

due course, to the dealer under the provisions of this Act.

LIBEL FOR CONDEMNATION PROCEEDINGS

SEC. 4. (a) Any dangerous caustic or corrosive substance in a

misbranded parcel, package, or container suitable for household

use shall be liable to be proceeded against in the district court of

the United States for any judicial district in which the substance

is found and to be seized for confiscation by a process of libel for

condemnation, if such substance is being:

(1) Shipped in interstate or foreign commerce; or

(2) Held for sale or exchange after having so shipped; or

(3) Held for sale or exchange in any Territory or possession or

in the District of Columbia.

(b) If such substance is condemned as misbranded by the court

it shall be disposed of in the discretion of the court:

(1) By destruction.

(2) By sale. The proceeds of the sale, less legal costs and

charges, shall be paid into the Treasury as miscellaneous receipts.

Such substance shall not be sold in any jurisdiction contrary to the

provisions of this Act or the laws of such jurisdiction, and the court

may require the purchaser at any such sale to label such substance

in compliance with law before the delivery thereof.

(3) By delivery to the owner thereof upon the payment of legal

costs and charges and execution and delivery of a good and sufficient bond to the effect that such substance will not be sold or otherwise disposed of in any jurisdiction contrary to the provisions of

this Act or the laws of such jurisdiction.

(c) Proceedings in such libel cases shall conform, as nearly as

may be, to suits in rem in admiralty, except that either party may

demand trial by jury on any issue of fact if the value in controversy

exceeds $20. In case of a jury trial the verdict of the jury shall have

the same effect as a finding of the court upon the facts. All such

proceedings shall be at the suit and in the name of the United

States.

EXCLUSION OF MISBRANDED IMPORTS

SEC. 5. (a) Whenever in the case of any dangerous caustic or

corrosive substance being offered for importation the Secretary of

Health, Education, and Welfare has reason to believe that such

substance is being shipped in interstate or foreign commerce in violation of section 3, he shall give due notice and opportunity for
Sec. 6 FEDERAL CAUSTIC POISON ACT 54

hearing thereon to the owner or consignee and certify such fact to

the Secretary of the Treasury, who shall thereupon (1) refuse admission and delivery to the consignee of such substance, or (2) deliver such substance to the consignee pending examination, hearing, and decision in the matter, on the execution of a penal bond

to the amount of the full invoice value of such substance, together

with the duty thereon, if any, and to the effect that on refusal to

return such substance for any cause to the Secretary of the Treasury when demanded for the purpose of excluding it from the country or for any other purpose, the consignee shall forfeit the full

amount of the bond.

(b) If, after proceeding in accordance with subdivision (a) the

Secretary of Health, Education, and Welfare is satisfied that such

substance being offered for importation was shipped in interstate

or foreign commerce in violation of any provision of this Act, he

shall certify the fact to the Secretary of the Treasury, who shall

thereupon notify the owner or consignee and cause the sale or

other disposition of such substance refused admission and delivery

or entered under bond, unless it is exported by the owner or consignee or labeled by him so as to conform to the law within 3

months from the date of such notice, under such regulations as the

Secretary of the Treasury may prescribe. All charges for storage,

cartage, or labor on any such substance refused admission or delivery or entered upon bond shall be paid by the owner or consignee.

In default of such payment such charges shall constitute a lien

against any future importations made by such owner or consignee.

REMOVAL OF LABELS

SEC. 6. No person shall alter, mutilate, destroy, obliterate, or

remove any label or sticker required by this Act to be placed on any

dangerous caustic or corrosive substance, if such substance is

being—

(a) Shipped in interstate or foreign commerce; or

(b) Held for sale or exchange after having been so shipped; or

(c) Held for sale or exchange in any Territory or possession or

by the District of Columbia.

PENALTIES

SEC. 7. Any person violating any provision of section 3 or 6

shall upon conviction thereof be punished by a fine of not more

than $200 or imprisonment for not more than 90 days, or by both.

INSTITUTION OF LIBEL FOR CONDEMNATION AND CRIMINAL

PROCEEDINGS

SEC. 8. It shall be the duty of each United States district attorney to whom the Secretary of Health, Education, and Welfare shall

report any violation of section 3 or 6 of this Act or to whom any

health, medical, or drug officer or agent of any State, Territory, or

possession, or of the District of Columbia, presents satisfactory evidence of any such violation, to cause libel for condemnation and

criminal proceedings under sections 4 and 7 to be commenced and

prosecuted in the proper courts of the United States, without delay,

for the enforcement of the condemnation and penalties provided in

such sections.
55 Sec. 10 FEDERAL CAUSTIC POISON ACT

ENFORCEMENT OF ACT

SEC. 9. (a) Except as otherwise specifically provided in this Act,

the Secretary of Health, Education, and Welfare shall enforce its

provisions.

(b) For enforcing the provisions of sections 4, 5, and 7, the Secretary of Health, Education, and Welfare may cause investigations,

inspections, analyses, and tests to be made and samples to be collected, of any dangerous caustic or corrosive substance. The Department of Health, Education, and Welfare shall pay to the person

entitled, upon his request, the reasonable market value of any such

sample taken. If it appears from the inspection, analysis, or test of

any dangerous caustic or corrosive substance that such substance

is in a misbranded package, parcel, or container suitable for household use, the Secretary of Health, Education, and Welfare shall

cause notice thereof to be given to any person who may be liable

for any violation of section 3 or 6 in respect of such substance. Any

person so notified shall be given an opportunity to be heard under

regulations prescribed by the Secretary of Health, Education, and

Welfare. If it appears that such person has violated the provisions

of section 3 or 6 the Secretary of Health, Education, and Welfare

shall at once certify the facts to the proper United States district

attorney, with a copy of the results of the inspection, analysis, or

test duly authenticated under oath by the person making such inspection, analysis, or test.

(c) For the enforcement of his functions under this Act the Secretary of Health, Education, and Welfare is authorized:

(1) To prescribe and promulgate such regulations as may be

necessary;

(2) To cooperate with any department or agency of the Government, with any State, Territory, or possession, or with the District

of Columbia, or with any department, agency, or political subdivision thereof, or with any person;

(3) Subject to the civil-service laws to appoint and, in accordance with the Classification Act of 1949, to fix the salaries of such

officers and employees as may be required for the execution of the

functions of the Secretary of Health, Education, and Welfare under

this Act and as may be provided for by the Congress from time to

time;

(4) To make such expenditures (including expenditures for personal services and rent at the seat of Government and elsewhere,

and for law books, books of reference, and periodicals) as may be

required for the execution of the functions vested in the Secretary

of Health, Education, and Welfare by this Act and as may be provided for by the Congress from time to time;

(5) To give notice, by publication in such manner as the Secretary of Health, Education, and Welfare may by regulation prescribe, of the judgment of the court in any case under the provisions of this Act.

SEPARABILITY CLAUSE

SEC. 10. If any provision of this Act is declared unconstitutional, or the applicability thereof to any person or circumstance is

held invalid, the constitutionality of the remainder of the Act and
Sec. 11 FEDERAL CAUSTIC POISON ACT 56

the applicability thereof to other persons and circumstances shall

not be affected thereby.

TIME OF TAKING EFFECT

SEC. 11. This Act shall take effect upon its passage; but no

penalty or condemnation shall be enforced for any violation of the

Act occurring within 6 months after its passage.

APPLICATION TO EXISTING LAW

SEC. 12. The provisions of this Act shall be held to be in addition to and not in substitution for the provisions of the following

acts—

(a) The Federal Food, Drug, and Cosmetic Act of June 25,

1938, as amended;

(b) The Federal Insecticide, Fungicide, and Rodenticide Act of

June 25, 1947;

(c) The Act entitled ‘‘An Act to regulate the practice of pharmacy and the sale of poisons in the District of Columbia, and for

other purposes,’’ approved May 7, 1906, as amended.
57

FLAMMABLE FABRICS ACT

NOTE.—Section 30(b) of the Consumer Product Safety Act (15

U.S.C. 2079(b)) (p. 176) transferred 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.) to the Consumer Product Safety Commission.

59

1Designation so in law. Subsections (a) through (j) probably should have been paragraphs (1)

through (10).

FLAMMABLE FABRICS ACT

[Chapter 164, 67 Stat. 111, June 30, 1953]

[As amended through Public Law 101–608, November 16, 1990]

AN ACT To prohibit the introduction or movement in interstate commerce of articles of wearing apparel and fabrics which are so highly flammable as to be dangerous when worn by individuals, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

SHORT TITLE

SECTION 1. ø15 U.S.C. 1191 note¿ This Act may be cited as the

‘‘Flammable Fabrics Act’’.

DEFINITIONS

SEC. 2. ø15 U.S.C. 1191¿ As used in this Act—

(a) 1 The term ‘‘person’’ means an individual, partnership, corporation, association, or any other form of business enterprise.

(b) The term ‘‘commerce’’ means commerce among the several

States or with foreign nations or in any territory of the United

States or in the District of Columbia or between any such territory

and another, or between any such territory and any State or foreign nation, or between the District of Columbia or the Commonwealth of Puerto Rico and any State or territory or foreign nation,

or between the Commonwealth of Puerto Rico and any State or territory or foreign nation or the District of Columbia.

(c) The term ‘‘territory’’ includes the insular possessions of the

United States and also any territory of the United States.

(d) The term ‘‘article of wearing apparel’’ means any costume

or article of clothing worn or intended to be worn by individuals.

(e) The term ‘‘interior furnishing’’ means any type of furnishing

made in whole or in part of fabric or related material and intended

for use or which may reasonably be expected to be used, in homes,

offices, or other places of assembly or accommodation.

(f) The term ‘‘fabric’’ means any material (except fiber, filament, or yarn for other than retail sale) woven, knitted, felted, or

otherwise produced from or in combination with any natural or

synthetic fiber, film, or substitute therefor which is intended for

use or which may reasonably be expected to be used, in any product as defined in subsection (h).

(g) The term ‘‘related material’’ means paper, plastic, rubber,

synthetic film, or synthetic foam which is intended for use or which
Sec. 3 FLAMMABLE FABRICS ACT 60

1Section 30(b) of the Consumer Product Safety Act (15 U.S.C. 2079(b)) (p. 176) transferred

the functions of the Secretary of Health, Education, and Welfare, the Secretary of Commerce,

and the Federal Trade Commission under this Act to the Consumer Product Safety Commission.

may reasonably be expected to be used in any product as defined

in subsection (h).

(h) The term ‘‘product’’ means any article of wearing apparel

or interior furnishing.

(i) The term ‘‘Commission’’ means the Federal Trade Commission. 1

(j) The term ‘‘Federal Trade Commission Act’’ means the Act

of Congress entitled ‘‘An Act to create a Federal Trade Commission,

to define its powers and duties, and for other purposes’’ approved

September 26, 1914, as amended.

PROHIBITED TRANSACTIONS

SEC. 3. ø15 U.S.C. 1192¿ (a) The manufacture for sale, the

sale, or the offering for sale, in commerce, or the importation into

the United States, or the introduction, delivery for introduction,

transportation or causing to be transported, in commerce, or the

sale or delivery after a sale or shipment in commerce, of any product, fabric, or related material which fails to conform to an applicable standard or regulation issued or amended under the provisions

of section 4 of this Act, shall be unlawful and shall be an unfair

method of competition and an unfair and deceptive act or practice

in commerce under the Federal Trade Commission Act.

(b) The manufacture for sale, the sale, or the offering for sale,

of any product made of fabric or related material which fails to conform to an applicable standard or regulation issued or amended

under section 4 of this Act, and which has been shipped or received

in commerce shall be unlawful and shall be an unfair method of

competition and an unfair and deceptive act or practice in commerce under the Federal Trade Commission Act.

REGULATION OF FLAMMABLE FABRICS

SEC. 4. ø15 U.S.C. 1193¿ (a) Whenever the Secretary of Commerce finds on the basis of the investigations or research conducted

pursuant to section 14 of this Act that a new or amended flammability standard or other regulation, including labeling, for a fabric,

related material, or product may be needed to protect the public

against unreasonable risk of the occurrence of fire leading to death

or personal injury, or significant property damage, he shall institute proceedings for the determination of an appropriate flammability standard (including conditions and manner of testing) or

other regulation or amendment thereto for such fabric, related material, or product.

(b) Each standard, regulation, or amendment thereto promulgated pursuant to this section shall be based on findings that such

standard, regulation, or amendment thereto is needed to adequately protect the public against unreasonable risk of the occurrence of fire leading to death, injury, or significant property damage, is reasonable, technologically practicable, and appropriate, is

limited to such fabrics, related materials, or products which have

been determined to present such unreasonable risks, and shall be

stated in objective terms. Each such standard, regulation, or
61 Sec. 4 FLAMMABLE FABRICS ACT

amendment thereto, shall become effective twelve months from the

date on which such standard, regulation, or amendment is promulgated, unless the Secretary of Commerce finds for good cause

shown that an earlier or later effective date is in the public interest

and publishes the reason for such finding. Each such standard or

regulation or amendment thereto shall exempt fabrics, related materials, or products in inventory or with the trade as of the date

on which the standard, regulation, or amendment thereto, becomes

effective except that, if the Secretary finds that any such fabric, related material, or product is so highly flammable as to be dangerous when used by consumers for the purpose for which it is intended, he may under such conditions as the Secretary may prescribe, withdraw, or limit the exemption for such fabric, related

material, or product.

(c) The Secretary of Commerce may obtain from any person by

regulation or subpena issued pursuant thereto such information in

the form of testimony, books, records, or other writings as is pertinent to the findings or determinations which he is required or authorized to make pursuant to this Act. All information reported to

or otherwise obtained by the Secretary or his representative pursuant to this subsection which information contains or relates to a

trade secret or other matter referred to in section 1905 of title 18

of the United States Code, shall be considered confidential for the

purpose of that section, except that such information may be disclosed to other officers or employees concerned with carrying out

this Act or when relevant in any proceeding under this Act. Nothing in this section shall authorize the withholding of information

by the Secretary or any officer or employee under his control, from

the duly authorized committees of the Congress.

(d) Standards, regulations, and amendments to standards and

regulations under this section shall be made in accordance with

section 553 of title 5, United States Code, except that interested

persons shall be given an opportunity for the oral presentation of

data, views, or arguments in addition to an opportunity to make

written submissions. A transcript shall be kept of any oral presentation.

(e)(1) Any person who will be adversely affected by any such

standard or regulation or amendment thereto when it is effective

may at any time prior to the sixtieth day after such standard or

regulation or amendment thereto is issued file a petition with the

United States court of appeals for the circuit wherein such person

resides or has his principal place of business, for a judicial review

thereof. A copy of the petition shall be forthwith transmitted by the

clerk of the court to the Secretary or other officer designated by

him for that purpose. The Secretary thereupon shall file in the

court the record of the proceedings on which the Secretary based

the standard or regulation, as provided in section 2112 of title 28

of the United States Code.

(2) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that

such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Secretary, the court may order such additional

evidence (and evidence in rebuttal thereof) to be taken before the

Secretary, and to be adduced upon the hearing, in such manner
Sec. 4 FLAMMABLE FABRICS ACT 62

and upon such terms and conditions as to the court may seem

proper. The Secretary may modify his findings or make new findings, by reason of the additional evidence so taken, and he shall

file such modified or new findings, and his recommendations, if

any, for the modification or setting aside of his original standard

or regulation or amendment thereto, with the return of such additional evidence.

(3) Upon the filing of the petition referred to in paragraph (1)

of this subsection, the court shall have jurisdiction to review the

standard or regulation in accordance with chapter 7 of title 5 of the

United States Code and to grant appropriate relief as provided in

such chapter. The standard or regulation shall not be affirmed unless the findings required by the first sentence of subsection (b) are

supported by substantial evidence on the record taken as a whole.

For purposes of this paragraph, the term ‘‘record’’ means the standard or regulation, any notice published with respect to the promulgation of such standard or regulation, the transcript required by

subsection (d) of any oral presentation, any written submission of

interested parties, and any other information which the Commission considers relevant to such standard or regulation.

(4) The judgment of the court affirming or setting aside, in

whole or in part, any such standard or regulation of the Secretary

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.

(5) Any action instituted under this subsection shall survive,

notwithstanding any change in the person occupying the office of

Secretary or any vacancy in such office.

(6) The remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided

by law.

(f) A certified copy of the transcript of the record and proceedings under subsection (e) shall be furnished by the Secretary

to any interested party at his request, and payment of the costs

thereof, and shall be admissible in any criminal, exclusion of imports, or other proceeding arising under or in respect of this Act,

irrespective of whether proceedings with respect to the standard or

regulation or amendment thereto have previously been initiated or

become final under subsection (e).

(g) A proceeding for the promulgation of a regulation under

this section for a fabric, related material, or product shall be commenced by the publication in the Federal Register of an advance

notice of proposed rulemaking which shall— (1) identify the fabric, related material, or product and the

nature of the risk of injury associated with the fabric, related

material, or product;

(2) include a summary of each of the regulatory alternatives under consideration by the Commission (including voluntary standards);

(3) include information with respect to any existing standard known to the Commission which may be relevant to the

proceedings, together with a summary of the reasons why the

Commission believes preliminarily that such standard does not

eliminate or adequately reduce the risk of injury identified in

paragraph (1);
63 Sec. 4 FLAMMABLE FABRICS ACT

1Punctuation so in law. The period at the end of subsection (g)(5) probably should be ‘‘; and’’.

(4) invite interested persons to submit to the Commission,

within such period as the Commission shall specify in the notice (which period shall not be less than 30 days or more than

60 days after the date of publication of the notice), comments

with respect to the risk of injury identified by the Commission,

the regulatory alternatives being considered, and other possible alternatives for addressing the risk;

(5) invite any person (other than the Commission) to submit to the Commission, within such period as the Commission

shall specify in the notice (which period shall not be less than

30 days after the date of publication of the notice), an existing

standard or a portion of a standard as a proposed regulation. 1

(6) invite any person (other than the Commission) to submit to the Commission, within such period as the Commission

shall specify in the notice (which period shall not be less than

30 days after the date of publication of the notice), a statement

of intention to modify or develop a voluntary standard to address the risk of injury identified in paragraph (1) together

with a description of a plan to modify or develop the standard.

The Commission shall transmit such notice within 10 calendar

days to the Committee on Commerce, Science, and Transportation

of the Senate and the Committee on Energy and Commerce of the

House of Representatives.

(h)(1) If the Commission determines that any standard submitted to it in response to an invitation in a notice published under

subsection (g)(5) if promulgated (in whole, in part, or in combination with any other standard submitted to the Commission or any

part of such a standard) as a regulation, would eliminate or adequately reduce the risk of injury identified in the notice provided

under subsection (g)(1), the Commission may publish such standard, in whole, in part, or in such combination and with nonmaterial

modifications, as a proposed regulation under this section.

(2) If the Commission determines that— (A) compliance with any standard submitted to it in response to an invitation in a notice published under subsection

(g)(6) is likely to result in the elimination or adequate reduction of the risk of injury identified in the notice, and

(B) it is likely that there will be substantial compliance

with such standard,

the Commission shall terminate any proceeding to promulgate a

regulation respecting such risk of injury and shall publish in the

Federal Register a notice which includes the determination of the

Commission and which notifies the public that the Commission will

rely on the voluntary standard to eliminate or reduce the risk of

injury, except that the Commission shall terminate any such proceeding and rely on a voluntary standard only if such voluntary

standard is in existence. For purposes of this section, a voluntary

standard shall be considered to be in existence when it is finally

approved by the organization or other person which developed such

standard, irrespective of the effective date of the standard. Before

relying upon any voluntary consumer product safety standard, the

Commission shall afford interested persons (including manufacturers, consumers, and consumer organizations) a reasonable oppor-
Sec. 4 FLAMMABLE FABRICS ACT 64

tunity to submit written comments regarding such standard. The

Commission shall consider such comments in making any determination regarding reliance on the involved voluntary standard

under this subsection.

(3) The Commission shall devise procedures to monitor compliance with any voluntary standards— (A) upon which the Commission has relied under paragraph (2) of this subsection;

(B) which were developed with the participation of the

Commission; or

(C) whose development the Commission has monitored.

(i) No regulation may be proposed by the Commission under

this section unless, not less than 60 days after publication of the

notice required in subsection (g), the Commission publishes in the

Federal Register the text of the proposed rule, including any alternatives, which the Commission proposes to promulgate, together

with a preliminary regulatory analysis containing— (1) a preliminary description of the potential benefits and

potential costs of the proposed regulation, including any benefits or costs that cannot be quantified in monetary terms, and

an identification of those likely to receive the benefits and bear

the costs;

(2) a discussion of the reasons any standard or portion of

a standard submitted to the Commission under subsection

(g)(5) was not published by the Commission as the proposed

regulation or part of the proposed regulation;

(3) a discussion of the reasons for the Commission’s preliminary determination that efforts proposed under subsection

(g)(6) and assisted by the Commission as required by section

5(a)(3) of the Consumer Product Safety Act would not, within

a reasonable period of time, be likely to result in the development of a voluntary standard that would eliminate or adequately reduce the risk of injury identified in the notice provided under subsection (g)(1); and

(4) a description of any reasonable alternatives to the proposed regulation, together with a summary description of their

potential costs and benefits, and a brief explanation of why

such alternatives should not be published as a proposed regulation.

The Commission shall transmit such notice within 10 calendar

days to the Committee on Commerce, Science, and Transportation

of the Senate and the Committee on Energy and Commerce of the

House of Representatives.

(j)(1) The Commission shall not promulgate a regulation under

this section unless it has prepared a final regulatory analysis of the

regulation containing the following information:

(A) A description of the potential benefits and potential

costs of the regulation, including costs and benefits that cannot

be quantified in monetary terms, and the identification of those

likely to receive the benefits and bear the costs.

(B) A description of any alternatives to the final regulation

which were considered by the Commission, together with a

summary description of their potential benefits and costs and

brief explanation of the reasons why these alternatives were

not chosen.
65 Sec. 5 FLAMMABLE FABRICS ACT

(C) A summary of any significant issues raised by the comments submitted during the public comment period in response

to the preliminary regulatory analysis, and a summary of the

assessment by the Commission of such issues.

The Commission shall publish its final regulatory analysis with the

regulation.

(2) The Commission shall not promulgate a regulation under

this section unless it finds (and includes such finding in the regulation)—

(A) in the case of a regulation which relates to a risk of

injury with respect to which persons who would be subject to

such regulation have adopted and implemented a voluntary

standard, that—

(i) compliance with such voluntary standard is not

likely to result in the elimination or adequate reduction of

such risk of injury; or

(ii) it is unlikely that there will be substantial compliance with such voluntary standard;

(B) that the benefits expected from the regulation bear a

reasonable relationship to its costs; and

(C) that the regulation imposes the least burdensome requirement which prevents or adequately reduces the risk of injury for which the regulation is being promulgated.

(3)(A) Any regulatory analysis prepared under subsection (i) or

paragraph (1) shall not be subject to independent judicial review,

except that when an action for judicial review of a regulation is instituted, the contents of any such regulatory analysis shall constitute part of the whole rulemaking record of agency action in connection with such review.

(B) The provisions of subparagraph (A) shall not be construed

to alter the substantive or procedural standards otherwise applicable to judicial review of any action by the Commission.

(k) The Commission shall grant, in whole or in part, or deny

any petition under section 553(e) of title 5, United States Code, requesting the Commission to initiate a rulemaking, within a reasonable time after the date on which such petition is filed. The Commission shall state the reasons for granting or denying such petition. The Commission may not deny any such petition on the basis

of a voluntary standard unless the voluntary standard is in existence at the time of the denial of the petition, the Commission has

determined that the voluntary standard is likely to result in the

elimination or adequate reduction of the risk of injury identified in

the petition, and it is likely that there will be substantial compliance with the standard.

ADMINISTRATION AND ENFORCEMENT

SEC. 5. ø15 U.S.C. 1194¿ (a) Except as otherwise specifically

provided herein, sections 3, 5, 6, and 8(b) of this Act shall be enforced by the Commission under rules, regulations and procedures

provided for in the Federal Trade Commission Act. In the case of

an attorney general of a State alleging a violation of a standard or

regulation under section 4 that affects or may affect such State or

its residents, such attorney general may bring a civil action for an

injunction to enforce the requirement of such standard or regula-
Sec. 5 FLAMMABLE FABRICS ACT 66

tion. The procedural requirements of section 24 of the Consumer

Product Safety Act shall apply to any such action.

(b) The Commission is authorized and directed to prevent any

person from violating the provisions of section 3 of this Act in the

same manner, by the same means and with the same jurisdiction,

powers and duties as though all applicable terms and provisions of

the Federal Trade Commission Act were incorporated into and

made a part of this Act; and any such person violating any provision of section 3 of this Act shall be subject to the penalties and

entitled to the privileges and immunities provided in said Federal

Trade Commission Act as though the applicable terms and provisions of the said Federal Trade Commission Act were incorporated

into and made a part of this Act.

(c) The Commission is authorized and directed to prescribe

such rules and regulations, including provisions for maintenance of

records relating to fabrics, related materials, and products, as may

be necessary and proper for administration and enforcement of this

Act. The violation of such rules and regulations shall be unlawful

and shall be an unfair method of competition and an unfair and deceptive act or practice, in commerce, under the Federal Trade Commission Act.

(d) The Commission is authorized to—

(1) cause inspections, analyses, tests, and examinations to

be made of any product, fabric or related material which it has

reason to believe falls within the prohibitions of this Act; and

(2) cooperate on matters related to the purposes of this Act

with any department or agency of the Government; with any

State or territory or with the District of Columbia or the Commonwealth of Puerto Rico; or with any department, agency, or

political subdivision thereof; or with any person.

(e)(1) Any person who knowingly violates a regulation or standard under section 4 shall be subject to a civil penalty not to exceed

$5,000 for each such violation, except that the maximum civil penalty shall not exceed $1,250,000 for any related series of violations.

(2) In determining the amount of any penalty to be sought

upon commencing an action seeking to assess a penalty for a violation of a regulation or standard under section 4, the Commission

shall consider the nature and number of the violations, the severity

of the risk of injury, the occurrence or absence of injury, and the

appropriateness of such penalty in relation to the size of the business of the person charged.

(3) Any civil penalty under this subsection 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 Commission shall consider the nature and number of

the violations, the appropriateness of such penalty to the size of the

business of the persons charged, the severity of the risk of injury,

and the occurrence or absence of injury. 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.

(4) As used in paragraph (1), the term ‘‘knowingly’’ means (A)

having actual knowledge, or (B) the presumed having of knowledge

deemed to be possessed by a reasonable person who acts in the cir-
67 Sec. 6 FLAMMABLE FABRICS ACT

cumstances, including knowledge obtainable upon the exercise of

due care to ascertain the truth of representations.

(5)(A) The maximum penalty amounts authorized in paragraph

(1) shall be adjusted for inflation as provided in this paragraph.

(B) Not later than December 1, 1994, and December 1 of each

fifth calendar year thereafter, the Commission shall prescribe and

publish in the Federal Register a schedule of maximum authorized

penalties that shall apply for violations that occur after January 1

of the year immediately following such publication.

(C) The schedule of maximum authorized penalties shall be

prescribed by increasing each of the amounts referred to in paragraph (1) by the cost-of-living adjustment for the preceding five

years. Any increase determined under the preceding sentence shall

be rounded to—

(i) in the case of penalties greater than $1,000 but less

than or equal to $10,000, the nearest multiple of $1,000;

(ii) in the case of penalties greater than $10,000 but less

than or equal to $100,000, the nearest multiple of $5,000;

(iii) in the case of penalties greater than $100,000 but less

than or equal to $200,000, the nearest multiple of $10,000; and

(iv) in the case of penalties greater than $200,000, the

nearest multiple of $25,000.

(D) For purposes of this subsection:

(i) The term ‘‘Consumer Price Index’’ means the Consumer

Price Index for all-urban consumers published by the Department of Labor.

(ii) The term ‘‘cost-of-living adjustment for the preceding

five years’’ means the percentage by which—

(I) the Consumer Price Index for the month of June of

the calendar year preceding the adjustment; exceeds

(II) the Consumer Price Index for the month of June

preceding the date on which the maximum authorized penalty was last adjusted.

INJUNCTION AND CONDEMNATION PROCEEDINGS

SEC. 6. ø15 U.S.C. 1195¿ (a) Whenever the Commission has

reason to believe that any person is violating or is about to violate

section 3, or a rule or regulation prescribed under section 5(c), of

this Act, and that it would be in the public interest to enjoin such

violation until complaint under the Federal Trade Commission Act

is issued and dismissed by the Commission or until order to cease

and desist made thereon by the Commission has become final within the meaning of the Federal Trade Commission Act or is set aside

by the court on review, the Commission may bring suit in the district court of the United States, for the district in which such person resides or transacts business, or, if such person resides or

transacts business in Guam or the Virgin Islands, then in the District Court of Guam or in the District Court of the Virgin Islands

(as the case may be), to enjoin such violation and upon proper

showing a temporary injunction or restraining order shall be granted without bond.

(b) Whenever the Commission has reason to believe that any

product has been manufactured or introduced into commerce or any

fabric or related material has been introduced in commerce in vio-
Sec. 7 FLAMMABLE FABRICS ACT 68

lation of section 3 of this Act, it may institute proceedings by process of libel for the seizure and confiscation of such product, fabric,

or related material in any district court of the United States within

the jurisdiction of which such product, fabric, or related material

is found. Proceedings in cases instituted under the authority of this

section shall conform as nearly as may be to proceedings in rem in

admiralty, except that on demand of either party and in the discretion of the court, any issue of fact shall be tried by jury. Whenever

such proceedings involving identical products, fabrics, or related

materials are pending in two or more jurisdictions, they may be

consolidated for trial by order of any such court upon application

seasonably made by any party in interest upon notice to all other

parties in interest. Any court granting an order of consolidation

shall cause prompt notification thereof to be given to other courts

having jurisdiction in the cases covered thereby and the clerks of

such other courts shall transmit all pertinent records and papers

to the court designated for the trial of such consolidated proceedings.

(c) In any such action the court, upon application seasonably

made before trial, shall by order allow any party in interest, his attorney or agent, to obtain a representative sample of the product,

fabric, or related material seized.

(d) If such products, fabrics, or related materials are condemned by the court they shall be disposed of by destruction, by

delivery to the owner or claimant thereof upon payment of court

costs and fees and storage and other proper expenses and upon

execution of good and sufficient bond to the effect that such products, fabrics, or related materials will not be disposed of until properly and adequately treated or processed so as to render them lawful for introduction into commerce, or by sale upon execution of

good and sufficient bond to the effect that such products, fabrics,

or related materials will not be disposed of until properly and adequately treated or processed so as to render them lawful for introduction into commerce. If such products, fabrics, or related materials are disposed of by sale the proceeds, less costs and charges,

shall be paid into the Treasury of the United States.

PENALTIES

SEC. 7. ø15 U.S.C. 1196¿ Any person who willfully violates section 3 or 8(b) of this Act, or who fails to comply with section 15(c)

of this Act, shall be guilty of a misdemeanor, and upon conviction

thereof shall be fined not more than $5,000 or be imprisoned not

more than one year or both in the discretion of the court: Provided,

That nothing herein shall limit other provisions of this Act.

GUARANTY

SEC. 8. ø15 U.S.C. 1197¿ (a) No person shall be subject to prosecution under section 7 of this Act for a violation of section 3 of this

Act if such person (1) establishes a guaranty received in good faith

signed by and containing the name and address of the person by

whom the product, fabric, or related material guaranteed was manufactured or from whom it was received, to the effect that reasonable and representative tests made in accordance with standards

issued or amended under the provisions of section 4 of this Act
69 Sec. 10 FLAMMABLE FABRICS ACT

show that the fabric or related material covered by the guaranty,

or used in the product covered by the guaranty, conforms with applicable flammability standards issued or amended under the provisions of section 4 of this Act, and (2) has not, by further processing, affected the flammability of the fabric, related material, or

product covered by the guaranty which he received. Such guaranty

shall be either (1) a separate guaranty specifically designating the

product, fabric, or other related material guaranteed, in which case

it may be on the invoice or other paper relating to such product,

fabric, or related material; (2) a continuing guaranty given by seller

to buyer applicable to any product, fabric, or related material sold

or to be sold to buyer by seller in a form as the Commission by

rules and regulations may prescribe; or (3) a continuing guaranty

filed with the Commission applicable to any product, fabric, or related material handled by a guarantor, in such form as the Commission by rules or regulations may prescribe.

(b) It shall be unlawful for any person to furnish, with respect

to any product, fabric, or related material, a false guaranty (except

a person relying upon a guaranty to the same effect received in

good faith signed by and containing the name and address of the

person by whom the product, fabric, or related material guaranteed

was manufactured or from whom it was received) with reason to

believe the product, fabric, or related material falsely guaranteed

may be introduced, sold, or transported in commerce, and any person who violates the provisions of this subsection is guilty of an unfair method of competition, and an unfair or deceptive act or practice, in commerce within the meaning of the Federal Trade Commission Act.

SHIPMENTS FROM FOREIGN COUNTRIES

SEC. 9. ø15 U.S.C. 1198¿ An imported product, fabric, or related material to which flammability standards under this Act are

applicable shall not be delivered from customs custody except as

provided in section 499 of the Tariff Act of 1930, as amended. In

the event an imported product, fabric, or related material is delivered from customs custody under bond, as provided in section 499

of the Tariff Act of 1930, as amended, and fails to conform with an

applicable flammability standard in effect on the date of entry of

such merchandise, the Secretary of the Treasury shall demand redelivery and in the absence thereof shall assert a claim for liquidated damages for breach of a condition of the bond arising out

of such failure to conform or redeliver in accordance with regulations prescribed by the Secretary of the Treasury or his delegate.

When asserting a claim for liquidated damages against an importer

for failure to redeliver such nonconforming goods, the liquidated

damages shall be not less than 10 per centum of the value of the

nonconforming merchandise if, within five years prior thereto, the

importer has previously been assessed liquidated damages for failure to redeliver nonconforming goods in response to a demand from

the Secretary of the Treasury as set forth above.

INTERPRETATION AND SEPARABILITY

SEC. 10. ø15 U.S.C. 1199¿ The provisions of this Act shall be

held to be in addition to, and not in substitution for or limitation
Sec. 11 FLAMMABLE FABRICS ACT 70

of, the provisions of any other law. If any provision of this Act or

the application thereof to any person or circumstances is held invalid the remainder of the Act and the application of such provisions to any other person or circumstances shall not be affected

thereby.

EXCLUSIONS

SEC. 11. ø15 U.S.C. 1200¿ The provisions of this Act shall not

apply (a) to any common carrier, contract carrier, or freight forwarder in transporting a product, fabric, or related material

shipped or delivered for shipment into commerce in the ordinary

course of its business; (b) to any converter, processor, or finisher in

performing a contract or commission service for the account of a

person subject to the provisions of this Act: Provided, That said

converter, processor, or finisher does not cause any product, fabric,

or related material to become subject to this Act contrary to the

terms of the contract or commission service; or (c) to any product,

fabric, or related material shipped or delivered for shipment into

commerce for the purpose of finishing or processing such product,

fabric, or related material so that it conforms with applicable flammability standards issued or amended under the provisions of section 4 of this Act.

EFFECTIVE DATE

SEC. 12. ø15 U.S.C. 1191 note¿ This Act shall take effect one

year after the date of its passage.

AUTHORIZATION OF APPROPRIATIONS

SEC. 13. ø15 U.S.C. 1191 note¿ There are hereby authorized to

be appropriated $1,500,000 for the fiscal year ending June 30,

1968, $2,500,000 each for the fiscal year ending June 30, 1969, and

the fiscal year ending June 30, 1970, and $4,000,000 for the fiscal

year ending June 30, 1973, to carry out the provisions of this Act.

INVESTIGATIONS

SEC. 14. ø15 U.S.C. 1201¿ (a) The Secretary of Health, Education, and Welfare in cooperation with the Secretary of Commerce

shall conduct a continuing study and investigation of the deaths,

injuries, and economic losses resulting from accidental burning of

products, fabrics, or related materials.

(b) In cooperation with appropriate public and private agencies, the Secretary of Commerce is authorized to—

(1) conduct research into the flammability of products, fabrics, and materials;

(2) conduct feasibility studies on reduction of flammability

of products, fabrics, and materials;

(3) develop flammability test methods and testing devices;

and

(4) offer appropriate training in the use of flammability

test methods and testing devices.
71 Sec. 16 FLAMMABLE FABRICS ACT

EXPORTS

SEC. 15. ø15 U.S.C. 1202¿ (a) This Act shall not apply to any

fabric, related material, or product which is to be exported from the

United States, if such fabric, related material, or product, and any

container in which it is enclosed, bears a stamp or label stating

that such fabric, related material, or product is intended for export

and such fabric, related material, or product is in fact exported

from the United States; unless the Consumer Product Safety Commission (hereinafter in this section referred to as the ‘‘Commission’’) determines that exportation of such fabric, related material,

or product presents an unreasonable risk of injury to persons residing within the United States; except that this Act shall apply to

any fabric, related material, or product manufactured for sale, offered for sale, or intended for shipment to any installation of the

United States located outside of the United States.

(b) This Act shall not apply to any fabric, related material, or

product which is imported into the United States for dyeing, finishing, other processing, or storage in bond, and export from the

United States, if such fabric, related material, or product, any container in which it is enclosed, bears a stamp or label stating that

such fabric, related material, or product is intended for export, and

such fabric, related material, or product is in fact exported from the

United States, unless the Commission determines that exportation

of such fabric, related material, or product presents an unreasonable risk of injury to persons residing within the United States; except that this Act shall apply to any such imported fabric, related

material, or product manufactured for sale, offered for sale, or intended for shipment to any installation of the United States located

outside of the United States.

(c) Not less than thirty days before any person exports to a foreign country any fabric, related material, or product that fails to

conform to an applicable flammability standard or regulation in effect under this Act, such person shall file a statement with the

Commission notifying the Commission of such exportation, and the

Commission, upon receipt of such statement, shall promptly notify

the government of such country of such exportation and the basis

for such flammability standard or regulation. Any statement filed

with the Commission under the preceding sentence shall specify

the anticipated date of shipment of such fabric, related material, or

product, the country and port of destination of such fabric, related

material, or product, and the quantity of such fabric, related material, or product that will be exported, and shall contain such other

information as the Commission may by regulation require. Upon

petition filed with the Commission by any person required to file

a statement under this subsection respecting an exportation, the

Commission may, for good cause shown, exempt such person from

the requirement of this subsection that such a statement be filed

in no less than thirty days before the date of the exportation, except that in no case shall the Commission permit such a statement

to be filed later than the tenth day before such date.

PREEMPTION

SEC. 16. ø15 U.S.C. 1203¿ (a) Except as provided in subsections (b) and (c), whenever a flammability standard or other reg-
Sec. 16 FLAMMABLE FABRICS ACT 72

ulation for a fabric, related material, or product is in effect under

this Act, no State or political subdivision of a State may establish

or continue in effect a flammability standard or other regulation for

such fabric, related material, or product if the standard or other

regulation is designed to protect against the same risk of occurrence of fire with respect to which the standard or other regulation

under this Act is in effect unless the State or political subdivision

standard or other regulation is identical to the Federal standard or

other regulation.

(b) The Federal Government and the government of any State

or political subdivision of a State may establish and continue in effect a flammability standard or other regulation applicable to a fabric, related material, or product for its own use which standard or

other regulation is designed to protect against a risk of occurrence

of fire with respect to which a flammability standard or other regulation is in effect under this Act and which is not identical to such

standard or other regulation if the Federal, State, or political subdivision standard or other regulation provides a higher degree of

protection from such risk of occurrence of fire than the standard or

other regulation in effect under this Act.

(c)(1) Upon application of a State or political subdivision of a

State, the Commission may, by regulation promulgated in accordance with paragraph (2), exempt from subsection (a), under such

conditions as may be prescribed in such regulation, any flammability standard or other regulation of such State or political subdivision applicable to a fabric, related material, or product subject

to a standard or other regulation in effect under this Act, if—

(A) compliance with the State or political subdivision requirement would not cause the fabric, related material, or

product to be in violation of the standard or other regulation

in effect under this Act, and

(B) the State or political subdivision standard or other regulation (i) provides a significantly higher degree of protection

from the risk of occurrence of fire with respect to which the

Federal standard or other regulation is in effect, and (ii) does

not unduly burden interstate commerce.

In determining the burden, if any, of a State or political subdivision flammability standard or other regulation on interstate commerce the Commission shall consider and make appropriate (as determined by the Commission in its discretion) findings on the technological and economic feasibility of complying with such flammability standard or other regulation, the cost of complying with such

flammability standard or other regulation, the geographic distribution of the fabric, related material, or product to which the flammability standard or other regulation would apply, the probability of

other States or political subdivisions applying for an exemption

under this subsection for a similar flammability standard or other

regulation, and the need for a national, uniform flammability

standard or other regulation under this Act for such fabric, related

material, or product.

(2) A regulation under paragraph (1) granting an exemption for

a flammability standard or other regulation of a State or political

subdivision of a State may be promulgated by the Commission only

after it has provided, in accordance with section 553(b) of title 5,

United States Code, notice with respect to the promulgation of the
73 Sec. 17 FLAMMABLE FABRICS ACT

regulation and has provided opportunity for the oral presentation

of views respecting its promulgation.

(d) For purposes of this section—

(1) a reference to a flammability standard or other regulation for a fabric, related material, or product in effect under

this Act includes a standard of flammability continued in effect

by section 11 of the Act of December 14, 1967 (Public Law 90–

189); and

(2) the term ‘‘Commission’’ means the Consumer Product

Safety Commission.

CONGRESSIONAL VETO OF FLAMMABILITY REGULATIONS

SEC. 17. ø15 U.S.C. 1204¿ (a) The Consumer Product Safety

Commission shall transmit to the Secretary of the Senate and the

Clerk of the House of Representatives a copy of any flammability

regulation promulgated by the Commission under section 4.

(b) Any regulation specified in subsection (a) shall not take effect if—

(1) within the ninety calendar days of continuous session

of the Congress which occur after the date of the promulgation

of such regulation, both Houses of the Congress adopt a concurrent resolution, the matter after the resolving clause of

which is as follows (with the blank spaces appropriately filled):

‘‘That the Congress disapproves the flammability regulation

which was promulgated under the Flammable Fabrics Act by

the Consumer Product Safety Commission with respect to

and which was transmitted to the Congress on

and disapproves the regulation for the following reasons: .’’; or

(2) within the sixty calendar days of continuous session of

the Congress which occur after the date of the promulgation of

such regulation, one House of the Congress adopts such concurrent resolution and transmits such resolution to the other

House and such resolution is not disapproved by such other

House within the thirty calendar days of continuous session of

the Congress which occur after the date of such transmittal.

(c) Congressional inaction on, or rejection of, a concurrent resolution of disapproval under this section shall not be construed as

an expression of approval of the regulation involved, and shall not

be construed to create any presumption of validity with respect to

such regulation.

(d) For purposes of this section—

(1) continuity of session is broken only by an adjournment

of the Congress sine die; and

(2) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of the periods of continuous session of the Congress specified in subsection (b).

75

ACT OF AUGUST 2, 1956

(POPULAR NAME: REFRIGERATOR SAFETY ACT)

NOTE.—Section 30(c) of the Consumer Product Safety Act (15

U.S.C. 2079(c)) (p. 176) transferred the functions of the Secretary

of Commerce and the Federal Trade Commission under the Act of

August 2, 1956 (commonly known as the Refrigerator Safety Act)

(15 U.S.C. 1211 et seq.) to the Consumer Product Safety Commission.

77

1Section 30(c) of the Consumer Product Safety Act (15 U.S.C. 2079(c)) (p. 176) transferred the

functions of the Secretary of Commerce and the Federal Trade Commission under this Act to

the Consumer Product Safety Commission.

ACT OF AUGUST 2, 1956

(POPULAR NAME: REFRIGERATOR SAFETY ACT)

[Chapter 890, 70 Stat. 953, August 2, 1956]

[As amended through Public Law 92–573, October 27, 1972]

AN ACT To require certain safety devices on household refrigerators shipped in

interstate commerce.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø15 U.S.C. 1211¿

That it shall be unlawful for any person to introduce or deliver for

introduction into interstate commerce any household refrigerator

manufactured on or after the date this section takes effect unless

it is equipped with a device, enabling the door thereof to be opened

from the inside, which conforms with standards prescribed pursuant to section 3.

SEC. 2. ø15 U.S.C. 1212¿ Any person who violates the first section of this Act shall be guilty of a misdemeanor and shall, upon

conviction thereof, be subject to imprisonment for not more than

one year, or a fine of not more than $1,000, or both.

SEC. 3. ø15 U.S.C. 1213¿ The Secretary of Commerce 1 shall

prescribe and publish in the Federal Register commercial standards for devices which, when used in or on household refrigerators,

will enable the doors thereof to be opened easily from the inside;

and the standards first established under this section shall be so

prescribed and published not later than one year after the date of

the enactment of this Act.

SEC. 4. ø15 U.S.C. 1214¿ As used in this Act, the term ‘‘interstate commerce’’ includes commerce between one State, Territory,

possession, the District of Columbia, or the Commonwealth of Puerto Rico and another State, Territory, possession, the District of Columbia, or the Commonwealth of Puerto Rico.
Sec. 5 ACT OF AUGUST 2, 1956 (REFRIGERATOR SAFETY ACT) 78

SEC. 5. ø15 U.S.C. 1211 note¿ This Act shall take effect on the

date of its enactment, except that the first section of this Act shall

take effect one year and 90 days after the date of publication of

commercial standards first established under section 3 of this Act.

In the event of a change in said commercial standards first established, a like period shall be allowed for compliance with said

change in commercial standards.
79

AUTOMOBILE INFORMATION DISCLOSURE ACT

81

AUTOMOBILE INFORMATION DISCLOSURE ACT

[Public Law 85–506, 72 Stat. 325, July 7, 1958]

[As amended through Public Law 92–359, July 28, 1972]

AN ACT To require the full and fair disclosure of certain information in connection

with the distribution of new automobiles in commerce, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø15. U.S.C 1231

note¿ That this Act may be cited as the ‘‘Automobile Information

Disclosure Act’’.

DEFINITIONS

SEC. 2. ø15. U.S.C 1231¿ For purposes of this Act—

(a) The term ‘‘manufacturer’’ shall mean any person engaged

in the manufacturing or assembling of new automobiles, including

any person importing new automobiles for resale and any person

who acts for and is under the control of such manufacturer, assembler, or importer in connection with the distribution of new automobiles.

(b)The term ‘‘person’’ means an individual, partnership, corporation, business trust, or any organized group of persons.

(c) The term ‘‘automobile’’ includes any passenger car or station wagon.

(d) The term ‘‘new automobile’’ means an automobile the equitable or legal title to which has never been transferred by a manufacturer, distributor, or dealer to an ultimate purchaser.

(e) The term ‘‘dealer’’ shall mean any person resident or located

in the United States or any Territory thereof or in the District of

Columbia engaged in the sale or the distribution of new automobiles to the ultimate purchaser.

(f) The term ‘‘final assembly point’’ means— (1) in the case of a new automobile manufactured or assembled in the United States, or in any Territory of the United

States, the plant, factory, or other place at which a new automobile is produced or assembled by a manufacturer and from

which such automobile is delivered to a dealer in such a condition that all component parts necessary to the mechanical operation of such automobile are included with such automobile,

whether or not such component parts are permanently installed in or on such automobile; and

(2) in the case of a new automobile imported into the

United States, the port of importation.

(g) The term ‘‘ultimate purchaser’’ means, with respect to any

new automobile, the first person, other than a dealer purchasing in

his capacity as a dealer, who in good faith purchases such new

automobile for purposes other than resale.
Sec. 3 AUTOMOBILE INFORMATION DISCLOSURE ACT 82

(h) The term ‘‘commerce’’ shall mean commerce among the several States of the United States or with foreign nations, or in any

Territory of the United States or in the District of Columbia, or

among the Territories or between any Territory and any State or

foreign nation, or between the District of Columbia and any State

or Territory or foreign nation. New automobiles delivered to, or for

further delivery to, ultimate purchasers within the United States,

the District of Columbia, the Commonwealth of Puerto Rico, Guam,

Virgin Islands, American Samoa, the Trust Territories of the Pacific, the Canal Zone, Wake Island, Midway Island, Kingman Reef,

Johnson Island, or within any other place under the jurisdiction of

the United States shall be deemed to have been ‘‘distributed in

commerce’’.

LABEL AND ENTRIES REQUIRED

SEC. 3. ø15. U.S.C 1232¿ Every manufacturer of new automobiles distributed in commerce shall, prior to the delivery of any

new automobile to any dealer, or at or prior to the introduction

date of new models delivered to a dealer prior to such introduction

date, securely affix to the windshield, or side window of such automobile a label on which such manufacturer shall endorse clearly,

distinctly and legibly true and correct entries disclosing the following information concerning such automobile—

(a) the make, model, and serial or identification number or

numbers;

(b) the final assembly point;

(c) the name, and the location of the place of business, of

the dealer to whom it is to be delivered;

(d) the name of the city or town at which it is to be delivered to such dealer;

(e) the method of transportation used in making delivery

of such automobile, if driven or towed from final assembly

point to place of delivery; and

(f) the following information:

(1) the retail price of such automobile suggested by the

manufacturer;

(2) the retail delivered price suggested by the manufacturer for each accessory or item of optional equipment,

physically attached to such automobile at the time of its

delivery to such dealer, which is not included within the

price of such automobile as stated pursuant to paragraph

(1);

(3) the amount charged, if any, to such dealer for the

transportation of such automobile to the location at which

it is delivered to such dealer;

(4) the total of the amounts specified pursuant to

paragraphs (1), (2), and (3).

PENALTIES

SEC. 4. ø15. U.S.C 1233¿ (a) Any manufacturer of automobiles

distributed in commerce who willfully fails to affix to any new

automobile manufactured or imported by him the label required by

section 3 shall be fined not more than $1,000. Such failure with respect to each automobile shall constitute a separate offense.
83 Sec. 5 AUTOMOBILE INFORMATION DISCLOSURE ACT

(b) Any manufacturer of automobiles distributed in commerce

who willfully fails to endorse clearly, distinctly and legibly any

label as required by section 3, or who makes a false endorsement

of any such label, shall be fined not more than $1,000. Such failure

or false endorsement with respect to each automobile shall constitute a separate offense.

(c) Any person who willfully removes, alters, or renders illegible any label affixed to a new automobile pursuant to section 3, or

any endorsement thereon, prior to the time that such automobile

is delivered to the actual custody and possession of the ultimate

purchaser of such new automobile, except where the manufacturer

relabels the automobile in the event the same is rerouted, repurchased, or reacquired by the manufacturer of such automobile,

shall be fined not more than $1,000, or imprisoned not more than

one year, or both. Such removal, alteration, or rendering illegible

with respect to each automobile shall constitute a separate offense.

EFFECTIVE DATE

SEC. 5. ø15 U.S.C. 1231 note¿ This Act shall take effect on the

first day of October 1958 or on the first day of the introduction of

any new model of automobile in any line of automobile beginning

after the date of enactment of this Act, whichever date shall last

occur.

85

FEDERAL HAZARDOUS SUBSTANCES ACT

NOTE.—Section 30(a) of the Consumer Product Safety Act (15

U.S.C. 2079(a)) (p. 176) transferred the functions of the Secretary

of Health, Education, and Welfare under the Federal Hazardous

Substances Act (15 U.S.C. 1261 et seq.) to the Consumer Product

Safety Commission.

87

1Section 30(a) of the Consumer Product Safety Act (15 U.S.C. 2079(a)) (p. 176) transferred

the functions of the Secretary of Health, Education, and Welfare under this Act to the Consumer

Product Safety Commission.

FEDERAL HAZARDOUS SUBSTANCES ACT

[Public Law 86–613, 74 Stat. 372, July 12, 1960]

[As amended through Public Law 103–267, June 16, 1994]

AN ACT To regulate the interstate distribution and sale of packages of hazardous

substances intended or suitable for household use.

SHORT TITLE

SECTION 1. ø15 U.S.C. 1261 note¿ This Act may be cited as the ‘‘Federal Hazardous Substances Act’’.

DEFINITIONS

SEC. 2. ø15 U.S.C. 1261¿ For the purposes of this Act— (a) The term ‘‘territory’’ means any territory or possession of

the United States, including the District of Columbia and the Commonwealth of Puerto Rico but excluding the Canal Zone.

(b) The term ‘‘interstate commerce’’ means (1) commerce between any State or territory and any place outside thereof, and (2)

commerce within the District of Columbia or within any territory

not organized with a legislative body.

(c) The term ‘‘Department’’ means the Department of Health,

Education, and Welfare.

(d) The term ‘‘Secretary’’ means the Secretary of Health, Education, and Welfare. 1

(e) The term ‘‘person’’ includes an individual, partnership, corporation, and association.

(f) The term ‘‘hazardous substance’’ means:

1. (A) Any substance or mixture of substances which (i) is

toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or

use, including reasonably foreseeable ingestion by children.

(B) Any substances which the Secretary by regulation

finds, pursuant to the provisions of section 3(a), meet the requirements of subparagraph 1(A) of this paragraph.

(C) Any radioactive substance, if, with respect to such substance as used in a particular class of article or as packaged,

the Secretary determines by regulation that the substance is

sufficiently hazardous to require labeling in accordance with

this Act in order to protect the public health.
Sec. 2 FEDERAL HAZARDOUS SUBSTANCES ACT 88

(D) Any toy or other article intended for use by children

which the Secretary by regulation determines, in accordance

with section 3(e) of this Act, presents an electrical, mechanical,

or thermal hazard.

(E) Any solder which has a lead content in excess of 0.2

percent.

2. The term ‘‘hazardous substance’’ shall not apply to pesticides subject to the Federal Insecticide, Fungicide, and

Rodenticide Act, nor to foods, drugs, and cosmetics subject to

the Federal Food, Drug, and Cosmetic Act, nor to substances

intended for use as fuels when stored in containers and used

in the heating, cooking, or refrigeration system of a house, nor

to tobacco and tobacco products, but such term shall apply to

any article which is not itself a pesticide within the meaning

of the Federal Insecticide, Fungicide, and Rodenticide Act but

which is a hazardous substance within the meaning of subparagraph 1 of this paragraph by reason of bearing or containing such an economic poison.

3. The term ‘‘hazardous substance’’ shall not include any

source material, special nuclear material, or byproduct material as defined in the Atomic Energy Act of 1954, as amended,

and regulations issued pursuant thereto by the Atomic Energy

Commission.

(g) The term ‘‘toxic’’ shall apply to any substance (other than

a radioactive substance) which has the capacity to produce personal

injury or illness to man through ingestion, inhalation, or absorption

through any body surface.

(h)(1) The term ‘‘highly toxic’’ means any substance which falls

within any of the following categories: (a) Produces death within

fourteen days in half or more than half of a group of ten or more

laboratory white rats each weighing between two hundred and

three hundred grams, at a single dose of fifty milligrams or less per

kilogram of body weight, when orally administered; or (b) produces

death within fourteen days in half or more than half of a group of

ten or more laboratory white rats each weighing between two hundred and three hundred grams, when inhaled continuously for a period of one hour or less at an atmospheric concentration of two

hundred parts per million by volume or less of gas or vapor or two

milligrams per liter by volume or less of mist or dust, provided

such concentration is likely to be encountered by man when the

substance is used in any reasonably foreseeable manner; or (c) produces death within fourteen days in half or more than half of a

group of ten or more rabbits tested in a dosage of two hundred milligrams or less per kilogram of body weight, when administered by

continuous contact with the bare skin for twenty-four hours or less.

(2) If the Secretary finds that available data on human experience with any substance indicate results different from those obtained on animals in the above-named dosages or concentrations,

the human data shall take precedence.

(i) The term ‘‘corrosive’’ means any substance which in contact

with living tissue will cause destruction of tissue by chemical action; but shall not refer to action on inanimate surfaces.

(j) The term ‘‘irritant’’ means any substance not corrosive within the meaning of subparagraph (i) which on immediate, prolonged,
89 Sec. 2 FEDERAL HAZARDOUS SUBSTANCES ACT

or repeated contact with normal living tissue will induce a local inflammatory reaction.

(k) The term ‘‘strong sensitizer’’ means a substance which will

cause on normal living tissue through an allergic or photodynamic

process a hypersensitivity which becomes evident on reapplication

of the same substance and which is designated as such by the Secretary. Before designating any substance as a strong sensitizer, the

Secretary, upon consideration of the frequency of occurrence and

severity of the reaction, shall find that the substance has a significant potential for causing hypersensitivity.

(l)(1) The terms ‘‘extremely flammable’’, ‘‘flammable’’, and ‘‘combustible’’ as applied to any substance, liquid, solid, or the content of a self-publicized container shall be defined by regulations

issued by the Commission.

(2) The test methods found by the Commission to be generally

applicable for defining the flammability or combustibility characteristics of any such substance shall also be specified in such regulations.

(3) In establishing definitions and test methods related to flammability and combustibility, the Commission shall consider the existing definitions and test methods of other Federal agencies involved in the regulation of flammable and combustible substances

in storage, transportation and use; and to the extent possible, shall

establish compatible definitions and test methods.

(4) Until such time as the Commission issues a regulation

under paragraph (1) defining the term ‘‘combustible’’ as applied to

liquids, such term shall apply to any liquid which has a flash point

above eighty degrees Fahrenheit to and including one hundred and

fifty degrees, as determined by the Tagliabue Open Cup Tester.

(m) The term ‘‘radioactive substance’’ means a substance which

emits ionizing radiation.

(n) The term ‘‘label’’ means a display of written, printed, or

graphic matter upon the immediate container of any substance or,

in the case of an article which is unpackaged or is not packaged

in an immediate container intended or suitable for delivery to the

ultimate consumer, a display of such matter directly upon the article involved or upon a tag or other suitable material affixed thereto; and a requirement made by or under authority of this Act that

any word, statement, or other information appear on the label shall

not be considered to be complied with unless such word, statement,

or other information also appears (1) on the outside container or

wrapper, if any there be, unless it is easily legible through the outside container or wrapper and (2) on all accompanying literature

where there are directions for use, written or otherwise.

(o) The term ‘‘immediate container’’ does not include package

liners.

(p) The term ‘‘misbranded hazardous substance’’ means a hazardous substance (including a toy, or other article intended for use

by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible

of access by a child to whom such toy or other article is entrusted)

intended, or packaged in a form suitable, for use in the household

or by children, if the packaging or labeling of such substance is in

violation of an applicable regulation issued pursuant to section 3

or 4 of the Poison Prevention Packaging Act of 1970 or if such sub-
Sec. 2 FEDERAL HAZARDOUS SUBSTANCES ACT 90

1 Comma omitted in law.

stance, except as otherwise provided by or pursuant to section 3,

fails to bear a label— (1) which states conspicuously (A) the name and place of

business of the manufacturer, packer, distributor 1 or seller; (B)

the common or usual name or the chemical name (if there be

no common or usual name) of the hazardous substance or of

each component which contributes substantially to its hazard,

unless the Secretary by regulation permits or requires the use

of a recognized generic name; (C) the signal word ‘‘DANGER’’ on substances which are extremely flammable, corrosive, or

highly toxic, (D) the signal word ‘‘WARNING’’ or ‘‘CAUTION’’ on all other hazardous substances; (E) an affirmative statement of the principal hazard or hazards, such as ‘‘Flammable’’, ‘‘Combustible,’’ ‘‘Vapor Harmful’’, ‘‘Causes Burns’’, ‘‘Absorbed

Through Skin’’, or similar wording descriptive of the hazard;

(F) precautionary measures describing the action to be followed

or avoided, except when modified by regulation of the Secretary pursuant to section 3; (G) instruction, when necessary

or appropriate, for first-aid treatment; (H) the word ‘‘poison’’

for any hazardous substance which is defined as ‘‘highly toxic’’

by subsection (h); (I) instructions for handling and storage of

packages which require special care in handling or storage;

and (J) the statement (i) ‘‘Keep out of the reach of children’’ or

its practical equivalent, or, (ii) if the article is intended for use

by children and is not a banned hazardous substance, adequate

directions for the protection of children from the hazard, and

(2) on which any statements required under subparagraph

(1) of this paragraph are located prominently and are in the

English language in conspicuous and legible type in contrast

by typography, layout, or color with other printed matter on

the label.

The term ‘‘misbranded hazardous substance’’ also includes a household substance as defined in section 2(2)(D) of the Poison Prevention Packaging Act of 1970 if it is a substance described in paragraph 1 of section 2(f) of this Act and its packaging or labeling is

in violation of an applicable regulation issued pursuant to section

3 or 4 of the Poison Prevention Packaging Act of 1970.

(q)(1) The term ‘‘banned hazardous substance’’ means (A) any

toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to

whom such toy or other article is entrusted; or (B) any hazardous

substance intended, or packaged in a form suitable, for use in the

household, which the Secretary by regulation classifies as a

‘‘banned hazardous substance’’ on the basis of a finding that, notwithstanding such cautionary labeling as is or may be required

under this Act for that substance, the degree or nature of the hazard involved in the presence or use of such substance in households

is such that the objective of the protection of the public health and

safety can be adequately served only by keeping such substance,

when so intended or packaged, out of the channels of interstate

commerce: Provided, That the Secretary, by regulation, (i) shall exempt from clause (A) of this paragraph articles, such as chemical
91 Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT

sets, which by reason of their functional purpose require the inclusion of the hazardous substance involved, or necessarily present an

electrical, mechanical, or thermal hazard and which bear labeling

giving adequate directions and warnings for safe use and are intended for use by children who have attained sufficient maturity,

and may reasonably be expected, to read and heed such directions

and warnings, and (ii) shall exempt from clause (A), and provide

for the labeling of, common fireworks (including toy paper caps,

cone fountains, cylinder fountains, whistles without report, and

sparklers) to the extent that he determines that such articles can

be adequately labeled to protect the purchasers and users thereof.

(2) Proceedings for the issuance, amendment, or repeal of regulations pursuant to clause (B) of subparagraph (1) of this paragraph shall be governed by the provisions of sections 701 (e), (f),

and (g) of the Federal Food, Drug, and Cosmetic Act: Provided,

That if the Secretary finds that the distribution for household use

of the hazardous substance involved presents an imminent hazard

to the public health, he may by order published in the Federal Register give notice of such finding, and thereupon such substance

when intended or offered for household use, or when so packaged

as to be suitable for such use, shall be deemed to be a ‘‘banned hazardous substance’’ pending the completion of proceedings relating

to the issuance of such regulations.

(r) An article may be determined to present an electrical hazard if, in normal use or when subjected to reasonably foreseeable

damage or abuse, its design or manufacture may cause personal injury or illness by electric shock.

(s) An article may be determined to present a mechanical hazard if, in normal use or when subjected to reasonably foreseeable

damage or abuse, its design or manufacture presents an unreasonable risk of personal injury or illness (1) from fracture, fragmentation, or disassembly of the article, (2) from propulsion of the article

(or any part or accessory thereof), (3) from points or other protrusions, surfaces, edges, openings, or closures, (4) from moving parts,

(5) from lack or insufficiency of controls to reduce or stop motion,

(6) as a result of self-adhering characteristics of the article, (7) because the article (or any part or accessory thereof) may be aspirated or ingested, (8) because of instability, or (9) because of any

other aspect of the article’s design or manufacture.

(t) An article may be determined to present a thermal hazard

if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable

risk of personal injury or illness because of heat as from heated

parts, substances, or surfaces.

REGULATIONS DECLARING HAZARDOUS SUBSTANCES AND

ESTABLISHING VARIATIONS AND EXEMPTIONS

SEC. 3. ø15 U.S.C. 1262¿ (a) 1. Whenever in the judgment of

the Secretary such action will promote the objectives of this Act by

avoiding or resolving uncertainty as to its application, the Secretary may by regulation declare to be a hazardous substance, for

the purposes of this Act, any substance or mixture of substances

which he finds meets the requirements of subparagraph (1)(A) of

section 2(f).
Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT 92

2. Proceedings for the issuance, amendment, or repeal of regulations under this subsection and the admissibility of the record of

such proceedings in other proceedings, shall in all respects be governed by the provisions of sections 701(e), (f), and (g) of the Federal

Food, Drug, and Cosmetic Act, except that— (A) the Secretary’s order after public hearing (acting upon

objections filed to an order made prior to hearing) shall be subject to the requirements of section 409(f)(2) of the Federal

Food, Drug, and Cosmetic Act; and

(B) the scope of judicial review of such order shall be in accordance with the fourth sentence of paragraph (2), and with

the provisions of paragraph (3), of section 409(g) of the Federal

Food, Drug, and Cosmetic Act.

(b) If the Secretary finds that the requirements of section

2(p)(1) are not adequate for the protection of the public health and

safety in view of the special hazard presented by any particular

hazardous substance, he may by regulation establish such reasonable variations or additional label requirements as he finds necessary for the protection of the public health and safety; and any

such hazardous substance intended, or packaged in a form suitable,

for use in the household or by children, which fails to bear a label

in accordance with such regulations shall be deemed to be a misbranded hazardous substance.

(c) If the Secretary finds that, because of the size of the package involved or because of the minor hazard presented by the substance contained therein, or for other good and sufficient reasons,

full compliance with the labeling requirements otherwise applicable

under this Act is impracticable or is not necessary for the adequate

protection of the public health and safety, the Secretary shall promulgate regulations exempting such substance from these requirements to the extent he determines to be consistent with adequate

protection of the public health and safety.

(d) The Secretary may exempt from the requirements established by or pursuant to this Act any hazardous substance or container of a hazardous substance with respect to which he finds that

adequate requirements satisfying the purposes of this Act have

been established by or pursuant to any other Act of Congress.

(e)(1) A determination by the Secretary that a toy or other article intended for use by children presents an electrical, mechanical,

or thermal hazard shall be made by regulation in accordance with

the procedures prescribed by section 553 (other than clause (B) of

the last sentence of subsection (b) of such section) of title 5 of the

United States Code unless the Secretary elects the procedures prescribed by subsection (e) of section 701 of the Federal Food, Drug,

and Cosmetic Act, in which event such subsection and subsections

(f) and (g) of such section 701 shall apply to the making of such

determination. If the Secretary makes such election, he shall publish that fact with the proposal required to be published under

paragraph (1) of such subsection (e).

(2) If, before or during a proceeding pursuant to paragraph (1)

of this subsection, the Secretary finds that, because of an electrical,

mechanical, or thermal hazard, distribution of the toy or other article involved presents an imminent hazard to the public health and

he, by order published in the Federal Register, gives notice of such

finding, such toy or other article shall be deemed to be a banned
93 Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT

hazardous substance for purposes of this Act until the proceeding

has been completed. If not yet initiated when such order is published, such a proceeding shall be initiated as promptly as possible.

(3)(A) In the case of any toy or other article intended for use

by children which is determined by the Secretary, in accordance

with section 553 of title 5 of the United State Code, to present an

electrical, mechanical, or thermal hazard, any person who will be

adversely affected by such a determination may, at any time prior

to the 60th day after the regulation making such determination is

issued by the Secretary, file a petition with the United States

Court of Appeals for the circuit in which such person resides or has

his principal place of business for a judicial review of such determination. A copy of the petition shall be forthwith transmitted by

the clerk of the court to the Secretary or other officer designated

by him for that purpose. The Secretary shall file in the court the

record of the proceedings on which the Secretary based his determination, as provided in section 2112 of title 28 of the United

States Code.

(B) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that

such additional evidence is material and that there was no opportunity to adduce such evidence in the proceeding before the Secretary, the court may order such additional evidence (and evidence

in rebuttal thereof) to be taken before the Secretary in a hearing

or in such other manner, and upon such terms and conditions, as

to the court may seem proper. The Secretary may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken, and he shall file such modified or new

findings, and his recommendation, if any, for the modification or

setting aside of his original determination, with the return of such

additional evidence.

(C) Upon the filing of the petition under this paragraph, the

court shall have jurisdiction to review the determination of the Secretary in accordance with subparagraphs (A), (B), (C), and (D) of

paragraph (2) of the second sentence of section 706 of title 5 of the

United States Code. If the court ordered additional evidence to be

taken under subparagraph (B) of this paragraph, the court shall

also review the Secretary’s determination to determine if, on the

basis of the entire record before the court pursuant to subparagraphs (A) and (B) of this paragraph, it is supported by substantial

evidence. If the court finds the determination is not so supported,

the court may set it aside. With respect to any determination reviewed under this paragraph, the court may grant appropriate relief pending conclusion of the review proceedings, as provided in

section 705 of such title.

(D) The judgment of the court affirming or setting aside, in

whole or in part, any such determination of the Secretary shall be

final, subject to review by the Supreme Court of the United States

upon certiorari or certification, as provided in section 1254 of title

28 of the United States Code.

(f) A proceeding for the promulgation of a regulation under section 2(q)(1) classifying an article or substance as a banned hazardous substance or a regulation under subsection (e) of this section shall be commenced by the publication in the Federal Register

of an advance notice of proposed rulemaking which shall—
Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT 94

(1) identify the article or substance and the nature of the

risk of injury associated with the article or substance;

(2) include a summary of each of the regulatory alternatives under consideration by the Commission (including voluntary standards);

(3) include information with respect to any existing standard known to the Commission which may be relevant to the

proceedings, together with a summary of the reasons why the

Commission believes preliminarily that such standard does not

eliminate or adequately reduce the risk of injury identified in

paragraph (1);

(4) invite interested persons to submit to the Commission,

within such period as the Commission shall specify in the notice (which period shall not be less than 30 days or more than

60 days after the date of publication of the notice), comments

with respect to the risk of injury identified by the Commission,

the regulatory alternatives being considered, and other possible alternatives for addressing the risk;

(5) invite any person (other than the Commission) to submit to the Commission, within such period as the Commission

shall specify in the notice (which period shall not be less than

30 days after the date of publication of the notice), an existing

standard or a portion of a standard as a proposed regulation

under section 2(q)(1) or subsection (e) of this section; and

(6) invite any person (other than the Commission) to submit to the Commission, within such period as the Commission

shall specify in the notice (which period shall not be less than

30 days after the date of publication of the notice), a statement

of intention to modify or develop a voluntary standard to address the risk of injury identified in paragraph (1) together

with a description of a plan to modify or develop the standard.

The Commission shall transmit such notice within 10 calendar

days to the Committee on Commerce, Science, and Transportation

of the Senate and the Committee on Energy and Commerce of the

House of Representatives

(g)(1) If the Commission determines that any standard submitted to it in response to an invitation in a notice published under

subsection (f)(5) if promulgated (in whole, in part, or in combination with any other standard submitted to the Commission or any

part of such a standard) as a regulation under section 2(q)(1) or

subsection (e) of this section, as the case may be, would eliminate

or adequately reduce the risk of injury identified in the notice provided under subsection (f)(1), the Commission may publish such

standard, in whole, in part, or in such combination and with nonmaterial modifications, as a proposed regulation under such section

or subsection.

(2) If the Commission determines that— (A) compliance with any standard submitted to it in response to an invitation in a notice published under subsection

(f)(6) is likely to result in the elimination or adequate reduction

of the risk of injury identified in the notice, and

(B) it is likely that there will be substantial compliance

with such standard,

the Commission shall terminate any proceeding to promulgate a

regulation under section 2(q)(1) or subsection (e) of this section, re-
95 Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT

specting such risk of injury and shall publish in the Federal Register a notice which includes the determination of the Commission

and which notifies the public that the Commission will rely on the

voluntary standard to eliminate or reduce the risk of injury, except

that the Commission shall terminate any such proceeding and rely

on a voluntary standard only if such voluntary standard is in existence. For purposes of this section, a voluntary standard shall be

considered to be in existence when it is finally approved by the organization or other person which developed such standard, irrespective of the effective date of the standard. Before relying upon

any voluntary standard, the Commission shall afford interested

persons (including manufacturers, consumers, and consumer organizations) a reasonable opportunity to submit written comments regarding such standard. The Commission shall consider such comments in making any determination regarding reliance on the involved voluntary standard under this subsection.

(3) The Commission shall devise procedures to monitor compliance with any voluntary standards— (A) upon which the Commission has relied under paragraph (2) of this subsection;

(B) which were developed with the participation of the

Commission; or

(C) whose development the Commission has monitored.

(h) No regulation under section 2(q)(1) classifying an article or

substance as a banned hazardous substance and no regulation

under subsection (e) of this section may be proposed by the Commission unless, not less than 60 days after publication of the notice

required in subsection (f), the Commission publishes in the Federal

Register the text of the proposed rule, including any alternatives

which the Commission proposes to promulgate, together with a preliminary regulatory analysis containing—

(1) a preliminary description of the potential benefits and

potential costs of the proposed regulation, including any benefits or costs that cannot be quantified in monetary terms, and

an identification of those likely to receive the benefits and bear

the costs;

(2) a discussion of the reasons any standard or portion of

a standard submitted to the Commission under subsection

(f)(5) was not published by the Commission as the proposed

regulation or part of the proposed regulation;

(3) a discussion of the reasons for the Commission’s preliminary determination that efforts proposed under subsection

(f)(6) and assisted by the Commission as required by section

5(a)(3) of the Consumer Product Safety Act would not, within

a reasonable period of time, be likely to result in the development of a voluntary standard that would eliminate or adequately reduce the risk of injury identified in the notice provided under subsection (f)(1); and

(4) a description of any reasonable alternatives to the proposed regulation, together with a summary description of their

potential costs and benefits, and a brief explanation of why

such alternatives should not be published as a proposed regulation.

The Commission shall transmit such notice within 10 calendar

days to the Committee on Commerce, Science, and Transportation
Sec. 3 FEDERAL HAZARDOUS SUBSTANCES ACT 96

of the Senate and the Committee on Energy and Commerce of the

House of Representatives.

(i)(1) The Commission shall not promulgate a regulation under

section 2(q)(1) classifying an article or substance as a banned hazardous substance or a regulation under subsection (e) of this section unless it has prepared a final regulatory analysis of the regulation containing the following information:

(A) A description of the potential benefits and potential

costs of the regulation, including costs and benefits that cannot

be quantified in monetary terms, and the identification of those

likely to receive the benefits and bear the costs.

(B) A description of any alternatives to the final regulation

which were considered by the Commission, together with a

summary description of their potential benefits and costs and

a brief explanation of the reasons why these alternatives were

not chosen.

(C) A summary of any significant issues raised by the comments submitted during the public comment period in response

to the preliminary regulatory analysis, and a summary of the

assessment by the Commission of such issues.

The Commission shall publish its final regulatory analysis with the

regulation.

(2) The Commission shall not promulgate a regulation under

section 2(q)(1) classifying an article or substance as a banned hazardous substance or a regulation under subsection (e) of this section unless it finds (and includes such finding in the regulation)—

(A) in the case of a regulation which relates to a risk of

injury with respect to which persons who would be subject to

such regulation have adopted and implemented a voluntary

standard, that—

(i) compliance with such voluntary standard is not

likely to result in the elimination or adequate reduction of

such risk of injury; or

(ii) it is unlikely that there will be substantial compliance with such voluntary standard;

(B) that the benefits expected from the regulation bear a

reasonable relationship to its costs; and

(C) that the regulation imposes the least burdensome requirement which prevents or adequately reduces the risk of injury for which the regulation is being promulgated.

(3)(A) Any regulatory analysis prepared under subsection (h) or

paragraph (1) shall not be subject to independent judicial review,

except that when an action for judicial review of a regulation is instituted, the contents of any such regulatory analysis shall constitute part of the whole rulemaking record of agency action in connection with such review.

(B) The provisions of subparagraph (A) shall not be construed

to alter the substantive or procedural standards otherwise applicable to judicial review of any action by the Commission.

(j) The Commission shall grant, in whole or in part, or deny

any petition under section 553(e) of title 5, United States Code, requesting the Commission to initiate a rulemaking, within a reasonable time after the date on which such petition is filed. The Commission shall state the reasons for granting or denying such petition. The Commission may not deny any such petition on the basis
97 Sec. 4 FEDERAL HAZARDOUS SUBSTANCES ACT

of a voluntary standard unless the voluntary standard is in existence at the time of the denial of the petition, the Commission has

determined that the voluntary standard is likely to result in the

elimination or adequate reduction of the risk of injury identified in

the petition, and it is likely that there will be substantial compliance with the standard.

PROHIBITED ACTS

SEC. 4. ø15 U.S.C. 1263¿ The following acts and the causing

thereof are hereby prohibited:

(a) The introduction or delivery for introduction into interstate

commerce of any misbranded hazardous substance or banned hazardous substance.

(b) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the label of, or the doing of any

other act with respect to, a hazardous substance, if such act is done

while the substance is in interstate commerce, or while the substance is held for sale (whether or not the first sale) after shipment

in interstate commerce, and results in the hazardous substance

being a misbranded hazardous substance or banned hazardous substance.

(c) The receipt in interstate commerce of any misbranded hazardous substance or banned hazardous substance and the delivery

or proffered delivery thereof for pay or otherwise.

(d) The giving of a guarantee or undertaking referred to in section 5(b)(2) which guarantee or undertaking is false, except by a

person who relied upon a guarantee or undertaking to the same effect signed by, and containing the name and address of, the person

residing in the United States from whom he received in good faith

the hazardous substance.

(e) The failure to permit entry or inspection as authorized by

section 11(b) or to permit access to and copying of any record as

authorized by section 12.

(f) The introduction or delivery for introduction into interstate

commerce, or the receipt in interstate commerce and subsequent

delivery or proffered delivery for pay or otherwise, of a hazardous

substance in a reused food, drug, or cosmetic container or in a container which, though not a reused container, is identifiable as a

food, drug, or cosmetic container by its labeling or by other identification. The reuse of a food, drug, or cosmetic container as a container for a hazardous substance shall be deemed to be an act

which results in the hazardous substance being a misbranded hazardous substance. As used in this paragraph, the terms ‘‘food’’,

‘‘drug’’, and ‘‘cosmetic’’ shall have the same meaning as in the Federal Food, Drug, and Cosmetic Act.

(g) The manufacture of a misbranded hazardous substance or

banned hazardous substance within the District of Columbia or

within any territory not organized with a legislative body.

(h) The use by any person to his own advantage, or revealing

other than to the Secretary or officers or employees of the Department, or to the courts when relevant in any judicial proceeding

under this Act, of any information acquired under authority of section 11 concerning any method of process which as a trade secret

is entitled to protection.
Sec. 5 FEDERAL HAZARDOUS SUBSTANCES ACT 98

(i) The failure to notify the Consumer Product Safety Commission with respect to exports, pursuant to section 14(d).

(j) The failure to comply with an order issued under section 15.

(k) The introduction or delivery for introduction into interstate

commerce of any lead solder which has a lead content in excess of

0.2 percent which does not prominently display a warning label

stating the lead content of the solder and warning that the use of

such solder in the making of joints or fittings in any private or

public potable water supply system is prohibited.

PENALTIES

SEC. 5. ø15 U.S.C. 1264¿ (a) Any person who violates any of

the provisions of section 4 shall be guilty of a misdemeanor and

shall on conviction thereof be subject to a fine of not more than

$500 or to imprisonment for not more than ninety days, or both;

but for offenses committed with intent to defraud or mislead, or for

second and subsequent offenses, the penalty shall be imprisonment

for not more than one year, or a fine of not more than $3,000, or

both such imprisonment and fine.

(b) No person shall be subject to the penalties of subsection (a)

of this section, (1) for having violated section 4(c), if the receipt, delivery, or proffered delivery of the hazardous substance was made

in good faith, unless he refuses to furnish on request of an officer

or employee duly designated by the Secretary, the name and address of the person from whom he purchased or received such hazardous substance, and copies of all documents, if any there be, pertaining to the delivery of the hazardous substance to him; or (2) for

having violated section 4(a), if he establishes a guarantee or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good

faith the hazardous substance, to the effect that the hazardous substance is not a misbranded hazardous substance or a banned hazardous substance within the meaning of those terms in this Act; or

(3) for having violated subsection (a) or (c) of section 4 with respect

to any hazardous substance shipped or delivered for shipment for

export to any foreign country, in a package marked for export on

the outside of the shipping container and labeled in accordance

with the specifications of the foreign purchaser and in accordance

with the laws of the foreign country, but if such hazardous substance is sold or offered for sale in domestic commerce or if the

Consumer Product Safety Commission determines that exportation

of such substance presents an unreasonable risk of injury to persons residing within the United States, this clause shall not apply.

(c)(1) Any person who knowingly violates section 4 shall be

subject to a civil penalty not to exceed $5,000 for each such violation. Subject to paragraph (2), a violation of subsections (a), (b), (c),

(d), (f), (g), (i), (j), and (k) of section 4 shall constitute a separate

offense with respect to each substance involved, except that the

maximum civil penalty shall not exceed $1,250,000 for any related

series of violations. A violation of section 4(e) shall constitute a separate violation with respect to each failure or refusal to allow or

perform an act required by section 4(e); and, if such violation is a

continuing one, each day of such violation shall constitute a sepa-
99 Sec. 5 FEDERAL HAZARDOUS SUBSTANCES ACT

rate offense, except that the maximum civil penalty shall not exceed $1,250,000 for any related series of violations.

(2) The second sentence of paragraph (1) of this subsection

shall not apply to violations of subsection (a) or (c) of section 4— (A) if the person who violated such subsection is not the

manufacturer, importer, or private labeler or a distributor of

the substances involved; and

(B) if such person did not have either (i) actual knowledge

that such person’s distribution or sale of the substance violated

such subsection, or (ii) notice from the Commission that such

distribution or sale would be a violation of such subsection.

(3) In determining the amount of any penalty to be sought

upon commencing an action seeking to assess a penalty for a violation of section 4, the Commission shall consider the nature of the

substance, the severity of the risk of injury, the occurrence or absence of injury, the amount of the substance distributed, and the

appropriateness of such penalty in relation to the size of the business of the person charged.

(4) Any civil penalty under this subsection 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 Commission shall consider the appropriateness of such

penalty to the size of the business of the persons charged, the nature of the substance involved, the severity of the risk of injury, the

occurrence or absence of injury, and the amount of the substance

distributed. 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.

(5) As used in the first sentence of paragraph (1), the term

‘‘knowingly’’ means (A) having actual knowledge, or (B) the presumed having of knowledge deemed to be possessed by a reasonable person who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain the truth of representations.

(6)(A) The maximum penalty amounts authorized in paragraph

(1) shall be adjusted for inflation as provided in this paragraph.

(B) Not later than December 1, 1994, and December 1 of each

fifth calendar year thereafter, the Commission shall prescribe and

publish in the Federal Register a schedule of maximum authorized

penalties that shall apply for violations that occur after January 1

of the year immediately following such publication.

(C) The schedule of maximum authorized penalties shall be

prescribed by increasing each of the amounts referred to in paragraph (1) by the cost-of-living adjustment for the preceding five

years. Any increase determined under the preceding sentence shall

be rounded to— (i) in the case of penalties greater than $1,000 but less than or equal to $10,000, the nearest multiple of $1,000; (ii) in the case of penalties greater than $10,000 but less than or equal to $100,000, the nearest multiple of $5,000; (iii) in the case of penalties greater than $100,000 but less

than or equal to $200,000, the nearest multiple of $10,000; and

(iv) in the case of penalties greater than $200,000, the

nearest multiple of $25,000.

(D) For purposes of this subsection:
Sec. 6 FEDERAL HAZARDOUS SUBSTANCES ACT 100

(i) The term ‘‘Consumer Price Index’’ means the Consumer

Price Index for all-urban consumers published by the Department of Labor.

(ii) The term ‘‘cost-of-living adjustment for the preceding

five years’’ means the percentage by which—

(I) the Consumer Price Index for the month of June of

the calendar year preceding the adjustment; exceeds

(II) the Consumer Price Index for the month of June

preceding the date on which the maximum authorized penalty was last adjusted.

(d) In the case of an attorney general of a State alleging a violation that affects or may affect such State or its residents, such

attorney general may bring a civil action for an injunction to enforce any requirement of this Act relating to misbranded or banned

hazardous substances. The procedural requirements of section 24 of

the Consumer Product Safety Act shall apply to any such action.

SEIZURES

SEC. 6. ø15 U.S.C. 1265¿ (a) Any misbranded hazardous substance or banned hazardous substance when introduced into or

while in interstate commerce or while held for sale (whether or not

the first sale) after shipment in interstate commerce, or which may

not, under the provisions of section 4(f), be introduced into interstate commerce, or which has been manufactured in violation of

section 4(g), shall be liable to be proceeded against while in interstate commerce or at any time thereafter, on libel of information

and condemned in any district court in the United States within

the jurisdiction of which the hazardous substance is found: Provided, That this section shall not apply to a hazardous substance

intended for export to any foreign country if it (1) is in a package

branded in accordance with the specifications of the foreign purchaser, (2) is labeled in accordance with the laws of the foreign

country, and (3) is labeled on the outside of the shipping package

to show that it is intended for export, and (4) is so exported.

(b) Such hazardous substance shall be liable to seizure by process pursuant to the libel, and the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty; except that on demand of either party any issue of fact joined

in any such case shall be tried by jury. When libel for condemnation proceedings under this section, involving the same claimant

and the same issues of misbranding, are pending in two or more

jurisdictions, such pending proceedings, upon application of the

United States or the claimant seasonably made to the court of one

such jurisdiction, shall be consolidated for trial by order of such

court, and tried in (1) any district selected by the applicant where

one of such proceedings is pending; or (2) a district agreed upon by

stipulation between the parties. If no order for consolidation is so

made within a reasonable time, the United States or the claimant

may apply to the court of one such jurisdiction, and such court

(after giving the other party, the claimant, or the United States attorney for such district, reasonable notice and opportunity to be

heard) shall by order, unless good cause to the contrary is shown,

specify a district of reasonable proximity to the claimant’s principal

place of business, in which all such pending proceedings shall be
101 Sec. 8 FEDERAL HAZARDOUS SUBSTANCES ACT

consolidated for trial and tried. Such order of consolidation shall

not apply so as to require the removal of any case the date for trial

of which has been fixed. The court granting such order shall give

prompt notification thereof to the other courts having jurisdiction

of the cases covered thereby.

(c) Any hazardous substance condemned under this section

shall, after entry of the decree, be disposed of by destruction or sale

as the court may, in accordance with the provisions of this section,

direct and the proceeds thereof, if sold, less the legal costs and

charges, shall be paid into the Treasury of the United States; but

such hazardous substance shall not be sold under such decree contrary to the provisions of this Act or the laws of the jurisdiction in

which sold: Provided, That, after entry of the decree and upon payment of the costs of such proceedings and the execution of a good

and sufficient bond conditioned that such hazardous substance

shall not be sold or disposed of contrary to the provisions of this

Act or the laws of any State or territory in which sold, the court

may by order direct that such hazardous substance be delivered to

the owner thereof to be destroyed or brought into compliance with

the provisions of this Act under the supervision of an officer or employee duly designated by the Secretary, and the expense of such

supervision shall be paid by the person obtaining release of the

hazardous substance under bond.

(d) When a decree of condemnation is entered against the hazardous substance, court costs and fees, and storage and other proper expenses, shall be awarded against the person, if any, intervening as claimant of the hazardous substance.

(e) In the case of removal for trial of any case as provided by

subsection (b)—

(1) the clerk of the court from which removal is made shall

promptly transmit to the court in which the case is to be tried

all records in the case necessary in order that such court may

exercise jurisdiction;

(2) the court to which such case is removed shall have the

powers and be subject to the duties, for purposes of such case,

which the court from which removal was made would have

had, or to which such court would have been subject, if such

case had not been removed.

HEARING BEFORE REPORT OF CRIMINAL VIOLATION

SEC. 7. ø15 U.S.C. 1266¿ Before any violation of this Act is reported by the Secretary to any United States attorney for institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an

opportunity to present his views, either orally or in writing, with

regard to such contemplated proceeding.

INJUNCTIONS

SEC. 8. ø15 U.S.C. 1267¿ (a) The United States district courts

and the United States courts of the territories shall have jurisdiction, for cause shown and subject to the provisions of rule 65 (a)

and (b) of the Federal Rules of Civil Procedure, to restrain violations of this Act.
Sec. 9 FEDERAL HAZARDOUS SUBSTANCES ACT 102

(b) In any proceeding for criminal contempt for violation of an

injunction or restraining order issued under this section, which violation also constitutes a violation of this Act, trial shall be by the

court or, upon demand of the accused, by a jury. Such trial shall

be conducted in accordance with the practice and procedure applicable in the case of proceedings subject to the provisions of rule

42(b) of the Federal Rules of Criminal Procedure.

STYLE OF ENFORCEMENT PROCEEDINGS—SUBPOENAS

SEC. 9. ø15 U.S.C. 1268¿ All criminal proceedings and all libel

or injunction proceedings for the enforcement, or to restrain violations, of this Act shall be by and in the name of the United States.

Subpoenas for witnesses who are required to attend a court of the

United States in any district may run into any other district in any

such proceeding.

REGULATIONS

SEC. 10. ø15 U.S.C. 1269¿ (a) The authority to promulgate regulations for the efficient enforcement of this Act, except as otherwise provided in this section, is hereby vested in the Secretary.

(b) The Secretary of the Treasury and the Secretary of Health,

Education, and Welfare shall jointly prescribe regulations for the

efficient enforcement of the provisions of section 14, except as otherwise provided therein. Such regulations shall be promulgated in

such manner and take effect at such time, after due notice, as the

Secretary of Health, Education, and Welfare shall determine.

EXAMINATIONS AND INVESTIGATIONS

SEC. 11. ø15 U.S.C. 1270¿ (a) The Secretary is authorized to

conduct examinations, inspections, and investigations for the purposes of this Act through officers and employees of the Department

or through any health officer or employee of any State, territory,

or political subdivision thereof, duly commissioned by the Secretary

as an officer of the Department.

(b) For purposes of enforcement of this Act, officers or employees duly designated by the Secretary, upon presenting appropriate

credentials and a written notice to the owner, operator, or agent in

charge, are authorized (1) to enter, at reasonable times, any factory, warehouse, or establishment in which hazardous substances

are manufactured, processed, packed, or held for introduction into

interstate commerce or are held after such introduction, or to enter

any vehicle being used to transport or hold such hazardous substances in interstate commerce; (2) to inspect, at reasonable times

and within reasonable limits and in a reasonable manner, such factory, warehouse, establishment, or vehicle, and all pertinent equipment, finished and unfinished materials, and labeling therein; and

(3) to obtain samples of such materials or packages thereof, or of

such labeling. A separate notice shall be given for each such inspection, but a notice shall not be required for each entry made during

the period covered by the inspection. Each such inspection shall be

commenced and completed with reasonable promptness.

(c) If the officer or employee obtains any sample, prior to leaving the premises, he shall give to the owner, operator, or agent in

charge a receipt describing the samples obtained. If an analysis is
103 Sec. 14 FEDERAL HAZARDOUS SUBSTANCES ACT

made of such sample, a copy of the results of such analysis shall

be furnished promptly to the owner, operator, or agent in charge.

RECORDS OF INTERSTATE SHIPMENT

SEC. 12. ø15 U.S.C. 1271¿ For the purpose of enforcing the provisions of this Act, carriers engaged in interstate commerce, and

persons receiving hazardous substances in interstate commerce or

holding such hazardous substances so received shall, upon the request of an officer or employee duly designated by the Secretary,

permit such officer or employee, at reasonable times, to have access

to and to copy all records showing the movement in interstate commerce of any such hazardous substance, or the holding thereof during or after such movement, and the quantity, shipper, and consignee thereof; and it shall be unlawful for any such carrier or person to fail to permit such access to and copying of any record so

requested when such request is accompanied by a statement in

writing specifying the nature or kind of such hazardous substance

to which such request relates: Provided, That evidence obtained

under this section, or any evidence which is directly or indirectly

derived from such evidence, shall not be used in a criminal prosecution of the person from whom obtained: Provided further, That

carriers shall not be subject to the other provisions of this Act by

reason of their receipt, carriage, holding, or delivery of hazardous

substances in the usual course of business as carriers.

PUBLICITY

SEC. 13. ø15 U.S.C. 1272¿ (a) The Secretary may cause to be

published from time to time reports summarizing any judgments,

decrees, or court orders which have been rendered under this Act,

including the nature of the charge and the disposition thereof.

(b) The Secretary may also cause to be disseminated information regarding hazardous substances in situations involving, in the

opinion of the Secretary, imminent danger to health. Nothing in

this section shall be construed to prohibit the Secretary from collecting, reporting, and illustrating the results of the investigations

of the Department.

IMPORTS AND EXPORTS

SEC. 14. ø15 U.S.C. 1273¿ (a) The Secretary of the Treasury

shall deliver to the Secretary of Health, Education, and Welfare,

upon his request, samples of hazardous substances which are being

imported or offered for import into the United States, giving notice

thereof to the owner or consignee, who may appear before the Secretary of Health, Education, and Welfare and have the right to introduce testimony. If it appears from the examination of such samples or otherwise that such hazardous substance is a misbranded

hazardous substance or banned hazardous substance or in violation

of section 4(f), then such hazardous substance shall be refused admission, except as provided in subsection (b) of this section. The

Secretary of the Treasury shall cause the destruction of any such

hazardous substance refused admission unless such hazardous substance is exported, under regulations prescribed by the Secretary

of the Treasury, within ninety days of the date of notice of such re-
Sec. 14 FEDERAL HAZARDOUS SUBSTANCES ACT 104

fusal or within such additional time as may be permitted pursuant

to such regulations.

(b) Pending decision as to the admission of a hazardous substance being imported or offered for import, the Secretary of the

Treasury may authorize delivery of such hazardous substance to

the owner or consignee upon the execution by him of a good and

sufficient bond providing for the payment of such liquidated damages in the event of default as may be required pursuant to regulations of the Secretary of the Treasury. If it appears to the Secretary

of Health, Education, and Welfare that the hazardous substance

can, by relabeling or other action, be brought into compliance with

this Act, final determination as to admission of such hazardous

substance may be deferred and, upon filing of timely written application by the owner or consignee and the execution by him of a

bond as provided in the preceding provisions of this subsection, the

Secretary may, in accordance with regulations, authorize the applicant to perform such relabeling or other action specified in such authorization (including destruction or export of rejected hazardous

substances or portions thereof, as may be specified in the Secretary’s authorization). All such relabeling or other action pursuant

to such authorization shall, in accordance with regulations, be

under the supervision of an officer or employee of the Department

of Health, Education, and Welfare designated by the Secretary, or

an officer or employee of the Department of the Treasury designated by the Secretary of the Treasury.

(c) All expenses (including travel, per diem, or subsistence, and

salaries of officers or employees of the United States) in connection

with the destruction provided for in subsection (a) of this section

and the supervision of the relabeling or other action authorized

under the provisions of subsection (b) of this section, the amount

of such expenses to be determined in accordance with regulations,

and all expenses in connection with the storage, cartage, or labor

with respect to any hazardous substance refused admission under

subsection (a) of this section, shall be paid by the owner or consignee and, in default of such payment, shall constitute a lien

against any future importations made by such owner or consignee.

(d) Not less than thirty days before any person exports to a foreign country any misbranded hazardous substance or banned hazardous substance, such person shall file a statement with the Consumer Product Safety Commission (hereinafter in this section referred to as the ‘‘Commission’’) notifying the Commission of such

exportation, and the Commission, upon receipt of such statement,

shall promptly notify the government of such country of such exportation and the basis upon which such substance is considered

misbranded or has been banned under this Act. Any statement

filed with the Commission under the preceding sentence shall

specify the anticipated date of shipment of such substance, the

country and port of destination of such substance, and the quantity

of such substance that will be exported, and shall contain such

other information as the Commission may by regulation require.

Upon petition filed with the Commission by any person required to

file a statement under this subsection respecting an exportation,

the Commission may, for good cause shown, exempt such person

from the requirement of this subsection that such a statement be

filed no less than thirty days before the date of the exportation, ex-
105 Sec. 15 FEDERAL HAZARDOUS SUBSTANCES ACT

cept that in no case shall the Commission permit such a statement

to be filed later than the tenth day before such date.

NOTICE AND REPAIR, REPLACEMENT, OR REFUND

SEC. 15. ø15 U.S.C. 1274¿ (a) If any article or substance sold

in commerce is defined as a banned hazardous substance (whether

or not it was such at the time of its sale) and the Commission determines (after affording interested persons, including consumers

and consumer organizations, an opportunity for a hearing) that notification is required to adequately protect the public from such article or substance, the Commission may order the manufacturer or

any distributor or dealer of the article or substance to take any one

or more of the following actions:

(1) To give public notice that the article or substance is a

banned hazardous substance.

(2) To mail such notice to each person who is a manufacturer, distributor, or dealer of such article or substance.

(3) To mail such notice to every person to whom the person

giving the notice knows such article or substance was delivered

or sold.

An order under this subsection shall specify the form and content

of any notice required to be given under the order.

(b) If any article or substance sold in commerce is defined as

a banned hazardous substance (whether or not it was such at the

time of its sale) and the Commission determines (after affording interested persons, including consumers and consumer organizations,

an opportunity for a hearing) that action under this subsection is

in the public interest, the Consumer Product Safety Commission

may order the manufacturer, distributor, or dealer to take whichever of the following actions the person to whom the order is directed elects:

(1) If repairs to or changes in the article or substance may

be made so that it will not be a banned hazardous substance,

to make such repairs or changes.

(2) To replace such article or substance with a like or

equivalent article or substance which is not a banned hazardous substance.

(3) To refund the purchase price of the article or substance

(less a reasonable allowance for use, if the article or substance

has been in the possession of the consumer for one year or

more—

(A) at the time of public notice under subsection (a),

or

(B) at the time the consumer receives actual notice

that the article or substance is a banned hazardous substance, whichever first occurs).

An order under this subsection may also require the person to

whom it applies to submit a plan, satisfactory to the Commission,

for taking the action which such person has elected to take. The

Commission shall specify in the order the persons to whom refunds

must be made if the person to whom the order is directed elects

to take the action described in paragraph (3). If an order under this

subsection is directed to more than one person, the Commission

shall specify which person has the election under this subsection.
Sec. 15 FEDERAL HAZARDOUS SUBSTANCES ACT 106

An order under this subsection may prohibit the person to whom

it applies from manufacturing for sale, offering for sale, distributing in commerce, or importing into the customs territory of the

United States (as defined in general note 2 of the Harmonized Tariff Schedule of the United States), or from doing any combination

of such actions, with respect to the article or substance with respect to which the order was issued.

(c)(1) If the Commission determines (after affording interested

persons, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (e) of this

section) that any toy or other article intended for use by children

that is not a banned hazardous substance contains a defect which

creates a substantial risk of injury to children (because of the pattern of defect the number of defective toys or such articles distributed in commerce, the severity of the risk, or otherwise) and that

notification is required to protect adequately the public from such

toy or article, the Commission may order the manufacturer or any

distributor or dealer of such toy or article to take any one or more

of the following actions:

(A) To give public notice that such defective toy or article

contains a defect which creates a substantial risk of injury to

children.

(B) To mail such notice to each person who is a manufacturer, distributor, or dealer of such toy or article.

(C) To mail such notice to every person to whom the person giving notice knows such toy or article was delivered or

sold.

An order under this paragraph shall specify the form and content

of any notice required to be given under the order.

(2) If the Commission determines (after affording interested

persons, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (e) of this

section) that any toy or other article intended for use by children

that is not a banned hazardous substance contains a defect which

creates a substantial risk of injury to children (because of the pattern of defect, the number of defective toys or such articles distributed in commerce, the severity of the risk, or otherwise) and that

action under this paragraph is in the public interest, the Commission may order the manufacturer, distributor, or dealer to take

whichever of the following actions the person to whom the order is

directed elects:

(A) If repairs to or changes in the toy or article can be

made so that it will not contain a defect which creates a substantial risk of injury to children, to make such repairs or

changes.

(B) To replace such toy or article with a like or equivalent

toy or article which does not contain a defect which creates a

substantial risk of injury to children.

(C) To refund the purchase price of such toy or article (less

a reasonable allowance for use, if such toy or article has been

in the possession of the consumer for 1 year or more (i) at the

time of public notice under paragraph (1)(A), or (ii) at the time

the consumer receives actual notice that the toy or article contains a defect which creates a substantial risk of injury to children, whichever first occurs).
107 Sec. 16 FEDERAL HAZARDOUS SUBSTANCES ACT

An order under this paragraph may also require the person to

whom it applies to submit a plan, satisfactory to the Commission,

for taking the action which such person has elected to take. The

Commission shall specify in the order the person to whom refunds

must be made if the person to whom the order is directed elects

to take the action described in subparagraph (C). If an order under

this paragraph is directed to more than one person, the Commission shall specify which person has the election under this paragraph. An order under this paragraph may prohibit the person to

whom it applies from manufacturing for sale, offering for sale, distributing in commerce, or importing into the customs territory of

the United States (as defined in general note 2 of the Harmonized

Tariff Schedule of the United States), or from doing any combination of such actions, with respect to the toy or article respect to

which the order was issued.

(d)(1) No charge shall be made to any person (other than a

manufacturer, distributor, or dealer) who avails himself of any

remedy provided under an order issued under subsection (b) or (c),

and the person subject to the order shall reimburse each person

(other than a manufacturer, distributor, or dealer) who is entitled

to such a remedy for any reasonable and foreseeable expenses incurred by such person in availing himself of such remedy.

(2) An order issued under subsection (a), (b), or (c) with respect

to a toy, article or substance may require any person who is a manufacturer, distributor, or dealer of the toy, article or substance to

reimburse any other person who is a manufacturer, distributor, or

dealer of such article or substance for such other person’s expenses

in connection with carrying out the order, if the Commission determines such reimbursement to be in the public interest.

(e) An order under subsection (a), (b), or (c) may be issued only

after an opportunity for a hearing in accordance with section 554

of title 5, United States Code, except that, if the Commission 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).

(f) For purposes of this section (1) the term ‘‘manufacturer’’ includes an importer for resale, and (2) a dealer who sells at wholesale an article or substance shall with respect to that sale be considered the distributor of that article or substance.

(g) Nothing in this section shall be construed to require the

Commission, in determining that an article or substance distributed in commerce presents a substantial product hazard and that

notification or other action under this section should be taken, to

prepare a comparison of the costs that would be incurred in providing notification or taking other action under this section with

the benefits from such notification or action.

SEPARABILITY CLAUSE

SEC. 16. ø15 U.S.C. 1261 note¿ If any provision of this Act is

declared unconstitutional, or the applicability thereof to any person

or circumstance is held invalid, the constitutionality of the remain-
Sec. 17 FEDERAL HAZARDOUS SUBSTANCES ACT 108

1Designation so in law . Subsections (a) and (b) of section 17 probably should have been paragraphs (1) and (2).

der of the Act and the applicability thereof to other persons and circumstances shall not be affected thereby.

TIME OF TAKING EFFECT

SEC. 17. ø15 U.S.C. 1261 note¿ This Act shall take effect upon

the date of its enactment; but no penalty or condemnation shall be

enforced for any violation of this Act which occurs—

(a) 1 prior to the expiration of the sixth calendar month

after the month in which this Act is enacted, or

(b) prior to the expiration of such additional period or periods, ending not more than eighteen months after the month of

enactment of this Act, as the Secretary may prescribe on the

basis of a finding that conditions exist which necessitate the

prescribing of such additional period or periods: Provided, That

the Secretary may limit the application of such additional period or periods to violations related to specified provisions of

this Act, or to specified kinds of hazardous substances or packages thereof.

EFFECT UPON FEDERAL AND STATE LAW

SEC. 18. ø15 U.S.C. 1261 note¿ (a) Nothing in this Act shall

be construed to modify or affect the provisions of the Flammable

Fabrics Act, as amended (15 U.S.C. 1191–1200), or any regulations

promulgated thereunder; or of chapter 39, title 18, United States

Code, as amended (18 U.S.C. 831 et seq.), or any regulations promulgated thereunder, or under sections 204(a)(2) and 204(a)(3) of

the Interstate Commerce Act, as amended (relating to the transportation of dangerous substances and explosives by surface carriers);

or of section 1716, title 18, United States Code, or any regulations

promulgated thereunder (relating to mailing of dangerous substances); or of section 902 or regulations promulgated under section

601 of the Federal Aviation Act of 1958 (relating to transportation

of dangerous substances and explosives in aircraft); or of the Federal Food, Drug, and Cosmetic Act; or of the Public Health Service

Act; or of the Federal Insecticide, Fungicide, and Rodenticide Act;

or of the Dangerous Drug Act for the District of Columbia (70 Stat.

612), or the Act entitled ‘‘An Act to regulate the practice of pharmacy and the sale of poisons in the District of Columbia, and for

other purposes’’, approved May 7, 1906 (34 Stat. 175), as amended;

or of any other Act of Congress, except as specified in section 19.

(b)(1)(A) Except as provided in paragraphs (2) and (3), if a hazardous substance or its packaging is subject to a cautionary labeling requirement under section 2(p) or 3(b) designated to protect

against a risk of illness or injury associated with the substance, no

State or political subdivision of a State may establish or continue

in effect a cautionary labeling requirement applicable to such substance or packaging and designed to protect against the same risk

of illness or injury unless such cautionary labeling requirement is

identical to the labeling requirement under section 2(p) or 3(b).

(B) Except as provided in paragraphs (2), (3), and (4), if under

regulations of the Commission promulgated under or for the en-
109 Sec. 18 FEDERAL HAZARDOUS SUBSTANCES ACT

forcement of section 2(q) a requirement is established to protect

against a risk of illness or injury associated with a hazardous substance, no State or political subdivision of a State may establish or

continue in effect a requirement applicable to such substance and

designed to protect against the same risk of illness or injury unless

such requirement is identical to the requirement established under

such regulations.

(2) The Federal Government and the government of any State

or political subdivision of a State may establish and continue in effect a requirement applicable to a hazardous substance for its own

use (or to the packaging of such a substance) which requirement

is designed to protect against a risk of illness or injury associated

with such substance and which is not identical to a requirement

described in paragraph (1) applicable to such substance (or packaging) and designed to protect against the same risk of illness or

injury if the Federal, State, or political subdivision requirement

provides a higher degree of protection from such risk of illness or

injury than the requirement described in paragraph (1).

(3)(A) Upon application of a State or political subdivision of a

State, the Commission may, by regulation promulgated in accordance with subparagraph (B), exempt from paragraph (1), under

such conditions as may be prescribed in such regulation, any requirement of such State or political subdivision designed to protect

against a risk of illness or injury associated with a hazardous substance if—

(i) compliance with the requirement would not cause the

hazardous substance (or its packaging) to be in violation of the

applicable requirement described in paragraph (1), and

(ii) the State or political subdivision requirement (I) provides a significantly higher degree of protection from such risk

of illness or injury than the requirement described in paragraph (1), and (II) does not unduly burden interstate commerce.

In determining the burden, if any, of a State or political subdivision requirement on interstate commerce the Commission shall

consider and make appropriate (as determined by the Commission

in its discretion) findings on the technological and economic feasibility of complying with such requirement, the cost of complying

with such requirement, the geographic distribution of the substance to which the requirement would apply, the probability of

other States or political subdivisions applying for an exemption

under this paragraph for a similar requirement, and the need for

a national, uniform requirement under this Act for such substance

(or its packaging).

(B) A regulation under subparagraph (A) granting an exemption for a requirement of a State or political subdivision of a State

may be promulgated by the Commission only after it has provided,

in accordance with section 553(b) of title 5, United States Code, notice with respect to the promulgation of the regulation and has provided opportunity for the oral presentation of views respecting its

promulgation.

(4) Paragraph (1)(B) does not prohibit a State or a political

subdivision of a State from establishing or continuing in effect a requirement which is designed to protect against a risk of illness or

injury associated with fireworks devices or components thereof and
Sec. 19 FEDERAL HAZARDOUS SUBSTANCES ACT 110

which provides a higher degree of protection from such risk of illness or injury than a requirement in effect under a regulation of

the Commission described in such paragraph.

(5) As used in this subsection, the term ‘‘Commission’’ means

the Consumer Product Safety Commission.

REPEAL OF FEDERAL CAUSTIC POISON ACT

SEC. 19. ø15 U.S.C. 401 note¿ The Federal Caustic Poison Act

(44 Stat. 1406) is repealed effective at the close of the sixth calendar month after the month of enactment of this Act, except that

the Federal Caustic Poison Act shall remain in full force and effect

with respect to any ‘‘dangerous caustic or corrosive substance’’ (as

defined by that Act) which is an article subject to the Federal Food,

Drug, and Cosmetic Act and which is, by virtue of paragraph 2 of

section 2(f) of this Act, excluded from the term ‘‘hazardous substance’’ as defined in this Act: Provided, That, if the Secretary, pursuant to section 17(b) of this Act, prescribes an additional period

or periods during which violations of this Act shall not be enforceable and if such additional period or periods are applicable to violations of this Act involving one or more substances defined as ‘‘dangerous caustic or corrosive substances’’ by the Federal Caustic Poison Act, that Act shall, with respect to such substance or substances, remain in full force and effect during such additional period or periods: Provided further, That, with respect to violations,

liabilities incurred or appeals taken prior to the close of said sixth

month or, if applicable, prior to the expiration of the additional period or periods referred to in the preceding proviso, all provisions

of the Federal Caustic Poison Act shall be deemed to remain in full

force for the purpose of sustaining any proper suit, action, or other

proceeding with respect to any such violations, liabilities, and appeals.

TOXICOLOGICAL ADVISORY BOARD

SEC. 20. ø15 U.S.C. 1275¿ (a)(1) Within 180 days after the date

of the enactment of this section, the Consumer Product Safety

Commission (hereinafter in this section referred to as the ‘‘Commission’’) shall establish, in accordance with subsection (b), a Toxicological Advisory Board (hereinafter in this section referred to as

the ‘‘Board’’) to advise the Commission on precautionary labeling

for hazardous substances. The Board shall provide scientific and

technical advice to the Commission concerning—

(A) proper labeling under sections 2(p)(1) and 3(b), with

special attention to—

(i) the description of precautionary measures required

under section 2(p)(1)(F);

(ii) the statement describing the hazards associated

with a hazardous substance as required under section

2(p)(1)(E); and

(iii) instructions for first-aid treatment under section

2(p)(1)(G); and

(B) the exemption of certain substances from labeling requirements under this Act as permitted under section 3(c).

(2) In carrying out its duties under paragraph (1)(A), the Board

shall review any labeling requirements or guidelines which have
111 Sec. 21 FEDERAL HAZARDOUS SUBSTANCES ACT

been established by the Commission under section 2(p)(1) or 3(b).

Based upon its review the Board shall develop and submit to the

Commission, within one year after the date that the Board is established, any recommendations for revisions in such labeling requirements or guidelines which the Board considers to be appropriate,

including any general recommendations which may be of assistance

to the Commission in carrying out its responsibilities under section

2(p)(1) or section 3(b). The Board shall periodically review the labeling requirements and guidelines established by the Commission

under such sections to determine whether such requirements and

guidelines reflect relevant changes in scientific knowledge and

shall revise any general recommendations submitted to the Commission under this paragraph to reflect such changes.

(b)(1) The Board shall be composed of nine members appointed

by the Commission. Each member of the Board shall be qualified

by training and experience in one or more fields applicable to the

duties of the Board and at least three of the members of the Board

shall be members of the American Board of Medical Toxicology.

The Chairman of the Board shall be elected by the Board from

among its members.

(2) The members of the Board shall be appointed for terms of

three years. Members of the Board may be reappointed.

(3) Any vacancy in the Board shall be filled in the same manner in which the original appointment was made. Any member appointed to fill a vacancy occurring before the expiration of the term

for which his predecessor was appointed shall serve only for the remainder of such term.

(4) The Board shall meet at such times and places as may be

designated by the Commission on consultation with the Chairman,

but not less than two times each year.

(5) Members of the Board who are not officers or employees of

the United States shall, while attending meetings or conferences of

the Board or while otherwise engaged in the business of the Board,

be entitled to receive compensation at a rate fixed by the Commission, not exceeding the daily equivalent of the annual rate of basic

pay payable for grade GS–18 of the General Schedule under section

5332 of title 5, United States Code. While away from their homes

or regular places of business, such members may be allowed travel

expenses, including per diem in lieu of subsistence, in the same

manner as persons employed intermittently in the Government

service are allowed under section 5703(b) of such title. Individuals

serving as members on the Board shall not be considered officers

or employees of the United States by reason of receiving payments

under this paragraph.

(c) The Board shall terminate on the date six years after the

date it is established under this section.

CONGRESSIONAL VETO OF REGULATIONS

SEC. 21. ø15 U.S.C. 1276¿ (a) The Consumer Product Safety

Commission shall transmit to the Secretary of the Senate and the

Clerk of the House of Representatives a copy of any regulation promulgated by the Commission under section 2(q)(1) or subsection (e)

of section 3.
Sec. 23 FEDERAL HAZARDOUS SUBSTANCES ACT 112

1Section designation so in law. Probably should be ‘‘SEC. 22.’’

(b) Any regulation specified in subsection (a) shall not take effect if—

(1) within the ninety calendar days of continuous session

of the Congress which occur after the date of the promulgation

of such regulation, both Houses of the Congress adopt a concurrent resolution, the matter after the resolving clause of

which is as follows (with the blank spaces appropriately

filled): ‘‘That the Congress disapproves the regulation which

was promulgated under the Federal Hazardous Substances

Act by the Consumer Product Safety Commission with respect to and which was transmitted to the Congress on and disapproves the regulation for the

following reasons: .’’; or

(2) within the sixty calendar days of continuous session of

the Congress which occur after the date of the promulgation of

such regulation, one House of the Congress adopts such concurrent resolution and transmits such resolution to the other

House and such resolution is not disapproved by such other

House within the thirty calendar days of continuous session of

the Congress which occur after the date of such transmittal.

(c) Congressional inaction on, or rejection of, a concurrent resolution of disapproval under this section shall not be construed as

an expression of approval of the regulation involved, and shall not

be construed to create any presumption of validity with respect to

such regulation.

(d) For purposes of this section—

(1) continuity of session is broken only by an adjournment

of the Congress sine die; and

(2) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of the periods of continuous session of the Congress specified in subsection (b).

LABELING OF ART MATERIALS

SEC. 23. 1 ø15 U.S.C. 1277¿ (a) On and after the last day of the

2-year period beginning on the date of the enactment of this section, the requirements for the labeling of art materials set forth in

the version of the standard of the American Society for Testing and

Materials designated D–4236 that is in effect on the date of the enactment of this section and as modified by subsection (b) shall be

deemed to be a regulation issued by the Commission under section

3(b).

(b) The following shall apply with respect to the standard of

the American Society for Testing and Materials referred to in subsection (a):

(1) The term ‘‘art material or art material product’’ shall

mean any substance marketed or represented by the producer

or repackager as suitable for use in any phase of the creation

of any work of visual or graphic art of any medium. The term

does not include economic poisons subject to the Federal Insecticide, Fungicide, and Rodenticide Act or drugs, devices, or cosmetics subject to the Federal Food, Drug, and Cosmetics Act.
113 Sec. 23 FEDERAL HAZARDOUS SUBSTANCES ACT

(2) The standard referred to in subsection (a) as modified

by this subsection applies to art materials intended for users

of any age.

(3) Each producer or repackager of art materials shall describe in writing the criteria used to determine whether an art

material has the potential for producing chronic adverse health

effects. Each producer or repackager shall be responsible for

submitting to the Commission these criteria and a list of art

materials that require hazard warning labels under this section.

(4) Upon the request of the Commission, a producer or repackager of art materials shall submit to the Commission product formulations and the criteria used to determine whether

the art material or its ingredients have the potential for producing chronic adverse health effects.

(5) All art materials that require chronic hazard labeling

pursuant to this section must include on the label the name

and address of the producer or repackager of the art materials

and an appropriate telephone number and a statement signifying that such art materials are inappropriate for use by children.

(6) If an art material producer or repackager becomes

newly aware of any significant information regarding the hazards of an art material or ways to protect against the hazard,

this new information must be incorporated into the labels of

such art materials that are manufactured after 12 months

from the date of discovery. If a producer or repackager reformulates an art material, the new formulation must be evaluated and labeled in accordance with the standard referred to

in subsection (a) as modified by this subsection.

(7) If the Commission determines that an art material in

a container equal to or smaller than one fluid ounce (30 ml) (if

the product is sold by volume) or one ounce net weight (28 g)

(if the product is sold by weight) has the potential for producing chronic adverse health effects with customary or reasonably foreseeable use despite its small size, the Commission

may require the art material to carry a label which conveys all

the information required under the standard referred to in subsection (a) as modified by this subsection for art materials in

a container greater than one fluid ounce or one ounce net

weight. If the information cannot fit on the package label, the

Commission shall require the art material to have a package

insert which conveys all this information. If the art material

has a package insert, the label on the product shall include a

signal word in conformance with paragraph 5 of the standard

referred to in subsection (a), a list of potentially harmful or

sensitizing components, and the statement ‘‘see package insert

before use’’. For purposes of this subsection, the term ‘‘package

insert’’ means a display of written, printed, or graphic matter

upon a leaflet or suitable material accompanying the art material. This requirement is in addition to, and is not meant to supersede, the requirement of paragraph 5.8 of the standard designated D–4236.

(8) In determining whether an art material has the potential for producing chronic adverse health effects, including car-
Sec. 23 FEDERAL HAZARDOUS SUBSTANCES ACT 114

cinogenicity and potential carcinogenicity, a toxicologist shall

take into account opinions of various regulatory agencies and

scientific bodies.

(c) If the Commission determines that a revision proposed by

the American Society for Testing and Materials is in the public interest, it shall incorporate the revision into the standard referred

to in subsection (a) as modified by subsection (b) after providing notice and an opportunity for comment. If at any time the Commission finds that the standard referred to in subsection (a) as modified by subsection (b) is inadequate for the protection of the public

interest, it shall promulgate an amendment to the standard which

will adequately protect the public interest. Such final standard

shall be promulgated pursuant to section 553 of title 5, United

States Code, except that the Commission shall give interested persons an opportunity for the oral presentation of data, views, or arguments, in addition to an opportunity to make written submissions. A transcript shall be kept of any oral presentation.

(d)(1) Within 1 year of the date of the enactment of this section, the Commission shall issue guidelines which specify criteria

for determining when any customary or reasonably foreseeable use

of an art material can result in a chronic hazard. In developing

such guidelines the Commission shall conduct a public hearing and

provide reasonable opportunity for the submission of comments.

(2) The guidelines established under paragraph (1) shall

include—

(A) criteria for determining when art materials may

produce chronic adverse health effects in children and criteria

for determining when art materials may produce such health

effects in adults,

(B) criteria for determining which substances contained in

art materials have the potential for producing chronic adverse

health effects and what those effects are,

(C) criteria for determining the bioavailability of chronically hazardous substances contained in art materials when

the products are used in a customary or reasonably foreseeable

manner, and

(D) criteria for determining acceptable daily intake levels

for chronically hazardous substances contained in art materials.

Where appropriate, criteria used for assessing risks to children

may be the same as those used for adults.

(3) The Commission shall periodically review the guidelines established under paragraph (1) to determine whether the guidelines

reflect relevant changes in scientific knowledge and in the formulations of art materials, and shall amend the guidelines to reflect

such changes.

(e) The Commission shall develop informational and educational materials about art materials and shall distribute the informational and educational materials to interested persons.

(f) The Commission may bring an action under section 8 to enjoin the purchase of any art material required to be labeled under

this Act which is for use by children in pre-kindergarten, kindergarten, or grades 1 through 6.
115 Sec. 24 FEDERAL HAZARDOUS SUBSTANCES ACT

SEC. 24. ø15 U.S.C. 1278¿ REQUIREMENTS FOR LABELING CERTAIN

TOYS AND GAMES.

(a) TOYS OR GAMES FOR CHILDREN WHO ARE AT LEAST 3.—

(1) REQUIREMENT.—The packaging of any toy or game intended for use by children who are at least 3 years old but not

older than 6 years (or such other upper age limit as the Commission may determine, which may not be less than 5 years

old), any descriptive material which accompanies such toy or

game, and, in the case of bulk sales of such toy or game when

unpackaged, any bin, container for retail display, or vending

machine from which the unpackaged toy or game is dispensed

shall bear or contain the cautionary statement described in

paragraph (2) if the toy or game—

(A) is manufactured for sale, offered for sale, or distributed in commerce in the United States, and

(B) includes a small part, as defined by the Commission.

(2) LABEL.—The cautionary statement required by paragraph (1) for a toy or game shall be as follows:

(b) BALLOONS, SMALL BALLS, AND MARBLES.—

(1) REQUIREMENT.—In the case of any latex balloon, any

ball with a diameter of 1.75 inches or less intended for children

3 years of age or older, any marble intended for children 3

years of age or older, or any toy or game which contains such

a balloon, ball, or marble, which is manufactured for sale, offered for sale, or distributed in commerce in the United

States—

(A) the packaging of such balloon, ball, marble, toy, or

game,

(B) any descriptive material which accompanies such

balloon, ball, marble, toy, or game, and

(C) in the case of bulk sales of any such product when

unpackaged, any bin, container for retail display, or vending machine from which such unpackaged balloon, ball,

marble, toy, or game is dispensed,

shall bear or contain the cautionary statement described in

paragraph (2).

(2) LABEL.—The cautionary statement required under

paragraph (1) for a balloon, ball, marble, toy, or game shall be

as follows:

(A) BALLOONS.—In the case of balloons, or toys or

games that contain latex balloons, the following cautionary

statement applies:
Sec. 24 FEDERAL HAZARDOUS SUBSTANCES ACT 116

(B) BALLS.—In the case of balls, the following cautionary statement applies:

(C) MARBLES.—In the case of marbles, the following

cautionary statement applies:

(D) TOYS AND GAMES.—In the case of toys or games

containing balls, the following cautionary statement applies:

In the case of toys or games containing marbles, the following cautionary statement applies:
117 Sec. 24 FEDERAL HAZARDOUS SUBSTANCES ACT

(c) GENERAL LABELING REQUIREMENTS.—

(1) IN GENERAL.—Except as provided in paragraphs (2) and

(3), any cautionary statement required under subsection (a) or

(b) shall be—

(A) displayed in its entirety on the principal display

panel of the product’s package, and on any descriptive material which accompanies the product, and, in the case of

bulk sales of such product when unpackaged, on the bin,

container for retail display of the product, and any vending

machine from which the unpackaged product is dispensed,

and

(B) displayed in the English language in conspicuous

and legible type in contrast by typography, layout, or color

with other printed matter on such package, descriptive

materials, bin, container, and vending machine, and in a

manner consistent with part 1500 of title 16, Code of Federal Regulations (or successor regulations thereto).

(2) EXCEPTION FOR PRODUCTS MANUFACTURED OUTSIDE

UNITED STATES.—In the case of a product manufactured outside

the United States and directly shipped from the manufacturer

to the consumer by United States mail or other delivery service, the accompanying material inside the package of the product may fail to bear the required statement if other accompanying material shipped with the product bears such statement.

(3) SPECIAL RULES FOR CERTAIN PACKAGES.—(A) A cautionary statement required by subsection (a) or (b) may, in lieu

of display on the principal display panel of the product’s package, be displayed on another panel of the package if—

(i) the package has a principal display panel of 15

square inches or less and the required statement is displayed in three or more languages; and

(ii) the statement specified in subparagraph (B) is displayed on the principal display panel and is accompanied

by an arrow or other indicator pointing toward the place

on the package where the statement required by subsection (a) or (b) appears.

(B)(i) In the case of a product to which subsection (a), subsection (b)(2)(B), subsection (b)(2)(C), or subsection (b)(2)(D) applies, the statement specified by this subparagraph is as follows:
Sec. 24 FEDERAL HAZARDOUS SUBSTANCES ACT 118

1So in law. Reference in subsection (d) probably should be to ‘‘this section’’.

(ii) In the case of a product to which subsection (b)(2)(A)

applies, the statement specified by this subparagraph is as follows:

(d) TREATMENT AS MISBRANDED HAZARDOUS SUBSTANCE.—A

balloon, ball, marble, toy, or game, that is not in compliance with

the requirements of this subsection 1 shall be considered a misbranded hazardous substance under section 2(p).
119

FAIR PACKAGING AND LABELING ACT

121

FAIR PACKAGING AND LABELING ACT

[Public Law 89–755, 80 Stat. 1296, November 3, 1966]

[As amended through Public Law 102–329, August 3, 1992]

AN ACT To regulate interstate and foreign commerce by preventing the use of unfair or deceptive methods of packaging or labeling of certain consumer commodities distributed in such commerce, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø15 U.S.C. 1451

note¿ That this Act may be cited as the ‘‘Fair Packaging and Labeling Act’’.

DECLARATION OF POLICY

SEC. 2. ø15 U.S.C. 1451¿ Informed consumers are essential to

the fair and efficient functioning of a free market economy. Packages and their labels should enable consumers to obtain accurate

information as to the quantity of the contents and should facilitate

value comparisons. Therefore, it is hereby declared to be the policy

of the Congress to assist consumers and manufacturers in reaching

these goals in the marketing of consumer goods.

PROHIBITION OF UNFAIR AND DECEPTIVE PACKAGING AND LABELING

SEC. 3. ø15 U.S.C. 1452¿ (a) It shall be unlawful for any person engaged in the packaging or labeling of any consumer commodity (as defined in this Act) for distribution in commerce, or for

any person (other than a common carrier for hire, a contract carrier for hire, or a freight forwarder for hire) engaged in the distribution in commerce of any packaged or labeled consumer commodity, to distribute or to cause to be distributed in commerce any

such commodity if such commodity is contained in a package, or if

there is affixed to that commodity a label, which does not conform

to the provisions of this Act and of regulations promulgated under

the authority of this Act.

(b) The prohibition contained in subsection (a) shall not apply

to persons engaged in business as wholesale or retail distributors

of consumer commodities except to the extent that such persons (1)

are engaged in the packaging or labeling of such commodities, or

(2) prescribe or specify by any means the manner in which such

commodities are packaged or labeled.

REQUIREMENTS AND PROHIBITIONS

SEC. 4. ø15 U.S.C. 1453¿ (a) No person subject to the prohibition contained in section 3 shall distribute or cause to be distributed in commerce any packaged consumer commodity unless in

conformity with regulations which shall be established by the pro-
Sec. 4 FAIR PACKAGING AND LABELING ACT 122

1 Indentation of paragraphs (1) through (6) so in law.

mulgating authority pursuant to section 6 of this Act which shall

provide that— (1) 1 The commodity shall bear a label specifying the identity

of the commodity and the name and place of business of the manufacturer, packer, or distributor;

(2) The net quantity of contents (in terms of weight or mass,

measure, or numerical count) shall be separately and accurately

stated in a uniform location upon the principal display panel of

that label, using the most appropriate units of both the customary

inch/pound system of measure, as provided in paragraph (3) of this

subsection, and, except as provided in paragraph (3)(A)(ii) or paragraph (6) of this subsection, the SI metric system;

(3) The separate label statement of net quantity of contents appearing upon or affixed to any package— (A)(i) if on a package labeled in terms of weight, shall be

expressed in pounds, with any remainder in terms of ounces or

common or decimal fractions of the pound; or in the case of liquid measure, in the largest whole unit (quarts, quarts and

pints, or pints, as appropriate) with any remainder in terms of

fluid ounces or common or decimal fractions of the pint or

quart;

(ii) if on a random package, may be expressed in terms of

pounds and decimal fractions of the pound carried out to not

more than three decimal places and is not required to, but

may, include a statement in terms of the SI metric system carried out to not more than three decimal places;

(iii) if on a package labeled in terms of linear measure,

shall be expressed in terms of the largest whole unit (yards,

yards and feet, or feet, as appropriate) with any remainder in

terms of inches or common or decimal fractions of the foot or

yard;

(iv) if on a package labeled in terms of measure of area,

shall be expressed in terms of the largest whole square unit

(square yards, square yards and square feet, or square feet, as

appropriate) with any remainder in terms of square inches or

common or decimal fractions of the square foot or square yard;

(B) shall appear in conspicuous and easily legible type in

distinct contrast (by typography, layout, color, embossing, or

molding) with other matter on the package;

(C) shall contain letters or numerals in a type size which

shall be (i) established in relationship to the area of the principal display panel of the package, and (ii) uniform for all packages of substantially the same size; and

(D) shall be so placed that the lines of printed matter included in that statement are generally parallel to the base on

which the package rests as it is designed to be displayed; and

(4) The label of any package of a consumer commodity which

bears a representation as to the number of servings of such commodity contained in such package shall bear a statement of the net

quantity (in terms of weight or mass, measure, or numerical count)

of each such serving.

(5) For purposes of paragraph (3)(A)(ii) of this subsection the

term ‘‘random package’’ means a package which is one of a lot,
123 Sec. 5 FAIR PACKAGING AND LABELING ACT

shipment, or delivery of packages of the same consumer commodity

with varying weights or masses, that is, packages with no fixed

weight or mass pattern.

(6) The requirement of paragraph (2) that the statement of net

quantity of contents include a statement in terms of the SI metric

system shall not apply to foods that are packaged at the retail

store level.

(b) No person subject to the prohibition contained in section 3

shall distribute or cause to be distributed in commerce any packaged consumer commodity if any qualifying words or phrases appear in conjunction with the separate statement of the net quantity

of contents required by subsection (a), but nothing in this subsection or in paragraph (2) of subsection (a) shall prohibit supplemental statements, at other places on the package, describing in

nondeceptive terms the net quantity of contents: Provided, That

such supplemental statements of net quantity of contents shall not

include any term qualifying a unit of weight or mass, measure, or

count that tends to exaggerate the amount of the commodity contained in the package.

ADDITIONAL REGULATIONS

SEC. 5. ø15 U.S.C. 1454¿ (a) The authority to promulgate regulations under this Act is vested in (A) the Secretary of Health, Education, and Welfare (referred to hereinafter as the ‘‘Secretary’’) with

respect to any consumer commodity which is a food, drug, device,

or cosmetic, as each such term is defined by section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321); and (B) the

Federal Trade Commission (referred to hereinafter as the ‘‘Commission’’) with respect to any other consumer commodity.

(b) If the promulgating authority specified in this section finds

that, because of the nature, form, or quantity of a particular consumer commodity, or for other good and sufficient reasons, full

compliance with all the requirements otherwise applicable under

section 4 of this act is impracticable or is not necessary for the adequate protection of consumers, the Secretary or the Commission

(whichever the case may be) shall promulgate regulations exempting such commodity from those requirements to the extent and

under such conditions as the promulgating authority determines to

be consistent with section 2 of this Act.

(c) Whenever the promulgating authority determines that regulations containing prohibitions or requirements other than those

prescribed by section 4 are necessary to prevent the deception of

consumers or to facilitate value comparisons as to any consumer

commodity, such authority shall promulgate with respect to that

commodity regulations effective to—

(1) establish and define standards for characterization of

the size of a package enclosing any consumer commodity,

which may be used to supplement the label statement of net

quantity of contents of packages containing such commodity,

but this paragraph shall not be construed as authorizing any

limitation on the size, shape, weight or mass, dimensions, or

number of packages which may be used to enclose any commodity;
Sec. 5 FAIR PACKAGING AND LABELING ACT 124

1 Repetition so in law. The word ‘‘if’’ in clause (2) of subsection (e) probably should be stricken.

(2) regulate the placement upon any package containing

any commodity, or upon any label affixed to such commodity,

of any printed matter stating or representing by implication

that such commodity is offered for retail sale at a price lower

than the ordinary and customary retail sale price or that a retail sale price advantage is accorded to purchasers thereof by

reason of the size of that package or the quantity of its contents;

(3) require that the label on each package of a consumer

commodity (other than one which is a food within the meaning

of section 201(f) of the Federal Food, Drug, and Cosmetic Act)

bear (A) the common or usual name of such consumer commodity, if any, and (B) in case such consumer commodity consists of two or more ingredients, the common or usual name of

each such ingredient listed in order of decreasing predominance, but nothing in this paragraph shall be deemed to require that any trade secret be divulged; or

(4) prevent the nonfunctional-slack-fill of packages containing consumer commodities.

For purposes of paragraph (4) of this subsection, a package shall

be deemed to be nonfunctionally slack-filled if it is filled to substantially less than its capacity for reasons other than (A) protection of the contents of such package or (B) the requirements of machines used for enclosing the contents in such package.

(d) Whenever the Secretary of Commerce determines that there

is undue proliferation of the weights or masses, measures, or quantities in which any consumer commodity or reasonably comparable

consumer commodities are being distributed in packages for sale at

retail and such undue proliferation impairs the reasonable ability

of consumers to make value comparisons with respect to such consumer commodity or commodities, he shall request manufacturers,

packers, and distributors of the commodity or commodities to participate in the development of a voluntary product standard for

such commodity or commodities under the procedures for the development of voluntary products standards established by the Secretary pursuant to section 2 of the Act of March 3, 1901 (31 Stat.

1449, as amended; 15 U.S.C. 272). Such procedures shall provide

adequate manufacturer, packer, distributor, and consumer representation.

(e) If (1) after one year after the date on which the Secretary

of Commerce first makes the request of manufacturers, packers,

and distributors to participate in the development of a voluntary

product standard as provided in subsection (d) of this section, he

determines that such a standard will not be published pursuant to

the provisions of such subsection (d), or (2) if 1 such a standard is

published and the Secretary of Commerce determines that it has

not been observed, he shall promptly report such determination to

the Congress with a statement of the efforts that have been made

under the voluntary standards program and his recommendation

as to whether Congress should enact legislation providing regulatory authority to deal with the situation in question.
125 Sec. 7 FAIR PACKAGING AND LABELING ACT

PROCEDURE FOR PROMULGATION OF REGULATIONS

SEC. 6. ø15 U.S.C. 1455¿ (a) Regulations promulgated by the

Secretary under section 4 or section 5 of this Act shall be promulgated, and shall be subject to judicial review, pursuant to the provisions of subsections (e), (f), and (g) of section 701 of the Federal

Food, Drug, and Cosmetic Act (21 U.S.C. 371 (e), (f), and (g)). Hearings authorized or required for the promulgation of any such regulations by the Secretary shall be conducted by the Secretary or by

such officer or employee of the Department of Health, Education,

and Welfare as he may designate for that purpose.

(b) Regulations promulgated by the Commission under section

4 or section 5 of this Act shall be promulgated, and shall be subject

to judicial review, by proceedings taken in conformity with the provisions of subsections (e), (f), and (g) of section 701 of the Federal

Food, Drug, and Cosmetic Act (21 U.S.C. 371 (e), (f), and (g)) in the

same manner, and with the same effect, as if such proceedings

were taken by the Secretary pursuant to subsection (a) of this section. Hearings authorized or required for the promulgation of any

such regulations by the Commission shall be conducted by the

Commission or by such officer or employee of the Commission as

the Commission may designate for that purpose.

(c) In carrying into effect the provisions of this Act, the Secretary and the Commission are authorized to cooperate with any

department or agency of the United States, with any State, Commonwealth, or possession of the United States, and with any department, agency, or political subdivision of any such State, Commonwealth, or possession.

(d) No regulation adopted under this Act shall preclude the

continued use of returnable or reusable glass containers for beverages in inventory or with the trade as of the effective date of this

Act, nor shall any regulation under this Act preclude the orderly

disposal of packages in inventory or with the trade as of the effective date of such regulation.

ENFORCEMENT

SEC. 7. ø15 U.S.C. 1456¿ (a) Any consumer commodity which

is a food, drug, device, or cosmetic, as each such term is defined

by section 201 of the Federal Food, Drug, and Cosmetic Act (21

U.S.C. 321), and which is introduced or delivered for introduction

into commerce in violation of any of the provisions of this Act, or

the regulations issued pursuant to this Act, shall be deemed to be

misbranded within the meaning of chapter III of the Federal Food,

Drug, and Cosmetic Act, but the provisions of section 303 of that

Act (21 U.S.C. 333) shall have no application to any violation of

section 3 of this Act.

(b) Any violation of any of the provisions of this Act, or the regulations issued pursuant to this Act, with respect to any consumer

commodity which is not a food, drug, device, or cosmetic, shall constitute an unfair or deceptive act or practice in commerce in violation of section 5(a) of the Federal Trade Commission Act and shall

be subject to enforcement under section 5(b) of the Federal Trade

Commission Act.

(c) In the case of any imports into the United States of any

consumer commodity covered by this Act, the provisions of sections
Sec. 8 FAIR PACKAGING AND LABELING ACT 126

1 Editorially supplied. Section 8 heading omitted in law.

2Designation so in law. Subsections (a) through (f) probably should have been paragraphs (1)

through (6).

4 and 5 of this Act shall be enforced by the Secretary of the Treasury pursuant to section 801 (a) and (b) of the Federal Food, Drug,

and Cosmetic Act (21 U.S.C. 381).

[ANNUAL REPORTS TO CONGRESS] 1

SEC. 8. ø15 U.S.C. 1457¿ Each officer or agency required or authorized by this Act to promulgate regulations for the packaging or

labeling of any consumer commodity, shall transmit to the Congress each year a report containing a full and complete description

of the activities of that officer or agency for the administration and

enforcement of this Act during the preceding fiscal year. All agencies except the Department of Health and Human Services and the

Federal Trade Commission shall submit their reports in January of

each year. The Department of Health and Human Services shall include this report in its annual report to Congress on activities

under the Federal Food, Drug, and Cosmetic Act, and the Federal

Trade Commission shall include this report in the Commission’s

annual report to Congress.

COOPERATION WITH STATE AUTHORITIES

SEC. 9. ø15 U.S.C. 1458¿ (a) A copy of each regulation promulgated under this Act shall be transmitted promptly to the Secretary of Commerce, who shall (1) transmit copies thereof to all appropriate State officers and agencies, and (2) furnish to such State

officers and agencies information and assistance to promote to the

greatest practicable extent uniformity in State and Federal regulation of the labeling of consumer commodities.

(b) Nothing contained in this section shall be construed to impair or otherwise interfere with any program carried into effect by

the Secretary of Health, Education, and Welfare under other provisions of law in cooperation with State governments or agencies, instrumentalities, or political subdivisions thereof.

DEFINITIONS

SEC. 10. ø15 U.S.C. 1459¿ For the purposes of this Act—

(a) 2 The term ‘‘consumer commodity’’, except as otherwise specifically provided by this subsection, means any food, drug, device,

or cosmetic (as those terms are defined by the Federal Food, Drug,

and Cosmetic Act), and any other article, product, or commodity of

any kind or class which is customarily produced or distributed for

sale through retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal

care or in the performance of services ordinarily rendered within

the household, and which usually is consumed or expended in the

course of such consumption or use. Such term does not include—

(1) any meat or meat product, poultry or poultry product,

or tobacco or tobacco product;

(2) any commodity subject to packaging or labeling requirements imposed by the Secretary of Agriculture pursuant

to the Federal Insecticide, Fungicide, and Rodenticide Act, or
127 Sec. 11 FAIR PACKAGING AND LABELING ACT

1Designation so in law. Subsections (a) through (c) probably should have been paragraphs (1)

through (3).

the provisions of the eighth paragraph under the heading ‘‘Bureau of Animal Industry’’ of the Act of March 4, 1913 (37 Stat.

832–833; 21 U.S.C. 151–157), commonly known as the VirusSerum-Toxin Act;

(3) any drug subject to the provisions of section 503(b)(1)

or 506 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.

353(b)(1) and 356);

(4) any beverage subject to or complying with packaging or

labeling requirements imposed under the Federal Alcohol Administration Act (27 U.S.C. 201 et seq.); or

(5) any commodity subject to the provisions of the Federal

Seed Act (7 U.S.C. 1551–1610).

(b) The term ‘‘package’’ means any container or wrapping in

which any consumer commodity is enclosed for use in the delivery

or display of that consumer commodity to retail purchasers, but

does not include— (1) shipping containers or wrappings used solely for the

transportation of any consumer commodity in bulk or in quantity to manufacturers, packers, or processors, or to wholesale

or retail distributors thereof;

(2) shipping containers or outer wrappings used by retailers to ship or deliver any commodity to retail customers if such

containers and wrappings bear no printed matter pertaining to

any particular commodity; or

(3) containers subject to the provisions of the Act of August

3, 1912 (37 Stat. 250, as amended; 15 U.S.C. 231–233), or the

Act of March 4, 1915 (38 Stat. 1186, as amended; 15 U.S.C.

234–236).

(c) The term ‘‘label’’ means any written, printed, or graphic

matter affixed to any consumer commodity or affixed to or appearing upon a package containing any consumer commodity.

(d) The term ‘‘person’’ includes any firm, corporation, or association.

(e) The term ‘‘commerce’’ means (1) commerce between any

State, the District of Columbia, the Commonwealth of Puerto Rico,

or any territory or possession of the United States, and any place

outside thereof, and (2) commerce within the District of Columbia

or within any territory or possession of the United States not organized with a legislative body, but shall not include exports to foreign countries.

(f) The term ‘‘principal display panel’’ means that part of a

label that is most likely to be displayed, presented, shown, or examined under normal and customary conditions of display for retail

sale.

SAVING PROVISION

SEC. 11. ø15 U.S.C. 1460¿ Nothing contained in this Act shall

be construed to repeal, invalidate, or supersede—

(a) 1 the Federal Trade Commission Act or any statute defined therein as an antitrust Act;

(b) the Federal Food, Drug, and Cosmetic Act; or

(c) the Federal Hazardous Substances Labeling Act.
Sec. 12 FAIR PACKAGING AND LABELING ACT 128

EFFECT UPON STATE LAW

SEC. 12. ø15 U.S.C. 1461¿ It is hereby declared that it is the

express intent of Congress to supersede any and all laws of the

States or political subdivisions thereof insofar as they may now or

hereafter provide for the labeling of the net quantity of contents of

the package of any consumer commodity covered by this Act which

are less stringent than or require information different from the requirements of section 4 of this Act or regulations promulgated pursuant thereto.

EFFECTIVE DATE

SEC. 13. ø15 U.S.C. 1451 note¿ This Act shall take effect on

July 1, 1967: Provided, That the Secretary (with respect to any consumer commodity which is a food, drug, device, or cosmetic, as

those terms are defined by the Federal Food, Drug, and Cosmetic

Act), and the Commission (with respect to any other consumer commodity) may by regulation postpone, for an additional twelvemonth period, the effective date of this Act with respect to any

class or type of consumer commodity on the basis of a finding that

such a postponement would be in the public interest.
129

POISON PREVENTION PACKAGING ACT OF 1970

NOTE.—Section 30(a) of the Consumer Product Safety Act (15

U.S.C. 2079(a)) (p. 176) transferred the functions of the Secretary

of Health, Education, and Welfare under the Poison Prevention

Packaging Act of 1970 (15 U.S.C. 1471 et seq.) to the Consumer

Product Safety Commission.

131

1 Headings editorially supplied.

2 Indentation of paragraphs (1) through (5) so in law.

3Section 30(a) of the Consumer Product Safety Act (15 U.S.C. 2079(a)) (p. 176) transferred

the functions of the Secretary of Health, Education, and Welfare under this Act to the Consumer

Product Safety Commission.

POISON PREVENTION PACKAGING ACT

[Public Law 91–601, 84 Stat. 1670, December 30, 1970]

[As amended through Public Law 97–414, January 4, 1983]

AN ACT To provide for special packaging to protect children from serious personal

injury or serious illness resulting from handling, using, or ingesting household

substances, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

[SHORT TITLE] 1

SECTION 1. ø15 U.S.C. 1471 note¿ This Act may be cited as the

‘‘Poison Prevention Packaging Act of 1970’’.

[DEFINITIONS]

SEC. 2. ø15 U.S.C. 1471¿ For the purpose of this Act—

(1) 2 The term ‘‘Secretary’’ means the Secretary of Health, Education, and Welfare. 3

(2) The term ‘‘household substance’’ means any substance

which is customarily produced or distributed for sale for consumption or use, or customarily stored, by individuals in or about the

household and which is—

(A) a hazardous substance as that term is defined in section 2(f) of the Federal Hazardous Substances Act (15 U.S.C.

1261(f));

(B) a food, drug, or cosmetic as those terms are defined in

section 201 of the Federal Food, Drug, and Cosmetic Act (21

U.S.C. 321); or

(C) a substance intended for use as fuel when stored in a

portable container and used in the heating, cooking, or refrigeration system of a house.

(3) The term ‘‘package’’ means the immediate container or

wrapping in which any household substance is contained for consumption, use, or storage by individuals in or about the household,

and, for purposes of section 4(a)(2) of this Act, also means any

outer container or wrapping used in the retail display of any such

substance to consumers. Such term does not include—

(A) any shipping container or wrapping used solely for the

transportation of any household substance in bulk or in quantity to manufacturers, packers, or processors, or to wholesale

or retail distributors thereof, or
Sec. 3 POISON PREVENTION PACKAGING ACT 132

1 Comma in section 3(a) so in law.

(B) any shipping container or outer wrapping used by retailers to ship or deliver any household substance to consumers

unless it is the only such container or wrapping.

(4) The term ‘‘special packaging’’ means packaging that is designed or constructed to be significantly difficult for children under

five years of age to open or obtain a toxic or harmful amount of

the substance contained therein within a reasonable time and not

difficult for normal adults to use properly, but does not mean packaging which all such children cannot open or obtain a toxic or

harmful amount within a reasonable time.

(5) The term ‘‘labeling’’ means all labels and other written,

printed, or graphic matter (A) upon any household substance or its

package, or (B) accompanying such substance.

[SPECIAL PACKAGING STANDARDS]

SEC. 3. ø15 U.S.C. 1472¿ (a) The Secretary, 1 may establish in

accordance with the provisions of this Act, by regulation, standards

for the special packaging of any household substance if he finds

that—

(1) the degree or nature of the hazard to children in the

availability of such substance, by reason of its packaging, is

such that special packaging is required to protect children from

serious personal injury or serious illness resulting from handling, using, or ingesting such substance; and

(2) the special packaging to be required by such standard

is technically feasible, practicable, and appropriate for such

substance.

(b) In establishing a standard under this section, the Secretary

shall consider—

(1) the reasonableness of such standard;

(2) available scientific, medical, and engineering data concerning special packaging and concerning childhood accidental

ingestions, illness, and injury caused by household substances;

(3) the manufacturing practices of industries affected by

this Act; and

(4) the nature and use of the household substance.

(c) In carrying out this Act, the Secretary shall publish his

findings, his reasons therefor, and citation of the sections of statutes which authorize his action.

(d) Nothing in this Act shall authorize the Secretary to prescribe specific packaging designs, product content, package quantity, or, with the exception of authority granted in section 4(a)(2)

of this Act, labeling. In the case of a household substance for which

special packaging is required pursuant to a regulation under this

section, the Secretary may in such regulation prohibit the packaging of such substance in packages which he determines are unnecessarily attractive to children.

[MARKETING OF NONCOMPLYING PACKAGES]

SEC. 4. ø15 U.S.C. 1473¿ (a) For the purpose of making any

household substance which is subject to a standard established

under section 3 readily available to elderly or handicapped persons
133 Sec. 5 POISON PREVENTION PACKAGING ACT

unable to use such substance when packaged in compliance with

such standard, the manufacturer or packer, as the case may be,

may package any household substance, subject to such a standard,

in packaging of a single size which does not comply with such

standard if—

(1) the manufacturer (or packer) also supplies such substance in packages which comply with such standard; and

(2) the packages of such substance which do not meet such

standard bear conspicuous labeling stating: ‘‘This package for

households without young children’’; except that the Secretary

may by regulation prescribe a substitute statement to the same

effect for packaging too small to accommodate such labeling.

(b) In the case of a household substance which is subject to

such a standard and which is dispensed pursuant to an order of a

physician, dentist, or other licensed medical practitioner authorized

to prescribe, such substance may be dispensed in noncomplying

packages only when directed in such order or when requested by

the purchaser.

(c) In the case of a household substance subject to such a

standard which is packaged under subsection (a) in a noncomplying

package, if the Secretary determines that such substance is not

also being supplied by a manufacturer (or packer) in popular size

packages which comply with such standard, he may, after giving

the manufacturer (or packer) an opportunity to comply with the

purposes of this Act, by order require such substance to be packaged by such manufacturer (or packer) exclusively in special packaging complying with such standard if he finds, after opportunity

for hearing, that such exclusive use of special packaging is necessary to accomplish the purposes of this Act.

[PROCEEDINGS]

SEC. 5. ø15 U.S.C. 1474¿ (a) Proceedings to issue, amend, or

repeal a regulation prescribing a standard under section 3 shall be

conducted in accordance with the procedures prescribed by section

553 (other than paragraph (3)(B) of the last sentence of subsection

(b) of such section) of title 5 of the United States Code unless the

Secretary elects the procedures prescribed by subsection (e) of section 701 of the Federal Food, Drug, and Cosmetic Act, in which

event such subsection and subsections (f) and (g) of such section

701 shall apply to such proceedings. If the Secretary makes such

election, he shall publish that fact with the proposal required to be

published under paragraph (1) of such subsection (e).

(b)(1) In the case of any standard prescribed by a regulation

issued in accordance with section 553 of title 5 of the United States

Code, any person who will be adversely affected by such a standard

may, at any time prior to the 60th day after the regulation prescribing such standard is issued by the Secretary, file a petition

with the United States Court of Appeals for the circuit in which

such person resides or has his principal place of business for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary or other

officer designated by him for that purpose. The Secretary shall file

in the court the record of the proceedings on which the Secretary
Sec. 6 POISON PREVENTION PACKAGING ACT 134

1Section 6 amended the Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.), and the Federal Food,

Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).

based his standard, as provided in section 2112 of title 28 of the

United States Code.

(2) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that

such additional evidence is material and that there was no opportunity to adduce such evidence in the proceeding before the Secretary, the court may order such additional evidence (and evidence

in rebuttal thereof) to be taken before the Secretary in a hearing

or in such other manner, and upon such terms and conditions, as

to the court may seem proper. The Secretary may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken, and he shall file such modified or new

findings, and his recommendation, if any, for the modification or

setting aside of his original standard, with the return of such additional evidence.

(3) Upon the filing of the petition under paragraph (1) of this

subsection the court shall have jurisdiction to review the standard

of the Secretary in accordance with subparagraphs (A), (B), (C),

and (D) of paragraph (2) of section 706 of title 5 of the United

States Code. If the court ordered additional evidence to be taken

under paragraph (2) of this subsection, the court shall also review

the Secretary’s standard to determine if, on the basis of the entire

record before the court pursuant to paragraphs (1) and (2) of this

subsection, it is supported by substantial evidence. If the court

finds the standard is not so supported, the court may set it aside.

(4) With respect to any standard reviewed under this subsection, the court may grant appropriate relief pending conclusion

of the review proceedings, as provided in section 705 of such title

5.

(5) The judgment of the court affirming or setting aside, in

whole or in part, any such standard of the Secretary 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.

[AMENDMENTS]

SEC. 6. [Omitted.] 1

[PREEMPTION]

SEC. 7. ø15 U.S.C. 1476¿ (a) Except as provided in subsections

(b) and (c), whenever a standard established by the Secretary

under this Act applicable to a household substance is in effect, no

State or political subdivision thereof shall have any authority either to establish or continue in effect, with respect to such household substance, any standard for special packaging (and any exemption therefrom and requirement related thereto) which is not

identical to the standard established under section 3 (and any exemption therefrom and requirement related thereto) of this Act.

(b) The Federal Government and the government of any State

or political subdivision of a State may establish and continue in effect, with respect to a household substance for its own use, a stand-
135 Sec. 8 POISON PREVENTION PACKAGING ACT

ard for special packaging or related requirement which is designed

to protect against a risk of illness or injury with respect to which

a standard for special packaging or related requirement is in effect

under this Act and which is not identical to such standard or requirement if the Federal, State, or political subdivision standard or

requirement provides a higher degree of protection from such risk

of illness or injury than the standard or requirement in effect

under this Act.

(c)(1) Upon application of a State or political subdivision of a

State, the Commission may, by regulation promulgated in accordance with paragraph (2), exempt from subsection (a), under such

conditions as may be prescribed in such regulation, any standard

for special packaging or related requirement of such State or political subdivision applicable to a household substance subject to a

standard or requirement in effect under this Act if—

(A) compliance with the State or political subdivision

standard or requirement would not cause the household substance to be in violation of the standard or requirement in effect under this Act, and

(B) the State or political subdivision standard or requirement (i) provides a significantly higher degree of protection

from the risk of illness or injury with respect to which the Federal standard or requirement is in effect, and (ii) does not unduly burden interstate commerce.

In determining the burden, if any, of a State or political subdivision standard or requirement on interstate commerce the Commission shall consider and make appropriate (as determined by the

Commission in its discretion) findings on the technological and economic feasibility of complying with such standard or requirement,

the cost of complying with such standard or requirement, the geographic distribution of the household substance to which the standard or requirement would apply, the probability of other States or

political subdivisions applying for an exemption under this subsection for a similar standard or requirement, and the need for a

national, uniform standard or requirement under this Act for such

household substance.

(2) A regulation under paragraph (1) granting an exemption for

a standard or requirement of a State or political subdivision of a

State may be promulgated by the Commission only after it has provided, in accordance with section 553(b) of title 5, United States

Code, notice with respect to the promulgation of the regulation and

has provided opportunity for the oral presentation of views respecting its promulgation.

[EFFECTIVE DATE]

SEC. 8. ø15 U.S.C. 1471 note¿ This Act shall take effect on the

date of its enactment. Each regulation establishing a special packaging standard shall specify the date such standard is to take effect

which date shall not be sooner than one hundred and eighty days

or later than one year from the date such regulation is final, unless

the Secretary, for good cause found, determines that an earlier effective date is in the public interest and publishes in the Federal

Register his reason for such finding, in which case such earlier

date shall apply. No such standard shall be effective as to house-
Sec. 8 POISON PREVENTION PACKAGING ACT 136

hold substances subject to this Act packaged prior to the effective

date of such final regulation.
137

CONSUMER PRODUCT SAFETY ACT

139

1Description so in law. Probably should be ‘‘Sec. 9. Procedure for consumer product safety

rules.’’ 2So in law. The item relating to section 10 probably should be stricken.

3 Editorially supplied.

CONSUMER PRODUCT SAFETY ACT

[Public Law 92–573, 86 Stat. 1207, October 27, 1972]

[As amended through Public Law 103–437, November 2, 1994]

AN ACT To prohibit the introduction or movement in interstate commerce or articles of wearing apparel and fabrics which are so highly flammable as to be dangerous when worn by individuals, and for other purposes.

SHORT TITLE; TABLE OF CONTENTS

SECTION 1. ø15 U.S.C. 2051 note¿ This Act may be cited as the ‘‘Consumer Product Safety Act’’.

TABLE OF CONTENTS

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Definitions.

Sec. 4. Consumer Product Safety Commission.

Sec. 5. Product safety information and research.

Sec. 6. Public disclosure of information.

Sec. 7. Consumer product safety standards.

Sec. 8. Banned hazardous products.

Sec. 9. Administrative procedure applicable to promulgation of consumer product

safety rules. 1

Sec. 10. Commission responsibility—petition for consumer product safety rule. 2

Sec. 11. Judicial review of consumer product safety rules.

Sec. 12. Imminent hazards.

[Sec. 13. Repealed.]

Sec. 14. Product certification and labeling.

Sec. 15. Notification and repair, replacement, or refund.

Sec. 16. Inspection and recordkeeping.

Sec. 17. Imported products.

Sec. 18. Exports.

Sec. 19. Prohibited acts.

Sec. 20. Civil penalties.

Sec. 21. Criminal penalties.

Sec. 22. Injunctive enforcement and seizure.

Sec. 23. Suits for damages by persons injured.

Sec. 24. Private enforcement of product safety rules and of section 15 orders.

Sec. 25. Effect on private remedies.

Sec. 26. Effect on State standards.

Sec. 27. Additional functions of Commission.

Sec. 28. Chronic Hazards Advisory Panel.

Sec. 29. Cooperation with States and with other Federal agencies.

Sec. 30. Transfers of functions.

Sec. 31. Limitation on jurisdiction.

Sec. 32. Authorization of appropriations.

Sec. 33. Separability.

Sec. 34. Effective date.

[Sec. 35. Interim cellulose insulation safety standard.] 3

[Sec. 36. Congressional veto of consumer product safety rules.] 3

[Sec. 37. Information reporting.] 3
Sec. 2 CONSUMER PRODUCT SAFETY ACT 140

FINDINGS AND PURPOSES

SEC. 2. ø15 U.S.C. 2051¿ (a) The Congress finds that— (1) an unacceptable number of consumer products which

present unreasonable risks of injury are distributed in commerce;

(2) complexities of consumer products and the diverse nature and abilities of consumers using them frequently result in

an inability of users to anticipate risks and to safeguard themselves adequately;

(3) the public should be protected against unreasonable

risks of injury associated with consumer products;

(4) control by State and local governments of unreasonable

risks of injury associated with consumer products is inadequate and may be burdensome to manufacturers;

(5) existing Federal authority to protect consumers from

exposure to consumer products presenting unreasonable risks

of injury is inadequate; and

(6) regulation of consumer products the distribution or use

of which affects interstate or foreign commerce is necessary to

carry out this Act.

(b) The purposes of this Act are—

(1) to protect the public against unreasonable risks of injury associated with consumer products;

(2) to assist consumers in evaluating the comparative safety of consumer products;

(3) to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations;

and

(4) to promote research and investigation into the causes

and prevention of product-related deaths, illnesses, and injuries.

DEFINITIONS

SEC. 3. ø15 U.S.C. 2052¿ (a) For purposes of this Act:

(1) The term ‘‘consumer product’’ means any article, or

component part thereof, produced or distributed (i) for sale to

a consumer for use in or around a permanent or temporary

household or residence, a school, in recreation, or otherwise, or

(ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or

residence, a school, in recreation, or otherwise; but such term

does not include—

(A) any article which is not customarily produced or

distributed for sale to, or use or consumption by, or enjoyment of, a consumer,

(B) tobacco and tobacco products,

(C) motor vehicles or motor vehicle equipment (as defined by sections 102 (3) and (4) of the National Traffic

and Motor Vehicle Safety Act of 1966),

(D) pesticides (as defined by the Federal Insecticide,

Fungicide, and Rodenticide Act),

(E) any article which, if sold by the manufacturer, producer, or importer, would be subject to the tax imposed by

section 4181 of the Internal Revenue Code of 1954 (deter-
141 Sec. 3 CONSUMER PRODUCT SAFETY ACT

mined without regard to any exemptions from such tax

provided by section 4182 or 4221, or any other provision of

such Code), or any component of any such article,

(F) aircraft, aircraft engines, propellers, or appliances

(as defined in section 101 of the Federal Aviation Act of

1958),

(G) boats which could be subjected to safety regulation

under the Federal Boat Safety Act of 1971 (46 U.S.C. 1451

et seq.); vessels, and appurtenances to vessels (other than

such boats), which could be subjected to safety regulation

under title 52 of the Revised Statutes or other marine

safety statutes administered by the department in which

the Coast Guard is operating; and equipment (including

associated equipment, as defined in section 3(8) of the Federal Boat Safety Act of 1971) to the extent that a risk of

injury associated with the use of such equipment on boats

or vessels could be eliminated or reduced by action taken

under any statute referred to in this subparagraph,

(H) drugs, devices, or cosmetics (as such terms are defined in sections 201 (g), (h), and (i) of the Federal Food,

Drug, and Cosmetic Act), or

(I) food. The term ‘‘food’’, as used in this subparagraph

means all ‘‘food’’, as defined in section 201(f) of the Federal

Food, Drug, and Cosmetic Act, including poultry and poultry products (as defined in sections 4 (e) and (f) of the

Poultry Products Inspection Act), meat, meat food products

(as defined in section 1(j) of the Federal Meat Inspection

Act), and eggs and egg products (as defined in section 4 of

the Egg Products Inspection Act).

Such term includes any mechanical device which carries or

conveys passengers along, around, or over a fixed or restricted

route or course or within a defined area for the purpose of giving its passengers amusement, which is customarily controlled

or directed by an individual who is employed for that purpose

and who is not a consumer with respect to such device, and

which is not permanently fixed to a site. Such term does not

include such a device which is permanently fixed to a site. Except for the regulation under this Act or the Federal Hazardous Substances Act of fireworks devices or any substance

intended for use as a component of any such device, the Commission shall have no authority under the functions transferred pursuant to section 30 of this Act to regulate any product or article described in subparagraph (E) of this paragraph

or described, without regard to quantity, in section 845(a)(5) of

title 18, United States Code. See sections 30(d) and 31 of this

Act, for other limitations on Commission’s authority to regulate

certain consumer products.

(2) The term ‘‘consumer product safety rule’’ means a consumer products safety standard described in section 7(a), or a

rule under this Act declaring a consumer product a banned

hazardous product.

(3) The term ‘‘risk of injury’’ means a risk of death, personal injury, or serious or frequent illness.

(4) The term ‘‘manufacturer’’ means any person who manufactures or imports a consumer product.
Sec. 4 CONSUMER PRODUCT SAFETY ACT 142

(5) The term ‘‘distributor’’ means a person to whom a consumer product is delivered or sold for purposes of distribution

in commerce, except that such term does not include a manufacturer or retailer of such product.

(6) The term ‘‘retailer’’ means a person to whom a consumer product is delivered or sold for purposes of sale or distribution by such person to a consumer.

(7)(A) The term ‘‘private labeler’’ means an owner of a

brand or trademark on the label of a consumer product which

bears a private label.

(B) A consumer product bears a private label if (i) the

product (or its container) is labeled with the brand or trademark of a person other than a manufacturer of the product, (ii)

the person with whose brand or trademark the product (or container) is labeled has authorized or caused the product to be

so labeled, and (iii) the brand or trademark of a manufacturer

of such product does not appear on such label.

(8) The term ‘‘manufactured’’ means to manufacture,

produce, or assemble.

(9) The term ‘‘Commission’’ means the Consumer Product

Safety Commission, established by section 4.

(10) The term ‘‘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.

(11) The terms ‘‘to distribute in commerce’’ and ‘‘distribution in commerce’’ means to sell in commerce, to introduce or

deliver for introduction into commerce, or to hold for sale or

distribution after introduction into commerce.

(12) 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).

(13) The terms ‘‘import’’ and ‘‘importation’’ include reimporting a consumer product manufactured or processed, in

whole or in part, in the United States.

(14) The term ‘‘United States’’, when used in the geographic sense, means all of the States (as defined in paragraph

(10)).

(b) A common carrier, contract carrier, or freight forwarder

shall not, for purposes of this Act, be deemed to be a manufacturer,

distributor, or retailer of a consumer product solely by reason of receiving or transporting a consumer product in the ordinary course

of its business as such a carrier or forwarder.

CONSUMER PRODUCT SAFETY COMMISSION

SEC. 4. ø15 U.S.C. 2053¿ (a) An independent regulatory commission is hereby established, to be known as the Consumer Product Safety Commission, consisting of five Commissioners who shall

be appointed by the President, by and with the advice and consent

of the Senate. In making such appointments, the President shall
143 Sec. 4 CONSUMER PRODUCT SAFETY ACT

consider individuals who, by reason of their background and expertise in areas related to consumer products and protection of the

public from risks to safety, are qualified to serve as members of the

Commission. The Chairman shall be appointed by the President, by

and with the advice and consent of the Senate, from among the

members of the Commission. An individual may be appointed as a

member of the Commission and as Chairman at the same time.

Any member of the Commission may be removed by the President

for neglect of duty or malfeasance in office but for no other cause.

(b)(1) Except as provided in paragraph (2), (A) the Commissioners first appointed under this section shall be appointed for

terms ending three, four, five, six, and seven years, respectively,

after the date of the enactment of this Act, the term of each to be

designated by the President at the time of nomination; and (B)

each of their successors shall be appointed for a term of seven

years from the date of the expiration of the term for which his

predecessor was appointed.

(2) Any Commissioner appointed to fill a vacancy occurring

prior to the expiration of the term for which his predecessor was

appointed shall be appointed only for the remainder of such term.

A Commissioner may continue to serve after the expiration of his

term until his successor has taken office, except that he may not

so continue to serve more than one year after the date on which

his term would otherwise expire under this subsection.

(c) Not more than three of the Commissioners shall be affiliated with the same political party. No individual (1) in the employ

of, or holding any official relation to, any person engaged in selling

or manufacturing consumer products, or (2) owning stock or bonds

of substantial value in a person so engaged, or (3) who is in any

other manner pecuniarily interested in such a person, or in a substantial supplier of such a person, shall hold the office of Commissioner. A Commissioner may not engage in any other business, vocation, or employment.

(d) No vacancy in the Commission shall impair the right of the

remaining Commissioners to exercise all the powers of the Commission, but three members of the Commission shall constitute a

quorum for the transaction of business, except that if there are

only three members serving on the Commission because of vacancies in the Commission, two members of the Commission shall constitute a quorum for the transaction of business, and if there are

only two members serving on the Commission because of vacancies

in the Commission, two members shall constitute a quorum for the

six month period beginning on the date of the vacancy which

caused the number of Commission members to decline to two. The

Commission shall have an official seal of which judicial notice shall

be taken. The Commission shall annually elect a Vice Chairman to

act in the absence or disability of the Chairman or in case of a vacancy in the office of the Chairman.

(e) The Commission shall maintain a principal office and such

field offices as it deems necessary and may meet and exercise any

of its powers at any other place.

(f)(1) The Chairman of the Commission shall be the principal

executive officer of the Commission, and he shall exercise all of the

executive and administrative functions of the Commission, including functions of the Commission with respect to (A) the appoint-
Sec. 4 CONSUMER PRODUCT SAFETY ACT 144

ment and supervision of personnel employed under the Commission

(other than personnel employed regularly and full time in the immediate offices of commissioners other than the Chairman), (B) the

distribution of business among personnel appointed and supervised

by the Chairman and among administrative units of the Commission, and (C) the use and expenditure of funds.

(2) In carrying out any of his functions under the provisions of

this subsection the Chairman shall be governed by general policies

of the Commission and by such regulatory decisions, findings, and

determinations as the Commission may by law be authorized to

make.

(3) Requests or estimates for regular, supplemental, or deficiency appropriations on behalf of the Commission may not be submitted by the Chairman without the prior approval of the Commission.

(g)(1)(A) The Chairman, subject to the approval of the Commission, shall appoint as officers of the Commission an Executive Director, a General Counsel, an Associate Executive Director for Engineering Sciences, an Associate Executive Director for Epidemiology, an Associate Executive Director for Compliance and Administrative Litigation, an Associate Executive Director for Health

Sciences, an Associate Executive Director for Economic Analysis,

an Associate Executive Director for Administration, an Associate

Executive Director for Field Operations, a Director for Office of

Program, Management, and Budget, and a Director for Office of Information and Public Affairs. Any other individual appointed to a

position designated as an Associate Executive Director shall be appointed by the Chairman, subject to the approval of the Commission. The Chairman may only appoint an attorney to the position

of Associate Executive Director of Compliance and Administrative

Litigation except the position of acting Associate Executive Director

of Compliance and Administrative Litigation.

(B)(i) No individual may be appointed to such a position on an

acting basis for a period longer than 90 days unless such appointment is approved by the Commission.

(ii) The Chairman, with the approval of the Commission, may

remove any individual serving in a position appointed under subparagraph (A).

(C) Subparagraph (A) shall not be construed to prohibit appropriate reorganizations or changes in classification.

(2) The Chairman, subject to subsection (f)(2), may employ

such other officers and employees (including attorneys) as are necessary in the execution of the Commission’s functions.

(3) In addition to the number of positions authorized by section

5108(a) of title 5, United States Code, the Chairman, subject to the

approval of the Commission, and subject to the standards and procedures prescribed by chapter 51 of title 5, United States Code,

may place a total of twelve positions in grades GS–16, GS–17, and

GS–18.

(4) The appointment of any officer (other than a Commissioner)

or employee of the Commission shall not be subject, directly or indirectly, to review or approval by any officer or entity within the

Executive Office of the President.
145 Sec. 5 CONSUMER PRODUCT SAFETY ACT

1Section 4(h) amended title 5, United States Code.

(h) [Omitted.] 1

(i) Subsections (a) and (h) of section 2680 of title 28, United

States Code, do not prohibit the bringing of a civil action on a

claim against the United States which— (1) is based upon— (A) misrepresentation or deceit on the part of the

Commission or any employee thereof, or

(B) any exercise or performance, or failure to exercise

or perform, a discretionary function on the part of the

Commission or any employee thereof which exercise, performance, or failure was grossly negligent; and

(2) is not made with respect to any agency action (as defined in section 551(13) of title 5, United States Code).

In the case of a civil action on a claim based upon the exercise or

performance of, or failure to exercise or perform, a discretionary

function, no judgment may be entered against the United States

unless the court in which such action was brought determines

(based upon consideration of all the relevant circumstances, including the statutory responsibility of the Commission and the public

interest in encouraging rather than inhibiting the exercise of discretion) that such exercise, performance, or failure to exercise or

perform was unreasonable.

(j) At least 30 days before the beginning of each fiscal year, the

Commission shall establish an agenda for Commission action under

the Acts under its jurisdiction and, to the extent feasible, shall establish priorities for such actions. Before establishing such agenda

and priorities, the Commission shall conduct a public hearing on

the agenda and priorities and shall provide reasonable opportunity

for the submission of comments.

PRODUCT SAFETY INFORMATION AND RESEARCH

SEC. 5. ø15 U.S.C. 2054¿ (a) The Commission shall— (1) maintain an Injury Information Clearinghouse to collect, investigate, analyze, and disseminate injury data, and information, relating to the causes and prevention of death, injury, and illness associated with consumer products;

(2) conduct such continuing studies and investigations of

deaths, injuries, diseases, other health impairments, and economic losses resulting from accidents involving consumer products as it deems necessary;

(3) following publication of an advance notice of proposed

rulemaking or a notice of proposed rulemaking for a product

safety rule under any rulemaking authority administered by

the Commission, assist public and private organizations or

groups of manufacturers, administratively and technically, in

the development of safety standards addressing the risk of injury identified in such notice; and

(4) to the extent practicable and appropriate (taking into

account the resources and priorities of the Commission), assist

public and private organizations or groups of manufacturers,

administratively and technically, in the development or product safety standards and test methods.

(b) The Commission may—
Sec. 6 CONSUMER PRODUCT SAFETY ACT 146

(1) conduct research, studies, and investigations on the

safety of consumer products and on improving the safety of

such products;

(2) test consumer products and develop product safety test

methods and testing devices; and

(3) offer training in product safety investigation and test

methods.

(c) In carrying out its functions under this section, the Commission may make grants or enter into contracts for the conduct

of such functions with any person (including a governmental entity).

(d) Whenever the Federal contribution for any information, research, or development activity authorized by this Act is more than

minimal, the Commission shall include in any contract, grant, or

other arrangement for such activity, provisions effective to insure

that the rights to all information, uses, processes, patents, and

other developments resulting from that activity will be made available to the public without charge on a nonexclusive basis. Nothing

in this subsection shall be construed to deprive any person of any

right which he may have had, prior to entering into any arrangement referred to in this subsection, to any patent, patent application, or invention.

PUBLIC DISCLOSURE OF INFORMATION

SEC. 6. ø15 U.S.C. 2055¿ (a)(1) Nothing contained in this Act

shall be construed to require the release of any information described by subsection (b) of section 552 of title 5, United States

Code, or which is otherwise protected by law from disclosure to the

public.

(2) All information reported to or otherwise obtained by the

Commission or its representative under this Act which information

contains or relates to a trade secret or other matter referred to in

section 1905 of title 18, United States Code, or subject to section

552(b)(4) of title 5, United States Code, shall be considered confidential and shall not be disclosed.

(3) The Commission shall, prior to the disclosure of any information which will permit the public to ascertain readily the identity of a manufacturer or private labeler of a consumer product,

offer such manufacturer or private labeler an opportunity to mark

such information as confidential and therefore barred from disclosure under paragraph (2).

(4) All information that a manufacturer or private labeler has

marked to be confidential and barred from disclosure under paragraph (2), either at the time of submission or pursuant to paragraph (3), shall not be disclosed, except in accordance with the procedures established in paragraphs (5) and (6).

(5) If the Commission determines that a document marked as

confidential by a manufacturer or private labeler to be barred from

disclosure under paragraph (2) may be disclosed because it is not

confidential information as provided in paragraph (2), the Commission shall notify such person in writing that the Commission intends to disclose such document at a date not less than 10 days

after the date of receipt of notification.
147 Sec. 6 CONSUMER PRODUCT SAFETY ACT

(6) Any person receiving such notification may, if he believes

such disclosure is barred by paragraph (2), before the date set for

release of the document, bring an action in the district court of the

United States in the district in which the complainant resides, or

has his principal place of business, or in which the documents are

located, or in the United States District Court for the District of

Columbia to restrain disclosure of the document. Any person receiving such notification may file with the appropriate district

court or court of appeals of the United States, as appropriate, an

application for a stay of disclosure. The documents shall not be disclosed until the court has ruled on the application for a stay.

(7) Nothing in this Act shall authorize the withholding of information by the Commission or any officer or employee under its control from the duly authorized committees or subcommittees of the

Congress, and the provisions of paragraphs (2) through (6) shall

not apply to such disclosures, except that the Commission shall immediately notify the manufacturer or private labeler of any such

request for information designated as confidential by the manufacturer or private labeler.

(8) The provisions of paragraphs (2) through (6) shall not prohibit the disclosure of information to other officers, employees, or

representatives of the Commission (including contractors) concerned with carrying out this Act or when relevant in any administrative proceeding under this Act or in judicial proceedings to

which the Commission is a party. Any disclosure of relevant

information—

(A) in Commission administrative proceedings or in judicial proceedings to which the Commission is a party, or

(B) to representatives of the Commission (including contractors),

shall be governed by the rules of the Commission (including in

camera review rules for confidential material) for such proceedings

or for disclosures to such representatives or by court rules or orders, except that the rules of the Commission shall not be amended

in a manner inconsistent with the purposes of this section.

(b)(1) Except as provided by paragraph (4) of this subsection,

not less than 30 days prior to its public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith (unless the Commission finds that the public

health and safety requires a lesser period of notice and publishes

such a finding in the Federal Register), the Commission shall, to

the extent practicable, notify and provide a summary of the information to, each manufacturer or private labeler of any consumer

product to which such information pertains, if the manner in which

such consumer product is to be designated or described in such information will permit the public to ascertain readily the identity of

such manufacturer or private labeler, and shall provide such manufacturer or private labeler with a reasonable opportunity to submit

comments to the Commission in regard to such information. The

Commission shall take reasonable steps to assure, prior to its public disclosure thereof, that information from which the identity of

such manufacturer or private labeler may be readily ascertained is

accurate, and that such disclosure is fair in the circumstances and

reasonably related to effectuating the purposes of this Act. In dis-
Sec. 6 CONSUMER PRODUCT SAFETY ACT 148

closing any information under this subsection, the Commission

may, and upon the request of the manufacturer or private labeler

shall, include with the disclosure any comments or other information or a summary thereof submitted by such manufacturer or private labeler to the extent permitted by and subject to the requirements of this section.

(2) If the Commission determines that a document claimed to

be inaccurate by a manufacturer or private labeler under paragraph (1) should be disclosed because the Commission believes it

has complied with paragraph (1), the Commission shall notify the

manufacturer or private labeler that the Commission intends to

disclose such document at a date not less than 10 days after the

date of the receipt of notification. The Commission may provide a

lesser period of notice of intent to disclose if the Commission finds

that the public health and safety requires a lesser period of notice

and publishes such finding in the Federal Register.

(3) Prior to the date set for release of the document, the manufacturer or private labeler receiving the notice described in paragraph (2) may bring an action in the district court of the United

States in the district in which the complainant resides, or has his

principal place of business, or in which the documents are located

or in the United States District Court for the District of Columbia

to enjoin disclosure of the document. The district court may enjoin

such disclosure if the Commission has failed to take the reasonable

steps prescribed in paragraph (1).

(4) Paragraphs (1) through (3) of this subsection shall not

apply to the public disclosure of (A) information about any consumer product with respect to which product the Commission has

filed an action under section 12 (relating to imminently hazardous

products), or which the Commission has reasonable cause to believe

is in violation of section 19 (relating to prohibited acts); or (B) information in the course of or concerning a rulemaking proceeding

(which shall commence upon the publication of an advance notice

of proposed rulemaking or a notice of proposed rulemaking), an adjudicatory proceeding (which shall commence upon the issuance of

a complaint) or other administrative or judicial proceeding under

this Act.

(5) In addition to the requirements of paragraph (1), the Commission shall not disclose to the public information submitted pursuant to section 15(b) respecting a consumer product unless—

(A) the Commission has issued a complaint under section

15 (c) or (d) alleging that such product presents a substantial

product hazard;

(B) in lieu of proceeding against such product under section 15 (c) or (d), the Commission has accepted in writing a remedial settlement agreement dealing with such product; or

(C) the person who submitted the information under section 15(b) agrees to its public disclosure.

The provisions of this paragraph shall not apply to the public disclosure of information with respect to a consumer product which is

the subject of an action brought under section 12, or which the

Commission has reasonable cause to believe is in violation of section 19(a), or information in the course of or concerning a judicial

proceeding.
149 Sec. 6 CONSUMER PRODUCT SAFETY ACT

(6) Where the Commission initiates the public disclosure of information that reflects on the safety of a consumer product or class

of consumer products, whether or not such information would enable the public to ascertain readily the identity of a manufacturer

or private labeler, the Commission shall establish procedures designed to ensure that such information is accurate and not misleading.

(7) If the Commission finds that, in the administration of this

Act, it has made public disclosure of inaccurate or misleading information which reflects adversely upon the safety of any consumer

product or class of consumer products, or the practices of any manufacturer, private labeler, distributor, or retailer of consumer products, it shall, in a manner equivalent to that in which such disclosure was made, take reasonable steps to publish a retraction of

such inaccurate or misleading information.

(8) If, after the commencement of a rulemaking or the initiation of an adjudicatory proceeding, the Commission decides to terminate the proceeding before taking final action, the Commission

shall, in a manner equivalent to that in which such commencement

or initiation was publicized, take reasonable steps to make known

the decision to terminate.

(c) The Commission shall communicate to each manufacturer

of a consumer product, insofar as may be practicable, information

as to any significant risk of injury associated with such product.

(d)(1) For purposes of this section, the term ‘‘Act’’ means the

Consumer Product Safety Act, the Flammable Fabrics Act, the Poison Prevention Packaging Act, and the Federal Hazardous Substances Act.

(2) The provisions of this section shall apply whenever information is to be disclosed by the Commission, any member of the Commission, or any employee, agent, or representative of the Commission in an official capacity.

(e)(1) Notwithstanding the provisions of section 552 of title 5,

United States Code, subsection (a)(7) of this section, or of any other

law, except as provided in paragraphs (2), (3), and (4), no member

of the Commission, no officer or employee of the Commission, and

no officer or employee of the Department of Justice may— (A) publicly disclose information furnished under subsection (c)(1) or (c)(2)(A) of section 37;

(B) use such information for any purpose other than to

carry out the Commission’s responsibilities; or

(C) permit anyone (other than the members, officers, and

employees of the Commission or officers or employees of the

Department of Justice who require such information for an action filed on behalf of the Commission) to examine such information.

(2) Any report furnished under subsection (c)(1) or (c)(2)(A) of

section 37 shall be immune from legal process and shall not be subject to subpoena or other discovery in any civil action in a State

or Federal court or in any administrative proceeding, except in an

action against such manufacturer under section 20, 21, or 22 for

failure to furnish information required by section 37.

(3) The Commission may, upon written request, furnish to any

manufacturer or to the authorized agent of such manufacturer authenticated copies of reports furnished by or on behalf of such man-
Sec. 7 CONSUMER PRODUCT SAFETY ACT 150

ufacturer in accordance with section 37, upon payment of the actual or estimated cost of searching the records and furnishing such

copies.

(4) Upon written request of the Chairman or Ranking Minority

Member of the Committee on Commerce, Science, and Transportation of the Senate or the Committee on Energy and Commerce

of the House of Representatives or any subcommittee of such committee, the Commission shall provide to the Chairman or Ranking

Minority Member any information furnished to the Commission

under section 37 for purposes that are related to the jurisdiction

of such committee or subcommittee.

(5) Any officer or employee of the Commission or other officer

or employee of the Federal Government who receives information

provided under section 37, who willfully violates the requirements

of this subsection shall be subject to dismissal or other appropriate

disciplinary action consistent with procedures and requirements established by the Office of Personnel Management.

CONSUMER PRODUCT SAFETY STANDARDS

SEC. 7. ø15 U.S.C. 2056¿ (a) The Commission may promulgate

consumer product safety standards in accordance with the provisions of section 9. A consumer product safety standard shall consist

of one or more of any of the following types of requirements:

(1) Requirements expressed in terms of performance requirements.

(2) Requirements that a consumer product be marked with

or accompanied by clear and adequate warnings or instructions, or requirements respecting the form of warnings or instructions.

Any requirement of such a standard shall be reasonably necessary

to prevent or reduce an unreasonable risk of injury associated with

such product.

(b)(1) The Commission shall rely upon voluntary consumer

product safety standards rather than promulgate a consumer product safety standard prescribing requirements described in subsection (a) whenever compliance with such voluntary standards

would eliminate or adequately reduce the risk of injury addressed

and it is likely that there will be substantial compliance with such

voluntary standards.

(2) The Commission shall devise procedures to monitor compliance with any voluntary standards—

(A) upon which the Commission has relied under paragraph (1);

(B) which were developed with the participation of the

Commission; or

(C) whose development the Commission has monitored.

(c) If any person participates with the Commission in the development of a consumer product safety standard, the Commission

may agree to contribute to the person’s cost with respect to such

participation, in any case in which the Commission determines that

such contribution is likely to result in a more satisfactory standard

than would be developed without such contribution, and that the

person is financially responsible. Regulations of the Commission

shall set forth the items of cost in which it may participate, and
151 Sec. 9 CONSUMER PRODUCT SAFETY ACT

shall exclude any contribution to the acquisition of land or buildings. Payments under agreements entered into under this subsection may be made without regard to section 3648 of the Revised

Statutes of the United States (31 U.S.C. 529).

BANNED HAZARDOUS PRODUCTS

SEC. 8. ø15 U.S.C. 2057¿ Whenever the Commission finds

that—

(1) a consumer product is being, or will be, distributed in

commerce and such consumer product presents an unreasonable risk of injury; and

(2) no feasible consumer product safety standard under

this Act would adequately protect the public from the unreasonable risk of injury associated with such product,

the Commission may, in accordance with section 9, promulgate a

rule declaring such product a banned hazardous product.

PROCEDURE FOR CONSUMER PRODUCT SAFETY RULES

SEC. 9. ø15 U.S.C. 2058¿ (a) A proceeding for the development

of a consumer product safety rule shall be commenced by the publication in the Federal Register of an advance notice of proposed

rulemaking which shall— (1) identify the product and the nature of the risk of injury

associated with the product;

(2) include a summary of each of the regulatory alternatives under consideration by the Commission (including voluntary consumer product safety standards);

(3) include information with respect to any existing standard known to the Commission which may be relevant to the

proceedings, together with a summary of the reasons why the

Commission believes preliminarily that such standard does not

eliminate or adequately reduce the risk of injury identified in

paragraph (1);

(4) invite interested persons to submit to the Commission,

within such period as the Commission shall specify in the notice (which period shall not be less than 30 days or more than

60 days after the date of publication of the notice), comments

with respect to the risk of injury identified by the Commission,

the regulatory alternatives being considered, and other possible alternatives for addressing the risk;

(5) invite any person (other than the Commission) to submit to the Commission, within such period as the Commission

shall specify in the notice (which period shall not be less than

30 days after the date of publication of the notice), an existing

standard or a portion of a standard as a proposed consumer

product safety standard; and

(6) invite any person (other than the Commission) to submit to the Commission, within such period as the Commission

shall specify in the notice (which period shall not be less than

30 days after the date of publication of the notice), a statement

of intention to modify or develop a voluntary consumer product

safety standard to address the risk of injury identified in paragraph (1) together with a description of a plan to modify or develop the standard.
Sec. 9 CONSUMER PRODUCT SAFETY ACT 152

The Commission shall transmit such notice within 10 calendar

days to the Committee on Commerce, Science, and Transportation

of the Senate and the Committee on Energy and Commerce of the

House of Representatives.

(b)(1) If the Commission determines that any standard submitted to it in response to an invitation in a notice published under

subsection (a)(5) if promulgated (in whole, in part, or in combination with any other standard submitted to the Commission or any

part of such a standard) as a consumer product safety standard,

would eliminate or adequately reduce the risk of the injury identified in the notice under subsection (a)(1), the Commission may publish such standard, in whole, in part, or in such combination and

with nonmaterial modifications, as a proposed consumer product

safety rule.

(2) If the Commission determines that—

(A) compliance with any standard submitted to it in response to an invitation in a notice published under subsection

(a)(6) is likely to result in the elimination or adequate reduction of the risk of injury identified in the notice, and

(B) it is likely that there will be substantial compliance

with such standard,

the Commission shall terminate any proceeding to promulgate a

consumer product safety rule respecting such risk of injury and

shall publish in the Federal Register a notice which includes the

determination of the Commission and which notifies the public that

the Commission will rely on the voluntary standard to eliminate or

reduce the risk of injury, except that the Commission shall terminate any such proceeding and rely on a voluntary standard only if

such voluntary standard is in existence. For purposes of this section, a voluntary standard shall be considered to be in existence

when it is finally approved by the organization or other person

which developed such standard, irrespective of the effective date of

the standard. Before relying upon any voluntary consumer product

safety standard, the Commission shall afford interested persons

(including manufacturers, consumers, and consumer organizations)

a reasonable opportunity to submit written comments regarding

such standard. The Commission shall consider such comments in

making any determination regarding reliance on the involved voluntary standard under this subsection.

(c) No consumer product safety rule may be proposed by the

Commission unless, not less than 60 days after publication of the

notice required in subsection (a), the Commission publishes in the

Federal Register the text of the proposed rule, including any alternatives, which the Commission proposes to promulgate, together

with a preliminary regulatory analysis containing—

(1) a preliminary description of the potential benefits and

potential costs of the proposed rule, including any benefits or

costs that cannot be quantified in monetary terms, and an

identification of those likely to receive the benefits and bear

the costs;

(2) a discussion of the reasons any standard or portion of

a standard submitted to the Commission under subsection

(a)(5) was not published by the Commission as the proposed

rule or part of the proposed rule;
153 Sec. 9 CONSUMER PRODUCT SAFETY ACT

(3) a discussion of the reasons for the Commission’s preliminary determination that efforts proposed under subsection

(a)(6) and assisted by the Commission as required by section

5(a)(3) would not, within a reasonable period of time, be likely

to result in the development of a voluntary consumer product

safety standard that would eliminate or adequately reduce the

risk of injury addressed by the proposed rule; and

(4) a description of any reasonable alternatives to the proposed rule, together with a summary description of their potential costs and benefits, and a brief explanation of why such alternatives should not be published as a proposed rule.

The Commission shall transmit such notice within 10 calendar

days to the Committee on Commerce, Science, and Transportation

of the Senate and the Committee on Energy and Commerce of the

House of Representatives. Any proposed consumer product safety

rule shall be issued within twelve months after the date of publication of an advance notice of proposed rulemaking under subsection

(a) relating to the product involved, unless the Commission determines that such proposed rule is not reasonably necessary to eliminate or reduce the risk of injury associated with the product or is

not in the public interest. The Commission may extend the twelvemonth period for good cause. If the Commission extends such period, it shall immediately transmit notice of such extension to the

Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of

Representatives. Such notice shall include an explanation of the

reasons for such extension, together with an estimate of the date

by which the Commission anticipates such rulemaking will be completed. The Commission shall publish notice of such extension and

the information submitted to the Congress in the Federal Register.

(d)(1) Within 60 days after the publication under subsection (c)

of a proposed consumer product safety rule respecting a risk of injury associated with a consumer product, the Commission shall— (A) promulgate a consumer product safety rule respecting

the risk of injury associated with such product, if it makes the

findings required under subsection (f), or

(B) withdraw the applicable notice of proposed rulemaking

if it determines that such rule is not (i) reasonably necessary

to eliminate or reduce an unreasonable risk of injury associated with the product, or (ii) in the public interest;

except that the Commission may extend such 60-day period for

good cause shown (if it publishes its reasons therefor in the Federal

Register).

(2) Consumer product safety rules shall be promulgated in accordance with section 553 of title 5, United States Code, except

that the Commission shall give interested persons an opportunity

for the oral presentation of data, views, or arguments, in addition

to an opportunity to make written submissions. A transcript shall

be kept of any oral presentation.

(e) A consumer product safety rule shall express in the rule

itself the risk of injury which the standard is designed to eliminate

or reduce. In promulgating such a rule the Commission shall consider relevant available product data including the results of research, development, testing, and investigation activities conducted

generally and pursuant to this Act. In the promulgation of such a
Sec. 9 CONSUMER PRODUCT SAFETY ACT 154

rule the Commission shall also consider and take into account the

special needs of elderly and handicapped persons to determine the

extent to which such persons may be adversely affected by such

rule.

(f)(1) Prior to promulgating a consumer product safety rule, the

Commission shall consider, and shall make appropriate findings for

inclusion in such rule with respect to— (A) the degree and nature of the risk of injury the rule is

designed to eliminate or reduce;

(B) the approximate number of consumer products, or

types or classes thereof, subject to such rule;

(C) the need of the public for the consumer products subject to such rule, and the probable effect of such rule upon the

utility, cost, or availability of such products to meet such need;

and

(D) any means of achieving the objective of the order while

minimizing adverse effects on competition or disruption or dislocation of manufacturing and other commercial practices consistent with the public health and safety.

(2) The Commission shall not promulgate a consumer product

safety rule unless it has prepared, on the basis of the findings of

the Commission under paragraph (1) and on other information before the Commission, a final regulatory analysis of the rule containing the following information:

(A) A description of the potential benefits and potential

costs of the rule, including costs and benefits that cannot be

quantified in monetary terms, and the identification of those

likely to receive the benefits and bear the costs.

(B) A description of any alternatives to the final rule which

were considered by the Commission, together with a summary

description of their potential benefits and costs and a brief explanation of the reasons why these alternatives were not chosen.

(C) A summary of any significant issues raised by the comments submitted during the public comment period in response

to the preliminary regulatory analysis, and a summary of the

assessment by the Commission of such issues.

The Commission shall publish its final regulatory analysis with the

rule.

(3) The Commission shall not promulgate a consumer product

safety rule unless it finds (and includes such finding in the rule)— (A) that the rule (including its effective date) is reasonably

necessary to eliminate or reduce an unreasonable risk of injury

associated with such product;

(B) that the promulgation of the rule is in the public interest;

(C) in the case of a rule declaring the product a banned

hazardous product, that no feasible consumer product safety

standard under this Act would adequately protect the public

from the unreasonable risk of injury associated with such product;

(D) in the case of a rule which relates to a risk of injury

with respect to which persons who would be subject to such

rule have adopted and implemented a voluntary consumer

product safety standard, that—
155 Sec. 9 CONSUMER PRODUCT SAFETY ACT

(i) compliance with such voluntary consumer product

safety standard is not likely to result in the elimination or

adequate reduction of such risk of injury; or

(ii) it is unlikely that there will be substantial compliance with such voluntary consumer product safety standard;

(E) that the benefits expected from the rule bear a reasonable relationship to its costs; and

(F) that the rule imposes the least burdensome requirement which prevents or adequately reduces the risk of injury

for which the rule is being promulgated.

(4)(A) Any preliminary or final regulatory analysis prepared

under subsection (c) or (f)(2) shall not be subject to independent judicial review, except that when an action for judicial review of a

rule is instituted, the contents of any such regulatory analysis shall

constitute part of the whole rulemaking record of agency action in

connection with such review.

(B) The provisions of subparagraph (A) shall not be construed

to alter the substantive or procedural standards otherwise applicable to judicial review of any action by the Commission.

(g)(1) Each consumer product safety rule shall specify the date

such rule is to take effect not exceeding 180 days from the date

promulgated, unless the Commission finds, for good cause shown,

that a later effective date is in the public interest and publishes its

reasons for such finding. The effective date of a consumer product

safety standard under this Act shall be set at a date at least 30

days after the date of promulgation unless the Commission for good

cause shown determines that an earlier effective date is in the public interest. In no case may the effective date be set at a date which

is earlier than the date of promulgation. A consumer product safety

standard shall be applicable only to consumer products manufactured after the effective date.

(2) The Commission may by rule prohibit a manufacturer of a

consumer product from stockpiling any product to which a consumer product safety rule applies, so as to prevent such manufacturer from circumventing the purpose of such consumer product

safety rule. For purposes of this paragraph, the term ‘‘stockpiling’’ means manufacturing or importing a product between the date of

promulgation of such consumer product safety rule and its effective

date at a rate which is significantly greater (as determined under

the rule under this paragraph) than the rate at which such product

was produced or imported during a base period (prescribed in the

rule under this paragraph) ending before the date of promulgation

of the consumer product safety rule.

(h) The Commission may by rule amend or revoke any consumer product safety rule. Such amendment or revocation shall

specify the date on which it is to take effect which shall not exceed

180 days from the date the amendment or revocation is published

unless the Commission finds for good cause shown that a later effective date is in the public interest and publishes its reasons for

such finding. Where an amendment involves a material change in

a consumer product safety rule, sections 7 and 8, and subsections

(a) through (g) of this section shall apply. In order to revoke a consumer product safety rule, the Commission shall publish a proposal

to revoke such rule in the Federal Register, and allow oral and
Sec. 11 CONSUMER PRODUCT SAFETY ACT 156

written presentations in accordance with subsection (d)(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. Section 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.

(i) The Commission shall grant, in whole or in part, or deny

any petition under section 553(e) of title 5, United States Code, requesting the Commission to initiate a rulemaking, within a reasonable time after the date on which such petition is filed. The Commission shall state the reasons for granting or denying such petition. The Commission may not deny any such petition on the basis

of a voluntary standard unless the voluntary standard is in existence at the time of the denial of the petition, the Commission has

determined that the voluntary standard is likely to result in the

elimination or adequate reduction of the risk of injury identified in

the petition, and it is likely that there will be substantial compliance with the standard.

øSEC. 10. Repealed by section 1210 of Public Law 97–35, 95

Stat. 721, August 13, 1981.¿

JUDICIAL REVIEW OF CONSUMER PRODUCT SAFETY RULES

SEC. 11. ø15 U.S.C. 2060¿ (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 record of the proceedings

on which the Commission based its rule shall be filed in the court

as provided for in section 2112 of title 28, 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(d)(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 satisfaction 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
157 Sec. 12 CONSUMER PRODUCT SAFETY ACT

1So in law. The reference in the second sentence of subsection (c) probably should be followed

by a closing parenthesis.

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. A court may in the interest of justice include in such relief an award of the costs of suit, including

reasonable attorneys’ fees (determined in accordance with subsection (f) 1 and reasonable expert witnesses’ fees. Attorneys’ fees

may be awarded against the United States (or any agency or official of the United States) without regard to section 2412 of title 28,

United States Code, or any other provision of law. The consumer

product safety rule shall not be affirmed unless the Commission’s

findings under sections 9(f)(1) and 9(f)(3) 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.

(f) For purposes of this section and sections 23(a) and 24, a

reasonable attorney’s fee is a fee (1) which is based upon (A) the

actual time expended by an attorney in providing advice and other

legal services in connection with representing a person in an action

brought under this section, and (B) such reasonable expenses as

may be incurred by the attorney in the provision of such services,

and (2) which is computed at the rate prevailing for the provision

of similar services with respect to actions brought in the court

which is awarding such fee.

IMMINENT HAZARDS

SEC. 12. ø15 U.S.C. 2061¿ (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 unreasonable risk of

death, serious illness, or severe personal injury.

(b)(1) The district court in which such action is filed shall have

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
Sec. 14 CONSUMER PRODUCT SAFETY ACT 158

1Designation so in law. Subsection (g) of section 12 probably should be subsection (f).

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) In the case of an action under subsection (a)(1), the consumer product may be proceeded against by process of libel for the

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 or as soon thereafter as may be practicable, the Commission

shall initiate a proceeding to promulgate a consumer product safety

rule applicable to the consumer product with respect to which such

action is filed.

(d)(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. In 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 substantially similar consumer products are pending in courts in 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.

(e) 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.

(g) 1 Nothing in this section shall be construed to require the

Commission, in determining whether to bring an action against a

consumer product or a person under this section, to prepare a comparison of the costs that would be incurred in complying with the

relief that may be ordered in such action with the benefits to the

public from such relief.

øSEC. 13. Repealed by section 1211(b) of Public Law 97–35, 95

Stat. 721, August 13, 1981.¿

PRODUCT CERTIFICATION AND LABELING

SEC. 14. ø15 U.S.C. 2063¿ (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
159 Sec. 15 CONSUMER PRODUCT SAFETY ACT

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 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) In 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.

NOTIFICATION AND REPAIR, REPLACEMENT, OR REFUND

SEC. 15. ø15 U.S.C. 2064¿ (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
Sec. 15 CONSUMER PRODUCT SAFETY ACT 160

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 with a voluntary consumer product safety standard upon which the Commission has relied under section 9;

(2) contains a defect which could create a substantial product hazard described in subsection (a)(2); or

(3) creates an unreasonable risk of serious injury or death,

shall immediately inform the Commission of such failure to comply,

of such defect, or of such risk, unless such manufacturer, distributor, or retailer has actual knowledge that the Commission has

been adequately informed of such defect, failure to comply, or such

risk.

(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).

An order under this subsection may also require the person to

whom it applies to submit a plan, satisfactory to the Commission,
161 Sec. 15 CONSUMER PRODUCT SAFETY ACT

1Omission of the word ‘‘section’’ in section 15(g)(1) so in law.

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 in paragraph (3). If an order under this

subsection is directed to more than one person, the Commission

shall specify which person has the election under this subsection.

An order under this subsection may prohibit the person to whom

it applies from manufacturing for sale, offering for sale, distributing in commerce, or importing into the customs territory of the

United States (as defined in general note 2 of the Harmonized Tariff Schedule of the United States), or from doing any combination

of such actions, the product with respect to which the order was

issued.

(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). Any settlement offer which is submitted to the presiding officer at a hearing under this subsection shall be transmitted by the officer to the Commission for its consideration unless

the settlement offer is clearly frivolous or duplicative of offers previously made.

(g)(1) If the Commission has initiated a proceeding under this

section for the issuance of an order under subsection (d) with respect to a product which the Commission has reason to believe presents a substantial product hazard, the Commission (without regard to section 27(b)(7)), or the Attorney General may, in accordance with [section] 1 12(d)(1), apply to a district court of the United

States for the issuance of a preliminary injunction to restrain the

distribution in commerce of such product pending the completion of

such proceeding. If such a preliminary injunction has been issued,

the Commission (or the Attorney General if the preliminary injunction was issued upon an application of the Attorney General) may
Sec. 16 CONSUMER PRODUCT SAFETY ACT 162

1Misspelling in section 15(g)(3) so in law. Probably should be ‘‘extend’’.

apply to the issuing court for extensions of such preliminary injunction.

(2) Any preliminary injunction, and any extension of a preliminary injunction, issued under this subsection with respect to a

product shall be in effect for such period as the issuing court prescribes not to exceed a period which extends beyond the thirtieth

day from the date of the issuance of the preliminary injunction (or,

in the case of a preliminary injunction which has been extended,

the date of its extension) or the date of the completion or termination of the proceeding under this section respecting such product,

whichever date occurs first.

(3) The amount in controversy requirement of section 1331 of

title 28, United States Code, does not apply with respect to the jurisdiction of a district court of the United States to issue or exend 1

a preliminary injunction under this subsection.

(h) Nothing in this section shall be construed to require the

Commission, in determining that a product distributed in commerce presents a substantial product hazard and that notification

or other action under this section should be taken, to prepare a

comparison of the costs that would be incurred in providing notification or taking other action under this section with the benefits

from such notification or action.

INSPECTION AND RECORDKEEPING

SEC. 16. ø15 U.S.C. 2065¿ (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 conveyance 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, reasonably require 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 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.
163 Sec. 17 CONSUMER PRODUCT SAFETY ACT

IMPORTED PRODUCTS

SEC. 17. ø15 U.S.C. 2066¿ (a) Any consumer product offered for

importation into the customs territory of the United States (as defined in general note 2 of the Harmonized Tariff Schedule 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(c);

(3) is or has been determined to be an imminently hazardous consumer product in a proceeding brought under section 12;

(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 must 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 subsection (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 modify 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.
Sec. 18 CONSUMER PRODUCT SAFETY ACT 164

(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 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.

(h)(1) The Commission shall establish and maintain a permanent product surveillance program, in cooperation with other appropriate Federal agencies, for the purpose of carrying out the

Commission’s responsibilities under this Act and the other Acts administered by the Commission and preventing the entry of unsafe

consumer products into the commerce of the United States.

(2) The Commission may provide to the agencies with which it

is cooperating under paragraph (1) such information, data, violator

lists, test results, and other support, guidance, and documents as

may be necessary or helpful for such agencies to cooperate with the

Commission to carry out the product surveillance program under

paragraph (1).

(3) The Commission shall periodically report to the Congress

the results of the surveillance program under paragraph (1).

EXPORTS

SEC. 18. ø15 U.S.C. 2067¿ (a) 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 (A) such consumer product is in fact distributed in commerce for use in the

United States, or (B) the Commission determines that exportation

of such product presents an unreasonable risk of injury to consumers within 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 the United States.

(b) Not less than thirty days before any person exports to a foreign country any product—

(1) which is not in conformity with an applicable consumer

product safety standard in effect under this Act, or
165 Sec. 19 CONSUMER PRODUCT SAFETY ACT

1So in law. The word ‘‘or’’ at the end of section 19(a)(7) and (8) probably should be stricken.

(2) which is declared to be a banned hazardous substance

by a rule promulgated under section 9,

such person shall file a statement with the Commission notifying

the Commission of such exportation, and the Commission, upon receipt of such statement, shall promptly notify the government of

such country of such exportation and the basis for such safety

standard or rule. Any statement filed with the Commission under

the preceding sentence shall specify the anticipated date of shipment of such product, the country and port of destination of such

product, and the quantity of such product that will be exported,

and shall contain such other information as the Commission may

by regulation require. Upon petition filed with the Commission by

any person required to file a statement under this subsection respecting an exportation, the Commission may, for good cause

shown, exempt such person from the requirement of this subsection

that such a statement be filed no less than thirty days before the

date of the exportation, except that in no case shall the Commission permit such a statement to be filed later than the tenth day

before such date.

PROHIBITED ACTS

SEC. 19. ø15 U.S.C. 2068¿ (a) It 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 establish or maintain 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 15(b);

(5) fail to comply with an order issued under section 15 (c)

or (d) (relating to notification, and to repair, replacement, and

refund, and to prohibited acts);

(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);

(7) fail to comply with any rule under section 9(g)(2) (relating to stockpiling); or 1

(8) fail to comply with any rule under section 27(e) (relating to provision of performance and technical data); or 1
Sec. 20 CONSUMER PRODUCT SAFETY ACT 166

1Period so in law. Section 19(a)(9) probably should end with a semicolon.

2Period so in law. Section 19(a)(10) probably should end with ‘‘; or’’.

(9) fail to comply with any rule or requirement under section 35 (relating to labeling and testing of cellulose insulation). 1

(10) fail to file a statement with the Commission pursuant

to section 18(b). 2

(11) fail to furnish information required by section 37.

(b) Paragraphs (1) and (2) of subsection (a) of this section shall

not apply 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) 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. ø15 U.S.C. 2069¿ (a)(1) Any person who knowingly

violates section 19 of this Act shall be subject to a civil penalty not

to exceed $5,000 for each such violation. Subject to paragraph (2),

a violation of section 19(a) (1), (2), (4), (5), (6), (7), (8), (9), (10), or

(11) shall constitute a separate offense with respect to each consumer product involved, except that the maximum civil penalty

shall not exceed $1,250,000 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 violations shall constitute a separate offense, except

that the maximum civil penalty shall not exceed $1,250,000 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.

(3)(A) The maximum penalty amounts authorized in paragraph

(1) shall be adjusted for inflation as provided in this paragraph.

(B) Not later than December 1, 1994, and December 1 of each

fifth calendar year thereafter, the Commission shall prescribe and

publish in the Federal Register a schedule of maximum authorized

penalties that shall apply for violations that occur after January 1

of the year immediately following such publication.

(C) The schedule of maximum authorized penalties shall be

prescribed by increasing each of the amounts referred to in paragraph (1) by the cost-of-living adjustment for the preceding five

years. Any increase determined under the preceding sentence shall

be rounded to—
167 Sec. 21 CONSUMER PRODUCT SAFETY ACT

(i) in the case of penalties greater than $1,000 but less

than or equal to $10,000, the nearest multiple of $1,000;

(ii) in the case of penalties greater than $10,000 but less

than or equal to $100,000, the nearest multiple of $5,000;

(iii) in the case of penalties greater than $100,000 but less

than or equal to $200,000, the nearest multiple of $10,000; and

(iv) in the case of penalties greater than $200,000, the

nearest multiple of $25,000.

(D) For purposes of this subsection:

(i) The term ‘‘Consumer Price Index’’ means the Consumer

Price Index for all-urban consumers published by the Department of Labor.

(ii) The term ‘‘cost-of-living adjustment for the preceding

five years’’ means the percentage by which—

(I) the Consumer Price Index for the month of June of

the calendar year preceding the adjustment; exceeds

(II) the Consumer Price Index for the month of June

preceding the date on which the maximum authorized penalty was last adjusted.

(b) In determining the amount of any penalty to be sought

upon commencing an action seeking to assess a penalty for a violation of section 19(a), the Commission shall consider the nature of

the product defect, the severity of the risk of injury, the occurrence

of absence of injury, the number of defective products distributed,

and the appropriateness of such penalty in relation to the size of

the business of the person charged.

(c) 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 Commission shall consider the appropriateness of such penalty

to the size of the business of the person charged, the nature of the

product defect, the severity of the risk of injury, the occurrence or

absence of injury, and the number of defective products distributed.

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.

(d) 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. ø15 U.S.C. 2070¿ (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 of

section 19, and who has knowledge of notice of noncompliance received by the corporation from the Commission, shall be subject to
Sec. 22 CONSUMER PRODUCT SAFETY ACT 168

penalties under this section without regard to any penalties to

which that corporation may be subject under subsection (a).

INJUNCTIVE ENFORCEMENT AND SEIZURE

SEC. 22. ø15 U.S.C. 2071¿ (a) The United States district courts

shall have jurisdiction to take the following action:

(1) Restrain any violation of section 19.

(2) Restrain any person from manufacturing for sale, offering for sale, distributing in commerce, or importing into the

United States a product in violation of an order in effect under

section 15(d).

(3) Restrain any person from distributing in commerce a

product which does not comply with a consumer product safety

rule.

Such actions may be brought by the Commission (without regard

to section 27(b)(7)(A)) 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—

(1) which fails to conform with an applicable consumer

product safety rule, or

(2) the manufacture for sale, offering for sale, distribution

in commerce, or the importation into the United States of

which has been prohibited by an order in effect under section

15(d),

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 district court of the

United States 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.

SUITS FOR DAMAGES BY PERSONS INJURED

SEC. 23. ø15 U.S.C. 2072¿ (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, shall recover damages sustained, and may,

if the court determines it to be in the interest of justice, recover

the costs of suit, including reasonable attorneys’ fees (determined

in accordance with section 11(f)) and reasonable expert witnesses’

fees: Provided, That the matter in controversy exceeds the sum or

value of $10,000, exclusive of interest and costs, unless such action
169 Sec. 25 CONSUMER PRODUCT SAFETY ACT

is brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.

(b) Except when express provision is made in a statute of the

United States, in any case in which the plaintiff is finally adjudged

to be entitled to recover less than the sum or value of $10,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interests

and costs, the district court may deny costs to the plaintiff and, in

addition, may impose costs on the plaintiff.

(c) 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 AND OF

SECTION 15 ORDERS

SEC. 24. ø15 U.S.C. 2073¿ Any interested person (including

any individual or nonprofit, business, or other entity) 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. Not 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 at 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. In any action under this section the

court may in the interest of justice award the costs of suit, including reasonable attorneys’ fees (determined in accordance with section 11(f)) and reasonable expert witnesses’ fees.

EFFECT ON PRIVATE REMEDIES

SEC. 25. ø15 U.S.C. 2074¿ (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.
Sec. 26 CONSUMER PRODUCT SAFETY ACT 170

EFFECT ON STATE STANDARDS

SEC. 26. ø15 U.S.C. 2075¿ (a) Whenever a consumer product

safety standard under this Act is in effect 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) Subsection (a) of this section does not prevent the Federal

Government or the government of any State or political subdivision

of a State from establishing or continuing in effect a safety requirement applicable to a consumer product for its own use which requirement is designed to protect against a risk of injury associated

with the product and which is not identical to the consumer product safety standard applicable to the product under this Act if the

Federal, State, or political subdivision requirement provides a higher degree of protection from such risk of injury than the standard

applicable under this Act.

(c) Upon application of a State or political subdivision of a

State, 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 in the rule) any

proposed safety standard or regulation which is described in such

application and which is designed to protect against a risk of injury

associated with a consumer product subject to a consumer product

safety standard under this Act if the State or political subdivision

standard or regulation—

(1) provides a significantly higher degree of protection from

such risk of injury than the consumer product safety standard

under this Act, and

(2) does not unduly burden interstate commerce.

In determining the burden, if any, of a State or political subdivision standard or regulation on interstate commerce, the Commission shall consider and make appropriate (as determined by the

Commission in its discretion) findings on the technological and economic feasibility of complying with such standard or regulation, the

cost of complying with such standard or regulation, the geographic

distribution of the consumer product to which the standard or regulation would apply, the probability of other States or political subdivisions applying for an exemption under this subsection for a

similar standard or regulation, and the need for a national, uniform standard under this Act for such consumer product.

ADDITIONAL FUNCTIONS OF COMMISSION

SEC. 27. ø15 U.S.C. 2076¿ (a) The Commission may, by one or

more of its members or by such agents or agency as it may designate, conduct any hearing 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 subse-
171 Sec. 27 CONSUMER PRODUCT SAFETY ACT

quently 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.

(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 to carry out a specific regulatory or

enforcement function of the Commission; 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—

(A) initiate, prosecute, defend, or appeal (other than to

the Supreme Court of the United States), through its own

legal representative and in the name of the Commission,

any civil action if the Commission makes a written request

to the Attorney General for representation in such civil action and the Attorney General does not within the 45-day

period beginning on the date such request was made notify

the Commission in writing that the Attorney General will

represent the Commission in such civil action, and

(B) initiate, prosecute, or appeal, through its own legal

representative, with the concurrence of the Attorney General or through the Attorney General, any criminal action,

for the purpose of enforcing the laws subject to its jurisdiction;

(8) to lease buildings or parts of buildings in the District

of Columbia, without regard to the Act of March 3, 1877 (40

U.S.C. 34), for the use of the Commission; and

(9) 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.

An order issued under paragraph (1) shall contain a complete

statement of the reason the Commission requires the report or answers specified in the order to carry out a specific regulatory or enforcement function of the Commission. Such an order shall be designed to place the least burden on the person subject to the order

as is practicable taking into account the purpose for which the

order was issued.
Sec. 27 CONSUMER PRODUCT SAFETY ACT 172

(c) Any United States district court within the jurisdiction of

which any inquiry is carried on, may, upon petition by the Commission (subject to subsection (b)(7)) 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.

(d) No person shall be subject to civil liability to any person

(other than the Commission or the United States) for disclosing information at the request of the Commission.

(e) The Commission may by rule require any manufacturer of

consumer 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.

(g) The Commission is authorized to enter into contracts with

governmental entities, private organizations, or individuals for the

conduct of activities authorized by this Act.

(h) The Commission may plan, construct, and operate a facility

or facilities suitable for research, development, and testing of consumer products in order to carry out this Act.

(i)(1) Each recipient of assistance under this Act pursuant to

grants or contracts entered into under other than competitive bidding 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 at the beginning of each regular session of Congress 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;
173 Sec. 27 CONSUMER PRODUCT SAFETY ACT

(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;

(10) with respect to voluntary consumer product safety

standards for which the Commission has participated in the

development through monitoring or offering of assistance and

with respect to voluntary consumer product safety standards

relating to risks of injury that are the subject of regulatory action by the Commission, a description of—

(A) the number of such standards adopted;

(B) the nature and number of the products which are

the subject of such standards;

(C) the effectiveness of such standards in reducing potential harm from consumer products;

(D) the degree to which staff members of the Commission participate in the development of such standards;

(E) the amount of resources of the Commission devoted to encouraging development of such standards; and

(F) such other information as the Commission determines appropriate or necessary to inform the Congress on

the current status of the voluntary consumer product safety standard program; and

(11) 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 Management 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 any 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.
Sec. 28 CONSUMER PRODUCT SAFETY ACT 174

CHRONIC HAZARD ADVISORY PANEL

SEC. 28. ø15 U.S.C. 2077¿ (a) The Commission shall appoint

Chronic Hazard Advisory Panels (hereinafter referred to as the

Panel or Panels) to advise the Commission in accordance with the

provisions of section 31(b) respecting the chronic hazards of cancer,

birth defects, and gene mutations associated with consumer products.

(b) Each Panel shall consist of 7 members appointed by the

Commission from a list of nominees who shall be nominated by the

President of the National Academy of Sciences from scientists— (1) who are not officers or employees of the United States

(other than employees of the National Institutes of Health, the

National Toxicology Program, or the National Center for Toxicological Research), and who do not receive compensation from

or have any substantial financial interest in any manufacturer,

distributor, or retailer of a consumer product; and

(2) who have demonstrated the ability to critically assess

chronic hazards and risks to human health presented by the

exposure of humans to toxic substances or as demonstrated by

the exposure of animals to such substances.

The President of the National Academy of Sciences shall nominate

for each Panel a number of individuals equal to three times the

number of members to be appointed to the Panel.

(c) The Chairman and Vice Chairman of the Panel shall be

elected from among the members and shall serve for the duration

of the Panel.

(d) Decisions of the Panel shall be made by a majority of the

Panel.

(e) The Commission shall provide each Panel with such administrative support services as it may require to carry out its duties

under section 31.

(f) A member of a Panel appointed under subsection (a) shall

be paid at a rate not to exceed the daily equivalent of the annual

rate of basic pay in effect for grade GS–18 of the General Schedule

for each day (including traveltime) during which the member is engaged in the actual performance of the duties of the Panel.

(g) Each Panel shall request information and disclose information to the public, as provided in subsection (h), only through the

Commission.

(h)(1) Notwithstanding any statutory restriction on the authority of agencies and departments of the Federal Government to

share information, such agencies and departments shall provide

the Panel with such information and data as each Panel, through

the Commission, may request to carry out its duties under section

31. Each Panel may request information, through the Commission,

from States, industry and other private sources as it may require

to carry out its responsibilities.

(2) Section 6 shall apply to the disclosure of information by the

Panel but shall not apply to the disclosure of information to the

Panel.

COOPERATION WITH STATES AND WITH OTHER FEDERAL AGENCIES

SEC. 29. ø15 U.S.C. 2078¿ (a) The Commission shall establish

a program to promote Federal-State cooperation for the purposes of
175 Sec. 29 CONSUMER PRODUCT SAFETY ACT

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 administration 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.

(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 carry 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 functions of the Commission.

(e) The Commission may provide to another Federal agency or

a State or local agency or authority engaged in activities relating

to health, safety, or consumer protection, copies of any accident or

investigation report made under this Act by any officer, employee,

or agent of the Commission only if (1) information which under section 6(a)(2) is to be considered confidential is not included in any

copy of such report which is provided under this subsection; and (2)

each Federal agency and State and local agency and authority

which is to receive under this subsection a copy of such report provides assurances satisfactory to the Commission that the identity

of any injured person and any person who treated an injured person will not, without the consent of the person identified, be included in—

(A) any copy of any such report, or

(B) any information contained in any such report, which

the agency or authority makes available to any member of the

public. No Federal agency or State or local agency or authority

may disclose to the public any information contained in a report received by the agency or authority under this subsection
Sec. 30 CONSUMER PRODUCT SAFETY ACT 176

unless with respect to such information the Commission has

complied with the applicable requirements of section 6(b).

TRANSFERS OF FUNCTIONS

SEC. 30. ø15 U.S.C. 2079¿ (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 Secretary of Health, Education, and Welfare under

the Federal Food, Drug, and Cosmetic Act (15 U.S.C. 301 et seq.),

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 a consumer product and which could be eliminated or reduced to a sufficient extent

by action under the Federal Hazardous Substances Act, the Poison

Prevention Packaging Act of 1970, or the Flammable Fabrics Act

may be regulated under this Act only if the Commission by rule

finds that it is in the public interest to regulate such risk of injury

under this Act. Such a rule shall identify the risk of injury proposed to be regulated under this Act and shall be promulgated in

accordance with section 553 of title 5, United States Code; except

that the period to be provided by the Commission pursuant to subsection (c) of such section for the submission of data, views, and arguments respecting the rule shall not exceed thirty days from the

date of publication pursuant to subsection (b) of such section of a

notice respecting the rule.

(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.

(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 para-
177 Sec. 31 CONSUMER PRODUCT SAFETY ACT

graph, 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 nt).

(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

SEC. 31. ø15 U.S.C. 2080¿ (a) 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
Sec. 31 CONSUMER PRODUCT SAFETY ACT 178

1954; or the Clean Air Act. The Commission shall have no authority under this Act to regulate any risk of injury 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.

(b)(1) The Commission may not issue—

(A) an advance notice of proposed rulemaking for a consumer product safety rule,

(B) a notice of proposed rulemaking for a rule under section 27(e), or

(C) an advance notice of proposed rulemaking for regulations under section 2(q)(1) of the Federal Hazardous Substances Act,

relating to a risk of cancer, birth defects, or gene mutations from

a consumer product unless a Chronic Hazard Advisory Panel, established under section 28, has, in accordance with paragraph (2),

submitted a report to the Commission with respect to whether a

substance contained in such product is a carcinogen, mutagen, or

teratogen.

(2)(A) Before the Commission issues an advance notice of proposed rulemaking for—

(i) a consumer product safety rule,

(ii) a rule under section 27(e), or

(iii) a regulation under section 2(q)(1) of the Federal Hazardous Substances Act,

relating to a risk of cancer, birth defects, or gene mutations from

a consumer product, the Commission shall request the Panel to review the scientific data and other relevant information relating to

such risk to determine if any substance in the product is a carcinogen, mutagen, or a teratogen and to report its determination to

the Commission.

(B) When the Commission appoints a Panel, the Panel shall

convene within 30 days after the date the final appointment is

made to the Panel. The Panel shall report its determination to the

Commission not later than 120 days after the date the Panel is

convened or, if the Panel requests additional time, within a time

period specified by the Commission. If the determination reported

to the Commission states that a substance in a product is a carcinogen, mutagen, or a teratogen, the Panel shall include in its report an estimate, if such an estimate is feasible, of the probable

harm to human health that will result from exposure to the substance.

(C) A Panel appointed under section 28 shall terminate when

it has submitted its report unless the Commission extends the existence of the Panel.

(D) The Federal Advisory Committee Act shall not apply with

respect to any Panel established under this section.

(E) Each Panel’s report shall contain a complete statement of

the basis for the Panel’s determination. The Commission shall consider the report of the Panel and incorporate such report into the

advance notice of proposed rulemaking and final rule.
179 Sec. 33 CONSUMER PRODUCT SAFETY ACT

AUTHORIZATION OF APPROPRIATIONS

SEC. 32. ø15 U.S.C. 2081¿ (a) There are authorized to be appropriated for the purposes 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) $42,000,000 for fiscal year 1991, and

(2) $45,000,000 for fiscal year 1992.

For payment of accumulated and accrued leave under section 5551

of title 5, United States Code, severance pay under section 5595

under such title, and any other expense related to a reduction in

force in the Commission, there are authorized to be appropriated

such sums as may be necessary.

(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 27(h); except

that no 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 Energy and Commerce of the House of Representatives, and by the

Committee on Commerce, Science, and Transportation of the Senate. For the purpose of securing consideration of such approval the

Commission shall transmit to Congress a 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 estimated maximum cost of any facility approved under

this subsection as set forth in the prospectus may be increased by

the 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.

(c) No funds appropriated under subsection (a) may be used to

pay any claim described in section 4(i) whether pursuant to a judgment of a court or under any award, compromise, or settlement of

such claim made under section 2672 of title 28, United States

Code, or under any other provision of law.

SEPARABILITY

SEC. 33. ø15 U.S.C. 2051 note¿ 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
Sec. 34 CONSUMER PRODUCT SAFETY ACT 180

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. ø15 U.S.C. 2051 note¿ 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.

INTERIM CELLULOSE INSULATION SAFETY STANDARD

SEC. 35. ø15 U.S.C. 2082¿ (a)(1) Subject to the provisions of

paragraph (2), on and after the last day of the 60-day period beginning on the effective date of this section, the requirements for

flame resistance and corrosiveness set forth in the General Services

Administration’s specification for cellulose insulation, HH–I–515C

(as specification was in effect on February 1, 1978), shall be

deemed to be an interim consumer product safety standard which

shall have all the authority and effect of any other consumer product safety standard promulgated by the Commission under this

Act. During the 45-day period beginning on the effective date of

this section, the Commission may make, and shall publish in the

Federal Register, such technical, nonsubstantive changes in such

requirements as it deems appropriate to make such requirements

suitable for promulgation as a consumer product safety standard.

At the end of the 60-day period specified in the first sentence of

this paragraph, the Commission shall publish in the Federal Register such interim consumer product safety standard, as altered by

the Commission under this paragraph.

(2) The interim consumer product safety standard established

in paragraph (1) shall provide that any cellulose insulation which

is produced or distributed for sale or use as a consumer product

shall have a flame spread rating of 0 to 25, as such rating is set

forth in the General Services Administration’s specification for cellulose insulation, HH–I–515C.

(3) During the period for which the interim consumer product

safety standard established in subsection (a) is in effect, in addition

to complying with any labeling requirement established by the

Commission under this Act, each manufacturer or private labeler

of cellulose insulation shall include the following statement on any

container of such cellulose insulation: ‘‘ATTENTION: This material

meets the applicable minimum Federal flammability standard. This

standard is based upon laboratory tests only, which do not represent actual conditions which may occur in the home’’. Such statement shall be located in a conspicuous place on such container and

shall appear in conspicuous and legible type in contrast by typography, layout, and color with other printed matter on such container.

(b) Judicial review of the interim consumer product safety

standard established in subsection (a), as such standard is in effect

on and after the last day of the 60-day period specified in such sub-
181 Sec. 35 CONSUMER PRODUCT SAFETY ACT

section, shall be limited solely to the issue of whether any changes

made by the Commission under paragraph (1) are technical nonsubstantive changes. For purposes of such review, any change

made by the Commission under paragraph (1) which requires that

any test to determine the flame spread rating of cellulose insulation shall include a correction for variations in test results caused

by equipment used in the test shall be considered a technical, nonsubstantive change.

(c)(1)(A) Any interim consumer product safety standard established pursuant to this section shall be enforced in the same manner as any other consumer product safety standard until such time

as there is in effect a final consumer product safety standard promulgated by the Commission, as provided in subparagraph (B), or

until such time as it is revoked by the Commission under section

9(e). A violation of the interim consumer product safety standard

shall be deemed to be a violation of a consumer product safety

standard promulgated by the Commission under section 9.

(B) If the Commission determines that the interim consumer

product safety standard does not adequately protect the public from

the unreasonable risk of injury associated with flammable or corrosive cellulose insulation, it shall promulgate a final consumer product safety standard to protect against such risk. Such final standard shall be promulgated pursuant to section 553 of title 5, United

States Code, except that the Commission shall give interested persons an opportunity for the oral presentation of data, views, or arguments, in addition to an opportunity to make written submissions. A transcript shall be kept of any oral presentation. The provisions of section 9 (b), (c), and (d) shall apply to any proceeding

to promulgate such final standard. In any judicial review of such

final standard under section 11, the court shall not require any

demonstration that each particular finding made by the Commission under section 9(c) is supported by substantial evidence. The

court shall affirm the action of the Commission unless the court determines that such action is not supported by substantial evidence

on the record taken as a whole.

(2)(A) Until there is in effect such a final consumer product

safety standard, the Commission shall incorporate into the interim

consumer product safety standard, in accordance with the provisions of this paragraph, each revision superseding the requirements for flame resistance and corrosiveness referred to in subsection (a) and promulgated by the General Services Administration.

(B) At least 45 days before any revision superseding such requirements is to become effective, the Administrator of the General

Services Administration shall notify the Commission of such revision. In the case of any such revision which becomes effective during the period beginning on February 1, 1978, and ending on the

effective date of this section, such notice from the Administrator of

the General Services Administration shall be deemed to have been

made on the effective date of this section.

(C)(i) No later than 45 days after receiving any notice under

subparagraph (B), the Commission shall publish the revision, including such changes in the revision as it considers appropriate to

make the revision suitable for promulgation as an amendment to

the interim consumer product safety standard, in the Federal Reg-
Sec. 35 CONSUMER PRODUCT SAFETY ACT 182

ister as a proposed amendment to the interim consumer product

safety standard.

(ii) The Commission may extend the 45-day period specified in

clause (i) for an additional period of not more than 150 days if the

Commission determines that such extension is necessary to study

the technical and scientific basis for the revision involved, or to

study the safety and economic consequences of such revision.

(D)(i) Additional extensions of the 45-day period specified in

subparagraph (C)(i) may be taken by the Commission if—

(I) the Commission makes the determination required in

subparagraph (C)(ii) with respect to each such extension; and

(II) in the case of further extensions proposed by the Commission after an initial extension under this clause, such further extensions have not been disapproved under clause (iv).

(ii) Any extension made by the Commission under this subparagraph shall be for a period of not more than 45 days.

(iii) Prior notice of each extension made by the Commission

under this subparagraph, together with a statement of the reasons

for such extension and an estimate of the length of time required

by the Commission to complete its action upon the revision involved, shall be published in the Federal Register and shall be submitted to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce

of the House of Representatives.

(iv) In any case in which the Commission takes an initial 45-

day extension under clause (i), the Commission may not take any

further extensions under clause (i) if each committee referred to in

clause (iii) disapproves by committee resolution any such further

extensions before the end of the 15-day period following notice of

such initial extension made by the Commission in accordance with

clause (iii).

(E) The Commission shall give interested persons an opportunity to comment upon any proposed amendment to the interim

consumer product safety standard during the 30-day period following any publication by the Commission under subparagraph (C).

(F) No later than 90 days after the end of the period specified

in subparagraph (E), the Commission shall promulgate the amendment to the interim consumer product safety standard unless the

Commission determines, after consultation with the Secretary of

Energy, that—

(i) such amendment is not necessary for the protection of

consumers from the unreasonable risk of injury associated with

flammable or corrosive cellulose insulation; or

(ii) implementation of such amendment will create an

undue burden upon persons who are subject to the interim consumer product safety standard.

(G) The provisions of section 11 shall not apply to any judicial

review of any amendment to the interim product safety standard

promulgated under this paragraph.

(d) Any Federal department, agency, or instrumentality, or any

Federal independent regulatory agency, which obtains information

which reasonably indicates that cellulose insulation is being manufactured or distributed in violation of this Act shall immediately inform the Commission of such information.
183 Sec. 36 CONSUMER PRODUCT SAFETY ACT

(e)(1) The Commission, no later than 45 days after the effective

date of this section, shall submit a report to the Committee on

Commerce, Science, and Transportation of the Senate and to the

Committee on Energy and Commerce of the House of Representatives which shall contain a detailed statement of the manner in

which the Commission intends to carry out the enforcement of this

section.

(2)(A) The Commission, no later than 6 months after the date

upon which the report required in paragraph (1) is due (and no

later than the end of each 6-month period thereafter), shall submit

a report to each committee referred to in paragraph (1) which shall

describe the enforcement activities of the Commission with respect

to this section during the most recent 6-month period.

(B) The first report which the Commission submits under subparagraph (A) shall include the results of tests of cellulose insulation manufactured by at least 25 manufacturers which the Commission shall conduct to determine whether such cellulose insulation complies with the interim consumer product safety standard.

The second such report shall include the results of such tests with

respect to 50 manufacturers who were not included in testing conducted by the Commission for inclusion in the first report.

(f)(1) The Commission shall have the authority to require that

any person required to comply with the certification requirements

of section 14 with respect to the manufacture of cellulose insulation

shall provide for the performance of any test or testing program required for such certification through the use of an independent

third party qualified to perform such test or testing program. The

Commission may impose such requirement whether or not the

Commission has established a testing program for cellulose insulation under section 14(b).

(2) The Commission, upon petition by a manufacturer, may

waive the requirements of paragraph (1) with respect to such manufacturer if the Commission determines that the use of an independent third party is not necessary in order for such manufacturer to comply with the certification requirements of section 14.

(3) The Commission may prescribe such rules as it considers

necessary to carry out the provisions of this subsection.

(g) There are authorized to be appropriated, for each of the fiscal years 1978, 1979, 1980, and 1981, such sums as may be necessary to carry out the provisions of this section.

CONGRESSIONAL VETO OF CONSUMER PRODUCT SAFETY RULES

Sec. 36. ø15 U.S.C. 2083¿ (a) The Commission shall transmit

to the Secretary of the Senate and the Clerk of the House of Representatives a copy of any consumer product safety rule promulgated by the Commission under section 9.

(b) Any rule specified in subsection (a) shall not take effect if—

(1) within the 90 calendar days of continuous session of

the Congress which occur after the date of the promulgation of

such rule, both Houses of the Congress adopt a concurrent resolution, the matter after the resolving clause of which is as follows (with the blank spaces appropriately filled): ‘‘That the

Congress disapproves the consumer product safety rule which

was promulgated by the Consumer Product Safety Commission
Sec. 37 CONSUMER PRODUCT SAFETY ACT 184

with respect to and which was transmitted

to the Congress on and disapproves the

rule for the following reasons: .’’; or

(2) within the 60 calendar days of continuous session of

the Congress which occur after the date of the promulgation of

such rule, one House of the Congress adopts such concurrent

resolution and transmits such resolution to the other House

and such resolution is not disapproved by such other House

within the 30 calendar days of continuous session of the Congress which occur after the date of such transmittal.

(c) Congressional inaction on, or rejection of, a concurrent resolution of disapproval under this section shall not be construed as

an expression of approval of the rule involved, and shall not be construed to create any presumption of validity with respect to such

rule.

(d) For purposes of this section—

(1) continuity of session is broken only by an adjournment

of the Congress sine die; and

(2) the days on which either House is not in session because of an adjournment of more than 3 days to a day certain

are excluded in the computation of the periods of continuous

session of the Congress specified in subsection (b).

INFORMATION REPORTING

SEC. 37. ø15 U.S.C. 2084¿ (a) If a particular model of a consumer product is the subject of at least 3 civil actions that have

been filed in Federal or State court for death or grievous bodily injury which in each of the 24-month periods defined in subsection

(b) result in either a final settlement involving the manufacturer

or a court judgment in favor of the plaintiff, the manufacturer of

such product shall, in accordance with subsection (c), report to the

Commission each such civil action within 30 days after the final

settlement or court judgment in the third of such civil actions, and,

within 30 days after any subsequent settlement or judgment in

that 24-month period, any other such action.

(b) The 24-month periods referred to in subsection (a) are the

24-month period commencing on January 1, 1991, and subsequent

24-month periods beginning on January 1 of the calendar year that

is two years following the beginning of the previous 24-month period.

(c)(1) The information required by subsection (a) to be reported

to the Commission, with respect to each civil action described in

subsection (a), shall include and in addition to any voluntary information provided under paragraph (2) shall be limited to the following:

(A) The name and address of the manufacturer.

(B) The model and model number or designation of the

consumer product subject to the civil action.

(C) A statement as to whether the civil action alleged

death or grievous bodily injury, and in the case of an allegation

of grievous bodily injury, a statement of the category of such

injury.

(D) A statement as to whether the civil action resulted in

a final settlement or a judgment in favor of the plaintiff.
185 Sec. 37 CONSUMER PRODUCT SAFETY ACT

1 Capitalization so in law. The text of section 37(c)(1)(E) probably should begin with ‘‘In’’. 2Punctuation so in law. The quotation mark at the end of subsection (d)(5) probably should

be stricken. 3 Repetition so in law. The phrase ‘‘For purposes of this section,’’ in subsection (e)(2) probably

should be stricken.

(E) in 1 the case of a judgment in favor of the plaintiff, the

name of the civil action, the number assigned the civil action,

and the court in which the civil action was filed.

(2) A manufacturer furnishing the report required by paragraph (1) may include (A) a statement as to whether any judgment

in favor of the plaintiff is under appeal or is expected to be appealed or (B) any other information which the manufacturer chooses to provide. A manufacturer reporting to the Commission under

subsection (a) need not admit or may specifically deny that the information it submits reasonably supports the conclusion that its

consumer product caused a death or grievous bodily injury.

(3) No statement of the amount paid by the manufacturer in

a final settlement shall be required as part of the report furnished

under subsection (a), nor shall such a statement of settlement

amount be required under any other section of this Act.

(d) The reporting of a civil action described in subsection (a) by

a manufacturer shall not constitute an admission of—

(1) an unreasonable risk of injury,

(2) a defect in the consumer product which was the subject

of such action,

(3) a substantial product hazard,

(4) an imminent hazard, or

(5) any other admission of liability under any statute or

under any common law.’’ 2

(e) For purposes of this section:

(1) A grievous bodily injury includes any of the following

categories of injury: mutilation, amputation, dismemberment,

disfigurement, loss of important bodily functions, debilitating

internal disorder, severe burn, severe electric shock, and injuries likely to require extended hospitalization.

(2) For purposes of this section, 3 a particular model of a

consumer product is one that is distinctive in functional design, construction, warnings or instructions related to safety,

function, user population, or other characteristics which could

affect the product’s safety related performance.

187

MAGNUSON-MOSS WARRANTY—FEDERAL TRADE

COMMISSION IMPROVEMENT ACT

189

MAGNUSON-MOSS WARRANTY—FEDERAL TRADE

COMMISSION IMPROVEMENT ACT

[Public Law 93–637, 88 Stat. 2183, January 4, 1975]

[As amended through Public Law 95–558, November 1, 1978]

AN ACT To provide minimum disclosure standards for written consumer product

warranties; to define minimum Federal content standards for such warranties; to

amend the Federal Trade Commission Act in order to improve its consumer protection activities; and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø15 U.S.C. 2301

note¿ That this Act may be cited as the ‘‘Magnuson-Moss Warranty—Federal Trade Commission Improvement Act’’.

TITLE I—CONSUMER PRODUCT WARRANTIES

DEFINITIONS

SEC. 101. ø15 U.S.C. 2301¿ For the purposes of this title:

(1) The term ‘‘consumer product’’ means any tangible personal property which is distributed in commerce and which is

normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so

attached or installed).

(2) The term ‘‘Commission’’ means the Federal Trade Commission.

(3) The term ‘‘consumer’’ means a buyer (other than for

purposes of resale) of any consumer product, any person to

whom such product is transferred during the duration of an

implied or written warranty (or service contract) applicable to

the product, and any other person who is entitled by the terms

of such warranty (or service contract) or under applicable State

law to enforce against the warrantor (or service contractor) the

obligations of the warranty (or service contract).

(4) The term ‘‘supplier’’ means any person engaged in the

business of making a consumer product directly or indirectly

available to consumers.

(5) The term ‘‘warrantor’’ means any supplier or other person who gives or offers to give a written warranty or who is

or may be obligated under an implied warranty.

(6) The term ‘‘written warranty’’ means—

(A) any written affirmation of fact or written promise

made in connection with the sale of a consumer product by

a supplier to a buyer which relates to the nature of the

material or workmanship and affirms or promises that

such material or workmanship is defect free or will meet
Sec. 101 MAGNUSON-MOSS WARRANTY—FTC IMPROVEMENT ACT 190

a specified level of performance over a specified period of

time, or

(B) any undertaking in writing in connection with the

sale by a supplier of a consumer product to refund, repair,

replace, or take other remedial action with respect to such

product in the event that such product fails to meet the

specifications set forth in the undertaking,

which written affirmation, promise, or undertaking becomes

part of the basis of the bargain between a supplier and a buyer

for purposes other than resale of such product.

(7) The term ‘‘implied warranty’’ means an implied warranty arising under State law (as modified by sections 108 and

104(a)) in connection with the sale by a supplier of a consumer

product.

(8) The term ‘‘service contract’’ means a contract in writing

to perform, over a fixed period of time or for a specified duration, services relating to the maintenance or repair (or both) of

a consumer product.

(9) The term ‘‘reasonable and necessary maintenance’’ consists of those operations (A) which the consumer reasonably

can be expected to perform or have performed and (B) which

are necessary to keep any consumer product performing its intended function and operating at a reasonable level of performance.

(10) The term ‘‘remedy’’ means whichever of the following

actions the warrantor elects:

(A) repair,

(B) replacement, or

(C) refund;

except that the warrantor may not elect refund unless (i) the

warrantor is unable to provide replacement and repair is not

commercially practicable or cannot be timely made, or (ii) the

consumer is willing to accept such refund.

(11) The term ‘‘replacement’’ means furnishing a new consumer product which is identical or reasonably equivalent to

the warranted consumer product.

(12) The term ‘‘refund’’ means refunding the actual purchase price (less reasonable depreciation based on actual use

where permitted by rules of the Commission).

(13) The term ‘‘distributed in commerce’’ means sold in

commerce, introduced or delivered for introduction into commerce, or held for sale or distribution after introduction into

commerce.

(14) 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).

(15) The term ‘‘State’’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,

Guam, the Canal Zone, or American Samoa. The term ‘‘State

law’’ includes a law of the United States applicable only to the

District of Columbia or only to a territory or possession of the
191 Sec. 102 MAGNUSON-MOSS WARRANTY—FTC IMPROVEMENT ACT

United States; and the term ‘‘Federal law’’ excludes any State

law.

WARRANTY PROVISIONS

SEC. 102. ø15 U.S.C. 2302¿ (a) In order to improve the adequacy of information available to consumers, prevent deception,

and improve competition in the marketing of consumer products,

any warrantor warranting a consumer product to a consumer by

means of a written warranty shall, to the extent required by rules

of the Commission, fully and conspicuously disclose in simple and

readily understood language the terms and conditions of such warranty. Such rules may require inclusion in the written warranty of

any of the following items among others:

(1) The clear identification of the names and addresses of

the warrantors.

(2) The identity of the party or parties to whom the warranty is extended.

(3) The products or parts covered.

(4) A statement of what the warrantor will do in the event

of a defect, malfunction, or failure to conform with such written warranty—at whose expense—and for what period of time.

(5) A statement of what the consumer must do and expenses he must bear.

(6) Exceptions and exclusions from the terms of the warranty.

(7) The step-by-step procedure which the consumer should

take in order to obtain performance of any obligation under the

warranty, including the identification of any person or class of

persons authorized to perform the obligations set forth in the

warranty.

(8) Information respecting the availability of any informal

dispute settlement procedure offered by the warrantor and a

recital, where the warranty so provides, that the purchaser

may be required to resort to such procedure before pursuing

any legal remedies in the courts.

(9) A brief, general description of the legal remedies available to the consumer.

(10) The time at which the warrantor will perform any obligations under the warranty.

(11) The period of time within which, after notice of a defect, malfunction, or failure to conform with the warranty, the

warrantor will perform any obligations under the warranty.

(12) The characteristics or properties of the products, or

parts thereof, that are not covered by the warranty.

(13) The elements of the warranty in words or phrases

which would not mislead a reasonable, average consumer as to

the nature or scope of the warranty.

(b)(1)(A) The Commission shall prescribe rules requiring that

the terms of any written warranty on a consumer product be made

available to the consumer (or prospective consumer) prior to the

sale of the product to him.

(B) The Commission may prescribe rules for determining the

manner and form in which information with respect to any written

warranty of a consumer product shall be clearly and conspicuously
Sec. 103 MAGNUSON-MOSS WARRANTY—FTC IMPROVEMENT ACT 192

presented or displayed so as not to mislead the reasonable, average

consumer, when such information is contained in advertising, labeling, point-of-sale material, or other representations in writing.

(2) Nothing in this title (other than paragraph (3) of this subsection) shall be deemed to authorize the Commission to prescribe

the duration of written warranties given or to require that a consumer product or any of its components be warranted.

(3) The Commission may prescribe rules for extending the period of time a written warranty or service contract is in effect to

correspond with any period of time in excess of a reasonable period

(not less than 10 days) during which the consumer is deprived of

the use of such consumer product by reason of failure of the product to conform with the written warranty or by reason of the failure of the warrantor (or service contract) to carry out such warranty (or service contract) within the period specified in the warranty (or service contract).

(c) No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer’s using,

in connection with such product, any article or service (other than

article or service provided without charge under the terms of the

warranty) which is identified by brand, trade, or corporate name;

except that the prohibition of this subsection may be waived by the

Commission if—

(1) the warrantor satisfies the Commission that the warranted product will function properly only if the article or service so identified is used in connection with the warranted product, and

(2) the Commission finds that such a waiver is in the public interest.

The Commission shall identify in the Federal Register, and permit

public comment on, all applications for waiver of the prohibition of

this subsection, and shall publish in the Federal Register its disposition of any such application, including the reasons therefor.

(d) The Commission may by rule devise detailed substantive

warranty provisions which warrantors may incorporate by reference in their warranties.

(e) The provisions of this section apply only to warranties

which pertain to consumer products actually costing the consumer

more than $5.

DESIGNATION OF WARRANTIES

SEC. 103. ø15 U.S.C. 2303¿ (a) Any warrantor warranting a

consumer product by means of a written warranty shall clearly and

conspicuously designate such warranty in the following manner,

unless exempted from doing so by the Commission pursuant to subsection (c) of this section:

(1) If the written warranty meets the Federal minimum

standards for warranty set forth in section 104 of this Act,

then it shall be conspicuously designated a ‘‘full (statement of

duration) warranty’’. (2) If the written warranty does not meet the Federal minimum standards for warranty set forth in section 104 of this

Act, then it shall be conspicuously designated a ‘‘limited warranty’’.
193 Sec. 104 MAGNUSON-MOSS WARRANTY—FTC IMPROVEMENT ACT

(b) Sections 102, 103, and 104 shall not apply to statements or

representations which are similar to expressions of general policy

concerning customer satisfaction and which are not subject to any

specific limitations.

(c) In addition to exercising the authority pertaining to disclosure granted in section 102 of this Act, the Commission may by

rule determine when a written warranty does not have to be designated either ‘‘full (statement of duration)’’ or ‘‘limited’’ in accordance with this section.

(d) The provisions of subsections (a) and (c) of this section

apply only to warranties which pertain to consumer products actually costing the consumer more than $10 and which are not designated ‘‘full (statement of duration) warranties’’.

FEDERAL MINIMUM STANDARDS FOR WARRANTY

SEC. 104. ø15 U.S.C. 2304¿ (a) In order for a warrantor warranting a consumer product by means of a written warranty to

meet the Federal minimum standards for warranty—

(1) such warrantor must as a minimum remedy such consumer product within a reasonable time and without charge, in

the case of a defect, malfunction, or failure to conform with

such written warranty;

(2) notwithstanding section 108(b), such warrantor may

not impose any limitation on the duration of any implied warranty on the product;

(3) such warrantor may not exclude or limit consequential

damages for breach of any written or implied warranty on such

product, unless such exclusion or limitation conspicuously appears on the face of the warranty; and

(4) if the product (or a component part thereof) contains a

defect or malfunction after a reasonable number of attempts by

the warrantor to remedy defects or malfunctions in such product, such warrantor must permit the consumer to elect either

a refund for, or replacement without charge of, such product or

part (as the case may be). The Commission may by rule specify

for purposes of this paragraph, what constitutes a reasonable

number of attempts to remedy particular kinds of defects or

malfunctions under different circumstances. If the warrantor

replaces a component part of a consumer product, such replacement shall include installing the part in the product without

charge.

(b)(1) In fulfilling the duties under subsection (a) respecting a

written warranty, the warrantor shall not impose any duty other

than notification upon any consumer as a condition of securing

remedy of any consumer product which malfunctions, is defective,

or does not conform to the written warranty, unless the warrantor

has demonstrated in a rulemaking proceeding, or can demonstrate

in an administrative or judicial enforcement proceeding (including

private enforcement), or in an informal dispute settlement proceeding, that such a duty is reasonable.

(2) Notwithstanding paragraph (1), a warrantor may require,

as a condition to replacement of, or refund for, any consumer product under subsection (a), that such consumer product shall be made

available to the warrantor free and clear of liens and other encum-
Sec. 105 MAGNUSON-MOSS WARRANTY—FTC IMPROVEMENT ACT 194

brances, except as otherwise provided by rule or order of the Commission in cases in which such a requirement would not be practicable.

(3) The Commission may, by rule define in detail the duties set

forth in section 104(a) of this Act and the applicability of such duties to warrantors of different categories of consumer products with

‘‘full (statement of duration)’’ warranties.

(4) The duties under subsection (a) extend from the warrantor

to each person who is a consumer with respect to the consumer

product.

(c) The performance of the duties under subsection (a) of this

section shall not be required of the warrantor if he can show that

the defect, malfunction, or failure of any warranted consumer product to conform with a written warranty, was caused by damage

(not resulting from defect or malfunction) while in the possession

of the consumer, or unreasonable use (including failure to provide

reasonable and necessary maintenance).

(d) For purposes of this section and of section 102(c), the term

‘‘without charge’’ means that the warrantor may not assess the consumer for any costs the warrantor or his representatives incur in

connection with the required remedy of a warranted consumer

product. An obligation under subsection (a)(1)(A) to remedy without

charge does not necessarily require the warrantor to compensate

the consumer for incidental expenses; however, if any incidental expenses are incurred because the remedy is not made within a reasonable time or because the warrantor imposed an unreasonable

duty upon the consumer as a condition of securing remedy, then

the consumer shall be entitled to recover reasonable incidental expenses which are so incurred in any action against the warrantor.

(e) If a supplier designates a warranty applicable to a consumer product as a ‘‘full (statement of duration)’’ warranty, then

the warranty on such product shall, for purposes of any action

under section 110(d) or under any State law, be deemed to incorporate at least the minimum requirements of this section and rules

prescribed under this section.

FULL AND LIMITED WARRANTING OF A CONSUMER PRODUCT

SEC. 105. ø15 U.S.C. 2305¿ Nothing in this title shall prohibit

the selling of a consumer product which has both full and limited

warranties if such warranties are clearly and conspicuously differentiated.

SERVICE CONTRACTS

SEC. 106. ø15 U.S.C. 2306¿ (a) The Commission may prescribe

by rule the manner and form in which the terms and conditions of

service contracts shall be fully, clearly, and conspicuously disclosed.

(b) Nothing in this title shall be construed to prevent a supplier or warrantor from entering into a service contract with the

consumer in addition to or in lieu of a written warranty if such contract fully, clearly, and conspicuously discloses its terms and conditions in simple and readily understood language.
195 Sec. 110 MAGNUSON-MOSS WARRANTY—FTC IMPROVEMENT ACT

DESIGNATION OF REPRESENTATIVES

SEC. 107. ø15 U.S.C. 2307¿ Nothing in this title shall be construed to prevent any warrantor from designating representatives

to perform duties under the written or implied warranty: Provided,

That such warrantor shall make reasonable arrangements for compensation of such designated representatives, but no such designation shall relieve the warrantor of his direct responsibilities to the

consumer or make the representative a cowarrantor.

LIMITATION ON DISCLAIMER OF IMPLIED WARRANTIES

SEC. 108. ø15 U.S.C. 2308¿ (a) No supplier may disclaim or

modify (except as provided in subsection (b)) any implied warranty

to a consumer with respect to such consumer product if (1) such

supplier makes any written warranty to the consumer with respect

to such consumer product, or (2) at the time of sale, or within 90

days thereafter, such supplier enters into a service contract with

the consumer which applies to such consumer product.

(b) For purposes of this title (other than section 104(a)(2)), implied warranties may be limited in duration to the duration of a

written warranty of reasonable duration, if such limitation is conscionable and is set forth in clear and unmistakable language and

prominently displayed on the face of the warranty.

(c) A disclaimer, modification, or limitation made in violation

of this section shall be ineffective for purposes of this title and

State law.

COMMISSION RULES

SEC. 109. ø15 U.S.C. 2309¿ (a) Any rule prescribed under this

title shall be prescribed in accordance with section 553 of title 5,

United States Code; except that the Commission shall give interested persons an opportunity for oral presentations of data, views,

and arguments, in addition to written submissions. A transcript

shall be kept of any oral presentation. Any such rule shall be subject to judicial review under section 18(e) of the Federal Trade

Commission Act (as amended by section 202 of this Act) in the

same manner as rules prescribed under section 18(a)(1)(B) of such

Act, except that section 18(e)(3)(B) of such Act shall not apply.

(b) The Commission shall initiate within one year after the

date of enactment of this Act a rulemaking proceeding dealing with

warranties and warranty practices in connection with the sale of

used motor vehicles; and, to the extent necessary to supplement the

protections offered the consumer by this title, shall prescribe rules

dealing with such warranties and practices. In prescribing rules

under this subsection, the Commission may exercise any authority

it may have under this title, or other law, and in addition it may

require disclosure that a used motor vehicle is sold without any

warranty and specify the form and content of such disclosure.

REMEDIES

SEC. 110. ø15 U.S.C. 2310¿ (a)(1) Congress hereby declares it

to be its policy to encourage warrantors to establish procedures

whereby consumer disputes are fairly and expeditiously settled

through informal dispute settlement mechanisms.
Sec. 110 MAGNUSON-MOSS WARRANTY—FTC IMPROVEMENT ACT 196

(2) The Commission shall prescribe rules setting forth minimum requirements for any informal dispute settlement procedure

which is incorporated into the terms of a written warranty to which

any provision of this title applies. Such rules shall provide for participation in such procedure by independent or governmental entities.

(3) One or more warrantors may establish an informal dispute

settlement procedure which meets the requirements of the Commission’s rules under paragraph (2). If— (A) a warrantor establishes such a procedure,

(B) such procedure, and its implementation, meets the requirements of such rules, and

(C) he incorporates in a written warranty a requirement

that the consumer resort to such procedure before pursuing

any legal remedy under this section respecting such warranty,

then (i) the consumer may not commence a civil action (other than

a class action) under subsection (d) of this section unless he initially resorts to such procedure; and (ii) a class of consumers may

not proceed in a class action under subsection (d) except to the extent the court determines necessary to establish the representative

capacity of the named plaintiffs, unless the named plaintiffs (upon

notifying the defendant that they are named plaintiffs in a class action with respect to a warranty obligation) initially resort to such

procedure. In the case of such a class action which is brought in

a district court of the United States, the representative capacity of

the named plaintiffs shall be established in the application of rule

23 of the Federal Rules of Civil Procedure. In any civil action arising out of a warranty obligation and relating to a matter considered in such a procedure, any decision in such procedure shall be

admissible in evidence.

(4) The Commission on its own initiative may, or upon written

complaint filed by any interested person shall, review the bona fide

operation of any dispute settlement procedure resort to which is

stated in a written warranty to be a prerequisite to pursuing a

legal remedy under this section. If the Commission finds that such

procedure or its implementation fails to comply with the requirements of the rules under paragraph (2), the Commission may take

appropriate remedial action under any authority it may have under

this title or any other provision of law.

(5) Until rules under paragraph (2) take effect, this subsection

shall not affect the validity of any informal dispute settlement procedure respecting consumer warranties, but in any action under

subsection (d), the court may invalidate any such procedure if it

finds that such procedure is unfair.

(b) It shall be a violation of section 5(a)(1) of the Federal Trade

Commission Act (15 U.S.C. 45(a)(1)) for any person to fail to comply with any requirement imposed on such person by this title (or

a rule thereunder) or to violate any prohibition contained in this

title (or a rule thereunder).

(c)(1) The district courts of the United States shall have jurisdiction of any action brought by the Attorney General (in his capacity as such), or by the Commission by any of its attorneys designated by it for such purpose, to restrain (A) any warrantor from

making a deceptive warranty with respect to a consumer product,

or (B) any person from failing to comply with any requirement im-
197 Sec. 110 MAGNUSON-MOSS WARRANTY—FTC IMPROVEMENT ACT

posed on such person by or pursuant to this title or from violating

any prohibition contained in this title. Upon proper showing that,

weighing the equities and considering the Commission’s or Attorney General’s likelihood of ultimate success, such action would be

in the public interest and after notice to the defendant, a temporary restraining order or preliminary injunction may be granted

without bond. In the case of an action brought by the Commission,

if a complaint under section 5 of the Federal Trade Commission Act

is not filed within such period (not exceeding 10 days) as may be

specified by the court after the issuance of the temporary restraining order or preliminary injunction, the order or injunction shall be

dissolved by the court and be of no further force and effect. Any

suit shall be brought in the district in which such person resides

or transacts business. Whenever it appears to the court that the

ends of justice require that other persons should be parties in the

action, the court may cause them to be summoned whether or not

they reside in the district in which the court is held, and to that

end process may be served in any district.

(2) For the purposes of this subsection, the term ‘‘deceptive

warranty’’ means (A) a written warranty which (i) contains an affirmation, promise, description, or representation which is either

false or fraudulent, or which, in light of all of the circumstances,

would mislead a reasonable individual exercising due care; or (ii)

fails to contain information which is necessary in light of all of the

circumstances, to make the warranty not misleading to a reasonable individual exercising due care; or (B) a written warranty created by the use of such terms as ‘‘guaranty’’ or ‘‘warranty’’, if the

terms and conditions of such warranty so limit its scope and application as to deceive a reasonable individual.

(d)(1) Subject to subsections (a)(3) and (e), a consumer who is

damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this title, or under a

written warranty, implied warranty, or service contract, may bring

suit for damages and other legal and equitable relief—

(A) in any court of competent jurisdiction in any State or

the District of Columbia; or

(B) in an appropriate district court of the United States,

subject to paragraph (3) of this subsection.

(2) If a consumer finally prevails in any action brought under

paragraph (1) of this subsection, he may be allowed by the court

to recover as part of the judgment a sum equal to the aggregate

amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its

discretion shall determine that such an award of attorneys’ fees

would be inappropriate.

(3) No claim shall be cognizable in a suit brought under paragraph (1)(B) of this subsection—

(A) if the amount in controversy of any individual claim is

less than the sum or value of $25;

(B) if the amount in controversy is less than the sum or

value of $50,000 (exclusive of interests and costs) computed on

the basis of all claims to be determined in this suit; or
Sec. 111 MAGNUSON-MOSS WARRANTY—FTC IMPROVEMENT ACT 198

(C) if the action is brought as a class action, and the number of named plaintiffs is less than one hundred.

(e) No action (other than a class action or an action respecting

a warranty to which subsection (a)(3) applies) may be brought

under subsection (d) for failure to comply with any obligation under

any written or implied warranty or service contract, and a class of

consumers may not proceed in a class action under such subsection

with respect to such a failure except to the extent the court determines necessary to establish the representative capacity of the

named plaintiffs, unless the person obligated under the warranty

or service contract is afforded a reasonable opportunity to cure

such failure to comply. In the case of such a class action (other

than a class action respecting a warranty to which subsection (a)(3)

applies) brought under subsection (d) for breach of any written or

implied warranty or service contract, such reasonable opportunity

will be afforded by the named plaintiffs and they shall at that time

notify the defendant that they are acting on behalf of the class. In

the case of such a class action which is brought in a district court

of the United States, the representative capacity of the named

plaintiffs shall be established in the application of rule 23 of the

Federal Rules of Civil Procedure.

(f) For purposes of this section, only the warrantor actually

making a written affirmation of fact, promise, or undertaking shall

be deemed to have created a written warranty, and any rights arising thereunder may be enforced under this section only against

such warrantor and no other person.

EFFECT ON OTHER LAWS

SEC. 111. ø15 U.S.C. 2311¿ (a)(1) Nothing contained in this

title shall be construed to repeal, invalidate, or supersede the Federal Trade Commission Act (15 U.S.C. 41 et seq.) or any statute defined therein as an Antitrust Act.

(2) Nothing in this title shall be construed to repeal, invalidate,

or supersede the Federal Seed Act (7 U.S.C. 1551–1611) and nothing in this title shall apply to seed for planting.

(b)(1) Nothing in this title shall invalidate or restrict any right

or remedy of any consumer under State law or any other Federal

law.

(2) Nothing in this title (other than sections 108 and 104(a) (2)

and (4)) shall (A) affect the liability of, or impose liability on, any

person for personal injury, or (B) supersede any provision of State

law regarding consequential damages for injury to the person or

other injury.

(c)(1) Except as provided in subsection (b) and in paragraph (2)

of this subsection, a State requirement— (A) which relates to labeling or disclosure with respect to

written warranties or performance thereunder;

(B) which is within the scope of an applicable requirement

of sections 102, 103, and 104 (and rules implementing such

sections), and

(C) which is not identical to a requirement of section 102,

103, or 104 (or a rule thereunder),

shall not be applicable to written warranties complying with such

sections (or rules thereunder).
199 Sec. 112 MAGNUSON-MOSS WARRANTY—FTC IMPROVEMENT ACT

1Title II made amendments to the Federal Trade Commission Act (15 U.S.C. 41 et seq.).

(2) If, upon application of an appropriate State agency, the

Commission determines (pursuant to rules issued in accordance

with section 109) that any requirement of such State covering any

transaction to which this title applies (A) affords protection to consumers greater than the requirements of this title and (B) does not

unduly burden interstate commerce, then such State requirement

shall be applicable (notwithstanding the provisions of paragraph (1)

of this subsection) to the extent specified in such determination for

so long as the State administers and enforces effectively any such

greater requirement.

(d) This title (other than section 102(c)) shall be inapplicable

to any written warranty the making or content of which is otherwise governed by Federal law. If only a portion of a written warranty is so governed by Federal law, the remaining portion shall

be subject to this title.

EFFECTIVE DATE

SEC. 112. ø15 U.S.C. 2312¿ (a) Except as provided in subsection (b) of this section, this title shall take effect 6 months after

the date of its enactment but shall not apply to consumer products

manufactured prior to such date.

(b) Section 102(a) shall take effect 6 months after the final

publication of rules respecting such section; except that the Commission, for good cause shown, may postpone the applicability of

such sections until one year after such final publication in order to

permit any designated classes of suppliers to bring their written

warranties into compliance with rules promulgated pursuant to

this title.

(c) The Commission shall promulgate rules for initial implementation of this title as soon as possible after the date of enactment of this Act but in no event later than one year after such

date.

TITLE II—FEDERAL TRADE COMMISSION IMPROVEMENTS 1

* * * * * * *

201

SELECTED PROVISIONS OF THE ANTI CAR THEFT ACT

OF 1992

203

ANTI CAR THEFT ACT OF 1992

[Public Law 102–519, 106 Stat. 3384, November 25, 1992]

[As amended through Public Law 103–272, July 5, 1994]

AN ACT To prevent and deter auto theft.

* * * * * * *

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Anti Car Theft Act of 1992’’.

TITLE I—TOUGHER LAW

ENFORCEMENT AGAINST AUTO THEFT

Subtitle A—Enhanced Penalties for Auto

Theft

* * * * * * *

Subtitle B—Targeted Law Enforcement

SEC. 130. ø42 U.S.C. 3750a¿ GRANT AUTHORIZATION.

(a) PURPOSE.—The purpose of this subtitle is to supplement the

provisions of the Edward Byrne Memorial State and Local Law Enforcement Assistance Program to help the States to curb motor vehicle thefts and the related violence.

(b) GRANTS.—The Director of the Bureau of Justice Assistance

shall make grants to Anti Car Theft Committees submitting applications in compliance with the requirements of this subtitle.

SEC. 131. ø42 U.S.C. 3750b¿ APPLICATION.

(a) SUBMISSION.—To be eligible to receive a grant under this

subtitle, a chief executive of an Anti Car Theft Committee shall

submit an application to the Director of the Bureau of Justice Assistance.

(b) CONTENT.—The application submitted under subsection (a)

shall include the following:

(1) A statement that the applicant Anti Car Theft Committee is either a State agency or an agency of a unit of local

government.

(2) A statement that the applicant Anti Car Theft Committee is or will be financed in part (A) by a fee on motor vehicles registered by the State or possessed or insured within the

State (and that such fee is not less than $1 per vehicle), or (B)

in the same manner and to the same extent as is a similar program financed and implemented in a State like Michigan.
Sec. 132 ANTI CAR THEFT ACT OF 1992 204

(3) An assurance that Federal funds received under a

grant under this subtitle shall be used to supplement and not

supplant non-Federal funds that would otherwise be available

for activities funded under such grant.

(4) A statement that the resources of the applicant Anti

Car Theft Committee will be devoted entirely to combating

motor vehicle theft, including any or all of the following:

(A) Financing law enforcement officers or investigators

whose duties are entirely or primarily related to investigating cases of motor vehicle theft or of trafficking in stolen motor vehicles or motor vehicle parts.

(B) Financing prosecutors whose duties are entirely or

primarily related to prosecuting cases of motor vehicle

theft or of trafficking in stolen motor vehicles or motor vehicle parts.

(C) Motor vehicle theft prevention programs, including

vehicle identification number etching programs, programs

implemented by law enforcement agencies and designed to

enable the electronic tracking of stolen automobiles, and

programs designed to prevent the export of stolen vehicles.

(5) A description of the budget for the applicant Anti Car

Theft Committee for the fiscal year for which a grant is sought.

SEC. 132. ø42 U.S.C. 3750c¿ AWARD OF GRANTS.

(a) IN GENERAL.—The Director shall allocate to each State a

proportion of the total funds available under this subtitle that is

equal to the proportion of the number of motor vehicles registered

in such State to the total number of motor vehicles registered in

the United States. The Director shall ensure that all applicant

States have an opportunity to receive grants from an available appropriation. Any State that has not met the requirements described

in section 203 of this Act shall be excluded from any allocation

under this subsection.

(b) GRANT AMOUNTS.—If one Anti Car Theft Committee within

a State submits an application in compliance with section 131, the

Director shall award to such Anti Car Theft Committee a grant

equal to the total amount of funds allocated to such State under

this section. In no case shall the Anti Car Theft Committee receive

a grant that is more than 50 percent of the preaward budget for

such Anti Car Theft Committee.

(c) MULTIPLE COMMITTEES.—If two or more Anti Car Theft

Committees within a State submit applications in compliance with

section 131, the Director shall award to such Anti Car Theft Committees grants that in sum are equal to the total amount of funds

allocated to such State under this section. In no case shall an Anti

Car Theft Committee receive a grant that is more than 50 percent

of the preaward budget for such Anti Car Theft Committee. The Director shall allocate funds among two or more Anti Car Theft Committees with a State according to the proportion of the preaward

budget of each Anti Car Theft Committee to the total preaward

budget for all grant recipient Anti Car Theft Committees within

such State.

(d) RENEWAL OF GRANTS.—Subject to the availability of funds,

a grant under this subtitle may be renewed for up to 2 additional

years after the first fiscal year during which the recipient receives
205 Sec. 140 ANTI CAR THEFT ACT OF 1992

an initial grant under this subtitle if the Director determines that

the funds made available to the recipient during the previous year

were used in the manner required under the approved application.

SEC. 133. ø42 U.S.C. 3750d¿ AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated $10,000,000 to carry

out this subtitle for each of the fiscal years 1993, 1994, and 1995.

Subtitle C—Report Regarding State Motor

Vehicle Titling Programs to Combat

Motor Vehicle Thefts and Fraud

SEC. 140. ø15 U.S.C. 2041 note¿ ESTABLISHMENT OF TASK FORCE.

(a) ESTABLISHMENT.— (1) IN GENERAL.—The Secretary of Transportation and the

Attorney General of the United States, working together, shall,

as soon as practicable after the date of the enactment of this

Act but not later than 180 days after such date, establish a

task force to study problems which relate to motor vehicle titling, vehicle registration, and controls over motor vehicle salvage which may affect the motor vehicle theft problem. The

study shall include an examination of the extent to which the

absence of uniformity and integration in State laws regulating

vehicle titling and registration and salvage of used vehicles allows enterprising criminals to find the weakest link to ‘‘wash’’ the stolen character of the vehicles. It shall also consider the

adoption of a title brand on all certificates of title indicating

that the applicable vehicle was previously issued a title brand

or a title signifying ‘‘rebuilt’’, ‘‘reconstructed’’, or ‘‘flood’’. (2) REPORT.—The task force shall prepare a report containing the results of such study and shall submit such report

to the President and the Congress and to the chief executive

officer of each State not later than 12 months after the task

force is established, together with appropriate recommendations to solve these problems.

(b) MEMBERSHIP.—The task force shall consist of—

(1) the Secretary of Transportation, or the Secretary’s

delegate;

(2) the Attorney General of the United States, or the Attorney General’s delegate;

(3) the Secretary of Commerce, or the Secretary’s delegate;

(4) the Secretary of the Treasury, or the Secretary’s

delegate;

(5) at least 3 representatives, to be designated by the Attorney General of the United States;

(6) at least 5 representatives of State motor vehicle departments, to be designated by the Secretary of Transportation;

and

(7) at least 1 representative, to be designated by the Secretary of Transportation, from each of the following groups:

(A) Motor vehicle manufacturers.

(B) Motor vehicle dealers and distributors.

(C) Motor vehicle dismantlers, recyclers, and salvage

dealers.
Sec. 140 ANTI CAR THEFT ACT OF 1992 206

1Section 7(b) of Public Law 103–272, 108 Stat. 1379, July 5, 1994, repealed sections 201

through 204 without repealing the title heading.

(D) Motor vehicle repair and body shop operators.

(E) Motor vehicle scrap processors.

(F) Insurers of motor vehicles.

(G) State law enforcement officials.

(H) Local law enforcement officials.

(I) The American Association of Motor Vehicle Administrators.

(J) The National Insurance Crime Bureau.

(K) The National Committee on Traffic Laws and

Ordinances.

(c) REIMBURSEMENT.—

(1) SALARY.—The members of the task force shall serve

without pay.

(2) TRAVEL EXPENSES.—While away from their residences

or regular places of business in performance of services for the

Federal Government, members of the task force shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently

in the Federal Government service are allowed expenses under

section 5703 of title 5, United States Code.

(3) CHAIR.—The Secretary of Transportation, or the Secretary’s delegate, shall serve as chairman of the task force. The

task force may also invite representatives of the Governors and

State legislators to participate.

(d) REPORT.—

(1) BASIS.—The report required by subsection (a)(2) shall

be made after a meaningful consultative process and review of

existing laws, practices, studies, and recommendations regarding the problems specified in subsection (a)(1).

(2) CONTENT.—The report shall specify the key aspects of

motor vehicle antitheft measures necessary to prevent the disposition or use of stolen motor vehicles, or the major components of motor vehicles, and to prevent insurance and other

fraud based upon false reports of stolen motor vehicles. The report shall indicate any of the antitheft measures for which national uniformity would be crucial in order for the measure to

be adequately effective. The report shall recommend viable

ways of obtaining any national uniformity which is necessary.

(3) RECOMMENDATIONS.—The report also shall include

other recommendations for legislative or administrative action

at the State level or at the Federal level, and recommendations

for industry and public actions.

TITLE II—AUTOMOBILE TITLE FRAUD 1

TITLE III—AMENDMENTS ON THEFT

PREVENTION REGARDING ‘‘CHOP

SHOP’’ RELATED THEFTS

* * * * * * *
207 Sec. 402 ANTI CAR THEFT ACT OF 1992

TITLE IV—EXPORT OF STOLEN

AUTOMOBILES

SEC. 401. RANDOM CUSTOMS INSPECTIONS FOR STOLEN AUTOMOBILES BEING EXPORTED.

* * * * * * *

SEC. 402. ø19 U.S.C. 1646b note¿ PILOT STUDY AUTHORIZING UTILITY

OF NONDESTRUCTIVE EXAMINATION SYSTEM.

The Secretary of the Treasury, acting through the Commissioner of Customs, shall conduct a pilot study of the utility of a

nondestructive examination system to be used for inspection of containers that may contain automobiles leaving the country for the

purpose of determining whether such automobiles have been stolen.

209

CHAPTER 301 OF PART A OF SUBTITLE VI OF TITLE 49,

UNITED STATES CODE

øFORMERLY THE NATIONAL TRAFFIC AND MOTOR VEHICLE SAFETY

ACT OF 1966¿

211

CHAPTER 301 OF PART A OF SUBTITLE VI OF TITLE 49,

UNITED STATES CODE

SUBTITLE VI—MOTOR VEHICLE AND DRIVER

PROGRAMS

PART A—GENERAL

CHAPTER Sec.

301. MOTOR VEHICLE SAFETY ..................................................................... 30101

* * * * * * *

PART A—GENERAL

CHAPTER 301—MOTOR VEHICLE SAFETY

SUBCHAPTER I—GENERAL

Sec.

30101. Purpose and policy.

30102. Definitions.

30103. Relationship to other laws.

30104. Authorization of appropriations.

SUBCHAPTER II—STANDARDS AND COMPLIANCE

30111. Standards.

30112. Prohibitions on manufacturing, selling, and importing noncomplying motor

vehicles and equipment.

30113. General exemptions.

30114. Special exemptions.

30115. Certification of compliance.

30116. Defects and noncompliance found before sale to purchaser.

30117. Providing information to, and maintaining records on, purchasers.

30118. Notification of defects and noncompliance.

30119. Notification procedures.

30120. Remedies for defects and noncompliance.

30121. Provisional notification and civil actions to enforce.

30122. Making safety devices and elements inoperative.

30123. Tires.

30124. Buzzers indicating nonuse of safety belts.

30125. Schoolbuses and schoolbus equipment.

30126. Used motor vehicles.

30127. Automatic occupant crash protection and seat belt use.

SUBCHAPTER III—IMPORTING NONCOMPLYING MOTOR VEHICLES AND

EQUIPMENT

30141. Importing motor vehicles capable of complying with standards.

30142. Importing motor vehicles for personal use.

30143. Motor vehicles imported by individuals employed outside the United States.

30144. Importing motor vehicles on a temporary basis.

30145. Importing motor vehicles or equipment requiring further manufacturing.

30146. Release of motor vehicles and bonds.

30147. Responsibility for defects and noncompliance.

SUBCHAPTER IV—ENFORCEMENT AND ADMINISTRATIVE

30161. Judicial review of standards.
§ 30101 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 212

30162. Petitions by interested persons for standards and enforcement.

30163. Actions by the Attorney General.

30164. Service of process.

30165. Civil penalty.

30166. Inspections, investigations, and records.

30167. Disclosure of information by the Secretary of Transportation.

30168. Research, testing, development, and training.

30169. Annual reports.

30170. Criminal penalties.

SUBCHAPTER I—GENERAL

§ 30101. Purpose and policy

The purpose of this chapter is to reduce traffic accidents and

deaths and injuries resulting from traffic accidents. Therefore it is

necessary—

(1) to prescribe motor vehicle safety standards for motor

vehicles and motor vehicle equipment in interstate commerce;

and

(2) to carry out needed safety research and development.

§ 30102. Definitions

(a) GENERAL DEFINITIONS.—In this chapter— (1) ‘‘dealer’’ means a person selling and distributing new

motor vehicles or motor vehicle equipment primarily to purchasers that in good faith purchase the vehicles or equipment

other than for resale.

(2) ‘‘defect’’ includes any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment.

(3) ‘‘distributor’’ means a person primarily selling and distributing motor vehicles or motor vehicle equipment for resale.

(4) ‘‘interstate commerce’’ means commerce between a

place in a State and a place in another State or between places

in the same State through another State.

(5) ‘‘manufacturer’’ means a person—

(A) manufacturing or assembling motor vehicles or

motor vehicle equipment; or

(B) importing motor vehicles or motor vehicle equipment for resale.

(6) ‘‘motor vehicle’’ means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public

streets, roads, and highways, but does not include a vehicle operated only on a rail line.

(7) ‘‘motor vehicle equipment’’ means—

(A) any system, part, or component of a motor vehicle

as originally manufactured;

(B) any similar part or component manufactured or

sold for replacement or improvement of a system, part, or

component, or as an accessory or addition to a motor vehicle; or

(C) any device or an article or apparel (except medicine or eyeglasses prescribed by a licensed practitioner)

that is not a system, part, or component of a motor vehicle

and is manufactured, sold, delivered, offered, or intended

to be used only to safeguard motor vehicles and highway

users against risk of accident, injury, or death.
213 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30103

(8) ‘‘motor vehicle safety’’ means the performance of a

motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a

motor vehicle, and against unreasonable risk of death or injury

in an accident, and includes nonoperational safety of a motor

vehicle.

(9) ‘‘motor vehicle safety standard’’ means a minimum

standard for motor vehicle or motor vehicle equipment performance.

(10) ‘‘State’’ means a State of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands,

Guam, American Samoa, and the Virgin Islands.

(11) ‘‘United States district court’’ means a district court of

the United States, a United States court for Guam, the Virgin

Islands, and American Samoa, and the district court for the

Northern Mariana Islands.

(b) LIMITED DEFINITIONS.—(1) In sections 30117(b), 30118– 30121, and 30166(f) of this title— (A) ‘‘adequate repair’’ does not include repair resulting in

substantially impaired operation of a motor vehicle or motor

vehicle equipment;

(B) ‘‘first purchaser’’ means the first purchaser of a motor

vehicle or motor vehicle equipment other than for resale;

(C) ‘‘original equipment’’ means motor vehicle equipment

(including a tire) installed in or on a motor vehicle at the time

of delivery to the first purchaser;

(D) ‘‘replacement equipment’’ means motor vehicle equipment (including a tire) that is not original equipment;

(E) a brand name owner of a tire marketed under a brand

name not owned by the manufacturer of the tire is deemed to

be the manufacturer of the tire;

(F) a defect in original equipment, or noncompliance of

original equipment with a motor vehicle safety standard prescribed under this chapter, is deemed to be a defect or noncompliance of the motor vehicle in or on which the equipment

was installed at the time of delivery to the first purchaser;

(G) a manufacturer of a motor vehicle in or on which original equipment was installed when delivered to the first purchaser is deemed to be the manufacturer of the equipment; and

(H) a retreader of a tire is deemed to be the manufacturer

of the tire.

(2) The Secretary of Transportation may prescribe regulations

changing paragraph (1)(C), (D), (F), or (G) of this subsection.

§ 30103. Relationship to other laws

(a) UNIFORMITY OF REGULATIONS.—The Secretary of Transportation may not prescribe a safety regulation related to a motor vehicle subject to subchapter I of chapter 135 of this title that differs

from a motor vehicle safety standard prescribed under this chapter.

However, the Secretary may prescribe, for a motor vehicle operated

by a carrier subject to subchapter I of chapter 135, a safety regulation that imposes a higher standard of performance after manufacture than that required by an applicable standard in effect at the

time of manufacture.
§ 30104 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 214

(b) PREEMPTION.—(1) When a motor vehicle safety standard is

in effect under this chapter, a State or a political subdivision of a

State may prescribe or continue in effect a standard applicable to

the same aspect of performance of a motor vehicle or motor vehicle

equipment only if the standard is identical to the standard prescribed under this chapter. However, the United States Government, a State, or a political subdivision of a State may prescribe

a standard for a motor vehicle or motor vehicle equipment obtained

for its own use that imposes a higher performance requirement

than that required by the otherwise applicable standard under this

chapter.

(2) A State may enforce a standard that is identical to a standard prescribed under this chapter.

(c) ANTITRUST LAWS.—This chapter does not—

(1) exempt from the antitrust laws conduct that is unlawful under those laws; or

(2) prohibit under the antitrust laws conduct that is lawful

under those laws.

(d) WARRANTY OBLIGATIONS AND ADDITIONAL LEGAL RIGHTS

AND REMEDIES.—Sections 30117(b), 30118–30121, 30166(f), and

30167(a) and (b) of this title do not establish or affect a warranty

obligation under a law of the United States or a State. A remedy

under those sections and sections 30161 and 30162 of this title is

in addition to other rights and remedies under other laws of the

United States or a State.

(e) COMMON LAW LIABILITY.—Compliance with a motor vehicle

safety standard prescribed under this chapter does not exempt a

person from liability at common law.

§ 30104. Authorization of appropriations

There is authorized to be appropriated to the Secretary

$98,313,500 for the National Highway Traffic Safety Administration to carry out this part in each fiscal year beginning in fiscal

year 1999 and ending in fiscal year 2001.

§ 30105. Restriction on lobbying activities

(a) IN GENERAL.—No funds appropriated to the Secretary for

the National Highway Traffic Safety Administration shall be available for any activity specifically designed to urge a State or local

legislator to favor or oppose the adoption of any specific legislative

proposal pending before any State or local legislative body.

(b) APPEARANCE AS WITNESS NOT BARRED.—Subsection (a) does

not prohibit officers or employees of the United States from testifying before any State or local legislative body in response to the

invitation of any member of that legislative body or a State executive office.

SUBCHAPTER II—STANDARDS AND COMPLIANCE

§ 30111. Standards

(a) GENERAL REQUIREMENTS.—The Secretary of Transportation

shall prescribe motor vehicle safety standards. Each standard shall

be practicable, meet the need for motor vehicle safety, and be stated in objective terms.
215 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30112

(b) CONSIDERATIONS AND CONSULTATION.—When prescribing a

motor vehicle safety standard under this chapter, the Secretary

shall— (1) consider relevant available motor vehicle safety information;

(2) consult with the agency established under the Act of

August 20, 1958 (Public Law 85–684, 72 Stat. 635), and other

appropriate State or interstate authorities (including legislative committees);

(3) consider whether a proposed standard is reasonable,

practicable, and appropriate for the particular type of motor

vehicle or motor vehicle equipment for which it is prescribed;

and

(4) consider the extent to which the standard will carry out

section 30101 of this title.

(c) COOPERATION.—The Secretary may advise, assist, and cooperate with departments, agencies, and instrumentalities of the

United States Government, States, and other public and private

agencies in developing motor vehicle safety standards.

(d) EFFECTIVE DATES OF STANDARDS.—The Secretary shall

specify the effective date of a motor vehicle safety standard prescribed under this chapter in the order prescribing the standard.

A standard may not become effective before the 180th day after the

standard is prescribed or later than one year after it is prescribed.

However, the Secretary may prescribe a different effective date

after finding, for good cause shown, that a different effective date

is in the public interest and publishing the reasons for the finding.

(e) 5-YEAR PLAN FOR TESTING STANDARDS.—The Secretary

shall establish and periodically review and update on a continuing

basis a 5-year plan for testing motor vehicle safety standards prescribed under this chapter that the Secretary considers capable of

being tested. In developing the plan and establishing testing priorities, the Secretary shall consider factors the Secretary considers

appropriate, consistent with section 30101 of this title and the Secretary’s other duties and powers under this chapter. The Secretary

may change at any time those priorities to address matters the

Secretary considers of greater priority. The initial plan may be the

5-year plan for compliance testing in effect on December 18, 1991.

§ 30112. Prohibitions on manufacturing, selling, and importing noncomplying motor vehicles and equipment

(a) GENERAL.—Except as provided in this section, sections

30113 and 30114 of this title, and subchapter III of this chapter,

a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import

into the United States, any motor vehicle or motor vehicle equipment manufactured on or after the date an applicable motor vehicle safety standard prescribed under this chapter takes effect unless the vehicle or equipment complies with the standard and is

covered by a certification issued under section 30115 of this title.

(b) NONAPPLICATION.—This section does not apply to—

(1) the sale, offer for sale, or introduction or delivery for

introduction in interstate commerce of a motor vehicle or motor

vehicle equipment after the first purchase of the vehicle or

equipment in good faith other than for resale;
§ 30113 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 216

(2) a person— (A) establishing that the person had no reason to

know, despite exercising reasonable care, that a motor vehicle or motor vehicle equipment does not comply with applicable motor vehicle safety standards prescribed under

this chapter; or

(B) holding, without knowing about the noncompliance

and before the vehicle or equipment is first purchased in

good faith other than for resale, a certificate issued by a

manufacturer or importer stating the vehicle or equipment

complies with applicable standards prescribed under this

chapter;

(3) a motor vehicle or motor vehicle equipment intended

only for export, labeled for export on the vehicle or equipment

and on the outside of any container of the vehicle or equipment, and exported;

(4) a motor vehicle the Secretary of Transportation decides

under section 30141 of this title is capable of complying with

applicable standards prescribed under this chapter;

(5) a motor vehicle imported for personal use by an individual who receives an exemption under section 30142 of this

title;

(6) a motor vehicle under section 30143 of this title imported by an individual employed outside the United States;

(7) a motor vehicle under section 30144 of this title imported on a temporary basis;

(8) a motor vehicle or item of motor vehicle equipment

under section 30145 of this title requiring further manufacturing; or

(9) a motor vehicle that is at least 25 years old.

§ 30113. General exemptions

(a) DEFINITION.—In this section, ‘‘low-emission motor vehicle’’

means a motor vehicle meeting the standards for new motor vehicles applicable to the vehicle under section 202 of the Clean Air Act

(42 U.S.C. 7521) when the vehicle is manufactured and emitting an

air pollutant in an amount significantly below one of those standards.

(b) AUTHORITY TO EXEMPT AND PROCEDURES.—(1) The Secretary of Transportation may exempt, on a temporary basis, motor

vehicles from a motor vehicle safety standard prescribed under this

chapter or passenger motor vehicles from a bumper standard prescribed under chapter 325 of this title, on terms the Secretary considers appropriate. An exemption may be renewed. A renewal may

be granted only on reapplication and must conform to the requirements of this subsection.

(2) The Secretary may begin a proceeding under this subsection when a manufacturer applies for an exemption or a renewal

of an exemption. The Secretary shall publish notice of the application and provide an opportunity to comment. An application for an

exemption or for a renewal of an exemption shall be filed at a time

and in the way, and contain information, this section and the Secretary require.

(3) The Secretary may act under this subsection on finding

that—
217 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30113

(A) an exemption is consistent with the public interest and

this chapter or chapter 325 of this title (as applicable); and

(B)(i) compliance with the standard would cause substantial economic hardship to a manufacturer that has tried to

comply with the standard in good faith;

(ii) the exemption would make easier the development or

field evaluation of a new motor vehicle safety feature providing

a safety level at least equal to the safety level of the standard;

(iii) the exemption would make the development or field

evaluation of a low-emission motor vehicle easier and would

not unreasonably lower the safety level of that vehicle; or

(iv) compliance with the standard would prevent the manufacturer from selling a motor vehicle with an overall safety

level at least equal to the overall safety level of nonexempt vehicles.

(c) CONTENTS OF APPLICATIONS.—A manufacturer applying for

an exemption under subsection (b) of this section shall include the

following information in the application:

(1) if the application is made under subsection (b)(3)(B)(i)

of this section, a complete financial statement describing the

economic hardship and a complete description of the manufacturer’s good faith effort to comply with each motor vehicle safety standard prescribed under this chapter, or a bumper standard prescribed under chapter 325 of this title, from which the

manufacturer is requesting an exemption.

(2) if the application is made under subsection (b)(3)(B)(ii)

of this section, a record of the research, development, and testing establishing the innovative nature of the safety feature and

a detailed analysis establishing that the safety level of the feature at least equals the safety level of the standard.

(3) if the application is made under subsection (b)(3)(B)(iii)

of this section, a record of the research, development, and testing establishing that the motor vehicle is a low-emission motor

vehicle and that the safety level of the vehicle is not lowered

unreasonably by exemption from the standard.

(4) if the application is made under subsection (b)(3)(B)(iv)

of this section, a detailed analysis showing how the vehicle provides an overall safety level at least equal to the overall safety

level of nonexempt vehicles.

(d) ELIGIBILITY.—A manufacturer is eligible for an exemption

under subsection (b)(3)(B)(i) of this section (including an exemption

under subsection (b)(3)(B)(i) relating to a bumper standard referred

to in subsection (b)(1)) only if the Secretary determines that the

manufacturer’s total motor vehicle production in the most recent

year of production is not more than 10,000. A manufacturer is eligible for an exemption under subsection (b)(3)(B)(ii), (iii), or (iv) of

this section only if the Secretary determines the exemption is for

not more than 2,500 vehicles to be sold in the United States in any

12-month period.

(e) MAXIMUM PERIOD.—An exemption or renewal under subsection (b)(3)(B)(i) of this section may be granted for not more than

3 years. An exemption or renewal under subsection (b)(3)(B)(ii),

(iii), or (iv) of this section may be granted for not more than 2

years.
§ 30114 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 218

(f) DISCLOSURE.—The Secretary may make public, by the 10th

day after an application is filed, information contained in the application or relevant to the application unless the information concerns or is related to a trade secret or other confidential information not relevant to the application.

(g) NOTICE OF DECISION.—The Secretary shall publish in the

Federal Register a notice of each decision granting an exemption

under this section and the reasons for granting it.

(h) PERMANENT LABEL REQUIREMENT.—The Secretary shall require a permanent label to be fixed to a motor vehicle granted an

exemption under this section. The label shall either name or describe each motor vehicle safety standard prescribed under this

chapter or bumper standard prescribed under chapter 325 of this

title from which the vehicle is exempt. The Secretary may require

that written notice of an exemption be delivered by appropriate

means to the dealer and the first purchaser of the vehicle other

than for resale.

§ 30114. Special exemptions

The Secretary of Transportation may exempt a motor vehicle

or item of motor vehicle equipment from section 30112(a) of this

title on terms the Secretary decides are necessary for research, investigations, demonstrations, training, competitive racing events,

show, or display.

§ 30115. Certification of compliance

(a) IN GENERAL.—A manufacturer or distributor of a motor vehicle or motor vehicle equipment shall certify to the distributor or

dealer at delivery that the vehicle or equipment complies with applicable motor vehicle safety standards prescribed under this chapter. A person may not issue the certificate if, in exercising reasonable care, the person has reason to know the certificate is false or

misleading in a material respect. Certification of a vehicle must be

shown by a label or tag permanently fixed to the vehicle. Certification of equipment may be shown by a label or tag on the equipment or on the outside of the container in which the equipment is

delivered.

(b) CERTIFICATION LABEL.—In the case of the certification label

affixed by an intermediate or final stage manufacturer of a motor

vehicle built in more than 1 stage, each intermediate or final stage

manufacturer shall certify with respect to each applicable Federal

motor vehicle safety standard—

(1) that it has complied with the specifications set forth in

the compliance documentation provided by the incomplete

motor vehicle manufacturer in accordance with regulations

prescribed by the Secretary; or

(2) that it has elected to assume responsibility for compliance with that standard.

If the intermediate or final stage manufacturer elects to assume responsibility for compliance with the standard covered by the documentation provided by an incomplete motor vehicle manufacturer,

the intermediate or final stage manufacturer shall notify the incomplete motor vehicle manufacturer in writing within a reasonable time of affixing the certification label. A violation of this subsection shall not be subject to a civil penalty under section 30165.
219 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30117

§ 30116. Defects and noncompliance found before sale to

purchaser

(a) ACTIONS REQUIRED OF MANUFACTURERS AND DISTRIBUTORS.—If, after a manufacturer or distributor sells a motor vehicle

or motor vehicle equipment to a distributor or dealer and before

the distributor or dealer sells the vehicle or equipment, it is decided that the vehicle or equipment contains a defect related to

motor vehicle safety or does not comply with applicable motor vehicle safety standards prescribed under this chapter—

(1) the manufacturer or distributor immediately shall repurchase the vehicle or equipment at the price paid by the distributor or dealer, plus transportation charges and reasonable

reimbursement of at least one percent a month of the price

paid prorated from the date of notice of noncompliance or defect to the date of repurchase; or

(2) if a vehicle, the manufacturer or distributor immediately shall give to the distributor or dealer at the manufacturer’s or distributor’s own expense, the part or equipment

needed to make the vehicle comply with the standards or correct the defect.

(b) DISTRIBUTOR OR DEALER INSTALLATION.—The distributor or

dealer shall install the part or equipment referred to in subsection

(a)(2) of this section. If the distributor or dealer installs the part

or equipment with reasonable diligence after it is received, the

manufacturer shall reimburse the distributor or dealer for the reasonable value of the installation and a reasonable reimbursement

of at least one percent a month of the manufacturer’s or distributor’s selling price prorated from the date of notice of noncompliance

or defect to the date the motor vehicle complies with applicable

motor vehicle safety standards prescribed under this chapter or the

defect is corrected.

(c) ESTABLISHING AMOUNT DUE AND CIVIL ACTIONS.—The parties shall establish the value of installation and the amount of reimbursement under this section. If the parties do not agree, or if

a manufacturer or distributor refuses to comply with subsection (a)

or (b) of this section, the distributor or dealer purchasing the motor

vehicle or motor vehicle equipment may bring a civil action. The

action may be brought in a United States district court for the judicial district in which the manufacturer or distributor resides, is

found, or has an agent, to recover damages, court costs, and a reasonable attorney’s fee. An action under this section must be

brought not later than 3 years after the claim accrues.

§ 30117. Providing information to, and maintaining records

on, purchasers

(a) PROVIDING INFORMATION AND NOTICE.—The Secretary of

Transportation may require that each manufacturer of a motor vehicle or motor vehicle equipment provide technical information related to performance and safety required to carry out this chapter.

The Secretary may require the manufacturer to give the following

notice of that information when the Secretary decides it is necessary:

(1) to each prospective purchaser of a vehicle or equipment

before the first sale other than for resale at each location at
§ 30117 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 220

which the vehicle or equipment is offered for sale by a person

having a legal relationship with the manufacturer, in a way

the Secretary decides is appropriate.

(2) to the first purchaser of a vehicle or equipment other

than for resale when the vehicle or equipment is bought, in

printed matter placed in the vehicle or attached to or accompanying the equipment.

(b) MAINTAINING PURCHASER RECORDS AND PROCEDURES.—(1)

A manufacturer of a motor vehicle or tire (except a retreaded tire)

shall cause to be maintained a record of the name and address of

the first purchaser of each vehicle or tire it produces and, to the

extent prescribed by regulations of the Secretary, shall cause to be

maintained a record of the name and address of the first purchaser

of replacement equipment (except a tire) that the manufacturer

produces. The Secretary may prescribe by regulation the records to

be maintained and reasonable procedures for maintaining the

records under this subsection, including procedures to be followed

by distributors and dealers to assist the manufacturer in obtaining

the information required by this subsection. A procedure shall be

reasonable for the type of vehicle or tire involved, and shall provide

reasonable assurance that a customer list of a distributor or dealer,

or similar information, will be made available to a person (except

the distributor or dealer) only when necessary to carry out this

subsection and sections 30118–30121, 30166(f), and 30167(a) and

(b) of this title. Availability of assistance from a distributor or dealer does not affect an obligation of a manufacturer under this subsection.

(2)(A) Except as provided in paragraph (3) of this subsection,

the Secretary may require a distributor or dealer to maintain a

record under paragraph (1) of this subsection only if the business

of the distributor or dealer is owned or controlled by a manufacturer of tires.

(B) The Secretary shall require each distributor and dealer

whose business is not owned or controlled by a manufacturer of

tires to give a registration form (containing the tire identification

number) to the first purchaser of a tire. The Secretary shall prescribe the form, which shall be standardized for all tires and designed to allow the purchaser to complete and return it directly to

the manufacturer of the tire. The manufacturer shall give sufficient

copies of forms to distributors and dealers.

(3)(A) The Secretary shall evaluate from time to time how successful the procedures under paragraph (2) of this subsection have

been in helping to maintain records about first purchasers of tires.

After each evaluation, the Secretary shall decide—

(i) the extent to which distributors and dealers have complied with the procedures;

(ii) the extent to which distributors and dealers have encouraged first purchasers of tires to register the tires; and

(iii) whether to prescribe for manufacturers, distributors,

or dealers other requirements that the Secretary decides will

increase significantly the percentage of first purchasers of tires

about whom records are maintained.

(B) The Secretary may prescribe a requirement under subparagraph (A) of this paragraph only if the Secretary decides it is nec-
221 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30118

essary to reduce the risk to motor vehicle safety, after

considering— (i) the cost of the requirement to manufacturers and the

burden of the requirement on distributors and dealers, compared to the increase in the percentage of first purchasers of

tires about whom records would be maintained as a result of

the requirement;

(ii) the extent to which distributors and dealers have complied with the procedures in paragraph (2) of this subsection;

and

(iii) the extent to which distributors and dealers have encouraged first purchasers of tires to register the tires.

(C) A manufacturer of tires shall reimburse distributors and

dealers of that manufacturer’s tires for all reasonable costs incurred by the distributors and dealers in complying with a requirement prescribed by the Secretary under subparagraph (A) of this

paragraph.

(D) After making a decision under subparagraph (A) of this

paragraph, the Secretary shall submit to each House of Congress

a report containing a detailed statement of the decision and an explanation of the reasons for the decision.

(c) ROLLOVER TESTS.— (1) DEVELOPMENT.—Not later than 2 years from the date

of the enactment of this subsection, the Secretary shall— (A) develop a dynamic test on rollovers by motor vehicles for the purposes of a consumer information program;

and

(B) carry out a program of conducting such tests.

(2) TEST RESULTS.—As the Secretary develops a test under

paragraph (1)(A), the Secretary shall conduct a rulemaking to

determine how best to disseminate test results to the public.

(3) MOTOR VEHICLES COVERED.—This subsection applies to

motor vehicles, including passenger cars, multipurpose passenger vehicles, and trucks, with a gross vehicle weight rating

of 10,000 pounds or less. A motor vehicle designed to provide

temporary residential accommodations is not covered.

§ 30118. Notification of defects and noncompliance

(a) NOTIFICATION BY SECRETARY.—The Secretary of Transportation shall notify the manufacturer of a motor vehicle or replacement equipment immediately after making an initial decision

(through testing, inspection, investigation, or research carried out

under this chapter, examining communications under section

30166(f) of this title, or otherwise) that the vehicle or equipment

contains a defect related to motor vehicle safety or does not comply

with an applicable motor vehicle safety standard prescribed under

this chapter. The notification shall include the information on

which the decision is based. The Secretary shall publish a notice

of each decision under this subsection in the Federal Register. Subject to section 30167(a) of this title, the notification and information are available to any interested person.

(b) DEFECT AND NONCOMPLIANCE PROCEEDINGS AND ORDERS.—

(1) The Secretary may make a final decision that a motor vehicle

or replacement equipment contains a defect related to motor vehicle safety or does not comply with an applicable motor vehicle safe-
§ 30119 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 222

ty standard prescribed under this chapter only after giving the

manufacturer an opportunity to present information, views, and arguments showing that there is no defect or noncompliance or that

the defect does not affect motor vehicle safety. Any interested person also shall be given an opportunity to present information,

views, and arguments.

(2) If the Secretary decides under paragraph (1) of this subsection that the vehicle or equipment contains the defect or does

not comply, the Secretary shall order the manufacturer to—

(A) give notification under section 30119 of this title to the

owners, purchasers, and dealers of the vehicle or equipment of

the defect or noncompliance; and

(B) remedy the defect or noncompliance under section

30120 of this title.

(c) NOTIFICATION BY MANUFACTURER.—A manufacturer of a

motor vehicle or replacement equipment shall notify the Secretary

by certified mail, and the owners, purchasers, and dealers of the

vehicle or equipment as provided in section 30119(d) of this section,

if the manufacturer—

(1) learns the vehicle or equipment contains a defect and

decides in good faith that the defect is related to motor vehicle

safety; or

(2) decides in good faith that the vehicle or equipment does

not comply with an applicable motor vehicle safety standard

prescribed under this chapter.

(d) EXEMPTIONS.—On application of a manufacturer, the Secretary shall exempt the manufacturer from this section if the Secretary decides a defect or noncompliance is inconsequential to

motor vehicle safety. The Secretary may take action under this

subsection only after notice in the Federal Register and an opportunity for any interested person to present information, views, and

arguments.

(e) HEARINGS ABOUT MEETING NOTIFICATION REQUIREMENTS.—

On the motion of the Secretary or on petition of any interested person, the Secretary may conduct a hearing to decide whether the

manufacturer has reasonably met the notification requirements

under this section. Any interested person may make written and

oral presentations of information, views, and arguments on whether the manufacturer has reasonably met the notification requirements. If the Secretary decides that the manufacturer has not reasonably met the notification requirements, the Secretary shall

order the manufacturer to take specified action to meet those requirements and may take any other action authorized under this

chapter.

§ 30119. Notification procedures

(a) CONTENTS OF NOTIFICATION.—Notification by a manufacturer required under section 30118 of this title of a defect or noncompliance shall contain—

(1) a clear description of the defect or noncompliance;

(2) an evaluation of the risk to motor vehicle safety reasonably related to the defect or noncompliance;

(3) the measures to be taken to obtain a remedy of the defect or noncompliance;
223 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30119

1So in law. Reference in section 30119(d)(1)(B) probably should be to ‘‘subparagraph (A)’’.

(4) a statement that the manufacturer giving notice will

remedy the defect or noncompliance without charge under section 30120 of this title;

(5) the earliest date on which the defect or noncompliance

will be remedied without charge, and for tires, the period during which the defect or noncompliance will be remedied without charge under section 30120 of this title;

(6) the procedure the recipient of a notice is to follow to inform the Secretary of Transportation when a manufacturer,

distributor, or dealer does not remedy the defect or noncompliance without charge under section 30120 of this title; and

(7) other information the Secretary prescribes by regulation.

(b) EARLIEST REMEDY DATE.—The date specified by a manufacturer in a notification under subsection (a)(5) of this section or section 30121(c)(2) of this title is the earliest date that parts and facilities reasonably can be expected to be available to remedy the defect or noncompliance. The Secretary may disapprove the date.

(c) TIME FOR NOTIFICATION.—Notification required under section 30118 of this title shall be given within a reasonable time—

(1) prescribed by the Secretary, after the manufacturer receives notice of a final decision under section 30118(b) of this

title; or

(2) after the manufacturer first decides that a safety-related defect or noncompliance exists under section 30118(c) of

this title.

(d) MEANS OF PROVIDING NOTIFICATION.—(1) Notification required under section 30118 of this title about a motor vehicle shall

be sent by first class mail—

(A) to each person registered under State law as the owner

and whose name and address are reasonably ascertainable by

the manufacturer through State records or other available

sources; or

(B) if a registered owner is not notified under clause (A) 1

of this paragraph, to the most recent purchaser known to the

manufacturer.

(2) Notification required under section 30118 of this title about

replacement equipment (except a tire) shall be sent by first class

mail to the most recent purchaser known to the manufacturer. In

addition, if the Secretary decides that public notice is required for

motor vehicle safety, public notice shall be given in the way required by the Secretary after consulting with the manufacturer.

(3) Notification required under section 30118 of this title about

a tire shall be sent by first class mail (or, if the manufacturer prefers, by certified mail) to the most recent purchaser known to the

manufacturer. In addition, if the Secretary decides that public notice is required for motor vehicle safety, public notice shall be given

in the way required by the Secretary after consulting with the

manufacturer. In deciding whether public notice is required, the

Secretary shall consider—

(A) the magnitude of the risk to motor vehicle safety

caused by the defect or noncompliance; and
§ 30120 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 224

(B) the cost of public notice compared to the additional

number of owners the notice may reach.

(4) A dealer to whom a motor vehicle or replacement equipment was delivered shall be notified by certified mail or quicker

means if available.

(e) SECOND NOTIFICATION.—If the Secretary decides that a notification sent by a manufacturer under this section has not resulted in an adequate number of motor vehicles or items of replacement equipment being returned for remedy, the Secretary may

order the manufacturer to send a 2d notification in the way the

Secretary prescribes by regulation.

(f) NOTIFICATION BY LESSOR TO LESSEE.—(1) In this subsection, ‘‘leased motor vehicle’’ means a motor vehicle that is leased to a

person for at least 4 months by a lessor that has leased at least

5 motor vehicles in the 12 months before the date of the notification.

(2) A lessor that receives a notification required by section

30118 of this title about a leased motor vehicle shall provide a copy

of the notification to the lessee in the way the Secretary prescribes

by regulation.

§ 30120. Remedies for defects and noncompliance

(a) WAYS TO REMEDY.—(1) Subject to subsections (f) and (g) of

this section, when notification of a defect or noncompliance is required under section 30118(b) or (c) of this title, the manufacturer

of the defective or noncomplying motor vehicle or replacement

equipment shall remedy the defect or noncompliance without

charge when the vehicle or equipment is presented for remedy.

Subject to subsections (b) and (c) of this section, the manufacturer

shall remedy the defect or noncompliance in any of the following

ways the manufacturer chooses:

(A) if a vehicle— (i) by repairing the vehicle;

(ii) by replacing the vehicle with an identical or reasonably equivalent vehicle; or

(iii) by refunding the purchase price, less a reasonable

allowance for depreciation.

(B) if replacement equipment, by repairing the equipment

or replacing the equipment with identical or reasonably equivalent equipment.

(2) The Secretary of Transportation may prescribe regulations

to allow the manufacturer to impose conditions on the replacement

of a motor vehicle or refund of its price.

(b) TIRE REMEDIES.—(1) A manufacturer of a tire, including an

original equipment tire, shall remedy a defective or noncomplying

tire if the owner or purchaser presents the tire for remedy not later

than 60 days after the later of—

(A) the day the owner or purchaser receives notification

under section 30119 of this title; or

(B) if the manufacturer decides to replace the tire, the day

the owner or purchaser receives notification that a replacement

is available.

(2) If the manufacturer decides to replace the tire and the replacement is not available during the 60-day period, the owner or

purchaser must present the tire for remedy during a subsequent
225 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30120

60-day period that begins only after the owner or purchaser receives notification that a replacement will be available during the

subsequent period. If tires are available during the subsequent period, only a tire presented for remedy during that period must be

remedied.

(c) ADEQUACY OF REPAIRS.—(1) If a manufacturer decides to repair a defective or noncomplying motor vehicle or replacement

equipment and the repair is not done adequately within a reasonable time, the manufacturer shall— (A) replace the vehicle or equipment without charge with

an identical or reasonably equivalent vehicle or equipment; or

(B) for a vehicle, refund the purchase price, less a reasonable allowance for depreciation.

(2) Failure to repair a motor vehicle or replacement equipment

adequately not later than 60 days after its presentation is prima

facie evidence of failure to repair within a reasonable time. However, the Secretary may extend, by order, the 60-day period if good

cause for an extension is shown and the reason is published in the

Federal Register before the period ends. Presentation of a vehicle

or equipment for repair before the date specified by a manufacturer

in a notice under section 30119(a)(5) or 30121(c)(2) of this title is

not a presentation under this subsection.

(3) If the Secretary determines that a manufacturer’s remedy

program is not likely to be capable of completion within a reasonable time, the Secretary may require the manufacturer to accelerate the remedy program if the Secretary finds— (A) that there is a risk of serious injury or death if the

remedy program is not accelerated; and

(B) that acceleration of the remedy program can be reasonably achieved by expanding the sources of replacement parts,

expanding the number of authorized repair facilities, or both.

The Secretary may prescribe regulations to carry out this paragraph.

(d) FILING MANUFACTURER’S REMEDY PROGRAM.—A manufacturer shall file with the Secretary a copy of the manufacturer’s program under this section for remedying a defect or noncompliance.

The Secretary shall make the program available to the public and

publish a notice of availability in the Federal Register. A manufacturer’s remedy program shall include a plan for reimbursing an

owner or purchaser who incurred the cost of the remedy within a

reasonable time in advance of the manufacturer’s notification

under subsection (b) or (c) of section 30118. The Secretary may prescribe regulations establishing what constitutes a reasonable time

for purposes of the preceding sentence and other reasonable conditions for the reimbursement plan. In the case of a remedy program

involving the replacement of tires, the manufacturer shall include

a plan addressing how to prevent, to the extent reasonably within

the control of the manufacturer, replaced tires from being resold for

installation on a motor vehicle, and how to limit, to the extent reasonably within the control of the manufacturer, the disposal of replaced tires in landfills, particularly through shredding, crumbling,

recycling, recovery, and other alternative beneficial non-vehicular

uses. The manufacturer shall include information about the implementation of such plan with each quarterly report to the Secretary

regarding the progress of any notification or remedy campaigns.
§ 30120 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 226

(e) HEARINGS ABOUT MEETING REMEDY REQUIREMENTS.—On

the motion of the Secretary or on application by any interested person, the Secretary may conduct a hearing to decide whether the

manufacturer has reasonably met the remedy requirements under

this section. Any interested person may make written and oral

presentations of information, views, and arguments on whether the

manufacturer has reasonably met the remedy requirements. If the

Secretary decides a manufacturer has not reasonably met the remedy requirements, the Secretary shall order the manufacturer to

take specified action to meet those requirements and may take any

other action authorized under this chapter.

(f) FAIR REIMBURSEMENT TO DEALERS.—A manufacturer shall

pay fair reimbursement to a dealer providing a remedy without

charge under this section.

(g) NONAPPLICATION.—(1) The requirement that a remedy be

provided without charge does not apply if the motor vehicle or replacement equipment was bought by the first purchaser more than

10 calendar years, or the tire, including an original equipment tire,

was bought by the first purchaser more than 5 calendar years, before notice is given under section 30118(c) of this title or an order

is issued under section 30118(b) of this title, whichever is earlier.

(2) This section does not apply during any period in which enforcement of an order under section 30118(b) of this title is restrained or the order is set aside in a civil action to which section

30121(d) of this title applies.

(h) EXEMPTIONS.—On application of a manufacturer, the Secretary shall exempt the manufacturer from this section if the Secretary decides a defect or noncompliance is inconsequential to

motor vehicle safety. The Secretary may take action under this

subsection only after notice in the Federal Register and an opportunity for any interested person to present information, views, and

arguments.

(i) LIMITATION ON SALE OR LEASE.—(1) If notification is required by an order under section 30118(b) of this title or is required under section 30118(c) of this title and the manufacturer

has provided to a dealer (including retailers of motor vehicle equipment) notification about a new motor vehicle or new item of replacement equipment in the dealer’s possession at the time of notification that contains a defect related to motor vehicle safety or

does not comply with an applicable motor vehicle safety standard

prescribed under this chapter, the dealer may sell or lease the

motor vehicle or item of replacement equipment only if—

A) the defect or noncompliance is remedied as required by

this section before delivery under the sale or lease; or

(B) when the notification is required by an order under

section 30118(b) of this title, enforcement of the order is restrained or the order is set aside in a civil action to which section 30121(d) of this title applies.

(2) This subsection does not prohibit a dealer from offering for

sale or lease the vehicle or equipment.

( j) PROHIBITION ON SALES OF REPLACED EQUIPMENT.—No person may sell or lease any motor vehicle equipment (including a

tire), for installation on a motor vehicle, that is the subject of a decision under section 30118(b) or a notice required under section
227 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30121

30118(c) in a condition that it may be reasonably used for its original purpose unless— (1) the defect or noncompliance is remedied as required by

this section before delivery under the sale or lease; or

(2) notification of the defect or noncompliance is required

under section 30118(b) but enforcement of the order is set

aside in a civil action to which section 30121(d) applies.

§ 30121. Provisional notification and civil actions to enforce

(a) PROVISIONAL NOTIFICATION.—(1) The Secretary of Transportation may order a manufacturer to issue a provisional notification

if a civil action about an order issued under section 30118(b) of this

title has been brought under section 30163 of this title. The provisional notification shall contain— (A) a statement that the Secretary has decided that a defect related to motor vehicle safety or noncompliance with a

motor vehicle safety standard prescribed under this chapter exists and that the manufacturer is contesting the decision in a

civil action in a United States district court;

(B) a clear description of the Secretary’s stated basis for

the decision;

(C) the Secretary’s evaluation of the risk to motor vehicle

safety reasonably related to the defect or noncompliance;

(D) measures the Secretary considers necessary to avoid

an unreasonable risk to motor vehicle safety resulting from the

defect or noncompliance;

(E) a statement that the manufacturer will remedy the defect or noncompliance without charge under section 30120 of

this title, but that the requirement to remedy without charge

is conditioned on the outcome of the civil action; and

(F) other information the Secretary prescribes by regulation or includes in the order requiring the notice.

(2) A notification under this subsection does not relieve a manufacturer of liability for not giving notification required by an order

under section 30118(b) of this title.

(b) CIVIL ACTIONS FOR NOT NOTIFYING.—(1) A manufacturer

that does not notify owners and purchasers under section 30119(c)

and (d) of this title is liable to the United States Government for

a civil penalty, unless the manufacturer prevails in a civil action

referred to in subsection (a) of this section or the court in that action enjoins enforcement of the order. Enforcement may be enjoined

only if the court decides that the failure to notify is reasonable and

that the manufacturer has demonstrated the likelihood of prevailing on the merits. If enforcement is enjoined, the manufacturer

is not liable during the time the order is stayed.

(2) A manufacturer that does not notify owners and purchasers

as required under subsection (a) of this section is liable for a civil

penalty regardless of whether the manufacturer prevails in an action on the validity of the order issued under section 30118(b) of

this title.

(c) ORDERS TO MANUFACTURERS.—If the Secretary prevails in

a civil action referred to in subsection (a) of this section, the Secretary shall order the manufacturer—

(1) to notify each owner, purchaser, and dealer described

in section 30119(d) of this title of the outcome of the action and
§ 30122 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 228

other information the Secretary requires, and notification

under this clause may be combined with notification required

under section 30118(b) of this title;

(2) to specify the earliest date under section 30119(b) of

this title on which the defect or noncompliance will be remedied without charge under section 30120 of this title; and

(3) if notification was required under subsection (a) of this

section, to reimburse an owner or purchaser for reasonable and

necessary expenses (in an amount that is not more than the

amount specified in the order of the Secretary under subsection

(a)) incurred for repairing the defect or noncompliance during

the period beginning on the date that notification was required

to be issued and ending on the date the owner or purchaser receives the notification under this subsection.

(d) VENUE.—Notwithstanding section 30163(c) of this title, a

civil action about an order issued under section 30118(b) of this

title must be brought in the United States district court for a judicial district in the State in which the manufacturer is incorporated

or the District of Columbia. On motion of a party, the court may

transfer the action to another district court if good cause is shown.

All actions related to the same order under section 30118(b) shall

be consolidated in an action in one judicial district under an order

of the court in which the first action was brought. If the first action

is transferred to another court, that court shall issue the consolidation order.

§ 30122. Making safety devices and elements inoperative

(a) DEFINITION.—In this section, ‘‘motor vehicle repair business’’ means a person holding itself out to the public to repair for

compensation a motor vehicle or motor vehicle equipment.

(b) PROHIBITION.—A manufacturer, distributor, dealer, or

motor vehicle repair business may not knowingly make inoperative

any part of a device or element of design installed on or in a motor

vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard prescribed under this chapter unless the manufacturer, distributor, dealer, or repair business reasonably believes the vehicle or equipment will not be used (except

for testing or a similar purpose during maintenance or repair)

when the device or element is inoperative.

(c) REGULATIONS.—The Secretary of Transportation may prescribe regulations—

(1) to exempt a person from this section if the Secretary

decides the exemption is consistent with motor vehicle safety

and section 30101 of this title; and

(2) to define ‘‘make inoperative’’.

(d) NONAPPLICATION.—This section does not apply to a safety

belt interlock or buzzer designed to indicate a safety belt is not in

use as described in section 30124 of this title.

§ 30123. Tires

(a) REGROOVED TIRE LIMITATIONS.—(1) In this subsection, ‘‘regrooved tire’’ means a tire with a new tread produced by cutting

into the tread of a worn tire.

(2) The Secretary may authorize the sale, offer for sale, introduction for sale, or delivery for introduction in interstate com-
229 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30125

merce, of a regrooved tire or a motor vehicle equipped with regrooved tires if the Secretary decides the tires are designed and

made in a way consistent with section 30101 of this title. A person

may not sell, offer for sale, introduce for sale, or deliver for introduction in interstate commerce, a regrooved tire or a vehicle

equipped with regrooved tires unless authorized by the Secretary.

(b) UNIFORM QUALITY GRADING SYSTEM, NOMENCLATURE, AND

MARKETING PRACTICES.—The Secretary shall prescribe through

standards a uniform quality grading system for motor vehicle tires

to help consumers make an informed choice when purchasing tires.

The Secretary also shall cooperate with industry and the Federal

Trade Commission to the greatest extent practicable to eliminate

deceptive and confusing tire nomenclature and marketing practices. A tire standard or regulation prescribed under this chapter

supersedes an order or administrative interpretation of the Commission.

(c) MAXIMUM LOAD STANDARDS.—The Secretary shall require a

motor vehicle to be equipped with tires that meet maximum load

standards when the vehicle is loaded with a reasonable amount of

luggage and the total number of passengers the vehicle is designed

to carry. The vehicle shall be equipped with those tires by the manufacturer or by the first purchaser when the vehicle is first bought

in good faith other than for resale.

§ 30124. Buzzers indicating nonuse of safety belts

A motor vehicle safety standard prescribed under this chapter

may not require or allow a manufacturer to comply with the standard by using a safety belt interlock designed to prevent starting or

operating a motor vehicle if an occupant is not using a safety belt

or a buzzer designed to indicate a safety belt is not in use, except

a buzzer that operates only during the 8-second period after the ignition is turned to the ‘‘start’’ or ‘‘on’’ position.

§ 30125. Schoolbuses and schoolbus equipment

(a) DEFINITIONS.—In this section— (1) ‘‘schoolbus’’ means a passenger motor vehicle designed

to carry a driver and more than 10 passengers, that the Secretary of Transportation decides is likely to be used significantly to transport preprimary, primary, and secondary school

students to or from school or an event related to school.

(2) ‘‘schoolbus equipment’’ means equipment designed primarily for a schoolbus or manufactured or sold to replace or

improve a system, part, or component of a schoolbus or as an

accessory or addition to a schoolbus.

(b) STANDARDS.—The Secretary shall prescribe motor vehicle

safety standards for schoolbuses and schoolbus equipment manufactured in, or imported into, the United States. Standards shall include minimum performance requirements for—

(1) emergency exits;

(2) interior protection for occupants;

(3) floor strength;

(4) seating systems;

(5) crashworthiness of body and frame (including protection against rollover hazards);

(6) vehicle operating systems;
§ 30126 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 230

(7) windows and windshields; and

(8) fuel systems.

(c) TEST DRIVING BY MANUFACTURERS.—The Secretary may require by regulation a schoolbus to be test-driven by a manufacturer

before introduction in commerce.

§ 30126. Used motor vehicles

To ensure a continuing and effective national safety program,

it is the policy of the United States Government to encourage and

strengthen State inspection of used motor vehicles. Therefore, the

Secretary of Transportation shall prescribe uniform motor vehicle

safety standards applicable to all used motor vehicles. The standards shall be stated in terms of motor vehicle safety performance.

§ 30127. Automatic occupant crash protection and seat belt

use

(a) DEFINITIONS.—In this section— (1) ‘‘bus’’ means a motor vehicle with motive power (except

a trailer) designed to carry more than 10 individuals.

(2) ‘‘multipurpose passenger vehicle’’ means a motor vehicle with motive power (except a trailer), designed to carry not

more than 10 individuals, that is constructed either on a truck

chassis or with special features for occasional off-road operation.

(3) ‘‘passenger car’’ means a motor vehicle with motive

power (except a multipurpose passenger vehicle, motorcycle, or

trailer) designed to carry not more than 10 individuals.

(4) ‘‘truck’’ means a motor vehicle with motive power (except a trailer) designed primarily to transport property or special purpose equipment.

(b) INFLATABLE RESTRAINT REQUIREMENTS.—(1) Not later than

September 1, 1993, the Secretary of Transportation shall prescribe

under this chapter an amendment to Federal Motor Vehicle Safety

Standard 208 issued under the National Traffic and Motor Vehicle

Safety Act of 1966. The amendment shall require that the automatic occupant crash protection system for both of the front outboard seating positions for each of the following vehicles be an inflatable restraint (with lap and shoulder belts) complying with the

occupant protection requirements under section 4.1.2.1 of Standard

208:

(A) 95 percent of each manufacturer’s annual production of

passenger cars manufactured after August 31, 1996, and before

September 1, 1997.

(B) 80 percent of each manufacturer’s annual production of

buses, multipurpose passenger vehicles, and trucks (except

walk-in van-type trucks and vehicles designed to be sold only

to the United States Postal Service) with a gross vehicle

weight rating of not more than 8,500 pounds and an unloaded

vehicle weight of not more than 5,500 pounds manufactured

after August 31, 1997, and before September 1, 1998.

(C) 100 percent of each manufacturer’s annual production

of passenger cars manufactured after August 31, 1997.

(D) 100 percent of each manufacturer’s annual production

of vehicles described in clause (B) of this paragraph manufactured after August 31, 1998.
231 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30127

(2) Manufacturers may not use credits and incentives available

before September 1, 1998, under the provisions of Standard 208 (as

amended by this section) to comply with the requirements of paragraph (1)(D) of this subsection after August 31, 1998.

(c) OWNER MANUAL REQUIREMENTS.—In amending Standard

208, the Secretary of Transportation shall require, to be effective

as soon as possible after the amendment is prescribed, that owner

manuals for passenger cars, buses, multipurpose passenger vehicles, and trucks equipped with an inflatable restraint include a

statement in an easily understandable format stating that— (1) either or both of the front outboard seating positions of

the vehicle are equipped with an inflatable restraint referred

to as an ‘‘airbag’’ and a lap and shoulder belt;

(2) the ‘‘airbag’’ is a supplemental restraint and is not a

substitute for lap and shoulder belts;

(3) lap and shoulder belts also must be used correctly by

an occupant in a front outboard seating position to provide restraint or protection from frontal crashes as well as other types

of crashes or accidents; and

(4) occupants should always wear their lap and shoulder

belts, if available, or other safety belts, whether or not there

is an inflatable restraint.

(d) SEAT BELT USE LAWS.—Congress finds that it is in the public interest for each State to adopt and enforce mandatory seat belt

use laws and for the United States Government to adopt and enforce mandatory seat belt use regulations.

(e) TEMPORARY EXEMPTIONS.—(1) On application of a manufacturer, the Secretary of Transportation may exempt, on a temporary

basis, motor vehicles of that manufacturer from any requirement

under subsections (b) and (c) of this section on terms the Secretary

considers appropriate. An exemption may be renewed.

(2) The Secretary of Transportation may grant an exemption

under paragraph (1) of this subsection if the Secretary finds that

there has been a disruption in the supply of any component of an

inflatable restraint or in the use and installation of that component

by the manufacturer because of an unavoidable event not under

the control of the manufacturer that will prevent the manufacturer

from meeting its anticipated production volume of vehicles with

those restraints.

(3) Only an affected manufacturer may apply for an exemption.

The Secretary of Transportation shall prescribe in the amendment

to Standard 208 required under this section the information an affected manufacturer must include in its application under this subsection. The manufacturer shall specify in the application the models, lines, and types of vehicles affected. The Secretary may consolidate similar applications from different manufacturers.

(4) An exemption or renewal of an exemption is conditioned on

the commitment of the manufacturer to recall the exempted vehicles for installation of the omitted inflatable restraints within a

reasonable time that the manufacturer proposes and the Secretary

of Transportation approves after the components become available

in sufficient quantities to satisfy both anticipated production and

recall volume requirements.

(5) The Secretary of Transportation shall publish in the Federal Register a notice of each application under this subsection and
§ 30127 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 232

each decision to grant or deny a temporary exemption and the reasons for the decision.

(6) The Secretary of Transportation shall require a label for

each exempted vehicle that can be removed only after recall and installation of the required inflatable restraint. The Secretary shall

require that written notice of the exemption be provided to the

dealer and the first purchaser of each exempted vehicle other than

for resale, with the notice being provided in a way, and containing

the information, the Secretary considers appropriate.

(f) APPLICATION.—(1) This section revises, but does not replace,

Standard 208 as in effect on December 18, 1991, including the

amendment of March 26, 1991 (56 Fed. Reg. 12472), to Standard

208, extending the requirements for automatic crash protection,

with incentives for more innovative automatic crash protection, to

trucks, buses, and multipurpose passenger vehicles. This section

may not be construed as— (A) affecting another provision of law carried out by the

Secretary of Transportation applicable to passenger cars,

buses, multipurpose passenger vehicles, or trucks; or

(B) establishing a precedent related to developing or prescribing a Government motor vehicle safety standard.

(2) This section and amendments to Standard 208 made under

this section may not be construed as indicating an intention by

Congress to affect any liability of a motor vehicle manufacturer

under applicable law related to vehicles with or without inflatable

restraints.

(g) REPORT.—(1) On October 1, 1992, and annually after that

date through October 1, 2000, the Secretary of Transportation shall

submit reports on the effectiveness of occupant restraint systems

expressed as a percentage reduction in fatalities or injuries of restrained occupants compared to unrestrained occupants for—

(A) a combination of inflated restraints and lap and shoulder belts;

(B) inflated restraints only; and

(C) lap and shoulder belts only.

(2) In consultation with the Secretaries of Labor and Defense,

the Secretary of Transportation also shall provide information and

analysis on lap and shoulder belt use, nationally and in each State

by—

(A) military personnel;

(B) Government, State, and local law enforcement officers;

(C) other Government and State employees; and

(D) the public.

(h) AIRBAGS FOR GOVERNMENT CARS.—In cooperation with the

Administrator of General Services and the heads of appropriate departments, agencies, and instrumentalities of the Government, the

Secretary of Transportation shall establish a program, consistent

with applicable procurement laws of the Government and available

appropriations, requiring that all passenger cars acquired—

(1) after September 30, 1994, for use by the Government

be equipped, to the maximum extent practicable, with driverside inflatable restraints; and

(2) after September 30, 1996, for use by the Government

be equipped, to the maximum extent practicable, with inflatable restraints for both front outboard seating positions.
233 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30141

SUBCHAPTER III—IMPORTING NONCOMPLYING MOTOR

VEHICLES AND EQUIPMENT

§ 30141. Importing motor vehicles capable of complying with

standards

(a) GENERAL.—Section 30112(a) of this title does not apply to

a motor vehicle if— (1) on the initiative of the Secretary of Transportation or

on petition of a manufacturer or importer registered under

subsection (c) of this section, the Secretary decides— (A) the vehicle is— (i) substantially similar to a motor vehicle originally manufactured for import into and sale in the

United States;

(ii) certified under section 30115 of this title;

(iii) the same model year (as defined under regulations of the Secretary of Transportation) as the model

of the motor vehicle it is being compared to; and

(iv) capable of being readily altered to comply with

applicable motor vehicle safety standards prescribed

under this chapter; or

(B) if there is no substantially similar United States

motor vehicle, the safety features of the vehicle comply

with or are capable of being altered to comply with those

standards based on destructive test information or other

evidence the Secretary of Transportation decides is adequate;

(2) the vehicle is imported by a registered importer; and

(3) the registered importer pays the annual fee the Secretary of Transportation establishes under subsection (e) of

this section to pay for the costs of carrying out the registration

program for importers under subsection (c) of this section and

any other fees the Secretary of Transportation establishes to

pay for the costs of— (A) processing bonds provided to the Secretary of the

Treasury under subsection (d) of this section; and

(B) making the decisions under this subchapter.

(b) PROCEDURES ON DECIDING ON MOTOR VEHICLE CAPABILITY.—(1) The Secretary of Transportation shall establish by regulation procedures for making a decision under subsection (a)(1) of

this section and the information a petitioner must provide to show

clearly that the motor vehicle is capable of being brought into compliance with applicable motor vehicle safety standards prescribed

under this chapter. In establishing the procedures, the Secretary

shall provide for a minimum period of public notice and written

comment consistent with ensuring expeditious, but complete, consideration and avoiding delay by any person. In making a decision

under those procedures, the Secretary shall consider test information and other information available to the Secretary, including any

information provided by the manufacturer. If the Secretary makes

a negative decision, the Secretary may not make another decision

for the same model until at least 3 calendar months have elapsed

after the negative decision.

(2) The Secretary of Transportation shall publish each year in

the Federal Register a list of all decisions made under subsection
§ 30141 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 234

(a)(1) of this section. Each published decision applies to the model

of the motor vehicle for which the decision was made. A positive

decision permits another importer registered under subsection (c) of

this section to import a vehicle of the same model under this section if the importer complies with all the terms of the decision.

(c) REGISTRATION.—(1) The Secretary of Transportation shall

establish procedures for registering a person who complies with requirements prescribed by the Secretary by regulation under this

subsection, including— (A) recordkeeping requirements;

(B) inspection of records and facilities related to motor vehicles the person has imported, altered, or both; and

(C) requirements that ensure that the importer (or a successor in interest) will be able technically and financially to

carry out responsibilities under sections 30117(b), 30118– 30121, and 30166(f) of this title.

(2) The Secretary of Transportation shall deny registration to

a person whose registration is revoked under paragraph (4) of this

subsection.

(3) The Secretary of Transportation may deny registration to

a person that is or was owned or controlled by, or under common

ownership or control with, a person whose registration was revoked

under paragraph (4) of this subsection.

(4) The Secretary of Transportation shall establish procedures

for— (A) revoking or suspending a registration issued under

paragraph (1) of this subsection for not complying with a requirement of this subchapter or any of sections 30112, 30115,

30117–30122, 30125(c), 30127, or 30166 of this title or regulations prescribed under this subchapter or any of those sections;

(B) automatically suspending a registration for not paying

a fee under subsection (a)(3) of this section in a timely manner

or for knowingly filing a false or misleading certification under

section 30146 of this title; and

(C) reinstating suspended registrations.

(d) BONDS.—(1) A person importing a motor vehicle under this

section shall provide a bond to the Secretary of the Treasury (acting for the Secretary of Transportation) and comply with the terms

the Secretary of Transportation decides are appropriate to ensure

that the vehicle—

(A) will comply with applicable motor vehicle safety standards prescribed under this chapter within a reasonable time

(specified by the Secretary of Transportation) after the vehicle

is imported; or

(B) will be exported (at no cost to the United States Government) by the Secretary of the Treasury or abandoned to the

Government.

(2) The amount of the bond provided under this subsection

shall be at least equal to the dutiable value of the motor vehicle

(as determined by the Secretary of the Treasury) but not more than

150 percent of that value.

(e) FEE REVIEW, ADJUSTMENT, AND USE.—The Secretary of

Transportation shall review and make appropriate adjustments at

least every 2 years in the amounts of the fees required to be paid

under subsection (a)(3) of this section. The Secretary of Transpor-
235 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30143

tation shall establish the fees for each fiscal year before the beginning of that year. All fees collected remain available until expended

without fiscal year limit to the extent provided in advance by appropriation laws. The amounts are only for use by the Secretary of

Transportation—

(1) in carrying out this section and sections 30146(a)–(c)(1),

(d), and (e) and 30147(b) of this title; and

(2) in advancing to the Secretary of the Treasury amounts

for costs incurred under this section and section 30146 of this

title to reimburse the Secretary of the Treasury for those costs.

§ 30142. Importing motor vehicles for personal use

(a) GENERAL.—Section 30112(a) of this title does not apply to

an imported motor vehicle if—

(1) the vehicle is imported for personal use, and not for resale, by an individual (except an individual described in sections 30143 and 30144 of this title);

(2) the vehicle is imported after January 31, 1990; and

(3) the individual takes the actions required under subsection (b) of this section to receive an exemption.

(b) EXEMPTIONS.—(1) To receive an exemption under subsection

(a) of this section, an individual must—

(A) provide the Secretary of the Treasury (acting for the

Secretary of Transportation) with—

(i) an appropriate bond in an amount determined

under section 30141(d) of this title;

(ii) a copy of an agreement with an importer registered

under section 30141(c) of this title for bringing the motor

vehicle into compliance with applicable motor vehicle safety standards prescribed under this chapter; and

(iii) a certification that the vehicle meets the requirement of section 30141(a)(1)(A) or (B) of this title; and

(B) comply with appropriate terms the Secretary of Transportation imposes to ensure that the vehicle—

(i) will be brought into compliance with those standards within a reasonable time (specified by the Secretary

of Transportation) after the vehicle is imported; or

(ii) will be exported (at no cost to the United States

Government) by the Secretary of the Treasury or abandoned to the Government.

(2) For good cause shown, the Secretary of Transportation may

allow an individual additional time, but not more than 30 days

after the day on which the motor vehicle is offered for import, to

comply with paragraph (1)(A)(ii) of this subsection.

§ 30143. Motor vehicles imported by individuals employed

outside the United States

(a) DEFINITION.—In this section, ‘‘assigned place of employment’’ means—

(1) the principal location at which an individual is permanently or indefinitely assigned to work; and

(2) for a member of the uniformed services, the individual’s

permanent duty station.
§ 30144 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 236

(b) GENERAL.—Section 30112(a) of this title does not apply to

a motor vehicle imported for personal use, and not for resale, by

an individual—

(1) whose assigned place of employment was outside the

United States as of October 31, 1988, and who has not had an

assigned place of employment in the United States from that

date through the date the vehicle is imported into the United

States;

(2) who previously had not imported a motor vehicle into

the United States under this section or section 108(g) of the

National Traffic and Motor Vehicle Safety Act of 1966 or, before October 31, 1988, under section 108(b)(3) of that Act;

(3) who acquired, or made a binding contract to acquire,

the vehicle before October 31, 1988;

(4) who imported the vehicle into the United States not

later than October 31, 1992; and

(5) who satisfies section 108(b)(3) of that Act as in effect

on October 30, 1988.

(c) CERTIFICATION.—Subsection (b) of this section is carried out

by certification in the form the Secretary of Transportation or the

Secretary of the Treasury may prescribe.

§ 30144. Importing motor vehicles on a temporary basis

(a) GENERAL.—Section 30112(a) of this title does not apply to

a motor vehicle imported on a temporary basis for personal use by

an individual who is a member of—

(1)(A) the personnel of the government of a foreign country

on assignment in the United States or a member of the Secretariat of a public international organization designated under

the International Organizations Immunities Act (22 U.S.C. 288

et seq.); and

(B) the class of individuals for whom the Secretary of State

has authorized free importation of motor vehicles; or

(2) the armed forces of a foreign country on assignment in

the United States.

(b) VERIFICATION.—The Secretary of Transportation or the Secretary of the Treasury may require verification, that the Secretary

of Transportation considers appropriate, that an individual is a

member described under subsection (a) of this section. The Secretary of Transportation shall ensure that a motor vehicle imported

under this section will be exported (at no cost to the United States

Government) or abandoned to the Government when the individual

no longer—

(1) resides in the United States; and

(2) is a member described under subsection (a) of this section.

(c) SALE IN THE UNITED STATES.—A motor vehicle imported

under this section may not be sold when in the United States.

§ 30145. Importing motor vehicles or equipment requiring

further manufacturing

Section 30112(a) of this title does not apply to a motor vehicle

or motor vehicle equipment if the vehicle or equipment—
237 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30146

(1) requires further manufacturing to perform its intended

function as decided under regulations prescribed by the Secretary of Transportation; and

(2) is accompanied at the time of importation by a written

statement issued by the manufacturer indicating the applicable

motor vehicle safety standard prescribed under this chapter

with which it does not comply.

§ 30146. Release of motor vehicles and bonds

(a) COMPLIANCE CERTIFICATION AND BOND.—(1) Except as provided in subsections (c) and (d) of this section, an importer registered under section 30141(c) of this title may license or register

an imported motor vehicle for use on public streets, roads, or highways, or release custody of a motor vehicle imported by the registered importer or imported by an individual under section 30142

of this title and altered by the registered importer to meet applicable motor vehicle safety standards prescribed under this chapter to

a person for license or registration for use on public streets, roads,

or highways, only after 30 days after the registered importer certifies to the Secretary of Transportation, in the way the Secretary

prescribes, that the motor vehicle complies with each standard prescribed in the year the vehicle was manufactured and that applies

in that year to that vehicle. A vehicle may not be released if the

Secretary gives written notice before the end of the 30-day period

that the Secretary will inspect the vehicle under subsection (c) of

this section.

(2) The Secretaries of Transportation and the Treasury shall

prescribe regulations— (A) ensuring the release of a motor vehicle and bond required under section 30141(d) of this title at the end of the 30-

day period, unless the Secretary of Transportation issues a notice of an inspection under subsection (c) of this section; and

(B) providing that the Secretary of Transportation shall release the vehicle and bond promptly after an inspection under

subsection (c) of this section showing compliance with the

standards applicable to the vehicle.

(3) Each registered importer shall include on each motor vehicle released under this subsection a label prescribed by the Secretary of Transportation identifying the importer and stating that

the vehicle has been altered by the importer to comply with the

standards applicable to the vehicle.

(b) RELIANCE ON MANUFACTURER’S CERTIFICATION.—In making

a certification under subsection (a)(1) of this section, the registered

importer may rely on the manufacturer’s certification for the model

to which the motor vehicle involved is substantially similar if the

importer certifies that any alteration made by the importer did not

affect the compliance of the safety features of the vehicle and the

importer keeps records verifying the certification for the period the

Secretary of Transportation prescribes.

(c) EVIDENCE OF COMPLIANCE.—(1) The Secretary of Transportation may require that the certification under subsection (a)(1) of

this section be accompanied by evidence of compliance the Secretary considers appropriate or may inspect the certified motor vehicle, or both. If the Secretary gives notice of an inspection, an importer may release the vehicle only after—
§ 30147 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 238

(A) an inspection showing the motor vehicle complies with

applicable motor vehicle safety standards prescribed under this

chapter for which the inspection was made; and

(B) release of the vehicle by the Secretary.

(2) The Secretary of Transportation shall inspect periodically a

representative number of motor vehicles for which certifications

have been filed under subsection (a)(1) of this section. In carrying

out a motor vehicle testing program under this chapter, the Secretary shall include a representative number of motor vehicles for

which certifications have been filed under subsection (a)(1).

(d) CHALLENGING THE CERTIFICATION.—A motor vehicle or

bond may not be released under subsection (a) of this section if the

Secretary of Transportation, not later than 30 days after receiving

a certification under subsection (a)(1) of this section, gives written

notice that the Secretary believes or has reason to believe that the

certification is false or contains a mispresentation. The vehicle and

bond may be released only after the Secretary is satisfied with the

certification and any modification of the certification.

(e) BOND RELEASE.—A release of a bond required under section

30141(d) of this title is deemed an acceptance of a certification or

completion of an inspection under this section but is not a decision

by the Secretary of Transportation under section 30118(a) or (b) of

this title of compliance with applicable motor vehicle safety standards prescribed under this chapter.

§ 30147. Responsibility for defects and noncompliance

(a) DEEMING DEFECT OR NONCOMPLIANCE TO CERTAIN VEHICLES AND IMPORTER AS MANUFACTURER.—(1) In carrying out sections 30117(b), 30118–30121, and 30166(f) of this title—

(A) for a defect or noncompliance with an applicable motor

vehicle safety standard prescribed under this chapter for a

motor vehicle originally manufactured for import into the

United States, an imported motor vehicle having a valid certification under section 30146(a)(1) of this title and decided to be

substantially similar to that motor vehicle shall be deemed as

having the same defect or as not complying with the same

standard unless the manufacturer or importer registered under

section 30141(c) of this title demonstrates otherwise to the Secretary of Transportation; and

(B) the registered importer shall be deemed to be the manufacturer of any motor vehicle that the importer imports or

brings into compliance with the standards for an individual

under section 30142 of this title.

(2) The Secretary shall publish in the Federal Register notice

of any defect or noncompliance under paragraph (1)(A) of this subsection.

(b) FINANCIAL RESPONSIBILITY REQUIREMENT.—The Secretary

shall require by regulation each registered importer (including any

successor in interest) to provide and maintain evidence, satisfactory to the Secretary, of sufficient financial responsibility to meet

its obligations under sections 30117(b), 30118–30121, and 30166(f)

of this title.
239 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30162

SUBCHAPTER IV—ENFORCEMENT AND ADMINISTRATIVE

§ 30161. Judicial review of standards

(a) FILING AND VENUE.—A person adversely affected by an

order prescribing a motor vehicle safety standard under this chapter may apply for review of the order by filing a petition for review

in the court of appeals of the United States for the circuit in which

the person resides or has its principal place of business. The petition must be filed not later than 59 days after the order is issued.

(b) NOTIFYING SECRETARY.—The clerk of the court shall send

immediately a copy of the petition to the Secretary of Transportation. The Secretary shall file with the court a record of the proceeding in which the order was prescribed.

(c) ADDITIONAL PROCEEDINGS.—(1) On request of the petitioner,

the court may order the Secretary to receive additional evidence

and evidence in rebuttal if the court is satisfied that the additional

evidence is material and there were reasonable grounds for not presenting the evidence in the proceeding before the Secretary.

(2) The Secretary may modify findings of fact or make new

findings because of the additional evidence presented. The Secretary shall file a modified or new finding, a recommendation to

modify or set aside the order, and the additional evidence with the

court.

(d) CERTIFIED COPIES OF RECORDS OF PROCEEDINGS.—The Secretary shall give any interested person a certified copy of the transcript of the record in a proceeding under this section on request

and payment of costs. A certified copy of the record of the proceeding is admissible in a proceeding arising out of a matter under

this chapter, regardless of whether the proceeding under this section has begun or becomes final.

(e) FINALITY OF JUDGMENT AND SUPREME COURT REVIEW.—A

judgment of a court under this section is final and may be reviewed

only by the Supreme Court under section 1254 of title 28.

§ 30162. Petitions by interested persons for standards and

enforcement

(a) FILING.—Any interested person may file a petition with the

Secretary of Transportation requesting the Secretary to begin a

proceeding—

(1) to prescribe a motor vehicle safety standard under this

chapter; or

(2) to decide whether to issue an order under section

30118(b) of this title.

(b) STATEMENT OF FACTS.—The petition must state facts that

the person claims establish that a motor vehicle safety standard or

order referred to in subsection (a) of this section is necessary and

briefly describe the order the Secretary should issue.

(c) PROCEEDINGS.—The Secretary may hold a public hearing or

conduct an investigation or proceeding to decide whether to grant

the petition.

(d) ACTIONS OF SECRETARY.—The Secretary shall grant or deny

a petition not later than 120 days after the petition is filed. If a

petition is granted, the Secretary shall begin the proceeding

promptly. If a petition is denied, the Secretary shall publish the

reasons for the denial in the Federal Register.
§ 30163 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 240

§ 30163. Actions by the Attorney General

(a) CIVIL ACTIONS TO ENFORCE.—The Attorney General may

bring a civil action in a United States district court to enjoin—

(1) a violation of this chapter or a regulation prescribed or

order issued under this chapter; and

(2) the sale, offer for sale, or introduction or delivery for

introduction, in interstate commerce, or the importation into

the United States, of a motor vehicle or motor vehicle equipment for which it is decided, before the first purchase in good

faith other than for resale, that the vehicle or equipment—

(A) contains a defect related to motor vehicle safety

about which notice was given under section 30118(c) of

this title or an order was issued under section 30118(b) of

this title; or

(B) does not comply with an applicable motor vehicle

safety standard prescribed under this chapter.

(b) PRIOR NOTICE.—When practicable, the Secretary of Transportation shall notify a person against whom a civil action under

subsection (a) of this section is planned, give the person an opportunity to present that person’s views, and, except for a knowing

and willful violation of this chapter, give the person a reasonable

opportunity to remedy the defect or comply with the applicable

motor vehicle safety standard prescribed under this chapter. Failure to give notice and an opportunity to remedy the defect or comply with the applicable motor vehicle safety standard prescribed

under this chapter does not prevent a court from granting appropriate relief.

(c) VENUE.—Except as provided in section 30121(d) of this title,

a civil action under this section or section 30165(a) of this title may

be brought in the judicial district in which the violation occurred

or the defendant is found, resides, or does business. Process in the

action may be served in any other judicial district in which the defendant resides or is found.

(d) JURY TRIAL DEMAND.—In a trial for criminal contempt for

violating an injunction or restraining order issued under subsection

(a) of this section, the violation of which is also a violation of this

chapter, the defendant may demand a jury trial. The defendant

shall be tried as provided in rule 42(b) of the Federal Rules of

Criminal Procedure (18 App. U.S.C.).

(e) SUBPENAS FOR WITNESSES.—In a civil action brought under

this section, a subpena for a witness may be served in any judicial

district.

§ 30164. Service of process

(a) DESIGNATING AGENTS.—A manufacturer offering a motor

vehicle or motor vehicle equipment for import shall designate an

agent on whom service of notices and process in administrative and

judicial proceedings may be made. The designation shall be in writing and filed with the Secretary of Transportation. The designation

may be changed in the same way as originally made.

(b) SERVICE.—An agent may be served at the agent’s office or

usual place of residence. Service on the agent is deemed to be service on the manufacturer. If a manufacturer does not designate an
241 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30166

agent, service may be made by posting the notice or process in the

office of the Secretary.

§ 30165. Civil penalty

(a) CIVIL PENALTIES.—

(1) IN GENERAL.—A person that violates any of section

30112, 30115, 30117 through 30122, 30123(d), 30125(c), 30127,

or 30141 through 30147, or a regulation prescribed thereunder,

is liable to the United States Government for a civil penalty of

not more than $5,000 for each violation. A separate violation

occurs for each motor vehicle or item of motor vehicle equipment and for each failure or refusal to allow or perform an act

required by any of those sections. The maximum penalty under

this subsection for a related series of violations is $15,000,000.

(2) SECTION 30166.—A person who violates section 30166 or

a regulation prescribed under that section is liable to the

United States Government for a civil penalty for failing or refusing to allow or perform an act required under that section

or regulation. The maximum penalty under this paragraph is

$5,000 per violation per day. The maximum penalty under this

paragraph for a related series of daily violations is

$15,000,000.

(b) COMPROMISE AND SETOFF.—(1) The Secretary of Transportation may compromise the amount of a civil penalty imposed

under this section.

(2) The Government may deduct the amount of a civil penalty

imposed or compromised under this section from amounts it owes

the person liable for the penalty.

(c) CONSIDERATIONS.—In determining the amount of a civil

penalty or compromise, the appropriateness of the penalty or compromise to the size of the business of the person charged and the

gravity of the violation shall be considered.

(d) SUBPENAS FOR WITNESSES.—In a civil action brought under

this section, a subpena for a witness may be served in any judicial

district.

§ 30166. Inspections, investigations, and records

(a) DEFINITION.—In this section, ‘‘motor vehicle accident’’

means an occurrence associated with the maintenance or operation

of a motor vehicle or motor vehicle equipment resulting in personal

injury, death, or property damage.

(b) AUTHORITY TO INSPECT AND INVESTIGATE.—(1) The Secretary of Transportation may conduct an inspection or

investigation—

(A) that may be necessary to enforce this chapter or a regulation prescribed or order issued under this chapter; or

(B) related to a motor vehicle accident and designed to

carry out this chapter.

(2) The Secretary of Transportation shall cooperate with State

and local officials to the greatest extent possible in an inspection

or investigation under paragraph (1)(B) of this subsection.

(c) MATTERS THAT CAN BE INSPECTED AND IMPOUNDMENT.—In

carrying out this chapter, an officer or employee designated by the

Secretary of Transportation—
§ 30166 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 242

(1) at reasonable times, may inspect and copy any record

related to this chapter;

(2) on request, may inspect records of a manufacturer, distributor, or dealer to decide whether the manufacturer, distributor, or dealer has complied or is complying with this chapter or a regulation prescribed or order issued under this chapter; and

(3) at reasonable times, in a reasonable way, and on display of proper credentials and written notice to an owner, operator, or agent in charge, may—

(A) enter and inspect with reasonable promptness

premises in which a motor vehicle or motor vehicle equipment is manufactured, held for introduction in interstate

commerce, or held for sale after introduction in interstate

commerce;

(B) enter and inspect with reasonable promptness

premises at which a vehicle or equipment involved in a

motor vehicle accident is located;

(C) inspect with reasonable promptness that vehicle or

equipment; and

(D) impound for not more than 72 hours a vehicle or

equipment involved in a motor vehicle accident.

(d) REASONABLE COMPENSATION.—When a motor vehicle (except a vehicle subject to subchapter I of chapter 135 of this title)

or motor vehicle equipment is inspected or temporarily impounded

under subsection (c)(3) of this section, the Secretary of Transportation shall pay reasonable compensation to the owner of the vehicle if the inspection or impoundment results in denial of use, or reduction in value, of the vehicle.

(e) RECORDS AND MAKING REPORTS.—The Secretary of Transportation reasonably may require a manufacturer of a motor vehicle or motor vehicle equipment to keep records, and a manufacturer, distributor, or dealer to make reports, to enable the Secretary to decide whether the manufacturer, distributor, or dealer

has complied or is complying with this chapter or a regulation prescribed or order issued under this chapter. This subsection does not

impose a recordkeeping requirement on a distributor or dealer in

addition to those imposed under subsection (f) of this section and

section 30117(b) of this title or a regulation prescribed or order

issued under subsection (f) or section 30117(b).

(f) PROVIDING COPIES OF COMMUNICATIONS ABOUT DEFECTS

AND NONCOMPLIANCE.—A manufacturer shall give the Secretary of

Transportation a true or representative copy of each communication to the manufacturer’s dealers or to owners or purchasers of a

motor vehicle or replacement equipment produced by the manufacturer about a defect or noncompliance with a motor vehicle safety

standard prescribed under this chapter in a vehicle or equipment

that is sold or serviced.

(g) ADMINISTRATIVE AUTHORITY ON REPORTS, ANSWERS, AND

HEARINGS.—(1) In carrying out this chapter, the Secretary of

Transportation may—

(A) require, by general or special order, any person to file

reports or answers to specific questions, including reports or

answers under oath; and
243 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30166

(B) conduct hearings, administer oaths, take testimony,

and require (by subpena or otherwise) the appearance and testimony of witnesses and the production of records the Secretary considers advisable.

(2) A witness summoned under this subsection is entitled to

the same fee and mileage the witness would have been paid in a

court of the United States.

(h) CIVIL ACTIONS TO ENFORCE AND VENUE.—A civil action to

enforce a subpena or order under subsection (g) of this section may

be brought in the United States district court for any judicial district in which the proceeding is conducted. The court may punish

a failure to obey an order of the court to comply with a subpena

or order as a contempt of court.

(i) GOVERNMENTAL COOPERATION.—The Secretary of Transportation may request a department, agency, or instrumentality of the

United States Government to provide records the Secretary considers necessary to carry out this chapter. The head of the department, agency, or instrumentality shall provide the record on request, may detail personnel on a reimbursable basis, and otherwise

shall cooperate with the Secretary. This subsection does not affect

a law limiting the authority of a department, agency, or instrumentality to provide information to another department, agency, or instrumentality.

(j) COOPERATION OF SECRETARY.—The Secretary of Transportation may advise, assist, and cooperate with departments, agencies, and instrumentalities of the Government, States, and other

public and private agencies in developing a method for inspecting

and testing to determine compliance with a motor vehicle safety

standard.

(k) PROVIDING INFORMATION.—The Secretary of Transportation

shall provide the Attorney General and, when appropriate, the Secretary of the Treasury, information obtained that indicates a violation of this chapter or a regulation prescribed or order issued under

this chapter.

(l) REPORTING OF DEFECTS IN MOTOR VEHICLES AND PRODUCTS

IN FOREIGN COUNTRIES.—

(1) REPORTING OF DEFECTS, MANUFACTURER DETERMINATION.—Not later than 5 working days after determining to conduct a safety recall or other safety campaign in a foreign country on a motor vehicle or motor vehicle equipment that is identical or substantially similar to a motor vehicle or motor vehicle equipment offered for sale in the United States, the manufacturer shall report the determination to the Secretary.

(2) REPORTING OF DEFECTS, FOREIGN GOVERNMENT DETERMINATION.—Not later than 5 working days after receiving notification that the government of a foreign country has determined that a safety recall or other safety campaign must be

conducted in the foreign country on a motor vehicle or motor

vehicle equipment that is identical or substantially similar to

a motor vehicle or motor vehicle equipment offered for sale in

the United States, the manufacturer of the motor vehicle or

motor vehicle equipment shall report the determination to the

Secretary.
§ 30166 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 244

(3) REPORTING REQUIREMENTS.—The Secretary shall prescribe the contents of the notification required by this subsection.

(m) EARLY WARNING REPORTING REQUIREMENTS.—

(1) RULEMAKING REQUIRED.—Not later than 120 days after

the date of the enactment of the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act,

the Secretary shall initiate a rulemaking proceeding to establish early warning reporting requirements for manufacturers of

motor vehicles and motor vehicle equipment to enhance the

Secretary’s ability to carry out the provisions of this chapter.

(2) DEADLINE.—The Secretary shall issue a final rule

under paragraph (1) not later than June 30, 2002.

(3) REPORTING ELEMENTS.—

(A) WARRANTY AND CLAIMS DATA.—As part of the final

rule promulgated under paragraph (1), the Secretary shall

require manufacturers of motor vehicles and motor vehicle

equipment to report, periodically or upon request by the

Secretary, information which is received by the manufacturer derived from foreign and domestic sources to the extent that such information may assist in the identification

of defects related to motor vehicle safety in motor vehicles

and motor vehicle equipment in the United States and

which concerns—

(i) data on claims submitted to the manufacturer

for serious injuries (including death) and aggregate

statistical data on property damage from alleged defects in a motor vehicle or in motor vehicle equipment;

or

(ii) customer satisfaction campaigns, consumer

advisories, recalls, or other activity involving the repair or replacement of motor vehicles or items of

motor vehicle equipment.

(B) OTHER DATA.—As part of the final rule promulgated under paragraph (1), the Secretary may, to the extent that such information may assist in the identification

of defects related to motor vehicle safety in motor vehicles

and motor vehicle equipment in the United States, require

manufacturers of motor vehicles or motor vehicle equipment to report, periodically or upon request of the Secretary, such information as the Secretary may request.

(C) REPORTING OF POSSIBLE DEFECTS.—The manufacturer of a motor vehicle or motor vehicle equipment shall

report to the Secretary, in such manner as the Secretary

establishes by regulation, all incidents of which the manufacturer receives actual notice which involve fatalities or

serious injuries which are alleged or proven to have been

caused by a possible defect in such manufacturer’s motor

vehicle or motor vehicle equipment in the United States,

or in a foreign country when the possible defect is in a

motor vehicle or motor vehicle equipment that is identical

or substantially similar to a motor vehicle or motor vehicle

equipment offered for sale in the United States.

(4) HANDLING AND UTILIZATION OF REPORTING ELEMENTS.—
245 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30166

(A) SECRETARY’S SPECIFICATIONS.—In requiring the reporting of any information requested by the Secretary

under this subsection, the Secretary shall specify in the

final rule promulgated under paragraph (1)— (i) how such information will be reviewed and utilized to assist in the identification of defects related to

motor vehicle safety;

(ii) the systems and processes the Secretary will

employ or establish to review and utilize such information; and

(iii) the manner and form of reporting such information, including in electronic form.

(B) INFORMATION IN POSSESSION OF MANUFACTURER.— The regulations promulgated by the Secretary under paragraph (1) may not require a manufacturer of a motor vehicle or motor vehicle equipment to maintain or submit

records respecting information not in the possession of the

manufacturer.

(C) DISCLOSURE.—None of the information collected

pursuant to the final rule promulgated under paragraph

(1) shall be disclosed pursuant to section 30167(b) unless

the Secretary determines the disclosure of such information will assist in carrying out sections 30117(b) and 30118

through 30121.

(D) BURDENSOME REQUIREMENTS.—In promulgating

the final rule under paragraph (1), the Secretary shall not

impose requirements unduly burdensome to a manufacturer of a motor vehicle or motor vehicle equipment, taking

into account the manufacturer’s cost of complying with

such requirements and the Secretary’s ability to use the

information sought in a meaningful manner to assist in

the identification of defects related to motor vehicle safety.

(5) PERIODIC REVIEW.—As part of the final rule promulgated pursuant to paragraph (1), the Secretary shall specify

procedures for the periodic review and update of such rule.

(n) SALE OR LEASE OF DEFECTIVE OR NONCOMPLIANT TIRE.—

(1) IN GENERAL.—The Secretary shall, within 90 days of

the date of the enactment of the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act,

issue a final rule requiring any person who knowingly and

willfully sells or leases for use on a motor vehicle a defective

tire or a tire which is not compliant with an applicable tire

safety standard with actual knowledge that the manufacturer

of such tire has notified its dealers of such defect or noncompliance as required under section 30118(c) or as required by an

order under section 30118(b) to report such sale or lease to the

Secretary.

(2) DEFECT OR NONCOMPLIANCE REMEDIED OR ORDER NOT

IN EFFECT.—Regulations under paragraph (1) shall not require

the reporting described in paragraph (1) where before delivery

under a sale or lease of a tire—

(A) the defect or noncompliance of the tire is remedied

as required by section 30120; or

(B) notification of the defect or noncompliance is required under section 30118(b) but enforcement of the order
§ 30167 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 246

is restrained or the order is set aside in a civil action to

which section 30121(d) applies.

§ 30167. Disclosure of information by the Secretary of Transportation

(a) CONFIDENTIALITY OF INFORMATION.—Information obtained

under this chapter related to a confidential matter referred to in

section 1905 of title 18 may be disclosed only in the following ways:

(1) to other officers and employees carrying out this

chapter.

(2) when relevant to a proceeding under this chapter.

(3) to the public if the confidentiality of the information is

preserved.

(4) to the public when the Secretary of Transportation decides that disclosure is necessary to carry out section 30101 of

this title.

(b) DEFECT AND NONCOMPLIANCE INFORMATION.—Subject to

subsection (a) of this section, the Secretary shall disclose information obtained under this chapter related to a defect or noncompliance that the Secretary decides will assist in carrying out sections

30117(b) and 30118–30121 of this title or that is required to be disclosed under section 30118(a) of this title. A requirement to disclose

information under this subsection is in addition to the requirements of section 552 of title 5.

(c) INFORMATION ABOUT MANUFACTURER’S INCREASED COSTS.—

A manufacturer opposing an action of the Secretary under this

chapter because of increased cost shall submit to the Secretary information about the increased cost, including the manufacturer’s

cost and the cost to retail purchasers, that allows the public and

the Secretary to evaluate the manufacturer’s statement. The Secretary shall evaluate the information promptly and, subject to subsection (a) of this section, shall make the information and evaluation available to the public. The Secretary shall publish a notice in

the Federal Register that the information is available.

(d) WITHHOLDING INFORMATION FROM CONGRESS.—This section

does not authorize information to be withheld from a committee of

Congress authorized to have the information.

§ 30168. Research, testing, development, and training

(a) GENERAL AUTHORITY.—(1) The Secretary of Transportation

shall conduct research, testing, development, and training necessary to carry out this chapter. The research, development, testing, and training shall include—

(A) collecting information to determine the relationship between motor vehicle or motor vehicle equipment performance

characteristics and—

(i) accidents involving motor vehicles; and

(ii) the occurrence of death or personal injury resulting

from those accidents;

(B) obtaining experimental and other motor vehicles and

motor vehicle equipment for research or testing; and

(C) selling or otherwise disposing of test motor vehicles

and motor vehicle equipment and crediting the proceeds to current appropriations available to carry out this chapter.
247 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30169

(2) The Secretary may carry out this subsection through grants

to States, interstate authorities, and nonprofit institutions.

(b) USE OF PUBLIC AGENCIES.—In carrying out this chapter,

the Secretary shall use the services, research, and testing facilities

of public agencies to the maximum extent practicable to avoid duplication.

(c) FACILITIES.—The Secretary may plan, design, and build a

new facility or modify an existing facility to conduct research, development, and testing in traffic safety, highway safety, and motor

vehicle safety. An expenditure of more than $100,000 for planning,

design, or construction may be made only if the planning, design,

or construction is approved by substantially similar resolutions by

the Committees on Commerce and Transportation and Infrastructure of the House of Representatives and the Committees on Commerce, Science, and Transportation and Environment and Public

Works of the Senate. To obtain that approval, the Secretary shall

submit to Congress a prospectus on the proposed facility. The prospectus shall include—

(1) a brief description of the facility being planned, designed, or built;

(2) the location of the facility;

(3) an estimate of the maximum cost of the facility;

(4) a statement identifying private and public agencies

that will use the facility and the contribution each agency will

make to the cost of the facility; and

(5) a justification of the need for the facility.

(d) INCREASING COSTS OF APPROVED FACILITIES.—The estimated maximum cost of a facility approved under subsection (c) of

this section may be increased by an amount equal to the percentage increase in construction costs from the date the prospectus is

submitted to Congress. However, the increase in the cost of the facility may not be more than 10 percent of the estimated maximum

cost included in the prospectus. The Secretary shall decide what increase in construction costs has occurred.

(e) AVAILABILITY OF INFORMATION, PATENTS, AND DEVELOPMENTS.—When the United States Government makes more than a

minimal contribution to a research or development activity under

this chapter, the Secretary shall include in the arrangement for the

activity a provision to ensure that all information, patents, and developments related to the activity are available to the public. However, the owner of a background patent may not be deprived of a

right under the patent.

§ 30169. Annual reports

(a) GENERAL REPORT.—The Secretary of Transportation shall

submit to the President to submit to Congress on July 1 of each

year a report on the administration of this chapter for the prior calendar year. The report shall include—

(1) a thorough statistical compilation of accidents and injuries;

(2) motor vehicle safety standards in effect or prescribed

under this chapter;

(3) the degree of observance of the standards;
§ 30170 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY 248

1Designation so in law. Probably should be ‘‘(i)’’. 2Designation so in law. Probably should be ‘‘(ii)’’.

(4) a summary of current research grants and contracts

and a description of the problems to be considered under those

grants and contracts;

(5) an analysis and evaluation of research activities completed and technological progress achieved;

(6) enforcement actions;

(7) the extent to which technical information was given the

scientific community and consumer-oriented information was

made available to the public; and

(8) recommendations for legislation needed to promote cooperation among the States in improving traffic safety and

strengthening the national traffic safety program.

(b) REPORT ON IMPORTING MOTOR VEHICLES.—Not later than

18 months after regulations are first prescribed under section

2(e)(1)(B) of the Imported Vehicle Safety Compliance Act of 1988,

the Secretary shall submit to Congress a report of the actions

taken to carry out subchapter III of this chapter and the effectiveness of those actions, including any testing by the Secretary under

section 30146(c)(2) of this title. After the first report, the Secretary

shall submit a report to Congress under this subsection not later

than July 31 of each year.

§ 30170. Criminal Penalties

(a) CRIMINAL LIABILITY FOR FALSIFYING OR WITHHOLDING INFORMATION.—

(1) GENERAL RULE.—A person who violates section 1001 of

title 18 with respect to the reporting requirements of section

30166, with the specific intention of misleading the Secretary

with respect to motor vehicle or motor vehicle equipment safety related defects that have caused death or serious bodily injury to an individual (as defined in section 1365(g)(3) of title

18), shall be subject to criminal penalties of a fine under title

18, or imprisoned for not more than 15 years, or both.

(2) SAFE HARBOR TO ENCOURAGE REPORTING AND FOR WHISTLE BLOWERS.—

(A) CORRECTION.—A person described in paragraph (1)

shall not be subject to criminal penalties under this subsection if: (1) 1 at the time of the violation, such person

does not know that the violation would result in an accident causing death or serious bodily injury; and (2) 2 the

person corrects any improper reports or failure to report

within a reasonable time.

(B) REASONABLE TIME AND SUFFICIENCY OF CORRECTION.—The Secretary shall establish by regulation what

constitutes a reasonable time for the purposes of subparagraph (A) and what manner of correction is sufficient for

purposes of subparagraph (A). The Secretary shall issue a

final rule under this subparagraph within 90 days of the

date of the enactment of this section.

(C) EFFECTIVE DATE.—Subsection (a) shall not take effect before the final rule under subparagraph (B) takes effect.
249 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE SAFETY § 30170

(b) COORDINATION WITH DEPARTMENT OF JUSTICE.—The Attorney General may bring an action, or initiate grand jury proceedings, for a violation of subsection (a) only at the request of the

Secretary of Transportation.

251

CHAPTER 305 OF PART A OF SUBTITLE VI OF TITLE 49,

UNITED STATES CODE

øFORMERLY SECTIONS 201–204 OF THE ANTI CAR THEFT ACT OF 1992¿

253

CHAPTER 305 OF PART A OF SUBTITLE VI OF TITLE 49,

UNITED STATES CODE

SUBTITLE VI—MOTOR VEHICLE AND DRIVER

PROGRAMS

PART A—GENERAL

* * * * * * *

CHAPTER

305. NATIONAL MOTOR VEHICLE TITLE INFORMATION SYSTEM ..... 30501

* * * * * * *

CHAPTER 305—NATIONAL MOTOR VEHICLE TITLE

INFORMATION SYSTEM

Sec.

30501. Definitions.

30502. National Motor Vehicle Title Information System.

30503. State participation.

30504. Reporting requirements.

30505. Penalties and enforcement.

§ 30501. Definitions

In this chapter—

(1) ‘‘automobile’’ has the same meaning given that term in

section 32901(a) of this title.

(2) ‘‘certificate of title’’ means a document issued by a

State showing ownership of an automobile.

(3) ‘‘insurance carrier’’ means an individual or entity engaged in the business of underwriting automobile insurance.

(4) ‘‘junk automobile’’ means an automobile that— (A) is incapable of operating on public streets, roads,

and highways; and

(B) has no value except as a source of parts or scrap.

(5) ‘‘junk yard’’ means an individual or entity engaged in

the business of acquiring or owning junk automobiles for— (A) resale in their entirety or as spare parts; or

(B) rebuilding, restoration, or crushing.

(6) ‘‘operator’’ means the individual or entity authorized or

designated as the operator of the National Motor Vehicle Title

Information System under section 30502(b) of this title, or the

Attorney General, if there is no authorized or designated individual or entity.

(7) ‘‘salvage automobile’’ means an automobile that is damaged by collision, fire, flood, accident, trespass, or other event,

to the extent that its fair salvage value plus the cost of repairing the automobile for legal operation on public streets, roads,

and highways would be more than the fair market value of the
§ 30502 TITLE 49, U.S. CODE—NAT’L MOTOR VEHICLE TITLE INFO. SYS. 254

automobile immediately before the event that caused the damage.

(8) ‘‘salvage yard’’ means an individual or entity engaged

in the business of acquiring or owning salvage automobiles

for—

(A) resale in their entirety or as spare parts; or

(B) rebuilding, restoration, or crushing.

(9) ‘‘State’’ means a State of the United States or the District of Columbia.

§ 30502. National Motor Vehicle Title Information System

(a) ESTABLISHMENT OR DESIGNATION.—(1) In cooperation with

the States and not later than December 31, 1997, the Attorney

General shall establish a National Motor Vehicle Title Information

System that will provide individuals and entities referred to in subsection (e) of this section with instant and reliable access to information maintained by the States related to automobile titling described in subsection (d) of this section. However, if the Attorney

General decides that the existing information system meets the requirements of subsections (d) and (e) of this section and will permit

the Attorney General to carry out this chapter as early as possible,

the Attorney General, in consultation with the Secretary of Transportation, may designate an existing information system as the National Motor Vehicle Title Information System.

(2) In cooperation with the Secretary of Transportation and the

States, the Attorney General shall ascertain the extent to which

title and related information to be included in the system established under paragraph (1) of this subsection will be adequate,

timely, reliable, uniform, and capable of assisting in efforts to prevent the introduction or reintroduction of stolen vehicles and parts

into interstate commerce.

(b) OPERATION.—The Attorney General may authorize the operation of the System established or designated under subsection

(a)(1) of this section by agreement with one or more States, or by

designating, after consulting with the States, a third party that

represents the interests of the States.

(c) USER FEES.—Operation of the System established or designated under subsection (a)(1) of this section shall be paid for by

user fees and should be self-sufficient and not be dependent on

amounts from the United States Government. The amount of fees

the operator collects and keeps under this subsection subject to annual appropriation laws, excluding fees the operator collects and

pays to an entity providing information to the operator, may be not

more than the costs of operating the System.

(d) INFORMATION REQUIREMENTS.—The System established or

designated under subsection (a)(1) of this section shall permit a

user of the System at least to establish instantly and reliably—

(1) the validity and status of a document purporting to be

a certificate of title;

(2) whether an automobile bearing a known vehicle identification number is titled in a particular State;

(3) whether an automobile known to be titled in a particular State is or has been a junk automobile or a salvage

automobile;
255 TITLE 49, U.S. CODE—NAT’L MOTOR VEHICLE TITLE INFO. SYS. § 30503

(4) for an automobile known to be titled in a particular

State, the odometer mileage disclosure required under section

32705 of this title for that automobile on the date the certificate of title for that automobile was issued and any later mileage information, if noted by the State; and

(5) whether an automobile bearing a known vehicle identification number has been reported as a junk automobile or a

salvage automobile under section 30504 of this title.

(e) AVAILABILITY OF INFORMATION.—(1) The operator shall

make available— (A) to a participating State on request of that State, information in the System about any automobile;

(B) to a Government, State, or local law enforcement official on request of that official, information in the System about

a particular automobile, junk yard, or salvage yard;

(C) to a prospective purchaser of an automobile on request

of that purchaser, including an auction company or entity engaged in the business of purchasing used automobiles, information in the System about that automobile; and

(D) to a prospective or current insurer of an automobile on

request of that insurer, information in the System about that

automobile.

(2) The operator may release only the information reasonably

necessary to satisfy the requirements of paragraph (1) of this subsection. The operator may not collect an individual’s social security

account number or permit users of the System to obtain an individual’s address or social security account number.

(f) IMMUNITY.—Any person performing any activity under this

section or sections 30503 or 30504 in good faith and with the reasonable belief that such activity was in accordance with this section

or section 30503 or 30504, as the case may be, shall be immune

from any civil action respecting such activity which is seeking

money damages or equitable relief in any court of the United

States or a State.

§ 30503. State participation

(a) STATE INFORMATION.—Each State shall make titling information maintained by that State available for use in operating the

National Motor Vehicle Title Information System established or

designated under section 30502 of this title.

(b) VERIFICATION CHECKS.—Each State shall establish a practice of performing an instant title verification check before issuing

a certificate of title to an individual or entity claiming to have purchased an automobile from an individual or entity in another State.

The check shall consist of—

(1) communicating to the operator—

(A) the vehicle identification number of the automobile

for which the certificate of title is sought;

(B) the name of the State that issued the most recent

certificate of title for the automobile; and

(C) the name of the individual or entity to whom the

certificate of title was issued; and

(2) giving the operator an opportunity to communicate to

the participating State the results of a search of the information.
§ 30504 TITLE 49, U.S. CODE—NAT’L MOTOR VEHICLE TITLE INFO. SYS. 256

(c) GRANTS TO STATES.—(1) In cooperation with the States and

not later than January 1, 1994, the Attorney General shall—

(A) conduct a review of systems used by the States to compile and maintain information about the titling of automobiles;

and

(B) determine for each State the cost of making titling information maintained by that State available to the operator

to meet the requirements of section 30502(d) of this title.

(2) The Attorney General may make reasonable and necessary

grants to participating States to be used in making titling information maintained by those States available to the operator.

(d) REPORT TO CONGRESS.—Not later than October 1, 1998, the

Attorney General shall report to Congress on which States have

met the requirements of this section. If a State has not met the requirements, the Attorney General shall describe the impediments

that have resulted in the State’s failure to meet the requirements.

§ 30504. Reporting requirements

(a) JUNK YARD AND SALVAGE YARD OPERATORS.—(1) Beginning

at a time established by the Attorney General that is not sooner

than the 3d month before the establishment or designation of the

National Motor Vehicle Title Information System under section

30502 of this title, an individual or entity engaged in the business

of operating a junk yard or salvage yard shall file a monthly report

with the operator of the System. The report shall contain an inventory of all junk automobiles or salvage automobiles obtained by the

junk yard or salvage yard during the prior month. The inventory

shall contain—

(A) the vehicle identification number of each automobile

obtained;

(B) the date on which the automobile was obtained;

(C) the name of the individual or entity from whom the

automobile was obtained; and

(D) a statement of whether the automobile was crushed or

disposed of for sale or other purposes.

(2) Paragraph (1) of this subsection does not apply to an individual or entity—

(A) required by State law to report the acquisition of junk

automobiles or salvage automobiles to State or local authorities

if those authorities make that information available to the operator; or

(B) issued a verification under section 33110 of this title

stating that the automobile or parts from the automobile are

not reported as stolen.

(b) INSURANCE CARRIERS.—Beginning at a time established by

the Attorney General that is not sooner than the 3d month before

the establishment or designation of the System, an individual or

entity engaged in business as an insurance carrier shall file a

monthly report with the operator. The report may be filed directly

or through a designated agent. The report shall contain an inventory of all automobiles of the current model year or any of the 4

prior model years that the carrier, during the prior month, has obtained possession of and has decided are junk automobiles or salvage automobiles. The inventory shall contain—
257 TITLE 49, U.S. CODE—NAT’L MOTOR VEHICLE TITLE INFO. SYS. § 30505

(1) the vehicle identification number of each automobile

obtained;

(2) the date on which the automobile was obtained;

(3) the name of the individual or entity from whom the

automobile was obtained; and

(4) the name of the owner of the automobile at the time

of the filing of the report.

(c) PROCEDURES AND PRACTICES.—The Attorney General shall

establish by regulation procedures and practices to facilitate reporting in the least burdensome and costly fashion.

§ 30505. Penalties and enforcement

(a) PENALTY.—An individual or entity violating this chapter is

liable to the United States Government for a civil penalty of not

more than $1,000 for each violation.

(b) COLLECTION AND COMPROMISE.—(1) The Attorney General

shall impose a civil penalty under this section. The Attorney General shall bring a civil action to collect the penalty. The Attorney

General may compromise the amount of the penalty. In determining the amount of the penalty or compromise, the Attorney

General shall consider the appropriateness of the penalty to the

size of the business of the individual or entity charged and the

gravity of the violation.

(2) The Government may deduct the amount of a civil penalty

imposed or compromised under this section from amounts it owes

the individual or entity liable for the penalty.

259

PART C OF SUBTITLE VI OF TITLE 49,

UNITED STATES CODE

øFORMERLY THE MOTOR VEHICLE INFORMATION AND

COST SAVINGS ACT¿

261

PART C OF SUBTITLE VI OF TITLE 49, UNITED STATES

CODE

SUBTITLE VI—MOTOR VEHICLE AND DRIVER

PROGRAMS

* * * * * * *

PART C—INFORMATION, STANDARDS, AND REQUIREMENTS

321. GENERAL .................................................................................................. 32101

323. CONSUMER INFORMATION .................................................................. 32301

325. BUMPER STANDARDS ............................................................................ 32501

327. ODOMETERS ............................................................................................. 32701

329. AUTOMOBILE FUEL ECONOMY ........................................................... 32901

331. THEFT PREVENTION .............................................................................. 33101

* * * * * * *

PART C—INFORMATION, STANDARDS, AND

REQUIREMENTS

CHAPTER 321—GENERAL

Sec.

32101. Definitions.

32102. Authorization of appropriations.

§ 32101. Definitions

In this part (except chapter 329 and except as provided in section 33101)—

(1) ‘‘bumper standard’’ means a minimum performance

standard that substantially reduces—

(A) the damage to the front or rear end of a passenger

motor vehicle from a low-speed collision (including a collision with a fixed barrier) or from towing the vehicle; or

(B) the cost of repairing the damage.

(2) ‘‘insurer’’ means a person in the business of issuing, or

reinsuring any part of, a passenger motor vehicle insurance

policy.

(3) ‘‘interstate commerce’’ means commerce between a

place in a State and—

(A) a place in another State; or

(B) another place in the same State through another

State.

(4) ‘‘make’’, when describing a passenger motor vehicle,

means the trade name of the manufacturer of the vehicle.

(5) ‘‘manufacturer’’ means a person—

(A) manufacturing or assembling passenger motor vehicles or passenger motor vehicle equipment; or
§ 32102 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 262

(B) importing motor vehicles or motor vehicle equipment for resale.

(6) ‘‘model’’, when describing a passenger motor vehicle,

means a category of passenger motor vehicles based on the

size, style, and type of a make of vehicle.

(7) ‘‘motor vehicle’’ means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public

streets, roads, and highways, but does not include a vehicle operated only on a rail line.

(8) ‘‘motor vehicle accident’’ means an accident resulting

from the maintenance or operation of a passenger motor vehicle or passenger motor vehicle equipment.

(9) ‘‘multipurpose passenger vehicle’’ means a passenger

motor vehicle constructed on a truck chassis or with special

features for occasional off-road operation.

(10) ‘‘passenger motor vehicle’’ means a motor vehicle with

motive power designed to carry not more than 12 individuals,

but does not include—

(A) a motorcycle; or

(B) a truck not designed primarily to carry its operator

or passengers.

(11) ‘‘passenger motor vehicle equipment’’ means—

(A) a system, part, or component of a passenger motor

vehicle as originally made;

(B) a similar part or component made or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a passenger motor

vehicle; or

(C) a device made or sold for use in towing a passenger motor vehicle.

(12) ‘‘State’’ means a State of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands,

Guam, American Samoa, and the Virgin Islands.

(13) ‘‘United States district court’’ means a district court of

the United States, a United States court for Guam, the Virgin

Islands, and American Samoa, and the district court for the

Northern Mariana Islands.

§ 32102. Authorization of appropriations

The following amounts may be appropriated to the Secretary

of Transportation for the National Highway Traffic Safety Administration to carry out this part:

(1) $6,731,430 for the fiscal year ending September 30,

1993.

(2) $6,987,224 for the fiscal year ending September 30,

1994.

(3) $7,252,739 for the fiscal year ending September 30,

1995.

CHAPTER 323—CONSUMER INFORMATION

Sec.

32301. Definitions.

32302. Passenger motor vehicle information.

32303. Insurance information.

32304. Passenger motor vehicle country of origin labeling.
263 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32303

32305. Information and assistance from other departments, agencies, and instrumentalities.

32306. Personnel.

32307. Investigative powers.

32308. General prohibitions, civil penalty, and enforcement.

32309. Civil penalty for labeling violations.

§ 32301. Definitions

In this chapter— (1) ‘‘crashworthiness’’ means the protection a passenger

motor vehicle gives its passengers against personal injury or

death from a motor vehicle accident.

(2) ‘‘damage susceptibility’’ means the susceptibility of a

passenger motor vehicle to damage in a motor vehicle accident.

§ 32302. Passenger motor vehicle information

(a) INFORMATION PROGRAM.—The Secretary of Transportation

shall maintain a program for developing the following information

on passenger motor vehicles:

(1) damage susceptibility.

(2) crashworthiness.

(3) the degree of difficulty of diagnosis and repair of damage to, or failure of, mechanical and electrical systems.

(4) vehicle operating costs dependent on the characteristics

referred to in clauses (1)–(3) of this subsection, including insurance information obtained under section 32303 of this title.

(b) MOTOR VEHICLE INFORMATION.—To assist a consumer in

buying a passenger motor vehicle, the Secretary shall provide to

the public information developed under subsection (a) of this section. The information shall be in a simple and understandable form

that allows comparison of the characteristics referred to in subsection (a)(1)–(3) of this section among the makes and models of

passenger motor vehicles. The Secretary may require passenger

motor vehicle dealers to distribute the information to prospective

buyers.

(c) INSURANCE COST INFORMATION.—The Secretary shall prescribe regulations that require passenger motor vehicle dealers to

distribute to prospective buyers information the Secretary develops

and provides to the dealers that compares insurance costs for different makes and models of passenger motor vehicles based on

damage susceptibility and crashworthiness.

§ 32303. Insurance information

(a) GENERAL REPORTS AND INFORMATION REQUIREMENTS.—(1)

In carrying out this chapter, the Secretary of Transportation may

require an insurer, or a designated agent of the insurer, to make

reports and provide the Secretary with information. The reports

and information may include accident claim information by make,

model, and model year of passenger motor vehicle about the kind

and extent of—

(A) physical damage and repair costs; and

(B) personal injury.

(2) In deciding which reports and information are to be provided under this subsection, the Secretary shall—

(A) consider the cost of preparing and providing the reports and information;
§ 32304 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 264

(B) consider the extent to which the reports and information will contribute to carrying out this chapter; and

(C) consult with State authorities and public and private

agencies the Secretary considers appropriate.

(3) To the extent possible, the Secretary shall obtain reports

and information under this subsection on a voluntary basis.

(b) REQUESTED INFORMATION ON CRASHWORTHINESS, DAMAGE

SUSCEPTIBILITY, AND REPAIR AND PERSONAL INJURY COST.—When

requested by the Secretary, an insurer shall give the Secretary

information— (1) about the extent to which the insurance premiums

charged by the insurer are affected by damage susceptibility,

crashworthiness, and the cost of repair and personal injury, for

each make and model of passenger motor vehicle; and

(2) available to the insurer about the effect of damage susceptibility, crashworthiness, and the cost of repair and personal injury for each make and model of passenger motor vehicle on the risk incurred by the insurer in insuring that make

and model.

(c) DISCLOSURE.—In distributing information received under

this section, the Secretary may disclose identifying information

about a person that may be an insured, a claimant, a passenger,

an owner, a witness, or an individual involved in a motor vehicle

accident, only with the consent of the person.

§ 32304. Passenger motor vehicle country of origin labeling

(a) DEFINITIONS.—In this section—

(1) ‘‘allied supplier’’ means a supplier of passenger motor

vehicle equipment that is wholly owned by the manufacturer,

or if a joint venture vehicle assembly arrangement, a supplier

that is wholly owned by one member of the joint venture arrangement.

(2)(A) ‘‘carline’’—

(i) means a name given a group of passenger motor vehicles that has a degree of commonality in construction

such as body and chassis;

(ii) does not consider a level of decor or opulence; and

(iii) except for light duty trucks, is not generally distinguished by characteristics such as roof line, number of

doors, seats, or windows; and

(B) light duty trucks are different carlines than passenger

motor vehicles.

(3) ‘‘country of origin’’, when referring to the origin of an

engine or transmission, means the country from which the

largest share of the dollar value added to an engine or transmission has originated—

(A) with the United States and Canada treated as separate countries; and

(B) the estimate of the percentage of the dollar value

shall be based on the purchase price of direct materials, as

received at individual engine or transmission plants, of engines of the same displacement and transmissions of the

same transmission type.

(4) ‘‘dealer’’ means a person residing or located in the

United States, including the District of Columbia or a territory
265 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32304

1So in law. Reference in paragraph (9)(B) probably should be to ‘‘subparagraph (A) of this

paragraph’’.

or possession of the United States, and engaged in selling or

distributing new passenger motor vehicles to the ultimate purchaser.

(5) ‘‘final assembly place’’ means the plant, factory, or

other place at which a new passenger motor vehicle is produced or assembled by a manufacturer, and from which the vehicle is delivered to a dealer or importer with all component

parts necessary for the mechanical operation of the vehicle included with the vehicle, whether or not the component parts

are permanently installed in or on the vehicle.

(6) ‘‘foreign content’’ means passenger motor vehicle equipment that is not of United States/Canadian origin.

(7) ‘‘manufacturer’’ means a person—

(A) engaged in manufacturing or assembling new passenger motor vehicles;

(B) importing new passenger motor vehicles for resale;

or

(C) acting for and under the control of such a manufacturer, assembler, or importer in connection with the distribution of new passenger motor vehicles.

(8) ‘‘new passenger motor vehicle’’ means a passenger

motor vehicle for which a manufacturer, distributor, or dealer

has never transferred the equitable or legal title to the vehicle

to an ultimate purchaser.

(9) ‘‘of United States/Canadian origin’’, when referring to

passenger motor vehicle equipment, means—

(A) for an outside supplier, passenger motor vehicle

equipment whose purchase price contains at least 70 percent value added in the United States and Canada; and

(B) for an allied supplier, that part of the individual

passenger motor vehicle equipment whose purchase price

the manufacturer determines remains after subtracting

the total of the purchase prices of all material of foreign

content purchased from outside suppliers, with the determination of the United States/Canadian origin or of the

foreign content from outside suppliers being consistent

with subclause (A) of this clause. 1

(10) ‘‘outside supplier’’ means a supplier of passenger

motor vehicle equipment to a manufacturer’s allied supplier, or

a person other than an allied supplier, who ships directly to

the manufacturer’s final assembly place.

(11) ‘‘passenger motor vehicle’’ has the same meaning

given that term in section 32101(10) of this title, except that

it includes any multi-purpose vehicle or light duty truck when

that vehicle or truck is rated at not more than 8,500 pounds

gross vehicle weight.

(12) ‘‘passenger motor vehicle equipment’’—

(A) means a system, subassembly, or component received at the final vehicle assembly place for installation

on, or attachment to, a passenger motor vehicle at the

time of its first shipment by the manufacturer to a dealer

for sale to an ultimate purchaser; but
§ 32304 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 266

(B) does not include minor parts (including nuts, bolts,

clips, screws, pins, braces, and other attachment hardware) and other similar items the Secretary of Transportation may prescribe by regulation after consulting with

manufacturers and labor.

(13) ‘‘percentage (by value)’’, when referring to passenger

motor vehicle equipment of United States/Canadian origin,

means the percentage remaining after subtracting the percentage (by value) of passenger motor vehicle equipment that is not

of United States/Canadian origin that will be installed or included on those vehicles produced in a carline, from 100

percent—

(A) with value being expressed in terms of the purchase price; and

(B) for outside suppliers and allied suppliers, the value

used is the purchase price of the equipment paid at the

final assembly place.

(14) ‘‘State’’ means a State of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands,

Guam, American Samoa, and the Virgin Islands.

(15) ‘‘value added in the United States and Canada’’ means

a percentage determined by subtracting the total purchase

price of foreign content from the total purchase price, and dividing the remainder by the total purchase price, excluding

costs incurred or profits made at the final assembly place and

beyond (including advertising, assembly, labor, interest payments, and profits), with the following groupings being used:

(A) engines of same displacement produced at the

same plant.

(B) transmissions of the same type produced at the

same plant.

(b) MANUFACTURER REQUIREMENT.—(1) Each manufacturer of

a new passenger motor vehicle manufactured after September 30,

1994, and distributed in commerce for sale in the United States,

shall establish each year for each model year and cause to be attached in a prominent place on each of those vehicles, at least one

label. The label shall contain the following information:

(A) the percentage (by value) of passenger motor vehicle

equipment of United States/Canadian origin installed on vehicles in the carline to which that vehicle belongs, identified by

the words ‘‘U.S./Canadian content’’.

(B) the final assembly place for that vehicle by city, State

(where appropriate) and country.

(C) if at least 15 percent (by value) of equipment installed

on passenger motor vehicles in a carline originated in any

country other than the United States and Canada, the names

of at least the 2 countries in which the greatest amount (by

value) of that equipment originated and the percentage (by

value) of the equipment originating in each country.

(D) the country of origin of the engine and the transmission for each vehicle.

(2) At the beginning of each model year, each manufacturer

shall establish the percentages required for each carline to be indicated on the label under this subsection. Those percentages are ap-
267 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32305

plicable to that carline for the entire model year. A manufacturer

may round those percentages to the nearest 5 percent.

(3) A manufacturer complying with the requirement of paragraph (1)(B) of this subsection satisfies the disclosure requirement

of section 3(b) of the Automobile Information Disclosure Act (15

U.S.C. 1232(b)).

(c) DEALER REQUIREMENT.—Each dealer engaged in the sale or

distribution of a new passenger motor vehicle manufactured after

September 30, 1994, shall cause to be maintained on that vehicle

the label required to be attached to that vehicle under subsection

(b) of this section.

(d) FORM AND CONTENT OF LABEL.—The Secretary of Transportation shall prescribe by regulation the form and content of the

label required under subsection (b) of this section and the manner

and location in which the label is attached. The Secretary shall

permit a manufacturer to comply with this section by allowing the

manufacturer to disclose the information required under subsection

(b)(1) on the label required by section 3 of the Automobile Information Disclosure Act (15 U.S.C. 1232), on the label required by section 32908 of this title, or on a separate label that is readily visible.

(e) REGULATIONS.—In consultation with the Secretaries of

Commerce and the Treasury, the Secretary of Transportation shall

prescribe regulations necessary to carry out this section, including

regulations establishing a procedure to verify the label information

required under subsection (b)(1) of this section. Those regulations

shall provide the ultimate purchaser of a new passenger motor vehicle with the best and most understandable information possible

about the foreign content and United States/Canadian origin of the

equipment of the vehicles without imposing costly and unnecessary

burdens on the manufacturers. The Secretary of Transportation

shall prescribe the regulations promptly to provide adequate lead

time for each manufacturer to comply with this section. The regulations shall include provisions applicable to outside suppliers and allied suppliers to require those suppliers to certify whether passenger motor vehicle equipment provided by those suppliers is of

United States origin, of United States/Canadian origin, or of foreign content and to provide other information the Secretary of

Transportation decides is necessary to allow each manufacturer to

comply reasonably with this section and to rely on that certification

and information.

(f) PREEMPTION.—(1) When a label content requirement prescribed under this section is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related

to the content of vehicles covered by a requirement under this section.

(2) A State or a political subdivision of a State may prescribe

requirements related to the content of passenger motor vehicles obtained for its own use.

§ 32305. Information and assistance from other departments, agencies, and instrumentalities

(a) AUTHORITY TO REQUEST.—The Secretary of Transportation

may request information necessary to carry out this chapter from

a department, agency, or instrumentality of the United States Gov-
§ 32306 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 268

ernment. The head of the department, agency, or instrumentality

shall provide the information.

(b) DETAILING PERSONNEL.—The head of a department, agency,

or instrumentality may detail, on a reimbursable basis, personnel

to assist the Secretary in carrying out this chapter.

§ 32306. Personnel

(a) GENERAL AUTHORITY.—In carrying out this chapter, the

Secretary of Transportation may— (1) appoint and fix the pay of employees without regard to

the provisions of title 5 governing appointment in the competitive service and chapter 51 and subchapter III of chapter 53

of title 5; and

(2) make contracts with persons for research and preparation of reports.

(b) STATUS OF ADVISORY COMMITTEE MEMBERS.—A member of

an advisory committee appointed under section 325 of this title to

carry out this chapter is a special United States Government employee under chapter 11 of title 18.

§ 32307. Investigative powers

(a) GENERAL AUTHORITY.—In carrying out this chapter, the

Secretary of Transportation may— (1) inspect and copy records of any person at reasonable

times;

(2) order a person to file written reports or answers to specific questions, including reports or answers under oath; and

(3) conduct hearings, administer oaths, take testimony,

and require (by subpena or otherwise) the appearance and testimony of witnesses and the production of records the Secretary considers advisable.

(b) WITNESS FEES AND MILEAGE.—A witness summoned under

subsection (a) of this section is entitled to the same fee and mileage

the witness would have been paid in a court of the United States.

(c) CIVIL ACTIONS TO ENFORCE.—A civil action to enforce a

subpena or order of the Secretary under subsection (a) of this section may be brought in the United States district court for the judicial district in which the proceeding by the Secretary is conducted.

The court may punish a failure to obey an order of the court to

comply with the subpena or order of the Secretary as a contempt

of court.

(d) CONFIDENTIALITY OF INFORMATION.—Information obtained

by the Secretary under this section related to a confidential matter

referred to in section 1905 of title 18 may be disclosed only to another officer or employee of the United States Government for use

in carrying out this chapter. This subsection does not authorize information to be withheld from a committee of Congress authorized

to have the information.

§ 32308. General prohibitions, civil penalty, and enforcement

(a) PROHIBITIONS.—A person may not—

(1) fail to provide the Secretary of Transportation with information requested by the Secretary in carrying out this chapter; or
269 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32309

(2) fail to comply with applicable regulations prescribed by

the Secretary in carrying out this chapter.

(b) CIVIL PENALTY.—(1) A person that violates subsection (a) of

this section is liable to the United States Government for a civil

penalty of not more than $1,000 for each violation. Each failure to

provide information or comply with a regulation in violation of subsection (a) is a separate violation. The maximum penalty under

this subsection for a related series of violations is $400,000.

(2) The Secretary may compromise the amount of a civil penalty imposed under this section.

(3) In determining the amount of a penalty or compromise, the

appropriateness of the penalty or compromise to the size of the

business of the person charged and the gravity of the violation

shall be considered.

(4) The Government may deduct the amount of a civil penalty

imposed or compromised under this section from amounts it owes

the person liable for the penalty.

(c) CIVIL ACTIONS TO ENFORCE.—(1) The Attorney General may

bring a civil action in a United States district court to enjoin a violation of subsection (a) of this section.

(2) When practicable, the Secretary shall—

(A) notify a person against whom an action under this subsection is planned;

(B) give the person an opportunity to present that person’s

views; and

(C) give the person a reasonable opportunity to comply.

(3) The failure of the Secretary to comply with paragraph (2)

of this subsection does not prevent a court from granting appropriate relief.

(d) VENUE AND SERVICE.—A civil action under this section may

be brought in the judicial district in which the violation occurred

or the defendant is found, resides, or does business. Process in the

action may be served in any other judicial district in which the defendant resides or is found. A subpena for a witness in the action

may be served in any judicial district.

§ 32309. Civil penalty for labeling violations

(a) DEFINITIONS.—The definitions in section 32304 of this title

apply to this section.

(b) PENALTIES.—A manufacturer of a passenger motor vehicle

distributed in commerce for sale in the United States that willfully

fails to attach the label required under section 32304 of this title

to a new passenger motor vehicle that the manufacturer manufactures or imports, or a dealer that fails to maintain that label as required under section 32304, is liable to the United States Government for a civil penalty of not more than $1,000 for each violation.

Each failure to attach or maintain that label for each vehicle is a

separate violation.

CHAPTER 325—BUMPER STANDARDS

Sec.

32501. Purpose.

32502. Bumper standards.

32503. Judicial review of bumper standards.

32504. Certificates of compliance.
§ 32501 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 270

32505. Information and compliance requirements.

32506. Prohibited acts.

32507. Penalties and enforcement.

32508. Civil actions by owners of passenger motor vehicles.

32509. Information and assistance from other departments, agencies, and instrumentalities.

32510. Annual report.

32511. Relationship to other motor vehicle standards.

§ 32501. Purpose

The purpose of this chapter is to reduce economic loss resulting

from damage to passenger motor vehicles involved in motor vehicle

accidents by providing for the maintenance and enforcement of

bumper standards.

§ 32502. Bumper standards

(a) GENERAL REQUIREMENTS AND NONAPPLICATION.—The Secretary of Transportation shall prescribe by regulation bumper

standards for passenger motor vehicles and may prescribe by regulation bumper standards for passenger motor vehicle equipment

manufactured in, or imported into, the United States. A standard

does not apply to a passenger motor vehicle or passenger motor vehicle equipment—

(1) intended only for export;

(2) labeled for export on the vehicle or equipment and the

outside of any container of the vehicle or equipment; and

(3) exported.

(b) LIMITATIONS.—A standard under this section—

(1) may not conflict with a motor vehicle safety standard

prescribed under chapter 301 of this title;

(2) may not specify a dollar amount for the cost of repairing damage to a passenger motor vehicle; and

(3) to the greatest practicable extent, may not preclude the

attachment of a detachable hitch.

(c) EXEMPTIONS.—For good cause, the Secretary may exempt

from any part of a standard—

(1) a multipurpose passenger vehicle; or

(2) a make, model, or class of a passenger motor vehicle

manufactured for a special use, if the standard would interfere

unreasonably with the special use of the vehicle.

(d) COST REDUCTION AND CONSIDERATIONS.—When prescribing

a standard under this section, the Secretary shall design the standard to obtain the maximum feasible reduction of costs to the public,

considering— (1) the costs and benefits of carrying out the standard;

(2) the effect of the standard on insurance costs and legal

fees and costs;

(3) savings in consumer time and inconvenience; and

(4) health and safety, including emission standards.

(e) PROCEDURES.—Section 553 of title 5 applies to a standard

prescribed under this section. However, the Secretary shall give an

interested person an opportunity to make oral and written presentations of information, views, and arguments. A transcript of each

oral presentation shall be kept. Under conditions prescribed by the

Secretary, the Secretary may conduct a hearing to resolve an issue

of fact material to a standard.
271 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32505

(f) EFFECTIVE DATE.—The Secretary shall prescribe an effective

date for a standard under this section. That date may not be earlier than the date the standard is prescribed nor later than 18

months after the date the standard is prescribed. However, the

Secretary may prescribe a later date when the Secretary submits

to Congress and publishes the reasons for the later date. A standard only applies to a passenger motor vehicle or passenger motor

vehicle equipment manufactured on or after the effective date.

(g) RESEARCH.—The Secretary shall conduct research necessary

to carry out this chapter.

§ 32503. Judicial review of bumper standards

(a) FILING AND VENUE.—A person that may be adversely affected by a standard prescribed under section 32502 of this title

may apply for review of the standard by filing a petition for review

in the United States Court of Appeals for the District of Columbia

Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 59 days after the

standard is prescribed.

(b) NOTIFYING SECRETARY.—The clerk of the court shall send

immediately a copy of the petition to the Secretary of Transportation. The Secretary shall file with the court a record of the proceeding in which the standard was prescribed.

(c) ADDITIONAL PROCEEDINGS.—(1) On request of the petitioner,

the court may order the Secretary to receive additional evidence

and evidence in rebuttal if the court is satisfied the additional evidence is material and there were reasonable grounds for not presenting the evidence in the proceeding before the Secretary.

(2) The Secretary may modify findings of fact or make new

findings because of the additional evidence presented. The Secretary shall file a modified or new finding, a recommendation to

modify or set aside a standard, and the additional evidence with

the court.

(d) SUPREME COURT REVIEW AND ADDITIONAL REMEDIES.—A

judgment of a court under this section may be reviewed only by the

Supreme Court under section 1254 of title 28. A remedy under this

section is in addition to any other remedies provided by law.

§ 32504. Certificates of compliance

Under regulations prescribed by the Secretary of Transportation, a manufacturer or distributor of a passenger motor vehicle

or passenger motor vehicle equipment subject to a standard prescribed under section 32502 of this title shall give the distributor

or dealer at the time of delivery a certificate that the vehicle or

equipment complies with the standard.

§ 32505. Information and compliance requirements

(a) GENERAL AUTHORITY.—(1) To enable the Secretary of

Transportation to decide whether a manufacturer of passenger

motor vehicles or passenger motor vehicle equipment is complying

with this chapter and standards prescribed under this chapter, the

Secretary may require the manufacturer to—

(A) keep records;

(B) make reports;
§ 32506 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 272

(C) provide items and information, including vehicles and

equipment for testing at a negotiated price not more than the

manufacturer’s cost; and

(D) allow an officer or employee designated by the Secretary to inspect vehicles and relevant records of the manufacturer.

(2) To enforce this chapter, an officer or employee designated

by the Secretary, on presenting appropriate credentials and a written notice to the owner, operator, or agent in charge, may inspect

a facility in which passenger motor vehicles or passenger motor vehicle equipment is manufactured, held for introduction in interstate commerce, or held for sale after introduction in interstate

commerce. An inspection shall be conducted at a reasonable time,

in a reasonable way, and with reasonable promptness.

(b) POWERS OF SECRETARY AND CIVIL ACTIONS TO ENFORCE.—

(1) In carrying out this chapter, the Secretary may—

(A) inspect and copy records of any person at reasonable

times;

(B) order a person to file written reports or answers to specific questions, including reports or answers under oath; and

(C) conduct hearings, administer oaths, take testimony,

and require (by subpena or otherwise) the appearance and testimony of witnesses and the production of records the Secretary considers advisable.

(2) A witness summoned under this subsection is entitled to

the same fee and mileage the witness would have been paid in a

court of the United States.

(3) A civil action to enforce a subpena or order of the Secretary

under this subsection may be brought in the United States district

court for any judicial district in which the proceeding by the Secretary is conducted. The court may punish a failure to obey an

order of the court to comply with the subpena or order of the Secretary as a contempt of court.

(c) CONFIDENTIALITY OF INFORMATION.—(1) Information obtained by the Secretary under this chapter related to a confidential

matter referred to in section 1905 of title 18 may be disclosed

only—

(A) to another officer or employee of the United States

Government for use in carrying out this chapter; or

(B) in a proceeding under this chapter.

(2) This subsection does not authorize information to be withheld from a committee of Congress authorized to have the information.

(3) Subject to paragraph (1) of this subsection, the Secretary,

on request, shall make available to the public at cost information

the Secretary submits or receives in carrying out this chapter.

§ 32506. Prohibited acts

(a) GENERAL.—Except as provided in this section, a person may

not—

(1) manufacture for sale, sell, offer for sale, introduce or

deliver for introduction in interstate commerce, or import into

the United States, a passenger motor vehicle or passenger

motor vehicle equipment manufactured on or after the date an
273 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32507

applicable standard under section 32502 of this title takes effect, unless it conforms to the standard;

(2) fail to comply with an applicable regulation prescribed

by the Secretary of Transportation under this chapter;

(3) fail to keep records, refuse access to or copying of

records, fail to make reports or provide items or information,

or fail or refuse to allow entry or inspection, as required by

this chapter or a regulation prescribed under this chapter; or

(4) fail to provide the certificate required by section 32504

of this title, or provide a certificate that the person knows, or

in the exercise of reasonable care has reason to know, is false

or misleading in a material respect.

(b) NONAPPLICATION.—Subsection (a)(1) of this section does not

apply to—

(1) the sale, offer for sale, or introduction or delivery for

introduction in interstate commerce of a passenger motor vehicle or passenger motor vehicle equipment after the first purchase of the vehicle or equipment in good faith other than for

resale (but this clause does not prohibit a standard from requiring that a vehicle or equipment be manufactured to comply

with the standard over a specified period of operation or use);

or

(2) a person—

(A) establishing that the person had no reason to

know, by exercising reasonable care, that the vehicle or

equipment does not comply with the standard; or

(B) holding, without knowing about a noncompliance

and before that first purchase, a certificate issued under

section 32504 of this title stating that the vehicle or equipment complies with the standard.

(c) IMPORTING NONCOMPLYING VEHICLES AND EQUIPMENT.—(1)

The Secretaries of Transportation and the Treasury may prescribe

joint regulations authorizing a passenger motor vehicle or passenger motor vehicle equipment not complying with a standard prescribed under section 32502 of this title to be imported into the

United States subject to conditions (including providing a bond) the

Secretaries consider appropriate to ensure that the vehicle or

equipment will—

(A) comply, after importation, with the standards prescribed under section 32502 of this title;

(B) be exported; or

(C) be abandoned to the United States Government.

(2) The Secretaries may prescribe joint regulations that allow

a passenger motor vehicle or passenger motor vehicle equipment to

be imported into the United States after the first purchase in good

faith other than for resale.

(d) LIABILITY UNDER OTHER LAW.—Compliance with a standard under this chapter does not exempt a person from liability provided by law.

§ 32507. Penalties and enforcement

(a) CIVIL PENALTY.—(1) A person that violates section 32506(a)

of this title is liable to the United States Government for a civil

penalty of not more than $1,000 for each violation. A separate violation occurs for each passenger motor vehicle or item of passenger
§ 32508 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 274

motor vehicle equipment involved in a violation of section

32506(a)(1) or (4) of this title— (A) that does not comply with a standard prescribed under

section 32502 of this title; or

(B) for which a certificate is not provided, or for which a

false or misleading certificate is provided, under section 32504

of this title.

(2) The maximum civil penalty under this subsection for a re- lated series of violations is $800,000.

(3) The Secretary of Transportation imposes a civil penalty

under this subsection. The Attorney General or the Secretary, with

the concurrence of the Attorney General, shall bring a civil action

in a United States district court to collect the penalty.

(b) CRIMINAL PENALTY.—A person knowingly and willfully violating section 32506(a)(1) of this title after receiving a notice of

noncompliance from the Secretary shall be fined under title 18, imprisoned for not more than one year, or both. If the person is a corporation, the penalties of this subsection also apply to a director,

officer, or individual agent of the corporation who, with knowledge

of the Secretary’s notice, knowingly and willfully authorizes, orders, or performs an act that is any part of the violation.

(c) CIVIL ACTIONS TO ENFORCE.—(1) The Secretary or the Attorney General may bring a civil action in a United States district

court to enjoin a violation of this chapter or the sale, offer for sale,

introduction or delivery for introduction in interstate commerce, or

importation into the United States, of a passenger motor vehicle or

passenger motor vehicle equipment that is found, before the first

purchase in good faith other than for resale, not to comply with a

standard prescribed under section 32502 of this title.

(2) When practicable, the Secretary shall— (A) notify a person against whom an action under this subsection is planned;

(B) give the person an opportunity to present that person’s

views; and

(C) except for a knowing and willful violation, give the person a reasonable opportunity to comply.

(3) The failure of the Secretary to comply with paragraph (2)

of this subsection does not prevent a court from granting appropriate relief.

(d) JURY TRIAL DEMAND.—In a trial for criminal contempt for

violating an injunction or restraining order issued under subsection

(c) of this section, the violation of which is also a violation of this

chapter, the defendant may demand a jury trial. The defendant

shall be tried as provided in rule 42(b) of the Federal Rules of

Criminal Procedure (18 App. U.S.C.).

(e) VENUE.—A civil action under subsection (a) or (c) of this

section may be brought in the judicial district in which the violation occurred or the defendant is found, resides, or does business.

Process in the action may be served in any other judicial district

in which the defendant resides or is found. A subpena for a witness

in the action may be served in any judicial district.

§ 32508. Civil actions by owners of passenger motor vehicles

When an owner of a passenger motor vehicle sustains damages

as a result of a motor vehicle accident because the vehicle did not
275 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32511

comply with a standard prescribed under section 32502 of this title,

the owner may bring a civil action against the manufacturer to recover the damages. The action may be brought in the United States

District Court for the District of Columbia or in the United States

district court for the judicial district in which the owner resides.

The action must be brought not later than 3 years after the date

of the accident. The court shall award costs and a reasonable attorney’s fee to the owner when a judgment is entered for the owner.

§ 32509. Information and assistance from other departments, agencies, and instrumentalities

(a) GENERAL AUTHORITY.—The Secretary of Transportation

may request information necessary to carry out this chapter from

a department, agency, or instrumentality of the United States Government. The head of the department, agency, or instrumentality

shall provide the information.

(b) DETAILING PERSONNEL.—The head of a department, agency,

or instrumentality may detail, on a reimbursable basis, personnel

to assist the Secretary in carrying out this chapter.

§ 32510. Annual report

Not later than March 31 of each year, the Secretary of Transportation shall submit to Congress and the President a report on

the progress in carrying out section 32501 of this title. The report

shall include—

(1) a statement of the cost savings resulting from carrying

out this chapter; and

(2) recommendations for legislative or other action the Secretary decides may be appropriate.

§ 32511. Relationship to other motor vehicle standards

(a) PREEMPTION.—Except as provided in this section, a State or

a political subdivision of a State may prescribe or enforce a bumper

standard for a passenger motor vehicle or passenger motor vehicle

equipment only if the standard is identical to a standard prescribed

under section 32502 of this title.

(b) ENFORCEMENT.—This chapter and chapter 301 of this title

do not affect the authority of a State to enforce a bumper standard

about an aspect of performance of a passenger motor vehicle or

passenger motor vehicle equipment not covered by a standard prescribed under section 32502 of this title if the State bumper

standard—

(1) does not conflict with a standard prescribed under

chapter 301 of this title; and

(2) was in effect or prescribed by the State on October 20,

1972.

(c) ADDITIONAL AND HIGHER STANDARDS OF PERFORMANCE.—

The United States Government, a State, or a political subdivision

of a State may prescribe a bumper standard for a passenger motor

vehicle or passenger motor vehicle equipment obtained for its own

use that imposes additional or higher standards of performance

than a standard prescribed under section 32502 of this title.
§ 32701 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 276

CHAPTER 327—ODOMETERS

Sec.

32701. Findings and purposes.

32702. Definitions.

32703. Preventing tampering.

32704. Service, repair, and replacement.

32705. Disclosure requirements on transfer of motor vehicles.

32706. Inspections, investigations, and records.

32707. Administrative warrants.

32708. Confidentiality of information.

32709. Penalties and enforcement.

32710. Civil actions by private persons.

32711. Relationship to State law.

§ 32701. Findings and purposes

(a) FINDINGS.—Congress finds that—

(1) buyers of motor vehicles rely heavily on the odometer

reading as an index of the condition and value of a vehicle;

(2) buyers are entitled to rely on the odometer reading as

an accurate indication of the mileage of the vehicle;

(3) an accurate indication of the mileage assists a buyer in

deciding on the safety and reliability of the vehicle; and

(4) motor vehicles move in, or affect, interstate and foreign

commerce.

(b) PURPOSES.—The purposes of this chapter are—

(1) to prohibit tampering with motor vehicle odometers;

and

(2) to provide safeguards to protect purchasers in the sale

of motor vehicles with altered or reset odometers.

§ 32702. Definitions

In this chapter—

(1) ‘‘auction company’’ means a person taking possession of

a motor vehicle owned by another to sell at an auction.

(2) ‘‘dealer’’ means a person that sold at least 5 motor vehicles during the prior 12 months to buyers that in good faith

bought the vehicles other than for resale.

(3) ‘‘distributor’’ means a person that sold at least 5 motor

vehicles during the prior 12 months for resale.

(4) ‘‘leased motor vehicle’’ means a motor vehicle leased to

a person for at least 4 months by a lessor that leased at least

5 vehicles during the prior 12 months.

(5) ‘‘odometer’’ means an instrument for measuring and recording the distance a motor vehicle is driven, but does not include an auxiliary instrument designed to be reset by the operator of the vehicle to record mileage of a trip.

(6) ‘‘repair’’ and ‘‘replace’’ mean to restore to a sound working condition by replacing any part of an odometer or by correcting any inoperative part of an odometer.

(7) ‘‘title’’ means the certificate of title or other document

issued by the State indicating ownership.

(8) ‘‘transfer’’ means to change ownership by sale, gift, or

any other means.

§ 32703. Preventing tampering

A person may not—
277 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32705

(1) advertise for sale, sell, use, install, or have installed, a

device that makes an odometer of a motor vehicle register a

mileage different from the mileage the vehicle was driven, as

registered by the odometer within the designed tolerance of the

manufacturer of the odometer;

(2) disconnect, reset, alter, or have disconnected, reset, or

altered, an odometer of a motor vehicle intending to change the

mileage registered by the odometer;

(3) with intent to defraud, operate a motor vehicle on a

street, road, or highway if the person knows that the odometer

of the vehicle is disconnected or not operating; or

(4) conspire to violate this section or section 32704 or

32705 of this title.

§ 32704. Service, repair, and replacement

(a) ADJUSTING MILEAGE.—A person may service, repair, or replace an odometer of a motor vehicle if the mileage registered by

the odometer remains the same as before the service, repair, or replacement. If the mileage cannot remain the same—

(1) the person shall adjust the odometer to read zero; and

(2) the owner of the vehicle or agent of the owner shall attach a written notice to the left door frame of the vehicle specifying the mileage before the service, repair, or replacement and

the date of the service, repair, or replacement.

(b) REMOVING OR ALTERING NOTICE.—A person may not, with

intent to defraud, remove or alter a notice attached to a motor vehicle as required by this section.

§ 32705. Disclosure requirements on transfer of motor vehicles

(a)(1) DISCLOSURE REQUIREMENTS.—Under regulations prescribed by the Secretary of Transportation that include the way in

which information is disclosed and retained under this section, a

person transferring ownership of a motor vehicle shall give the

transferee the following written disclosure:

(A) Disclosure of the cumulative mileage registered on the

odometer.

(B) Disclosure that the actual mileage is unknown, if the

transferor knows that the odometer reading is different from

the number of miles the vehicle has actually traveled.

(2) A person transferring ownership of a motor vehicle may not

violate a regulation prescribed under this section or give a false

statement to the transferee in making the disclosure required by

such a regulation.

(3) A person acquiring a motor vehicle for resale may not accept a written disclosure under this section unless it is complete.

(b) MILEAGE STATEMENT REQUIREMENT FOR LICENSING.—(1) A

motor vehicle the ownership of which is transferred may not be licensed for use in a State unless the transferee, in submitting an

application to a State for the title on which the license will be

issued, includes with the application the transferor’s title and, if

that title contains the space referred to in paragraph (3)(A)(iii) of

this subsection, a statement, signed and dated by the transferor, of

the mileage disclosure required under subsection (a) of this section.
§ 32705 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 278

This paragraph does not apply to a transfer of ownership of a

motor vehicle that has not been licensed before the transfer.

(2)(A) Under regulations prescribed by the Secretary, if the

title to a motor vehicle issued to a transferor by a State is in the

possession of a lienholder when the transferor transfers ownership

of the vehicle, the transferor may use a written power of attorney

(if allowed by State law) in making the mileage disclosure required

under subsection (a) of this section. Regulations prescribed under

this paragraph— (i) shall prescribe the form of the power of attorney;

(ii) shall provide that the form be printed by means of a

secure printing process (or other secure process);

(iii) shall provide that the State issue the form to the

transferee;

(iv) shall provide that the person exercising the power of

attorney retain a copy and submit the original to the State

with a copy of the title showing the restatement of the mileage;

(v) may require that the State retain the power of attorney

and the copy of the title for an appropriate period or that the

State adopt alternative measures consistent with section

32701(b) of this title, after considering the costs to the State;

(vi) shall ensure that the mileage at the time of transfer

be disclosed on the power of attorney document;

(vii) shall ensure that the mileage be restated exactly by

the person exercising the power of attorney in the space referred to in paragraph (3)(A)(iii) of this subsection;

(viii) may not require that a motor vehicle be titled in the

State in which the power of attorney was issued;

(ix) shall consider the need to facilitate normal commercial

transactions in the sale or exchange of motor vehicles; and

(x) shall provide other conditions the Secretary considers

appropriate.

(B) Section 32709(a) and (b) applies to a person granting or

granted a power of attorney under this paragraph.

(3)(A) A motor vehicle the ownership of which is transferred

may not be licensed for use in a State unless the title issued by

the State to the transferee— (i) is produced by means of a secure printing process (or

other secure process);

(ii) indicates the mileage disclosure required to be made

under subsection (a) of this section; and

(iii) contains a space for the transferee to disclose the mileage at the time of a future transfer and to sign and date the

disclosure.

(B) Subparagraph (A) of this paragraph does not require a

State to verify, or preclude a State from verifying, the mileage information contained in the title.

(c) LEASED MOTOR VEHICLES.—(1) For a leased motor vehicle,

the regulations prescribed under subsection (a) of this section shall

require written disclosure about mileage to be made by the lessee

to the lessor when the lessor transfers ownership of that vehicle.

(2) Under those regulations, the lessor shall provide written

notice to the lessee of—

(A) the lessee’s mileage disclosure requirements under

paragraph (1) of this subsection; and
279 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32706

(B) the penalties for failure to comply with those requirements.

(3) The lessor shall retain the disclosures made by a lessee

under paragraph (1) of this subsection for at least 4 years following

the date the lessor transfers the leased motor vehicle.

(4) If the lessor transfers ownership of a leased motor vehicle

without obtaining possession of the vehicle, the lessor, in making

the disclosure required by subsection (a) of this section, may indicate on the title the mileage disclosed by the lessee under paragraph (1) of this subsection unless the lessor has reason to believe

that the disclosure by the lessee does not reflect the actual mileage

of the vehicle.

(d) STATE ALTERNATE VEHICLE MILEAGE DISCLOSURE REQUIREMENTS.—The requirements of subsections (b) and (c)(1) of this section on the disclosure of motor vehicle mileage when motor vehicles

are transferred or leased apply in a State unless the State has in

effect alternate motor vehicle mileage disclosure requirements approved by the Secretary. The Secretary shall approve alternate

motor vehicle mileage disclosure requirements submitted by a

State unless the Secretary decides that the requirements are not

consistent with the purpose of the disclosure required by subsection

(b) or (c), as the case may be.

(e) AUCTION SALES.—If a motor vehicle is sold at an auction,

the auction company conducting the auction shall maintain the following records for at least 4 years after the date of the sale:

(1) the name of the most recent owner of the motor vehicle

(except the auction company) and the name of the buyer of the

motor vehicle.

(2) the vehicle identification number required under chapter 301 or 331 of this title.

(3) the odometer reading on the date the auction company

took possession of the motor vehicle.

(f) APPLICATION AND REVISION OF STATE LAW.—(1) Except as

provided in paragraph (2) of this subsection, subsections (b)–(e) of

this section apply to the transfer of a motor vehicle after April 28,

1989.

(2) If a State requests, the Secretary shall assist the State in

revising its laws to comply with subsection (b) of this section. If a

State requires time beyond April 28, 1989, to revise its laws to

achieve compliance, the Secretary, on request of the State, may

grant additional time that the Secretary considers reasonable by

publishing a notice in the Federal Register. The notice shall include the reasons for granting the additional time. In granting additional time, the Secretary shall ensure that the State is making

reasonable efforts to achieve compliance.

§ 32706. Inspections, investigations, and records

(a) AUTHORITY TO INSPECT AND INVESTIGATE.—Subject to section 32707 of this title, the Secretary of Transportation may conduct an inspection or investigation necessary to carry out this

chapter or a regulation prescribed or order issued under this chapter. The Secretary shall cooperate with State and local officials to

the greatest extent possible in conducting an inspection or investigation. The Secretary may give the Attorney General information
§ 32706 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 280

about a violation of this chapter or a regulation prescribed or order

issued under this chapter.

(b) ENTRY, INSPECTION, AND IMPOUNDMENT.—(1) In carrying

out subsection (a) of this section, an officer or employee designated

by the Secretary, on display of proper credentials and written notice to the owner, operator, or agent in charge, may—

(A) enter and inspect commercial premises in which a

motor vehicle or motor vehicle equipment is manufactured,

held for shipment or sale, maintained, or repaired;

(B) enter and inspect noncommercial premises in which

the Secretary reasonably believes there is a motor vehicle or

motor vehicle equipment that is an object of a violation of this

chapter;

(C) inspect that motor vehicle or motor vehicle equipment;

and

(D) impound for not more than 72 hours for inspection a

motor vehicle or motor vehicle equipment that the Secretary

reasonably believes is an object of a violation of this chapter.

(2) An inspection or impoundment under this subsection shall

be conducted at a reasonable time, in a reasonable way, and with

reasonable promptness. The written notice may consist of a warrant issued under section 32707 of this title.

(c) REASONABLE COMPENSATION.—When the Secretary impounds for inspection a motor vehicle (except a vehicle subject to

subchapter I of chapter 135 of this title) or motor vehicle equipment under subsection (b)(1)(D) of this section, the Secretary shall

pay reasonable compensation to the owner of the vehicle or equipment if the inspection or impoundment results in denial of use, or

reduction in value, of the vehicle or equipment.

(d) RECORDS AND INFORMATION REQUIREMENTS.—(1) To enable

the Secretary to decide whether a dealer or distributor is complying

with this chapter and regulations prescribed and orders issued

under this chapter, the Secretary may require the dealer or

distributor—

(A) to keep records;

(B) to provide information from those records if the Secretary states the purpose for requiring the information and

identifies the information to the fullest extent practicable; and

(C) to allow an officer or employee designated by the Secretary to inspect relevant records of the dealer or distributor.

(2) This subsection and subsection (e)(1)(B) of this section do

not authorize the Secretary to require a dealer or distributor to

provide information on a regular periodic basis.

(e) ADMINISTRATIVE AUTHORITY AND CIVIL ACTIONS TO ENFORCE.—(1) In carrying out this chapter, the Secretary may—

(A) inspect and copy records of any person at reasonable

times;

(B) order a person to file written reports or answers to specific questions, including reports or answers under oath; and

(C) conduct hearings, administer oaths, take testimony,

and require (by subpena or otherwise) the appearance and testimony of witnesses and the production of records the Secretary considers advisable.
281 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32707

(2) A witness summoned under this subsection is entitled to

the same fee and mileage the witness would have been paid in a

court of the United States.

(3) A civil action to enforce a subpena or order of the Secretary

under this subsection may be brought in the United States district

court for any judicial district in which the proceeding by the Secretary is conducted. The court may punish a failure to obey an

order of the court to comply with the subpena or order of the Secretary as a contempt of court.

(f) PROHIBITIONS.—A person may not fail to keep records,

refuse access to or copying of records, fail to make reports or provide information, fail to allow entry or inspection, or fail to permit

impoundment, as required under this section.

§ 32707. Administrative warrants

(a) DEFINITION.—In this section, ‘‘probable cause’’ means a

valid public interest in the effective enforcement of this chapter or

a regulation prescribed under this chapter sufficient to justify the

inspection or impoundment in the circumstances stated in an application for a warrant under this section.

(b) WARRANT REQUIREMENT AND ISSUANCE.—(1) Except as provided in paragraph (4) of this subsection, an inspection or impoundment under section 32706 of this title may be carried out only after

a warrant is obtained.

(2) A judge of a court of the United States or a State court of

record or a United States magistrate may issue a warrant for an

inspection or impoundment under section 32706 of this title within

the territorial jurisdiction of the court or magistrate. The warrant

must be based on an affidavit that—

(A) establishes probable cause to issue the warrant; and

(B) is sworn to before the judge or magistrate by an officer

or employee who knows the facts alleged in the affidavit.

(3) The judge or magistrate shall issue the warrant when the

judge or magistrate decides there is a reasonable basis for believing

that probable cause exists to issue the warrant. The warrant

must—

(A) identify the premises, property, or motor vehicle to be

inspected and the items or type of property to be impounded;

(B) state the purpose of the inspection, the basis for

issuing the warrant, and the name of the affiant;

(C) direct an individual authorized under section 32706 of

this title to inspect the premises, property, or vehicle for the

purpose stated in the warrant and, when appropriate, to impound the property specified in the warrant;

(D) direct that the warrant be served during the hours

specified in the warrant; and

(E) name the judge or magistrate with whom proof of service is to be filed.

(4) A warrant under this section is not required when—

(A) the owner, operator, or agent in charge of the premises

consents;

(B) it is reasonable to believe that the mobility of the

motor vehicle to be inspected makes it impractical to obtain a

warrant;
§ 32708 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 282

(C) an application for a warrant cannot be made because

of an emergency;

(D) records are to be inspected and copied under section

32706(e)(1)(A) of this title; or

(E) a warrant is not constitutionally required.

(c) SERVICE AND IMPOUNDMENT OF PROPERTY.—(1) A warrant

issued under this section must be served and proof of service filed

not later than 10 days after its issuance date. The judge or magistrate may allow additional time in the warrant if the Secretary

of Transportation demonstrates a need for additional time. Proof of

service must be filed promptly with a written inventory of the property impounded under the warrant. The inventory shall be made

in the presence of the individual serving the warrant and the individual from whose possession or premises the property was impounded, or if that individual is not present, a credible individual

except the individual making the inventory. The individual serving

the warrant shall verify the inventory. On request, the judge or

magistrate shall send a copy of the inventory to the individual from

whose possession or premises the property was impounded and to

the applicant for the warrant.

(2) When property is impounded under a warrant, the individual serving the warrant shall—

(A) give the person from whose possession or premises the

property was impounded a copy of the warrant and a receipt

for the property; or

(B) leave the copy and receipt at the place from which the

property was impounded.

(3) The judge or magistrate shall file the warrant, proof of

service, and all documents filed about the warrant with the clerk

of the United States district court for the judicial district in which

the inspection is made.

§ 32708. Confidentiality of information

(a) GENERAL.—Information obtained by the Secretary of Transportation under this chapter related to a confidential matter referred to in section 1905 of title 18 may be disclosed only—

(1) to another officer or employee of the United States Government for use in carrying out this chapter; or

(2) in a proceeding under this chapter.

(b) WITHHOLDING INFORMATION FROM CONGRESS.—This section

does not authorize information to be withheld from a committee of

Congress authorized to have the information.

§ 32709. Penalties and enforcement

(a) CIVIL PENALTY.—(1) A person that violates this chapter or

a regulation prescribed or order issued under this chapter is liable

to the United States Government for a civil penalty of not more

than $2,000 for each violation. A separate violation occurs for each

motor vehicle or device involved in the violation. The maximum

penalty under this subsection for a related series of violations is

$100,000.

(2) The Secretary of Transportation shall impose a civil penalty

under this subsection. The Attorney General shall bring a civil action to collect the penalty. Before referring a penalty claim to the

Attorney General, the Secretary may compromise the amount of
283 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32710

the penalty. Before compromising the amount of the penalty, the

Secretary shall give the person charged with a violation an opportunity to establish that the violation did not occur.

(3) In determining the amount of a civil penalty under this

subsection, the Secretary shall consider—

(A) the nature, circumstances, extent, and gravity of the

violation;

(B) with respect to the violator, the degree of culpability,

any history of prior violations, the ability to pay, and any effect

on the ability to continue doing business; and

(C) other matters that justice requires.

(b) CRIMINAL PENALTY.—A person that knowingly and willfully

violates this chapter or a regulation prescribed or order issued

under this chapter shall be fined under title 18, imprisoned for not

more than 3 years, or both. If the person is a corporation, the penalties of this subsection also apply to a director, officer, or individual agent of a corporation who knowingly and willfully authorizes, orders, or performs an act in violation of this chapter or a regulation prescribed or order issued under this chapter without regard to penalties imposed on the corporation.

(c) CIVIL ACTIONS BY ATTORNEY GENERAL.—The Attorney General may bring a civil action to enjoin a violation of this chapter

or a regulation prescribed or order issued under this chapter. The

action may be brought in the United States district court for the

judicial district in which the violation occurred or the defendant is

found, resides, or does business. Process in the action may be

served in any other judicial district in which the defendant resides

or is found. A subpena for a witness in the action may be served

in any judicial district.

(d) CIVIL ACTIONS BY STATES.—(1) When a person violates this

chapter or a regulation prescribed or order issued under this chapter, the chief law enforcement officer of the State in which the violation occurs may bring a civil action—

(A) to enjoin the violation; or

(B) to recover amounts for which the person is liable under

section 32710 of this title for each person on whose behalf the

action is brought.

(2) An action under this subsection may be brought in an appropriate United States district court or in a State court of competent jurisdiction. The action must be brought not later than 2

years after the claim accrues.

§ 32710. Civil actions by private persons

(a) VIOLATION AND AMOUNT OF DAMAGES.—A person that violates this chapter or a regulation prescribed or order issued under

this chapter, with intent to defraud, is liable for 3 times the actual

damages or $1,500, whichever is greater.

(b) CIVIL ACTIONS.—A person may bring a civil action to enforce a claim under this section in an appropriate United States

district court or in another court of competent jurisdiction. The action must be brought not later than 2 years after the claim accrues.

The court shall award costs and a reasonable attorney’s fee to the

person when a judgment is entered for that person.
§ 32711 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 284

§ 32711. Relationship to State law

Except to the extent that State law is inconsistent with this

chapter, this chapter does not— (1) affect a State law on disconnecting, altering, or tampering with an odometer with intent to defraud; or

(2) exempt a person from complying with that law.

CHAPTER 329—AUTOMOBILE FUEL ECONOMY

Sec.

32901. Definitions.

32902. Average fuel economy standards.

32903. Credits for exceeding average fuel economy standards.

32904. Calculation of average fuel economy.

32905. Manufacturing incentives for alternative fuel automobiles.

32906. Maximum fuel economy increase for alternative fuel automobiles.

32907. Reports and tests of manufacturers.

32908. Fuel economy information.

32909. Judicial review of regulations.

32910. Administrative.

32911. Compliance.

32912. Civil penalties.

32913. Compromising and remitting civil penalties.

32914. Collecting civil penalties.

32915. Appealing civil penalties.

32916. Reports to Congress.

32917. Standards for executive agency automobiles.

32918. Retrofit devices.

32919. Preemption.

§ 32901. Definitions

(a) GENERAL.—In this chapter— (1) ‘‘alternative fuel’’ means— (A) methanol;

(B) denatured ethanol;

(C) other alcohols;

(D) except as provided in subsection (b) of this section,

a mixture containing at least 85 percent of methanol, denatured ethanol, and other alcohols by volume with gasoline or other fuels;

(E) natural gas;

(F) liquefied petroleum gas;

(G) hydrogen;

(H) coal derived liquid fuels;

(I) fuels (except alcohol) derived from biological materials;

(J) electricity (including electricity from solar energy);

and

(K) any other fuel the Secretary of Transportation prescribes by regulation that is not substantially petroleum

and that would yield substantial energy security and environmental benefits.

(2) ‘‘alternative fueled automobile’’ means an automobile

that is a—

(A) dedicated automobile; or

(B) dual fueled automobile.

(3) except as provided in section 32908 of this title, ‘‘automobile’’ means a 4-wheeled vehicle that is propelled by fuel, or

by alternative fuel, manufactured primarily for use on public
285 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32901

streets, roads, and highways (except a vehicle operated only on

a rail line), and rated at—

(A) not more than 6,000 pounds gross vehicle weight;

or

(B) more than 6,000, but less than 10,000, pounds

gross vehicle weight, if the Secretary decides by regulation

that—

(i) an average fuel economy standard under this

chapter for the vehicle is feasible; and

(ii) an average fuel economy standard under this

chapter for the vehicle will result in significant energy

conservation or the vehicle is substantially used for

the same purposes as a vehicle rated at not more than

6,000 pounds gross vehicle weight.

(4) ‘‘automobile manufactured by a manufacturer’’ includes

every automobile manufactured by a person that controls, is

controlled by, or is under common control with the manufacturer, but does not include an automobile manufactured by the

person that is exported not later than 30 days after the end of

the model year in which the automobile is manufactured.

(5) ‘‘average fuel economy’’ means average fuel economy

determined under section 32904 of this title.

(6) ‘‘average fuel economy standard’’ means a performance

standard specifying a minimum level of average fuel economy

applicable to a manufacturer in a model year.

(7) ‘‘dedicated automobile’’ means an automobile that operates only on alternative fuel.

(8) ‘‘dual fueled automobile’’ means an automobile that—

(A) is capable of operating on alternative fuel and on

gasoline or diesel fuel;

(B) provides equal or superior energy efficiency, as calculated for the applicable model year during fuel economy

testing for the United States Government, when operating

on alternative fuel as when operating on gasoline or diesel

fuel;

(C) for model years 1993–1995 for an automobile capable of operating on a mixture of an alternative fuel and

gasoline or diesel fuel and if the Administrator of the Environmental Protection Agency decides to extend the application of this subclause, for an additional period ending

not later than the end of the last model year to which section 32905(b) and (d) of this title applies, provides equal or

superior energy efficiency, as calculated for the applicable

model year during fuel economy testing for the Government, when operating on a mixture of alternative fuel and

gasoline or diesel fuel containing exactly 50 percent gasoline or diesel fuel as when operating on gasoline or diesel

fuel; and

(D) for a passenger automobile, meets or exceeds the

minimum driving range prescribed under subsection (c) of

this section.

(9) ‘‘fuel’’ means—

(A) gasoline;

(B) diesel oil; or
§ 32901 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 286

(C) other liquid or gaseous fuel that the Secretary decides by regulation to include in this definition as consistent with the need of the United States to conserve energy.

(10) ‘‘fuel economy’’ means the average number of miles

traveled by an automobile for each gallon of gasoline (or equivalent amount of other fuel) used, as determined by the Administrator under section 32904(c) of this title.

(11) ‘‘import’’ means to import into the customs territory of

the United States.

(12) ‘‘manufacture’’ (except under section 32902(d) of this

title) means to produce or assemble in the customs territory of

the United States or to import.

(13) ‘‘manufacturer’’ means—

(A) a person engaged in the business of manufacturing

automobiles, including a predecessor or successor of the

person to the extent provided under regulations prescribed

by the Secretary; and

(B) if more than one person is the manufacturer of an

automobile, the person specified under regulations prescribed by the Secretary.

(14) ‘‘model’’ means a class of automobiles as decided by

regulation by the Administrator after consulting and coordinating with the Secretary.

(15) ‘‘model year’’, when referring to a specific calendar

year, means—

(A) the annual production period of a manufacturer, as

decided by the Administrator, that includes January 1 of

that calendar year; or

(B) that calendar year if the manufacturer does not

have an annual production period.

(16) ‘‘passenger automobile’’ means an automobile that the

Secretary decides by regulation is manufactured primarily for

transporting not more than 10 individuals, but does not include an automobile capable of off-highway operation that the

Secretary decides by regulation—

(A) has a significant feature (except 4-wheel drive) designed for off-highway operation; and

(B) is a 4-wheel drive automobile or is rated at more

than 6,000 pounds gross vehicle weight.

(b) AUTHORITY TO CHANGE PERCENTAGE.—The Secretary may

prescribe regulations changing the percentage referred to in subsection (a)(1)(D) of this section to not less than 70 percent because

of requirements relating to cold start, safety, or vehicle functions.

(c) MINIMUM DRIVING RANGES FOR DUAL FUELED PASSENGER

AUTOMOBILES.—(1) The Secretary shall prescribe by regulation the

minimum driving range that dual fueled automobiles that are passenger automobiles must meet when operating on alternative fuel

to be dual fueled automobiles under sections 32905 and 32906 of

this title. A determination whether a dual fueled automobile meets

the minimum driving range requirement under this paragraph

shall be based on the combined Agency city/highway fuel economy
287 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32902

as determined for average fuel economy purposes for those automobiles.

(2)(A) The Secretary may prescribe a lower range for a specific

model than that prescribed under paragraph (1) of this subsection.

A manufacturer may petition for a lower range than that prescribed under paragraph (1) for a specific model.

(B) The minimum driving range prescribed for dual fueled

automobiles (except electric automobiles) under subparagraph (A)

of this paragraph or paragraph (1) of this subsection must be at

least 200 miles.

(C) If the Secretary prescribes a minimum driving range of 200

miles for dual fueled automobiles (except electric automobiles)

under paragraph (1) of this subsection, subparagraph (A) of this

paragraph does not apply to dual fueled automobiles (except electric automobiles).

(3) In prescribing a minimum driving range under paragraph

(1) of this subsection and in taking an action under paragraph (2)

of this subsection, the Secretary shall consider the purpose set

forth in section 3 of the Alternative Motor Fuels Act of 1988 (Public

Law 100–494, 102 Stat. 2442), consumer acceptability, economic

practicability, technology, environmental impact, safety, drivability,

performance, and other factors the Secretary considers relevant.

§ 32902. Average fuel economy standards

(a) NON-PASSENGER AUTOMOBILES.—At least 18 months before

the beginning of each model year, the Secretary of Transportation

shall prescribe by regulation average fuel economy standards for

automobiles (except passenger automobiles) manufactured by a

manufacturer in that model year. Each standard shall be the maximum feasible average fuel economy level that the Secretary decides the manufacturers can achieve in that model year. The Secretary may prescribe separate standards for different classes of

automobiles.

(b) PASSENGER AUTOMOBILES.—Except as provided in this section, the average fuel economy standard for passenger automobiles

manufactured by a manufacturer in a model year after model year

1984 shall be 27.5 miles a gallon.

(c) AMENDING PASSENGER AUTOMOBILE STANDARDS.—(1) Subject to paragraph (2) of this subsection, the Secretary of Transportation may prescribe regulations amending the standard under

subsection (b) of this section for a model year to a level that the

Secretary decides is the maximum feasible average fuel economy

level for that model year. Section 553 of title 5 applies to a proceeding to amend the standard. However, any interested person

may make an oral presentation and a transcript shall be taken of

that presentation.

(2) If an amendment increases the standard above 27.5 miles

a gallon or decreases the standard below 26.0 miles a gallon, the

Secretary of Transportation shall submit the amendment to Congress. The procedures of section 551 of the Energy Policy and Conservation Act (42 U.S.C. 6421) apply to an amendment, except that

the 15 calendar days referred to in section 551(c) and (d) of the Act

(42 U.S.C. 6421(c), (d)) are deemed to be 60 calendar days, and the

5 calendar days referred to in section 551(f)(4)(A) of the Act (42

U.S.C. 6421(f)(4)(A)) are deemed to be 20 calendar days. If either
§ 32902 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 288

House of Congress disapproves the amendment under those procedures, the amendment does not take effect.

(d) EXEMPTIONS.—(1) Except as provided in paragraph (3) of

this subsection, on application of a manufacturer that manufactured (whether in the United States or not) fewer than 10,000 passenger automobiles in the model year 2 years before the model year

for which the application is made, the Secretary of Transportation

may exempt by regulation the manufacturer from a standard under

subsection (b) or (c) of this section. An exemption for a model year

applies only if the manufacturer manufactures (whether in the

United States or not) fewer than 10,000 passenger automobiles in

the model year. The Secretary may exempt a manufacturer only if

the Secretary—

(A) finds that the applicable standard under those subsections is more stringent than the maximum feasible average

fuel economy level that the manufacturer can achieve; and

(B) prescribes by regulation an alternative average fuel

economy standard for the passenger automobiles manufactured

by the exempted manufacturer that the Secretary decides is

the maximum feasible average fuel economy level for the manufacturers to which the alternative standard applies.

(2) An alternative average fuel economy standard the Secretary

of Transportation prescribes under paragraph (1)(B) of this subsection may apply to an individually exempted manufacturer, to all

automobiles to which this subsection applies, or to classes of passenger automobiles, as defined under regulations of the Secretary,

manufactured by exempted manufacturers.

(3) Notwithstanding paragraph (1) of this subsection, an importer registered under section 30141(c) of this title may not be exempted as a manufacturer under paragraph (1) for a motor vehicle

that the importer—

(A) imports; or

(B) brings into compliance with applicable motor vehicle

safety standards prescribed under chapter 301 of this title for

an individual under section 30142 of this title.

(4) The Secretary of Transportation may prescribe the contents

of an application for an exemption.

(e) EMERGENCY VEHICLES.—(1) In this subsection, ‘‘emergency

vehicle’’ means an automobile manufactured primarily for use—

(A) as an ambulance or combination ambulance-hearse;

(B) by the United States Government or a State or local

government for law enforcement; or

(C) for other emergency uses prescribed by regulation by

the Secretary of Transportation.

(2) A manufacturer may elect to have the fuel economy of an

emergency vehicle excluded in applying a fuel economy standard

under subsection (a), (b), (c), or (d) of this section. The election is

made by providing written notice to the Secretary of Transportation and to the Administrator of the Environmental Protection

Agency.

(f) CONSIDERATIONS ON DECISIONS ON MAXIMUM FEASIBLE AVERAGE FUEL ECONOMY.—When deciding maximum feasible average

fuel economy under this section, the Secretary of Transportation

shall consider technological feasibility, economic practicability, the
289 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32903

effect of other motor vehicle standards of the Government on fuel

economy, and the need of the United States to conserve energy.

(g) REQUIREMENTS FOR OTHER AMENDMENTS.—(1) The Secretary of Transportation may prescribe regulations amending an

average fuel economy standard prescribed under subsection (a) or

(d) of this section if the amended standard meets the requirements

of subsection (a) or (d), as appropriate.

(2) When the Secretary of Transportation prescribes an amendment under this section that makes an average fuel economy

standard more stringent, the Secretary shall prescribe the amendment (and submit the amendment to Congress when required

under subsection (c)(2) of this section) at least 18 months before the

beginning of the model year to which the amendment applies.

(h) LIMITATIONS.—In carrying out subsections (c), (f), and (g) of

this section, the Secretary of Transportation—

(1) may not consider the fuel economy of dedicated automobiles; and

(2) shall consider dual fueled automobiles to be operated

only on gasoline or diesel fuel.

(i) CONSULTATION.—The Secretary of Transportation shall consult with the Secretary of Energy in carrying out this section and

section 32903 of this title.

(j) SECRETARY OF ENERGY COMMENTS.—(1) Before issuing a notice proposing to prescribe or amend an average fuel economy

standard under subsection (a), (c), or (g) of this section, the Secretary of Transportation shall give the Secretary of Energy at least

10 days from the receipt of the notice during which the Secretary

of Energy may, if the Secretary of Energy concludes that the proposed standard would adversely affect the conservation goals of the

Secretary of Energy, provide written comments to the Secretary of

Transportation about the impact of the standard on those goals. To

the extent the Secretary of Transportation does not revise a proposed standard to take into account comments of the Secretary of

Energy on any adverse impact of the standard, the Secretary of

Transportation shall include those comments in the notice.

(2) Before taking final action on a standard or an exemption

from a standard under this section, the Secretary of Transportation

shall notify the Secretary of Energy and provide the Secretary of

Energy a reasonable time to comment.

§ 32903. Credits for exceeding average fuel economy standards

(a) EARNING AND PERIOD FOR APPLYING CREDITS.—When the

average fuel economy of passenger automobiles manufactured by a

manufacturer in a particular model year exceeds an applicable average fuel economy standard under section 32902(b)–(d) of this title

(determined by the Secretary of Transportation without regard to

credits under this section), the manufacturer earns credits. The

credits may be applied to—

(1) any of the 3 consecutive model years immediately before the model year for which the credits are earned; and
§ 32903 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 290

1So in law. Reference in section 32903(a)(2) probably should be to ‘‘paragraph (1)’’.

(2) to the extent not used under clause (1) 1 of this subsection, any of the 3 consecutive model years immediately after

the model year for which the credits are earned.

(b) PERIOD OF AVAILABILITY AND PLAN FOR FUTURE CREDITS.— (1) Except as provided in paragraph (2) of this subsection, credits

under this section are available to a manufacturer at the end of the

model year in which earned.

(2)(A) Before the end of a model year, if a manufacturer has

reason to believe that its average fuel economy for passenger automobiles will be less than the applicable standard for that model

year, the manufacturer may submit a plan to the Secretary of

Transportation demonstrating that the manufacturer will earn sufficient credits under this section within the next 3 model years to

allow the manufacturer to meet that standard for the model year

involved. Unless the Secretary finds that the manufacturer is unlikely to earn sufficient credits under the plan, the Secretary shall

approve the plan. Those credits are available for the model year involved if—

(i) the Secretary approves the plan; and

(ii) the manufacturer earns those credits as provided by

the plan.

(B) If the average fuel economy of a manufacturer is less than

the applicable standard under section 32902(b)–(d) of this title

after applying credits under subsection (a)(1) of this section, the

Secretary of Transportation shall notify the manufacturer and give

the manufacturer a reasonable time (of at least 60 days) to submit

a plan.

(c) DETERMINING NUMBER OF CREDITS.—The number of credits

a manufacturer earns under this section equals the product of—

(1) the number of tenths of a mile a gallon by which the

average fuel economy of the passenger automobiles manufactured by the manufacturer in the model year in which the

credits are earned exceeds the applicable average fuel economy

standard under section 32902(b)–(d) of this title; times

(2) the number of passenger automobiles manufactured by

the manufacturer during that model year.

(d) APPLYING CREDITS FOR PASSENGER AUTOMOBILES.—The

Secretary of Transportation shall apply credits to a model year on

the basis of the number of tenths of a mile a gallon by which the

manufacturer involved was below the applicable average fuel economy standard for that model year and the number of passenger

automobiles manufactured that model year by the manufacturer.

Credits applied to a model year are no longer available for another

model year. Before applying credits, the Secretary shall give the

manufacturer written notice and reasonable opportunity to

comment.

(e) APPLYING CREDITS FOR NON-PASSENGER AUTOMOBILES.— Credits for a manufacturer of automobiles that are not passenger

automobiles are earned and applied to a model year in which the

average fuel economy of that class of automobiles is below the applicable average fuel economy standard under section 32902(a) of

this title, to the same extent and in the same way as provided in

this section for passenger automobiles.
291 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32904

(f) REFUND OF COLLECTED PENALTY.—When a civil penalty has

been collected under this chapter from a manufacturer that has

earned credits under this section, the Secretary of the Treasury

shall refund to the manufacturer the amount of the penalty to the

extent the penalty is attributable to credits available under this

section.

§ 32904. Calculation of average fuel economy

(a) METHOD OF CALCULATION.—(1) The Administrator of the

Environmental Protection Agency shall calculate the average fuel

economy of a manufacturer subject to—

(A) section 32902(a) of this title in a way prescribed by the

Administrator; and

(B) section 32902(b)–(d) of this title by dividing—

(i) the number of passenger automobiles manufactured

by the manufacturer in a model year; by

(ii) the sum of the fractions obtained by dividing the

number of passenger automobiles of each model manufactured by the manufacturer in that model year by the fuel

economy measured for that model.

(2)(A) In this paragraph, ‘‘electric vehicle’’ means a vehicle

powered primarily by an electric motor drawing electrical current

from a portable source.

(B) If a manufacturer manufactures an electric vehicle, the Administrator shall include in the calculation of average fuel economy

under paragraph (1) of this subsection equivalent petroleum based

fuel economy values determined by the Secretary of Energy for various classes of electric vehicles. The Secretary shall review those

values each year and determine and propose necessary revisions

based on the following factors:

(i) the approximate electrical energy efficiency of the vehicle, considering the kind of vehicle and the mission and weight

of the vehicle.

(ii) the national average electrical generation and transmission efficiencies.

(iii) the need of the United States to conserve all forms of

energy and the relative scarcity and value to the United States

of all fuel used to generate electricity.

(iv) the specific patterns of use of electric vehicles compared to petroleum-fueled vehicles.

(b) SEPARATE CALCULATIONS FOR PASSENGER AUTOMOBILES

MANUFACTURED DOMESTICALLY AND NOT DOMESTICALLY.—(1)(A)

Except as provided in paragraphs (6) and (7) of this subsection, the

Administrator shall make separate calculations under subsection

(a)(1)(B) of this section for—

(i) passenger automobiles manufactured domestically by a

manufacturer (or included in this category under paragraph (5)

of this subsection); and

(ii) passenger automobiles not manufactured domestically

by that manufacturer (or excluded from this category under

paragraph (5) of this subsection).

(B) Passenger automobiles described in subparagraph (A) (i)

and (ii) of this paragraph are deemed to be manufactured by separate manufacturers under this chapter.
§ 32904 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 292

(2) In this subsection (except as provided in paragraph (3)), a

passenger automobile is deemed to be manufactured domestically

in a model year if at least 75 percent of the cost to the manufacturer is attributable to value added in the United States or Canada, unless the assembly of the automobile is completed in Canada

and the automobile is imported into the United States more than

30 days after the end of the model year.

(3)(A) In this subsection, a passenger automobile is deemed to

be manufactured domestically in a model year, as provided in subparagraph (B) of this paragraph, if at least 75 percent of the cost

to the manufacturer is attributable to value added in the United

States, Canada, or Mexico, unless the assembly of the automobile

is completed in Canada or Mexico and the automobile is imported

into the United States more than 30 days after the end of the

model year.

(B) Subparagraph (A) of this paragraph applies to automobiles

manufactured by a manufacturer and sold in the United States, regardless of the place of assembly, as follows:

(i) A manufacturer that began assembling automobiles in

Mexico before model year 1992 may elect, during the period

from January 1, 1997, through January 1, 2004, to have subparagraph (A) of this paragraph apply to all automobiles manufactured by that manufacturer beginning with the model year

that begins after the date of the election.

(ii) For a manufacturer that began assembling automobiles

in Mexico after model year 1991, subparagraph (A) of this

paragraph applies to all automobiles manufactured by that

manufacturer beginning with the model year that begins after

January 1, 1994, or the model year beginning after the date

the manufacturer begins assembling automobiles in Mexico,

whichever is later.

(iii) A manufacturer not described in clause (i) or (ii) of

this subparagraph that assembles automobiles in the United

States or Canada, but not in Mexico, may elect, during the period from January 1, 1997, through January 1, 2004, to have

subparagraph (A) of this paragraph apply to all automobiles

manufactured by that manufacturer beginning with the model

year that begins after the date of the election. However, if the

manufacturer begins assembling automobiles in Mexico before

making an election under this subparagraph, this clause does

not apply, and the manufacturer is subject to clause (ii) of this

subparagraph.

(iv) For a manufacturer that does not assemble automobiles in the United States, Canada, or Mexico, subparagraph (A) of this paragraph applies to all automobiles manufactured by that manufacturer beginning with the model year

that begins after January 1, 1994.

(v) For a manufacturer described in clause (i) or (iii) of this

subparagraph that does not make an election within the specified period, subparagraph (A) of this paragraph applies to all

automobiles manufactured by that manufacturer beginning

with the model year that begins after January 1, 2004.

(C) The Secretary of Transportation shall prescribe reasonable

procedures for elections under subparagraph (B) of this paragraph.
293 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32904

(4) In this subsection, the fuel economy of a passenger automobile that is not manufactured domestically is deemed to be equal

to the average fuel economy of all passenger automobiles manufactured by the same manufacturer that are not manufactured domestically.

(5)(A) A manufacturer may submit to the Secretary of Transportation for approval a plan, including supporting material, stating the actions and the deadlines for taking the actions, that will

ensure that the model or models referred to in subparagraph (B)

of this paragraph will be manufactured domestically before the end

of the 4th model year covered by the plan. The Secretary promptly

shall consider and act on the plan. The Secretary shall approve the

plan unless— (i) the Secretary finds that the plan is inadequate to meet

the requirements of this paragraph; or

(ii) the manufacturer previously has submitted a plan approved by the Secretary under this paragraph.

(B) If the plan is approved, the Administrator shall include

under paragraph (1)(A)(i) and exclude under paragraph (1)(A)(ii) of

this subsection, for each of the 4 model years covered by the plan,

not more than 150,000 passenger automobiles manufactured by

that manufacturer but not qualifying as domestically manufactured

if—

(i) the model or models involved previously have not been

manufactured domestically;

(ii) at least 50 percent of the cost to the manufacturer of

each of the automobiles is attributable to value added in the

United States or Canada;

(iii) the automobiles, if their assembly was completed in

Canada, are imported into the United States not later than 30

days after the end of the model year; and

(iv) the model or models are manufactured domestically

before the end of the 4th model year covered by the plan.

(6)(A) A manufacturer may file with the Secretary of Transportation a petition for an exemption from the requirement of separate

calculations under paragraph (1)(A) of this subsection if the manufacturer began automobile production or assembly in the United

States—(i) after December 22, 1975, and before May 1, 1980; or

(ii) after April 30, 1980, if the manufacturer has engaged

in the production or assembly in the United States for at least

one model year ending before January 1, 1986.

(B) The Secretary of Transportation shall grant the exemption

unless the Secretary finds that the exemption would result in reduced employment in the United States related to motor vehicle

manufacturing during the period of the exemption. An exemption

under this paragraph is effective for 5 model years or, if requested

by the manufacturer, a longer period provided by the Secretary in

the order granting the exemption. The exemption applies to passenger automobiles manufactured by that manufacturer during the

period of the exemption.

(C) Before granting an exemption, the Secretary of Transportation shall provide notice of, and reasonable opportunity for, written or oral comment about the petition. The period for comment

shall end not later than 60 days after the petition is filed, except
§ 32904 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 294

that the Secretary may extend the period for not more than another 30 days. The Secretary shall decide whether to grant or deny

the exemption, and publish notice of the decision in the Federal

Register, not later than 90 days after the petition is filed, except

that the Secretary may extend the time for decision to a later date

(not later than 150 days after the petition is filed) if the Secretary

publishes notice of, and reasons for, the extension in the Federal

Register. If the Secretary does not make a decision within the time

provided in this subparagraph, the petition is deemed to have been

granted. Not later than 30 days after the end of the decision period, the Secretary shall submit a written statement of the reasons

for not making a decision to the Committee on Commerce, Science,

and Transportation of the Senate and the Committee on Commerce

of the House of Representatives.

(7)(A) A person adversely affected by a decision of the Secretary of Transportation granting or denying an exemption may

file, not later than 30 days after publication of the notice of the decision, a petition for review in the United States Court of Appeals

for the District of Columbia Circuit. That court has exclusive jurisdiction to review the decision and to affirm, remand, or set aside

the decision under section 706(2)(A)–(D) of title 5.

(B) A judgment of the court under this subparagraph may be

reviewed by the Supreme Court under section 1254 of title 28. Application for review by the Supreme Court must be made not later

than 30 days after entry of the court’s judgment.

(C) A decision of the Secretary of Transportation on a petition

for an exemption under this paragraph may be reviewed administratively or judicially only as provided in this paragraph.

(8) Notwithstanding section 32903 of this title, during a model

year when an exemption under this paragraph is effective for a

manufacturer—

(A) credit may not be earned under section 32903(a) of this

title by the manufacturer; and

(B) credit may not be made available under section

32903(b)(2) of this title for the manufacturer.

(c) TESTING AND CALCULATION PROCEDURES.—The Administrator shall measure fuel economy for each model and calculate average fuel economy for a manufacturer under testing and calculation procedures prescribed by the Administrator. However, except

under section 32908 of this title, the Administrator shall use the

same procedures for passenger automobiles the Administrator used

for model year 1975 (weighted 55 percent urban cycle and 45 percent highway cycle), or procedures that give comparable results. A

measurement of fuel economy or a calculation of average fuel economy (except under section 32908) shall be rounded off to the nearest .1 of a mile a gallon. The Administrator shall decide on the

quantity of other fuel that is equivalent to one gallon of gasoline.

To the extent practicable, fuel economy tests shall be carried out

with emissions tests under section 206 of the Clean Air Act (42

U.S.C. 7525).

(d) EFFECTIVE DATE OF PROCEDURE OR AMENDMENT.—The Administrator shall prescribe a procedure under this section, or an

amendment (except a technical or clerical amendment) in a procedure, at least 12 months before the beginning of the model year to

which the procedure or amendment applies.
295 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32905

(e) REPORTS AND CONSULTATION.—The Administrator shall report measurements and calculations under this section to the Secretary of Transportation and shall consult and coordinate with the

Secretary in carrying out this section.

§ 32905. Manufacturing incentives for alternative fuel automobiles

(a) DEDICATED AUTOMOBILES.—Except as provided in subsection (c) of this section or section 32904(a)(2) of this title, for any

model of dedicated automobile manufactured by a manufacturer

after model year 1992, the fuel economy measured for that model

shall be based on the fuel content of the alternative fuel used to

operate the automobile. A gallon of a liquid alternative fuel used

to operate a dedicated automobile is deemed to contain .15 gallon

of fuel.

(b) DUAL FUELED AUTOMOBILES.—Except as provided in subsection (d) of this section or section 32904(a)(2) of this title, for any

model of dual fueled automobile manufactured by a manufacturer

in model years 1993–2004, the Administrator of the Environmental

Protection Agency shall measure the fuel economy for that model

by dividing 1.0 by the sum of—

(1) .5 divided by the fuel economy measured under section

32904(c) of this title when operating the model on gasoline or

diesel fuel; and

(2) .5 divided by the fuel economy measured under subsection (a) of this section when operating the model on alternative fuel.

(c) GASEOUS FUEL DEDICATED AUTOMOBILES.—For any model

of gaseous fuel dedicated automobile manufactured by a manufacturer after model year 1992, the Administrator shall measure the

fuel economy for that model based on the fuel content of the gaseous fuel used to operate the automobile. One hundred cubic feet

of natural gas is deemed to contain .823 gallon equivalent of natural gas. The Secretary of Transportation shall determine the appropriate gallon equivalent of other gaseous fuels. A gallon equivalent of gaseous fuel is deemed to have a fuel content of .15 gallon

of fuel.

(d) GASEOUS FUEL DUAL FUELED AUTOMOBILES.—For any

model of gaseous fuel dual fueled automobile manufactured by a

manufacturer in model years 1993–2004, the Administrator shall

measure the fuel economy for that model by dividing 1.0 by the

sum of—

(1) .5 divided by the fuel economy measured under section

32904(c) of this title when operating the model on gasoline or

diesel fuel; and

(2) .5 divided by the fuel economy measured under subsection (c) of this section when operating the model on gaseous

fuel.

(e) FUEL ECONOMY CALCULATIONS.—The Administrator shall

calculate the manufacturer’s average fuel economy under section

32904(a)(1) of this title for each model described under subsections

(a)–(d) of this section by using as the denominator the fuel economy

measured for each model under subsections (a)–(d).
§ 32906 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 296

(f) EXTENDING APPLICATION OF SUBSECTIONS (b) AND (d).—Not

later than December 31, 2001, the Secretary of Transportation

shall— (1) extend by regulation the application of subsections (b)

and (d) of this section for not more than 4 consecutive model

years immediately after model year 2004 and explain the basis

on which the extension is granted; or

(2) publish a notice explaining the reasons for not extending the application of subsections (b) and (d) of this section.

(g) STUDY AND REPORT.—Not later than September 30, 2000,

the Secretary of Transportation, in consultation with the Secretary

of Energy and the Administrator, shall complete a study of the success of the policy of subsections (b) and (d) of this title, and submit

to the Committees on Commerce, Science, and Transportation and

Governmental Affairs of the Senate and the Committee on Commerce of the House of Representatives a report on the results of the

study, including preliminary conclusions on whether the application of subsections (b) and (d) should be extended for up to 4 more

model years. The study and conclusions shall consider— (1) the availability to the public of alternative fueled automobiles and alternative fuel;

(2) energy conservation and security;

(3) environmental considerations; and

(4) other relevant factors.

§ 32906. Maximum fuel economy increase for alternative fuel

automobiles

(a) MAXIMUM INCREASES.—(1)(A) For each of the model years

1993–2004 for each category of automobile (except an electric automobile), the maximum increase in average fuel economy for a manufacturer attributable to dual fueled automobiles is 1.2 miles a gallon.

(B) If the application of section 32905(b) and (d) of this title is

extended under section 32905(f) of this title, for each category of

automobile (except an electric automobile) the maximum increase

in average fuel economy for a manufacturer for each of the model

years 2005–2008 attributable to dual fueled automobiles is .9 mile

a gallon.

(2) In applying paragraph (1) of this subsection, the Administrator of the Environmental Protection Agency shall determine the

increase in a manufacturer’s average fuel economy attributable to

dual fueled automobiles by subtracting from the manufacturer’s average fuel economy calculated under section 32905(e) of this title

the number equal to what the manufacturer’s average fuel economy

would be if it were calculated by the formula in section 32904(a)(1)

of this title by including as the denominator for each model of dual

fueled automobile the fuel economy when the automobiles are operated on gasoline or diesel fuel. If the increase attributable to dual

fueled automobiles for any model year described—

(A) in paragraph (1)(A) of this subsection is more than 1.2

miles a gallon, the limitation in paragraph (1)(A) applies; and

(B) in paragraph (1)(B) of this subsection is more than .9

mile a gallon, the limitation in paragraph (1)(B) applies.

(b) OFFSETS.—Notwithstanding this section and sections

32901(c) and 32905 of this title, if the Secretary of Transportation
297 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32908

reduces the average fuel economy standard for passenger automobiles for any model year below 27.5 miles a gallon, an increase

in average fuel economy for passenger automobiles of more than .7

mile a gallon to which a manufacturer of dual fueled automobiles

would otherwise be entitled is reduced by an amount equal to the

amount of the reduction in the standard. However, the increase

may not be reduced to less than .7 mile a gallon.

§ 32907. Reports and tests of manufacturers

(a) MANUFACTURER REPORTS.—(1) A manufacturer shall report

to the Secretary of Transportation on— (A) whether the manufacturer will comply with an applicable average fuel economy standard under section 32902 of this

title for the model year for which the report is made;

(B) the actions the manufacturer has taken or intends to

take to comply with the standard; and

(C) other information the Secretary requires by regulation.

(2) A manufacturer shall submit a report under paragraph (1)

of this subsection during the 30 days— (A) before the beginning of each model year; and

(B) beginning on the 180th day of the model year.

(3) When a manufacturer decides that actions reported under

paragraph (1)(B) of this subsection are not sufficient to ensure compliance with that standard, the manufacturer shall report to the

Secretary additional actions the manufacturer intends to take to

comply with the standard and include a statement about whether

those actions are sufficient to ensure compliance.

(4) This subsection does not apply to a manufacturer for a

model year for which the manufacturer is subject to an alternative

average fuel economy standard under section 32902(d) of this title.

(b) RECORDS, REPORTS, TESTS, INFORMATION, AND INSPEC- TION.—(1) Under regulations prescribed by the Secretary or the Administrator of the Environmental Protection Agency to carry out

this chapter, a manufacturer shall keep records, make reports, conduct tests, and provide items and information. On request and display of proper credentials, an officer or employee designated by the

Secretary or Administrator may inspect automobiles and records of

the manufacturer. An inspection shall be made at a reasonable

time and in a reasonable way.

(2) The district courts of the United States may—

(A) issue an order enforcing a requirement or request

under paragraph (1) of this subsection; and

(B) punish a failure to obey the order as a contempt of

court.

§ 32908. Fuel economy information

(a) DEFINITIONS.—In this section—

(1) ‘‘automobile’’ includes an automobile rated at not more

than 8,500 pounds gross vehicle weight regardless of whether

the Secretary of Transportation has applied this chapter to the

automobile under section 32901(a)(3)(B) of this title.

(2) ‘‘dealer’’ means a person residing or located in a State,

the District of Columbia, or a territory or possession of the

United States, and engaged in the sale or distribution of new

automobiles to the first person (except a dealer buying as a
§ 32908 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 298

1So in law. Reference in section 32908(b)(1)(F) probably should be to ‘‘subparagraphs (A)–(D)’’.

dealer) that buys the automobile in good faith other than for

resale.

(b) LABELING REQUIREMENTS AND CONTENTS.—(1) Under regulations of the Administrator of the Environmental Protection Agency, a manufacturer of automobiles shall attach a label to a prominent place on each automobile manufactured in a model year. The

dealer shall maintain the label on the automobile. The label shall

contain the following information:

(A) the fuel economy of the automobile.

(B) the estimated annual fuel cost of operating the automobile.

(C) the range of fuel economy of comparable automobiles

of all manufacturers.

(D) a statement that a booklet is available from the dealer

to assist in making a comparison of fuel economy of other automobiles manufactured by all manufacturers in that model year.

(E) the amount of the automobile fuel efficiency tax imposed on the sale of the automobile under section 4064 of the

Internal Revenue Code of 1986 (26 U.S.C. 4064).

(F) other information required or authorized by the Administrator that is related to the information required by clauses

(A)–(D) 1 of this paragraph.

(2) The Administrator may allow a manufacturer to comply

with this subsection by—

(A) disclosing the information on the label required under

section 3 of the Automobile Information Disclosure Act (15

U.S.C. 1232); and

(B) including the statement required by paragraph (1)(E)

of this subsection at a time and in a way that takes into account special circumstances or characteristics.

(3) For dedicated automobiles manufactured after model year

1992, the fuel economy of those automobiles under paragraph (1)(A)

of this subsection is the fuel economy for those automobiles when

operated on alternative fuel, measured under section 32905(a) or

(c) of this title, multiplied by .15. Each label required under paragraph (1) of this subsection for dual fueled automobiles shall—

(A) indicate the fuel economy of the automobile when operated on gasoline or diesel fuel;

(B) clearly identify the automobile as a dual fueled automobile;

(C) clearly identify the fuels on which the automobile may

be operated; and

(D) contain a statement informing the consumer that the

additional information required by subsection (c)(2) of this section is published and distributed by the Secretary of Energy.

(c) FUEL ECONOMY INFORMATION BOOKLET.—(1) The Administrator shall prepare the booklet referred to in subsection (b)(1)(D)

of this section. The booklet—

(A) shall be simple and readily understandable;

(B) shall contain information on fuel economy and estimated annual fuel costs of operating automobiles manufactured in each model year; and
299 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32909

(C) may contain information on geographical or other differences in estimated annual fuel costs.

(2)(A) For dual fueled automobiles manufactured after model

year 1992, the booklet published under paragraph (1) shall contain

additional information on— (i) the energy efficiency and cost of operation of those automobiles when operated on gasoline or diesel fuel as compared

to those automobiles when operated on alternative fuel; and

(ii) the driving range of those automobiles when operated

on gasoline or diesel fuel as compared to those automobiles

when operated on alternative fuel.

(B) For dual fueled automobiles, the booklet published under

paragraph (1) also shall contain— (i) information on the miles a gallon achieved by the automobiles when operated on alternative fuel; and

(ii) a statement explaining how the information made

available under this paragraph can be expected to change

when the automobile is operated on mixtures of alternative

fuel and gasoline or diesel fuel.

(3) The Secretary of Energy shall publish and distribute the

booklet. The Administrator shall prescribe regulations requiring

dealers to make the booklet available to prospective buyers.

(d) DISCLOSURE.—A disclosure about fuel economy or estimated

annual fuel costs under this section does not establish a warranty

under a law of the United States or a State.

(e) VIOLATIONS.—A violation of subsection (b) of this section

is—

(1) a violation of section 3 of the Automobile Information

Disclosure Act (15 U.S.C. 1232); and

(2) an unfair or deceptive act or practice in or affecting

commerce under the Federal Trade Commission Act (15 U.S.C.

41 et seq.), except sections 5(m) and 18 (15 U.S.C. 45(m), 57a).

(f) CONSULTATION.—The Administrator shall consult with the

Federal Trade Commission and the Secretaries of Transportation

and Energy in carrying out this section.

§ 32909. Judicial review of regulations

(a) FILING AND VENUE.—(1) A person that may be adversely affected by a regulation prescribed in carrying out any of sections

32901–32904 or 32908 of this title may apply for review of the regulation by filing a petition for review in the United States Court

of Appeals for the District of Columbia Circuit or in the court of

appeals of the United States for the circuit in which the person resides or has its principal place of business.

(2) A person adversely affected by a regulation prescribed

under section 32912(c)(1) of this title may apply for review of the

regulation by filing a petition for review in the court of appeals of

the United States for the circuit in which the person resides or has

its principal place of business.

(b) TIME FOR FILING AND JUDICIAL PROCEDURES.—The petition

must be filed not later than 59 days after the regulation is prescribed, except that a petition for review of a regulation prescribing

an amendment of a standard submitted to Congress under section

32902(c)(2) of this title must be filed not later than 59 days after

the end of the 60-day period referred to in section 32902(c)(2). The
§ 32910 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 300

clerk of the court shall send immediately a copy of the petition to

the Secretary of Transportation or the Administrator of the Environmental Protection Agency, whoever prescribed the regulation.

The Secretary or the Administrator shall file with the court a

record of the proceeding in which the regulation was prescribed.

(c) ADDITIONAL PROCEEDINGS.—(1) When reviewing a regulation under subsection (a)(1) of this section, the court, on request of

the petitioner, may order the Secretary or the Administrator to receive additional submissions if the court is satisfied the additional

submissions are material and there were reasonable grounds for

not presenting the submissions in the proceeding before the Secretary or Administrator.

(2) The Secretary or the Administrator may amend or set aside

the regulation, or prescribe a new regulation because of the additional submissions presented. The Secretary or Administrator shall

file an amended or new regulation and the additional submissions

with the court. The court shall review a changed or new regulation.

(d) SUPREME COURT REVIEW AND ADDITIONAL REMEDIES.—A

judgment of a court under this section may be reviewed only by the

Supreme Court under section 1254 of title 28. A remedy under subsections (a)(1) and (c) of this section is in addition to any other

remedies provided by law.

§ 32910. Administrative

(a) GENERAL POWERS.—(1) In carrying out this chapter, the

Secretary of Transportation or the Administrator of the Environmental Protection Agency may— (A) inspect and copy records of any person at reasonable

times;

(B) order a person to file written reports or answers to specific questions, including reports or answers under oath; and

(C) conduct hearings, administer oaths, take testimony,

and subpena witnesses and records the Secretary or Administrator considers advisable.

(2) A witness summoned under paragraph (1)(C) of this subsection is entitled to the same fee and mileage the witness would

have been paid in a court of the United States.

(b) CIVIL ACTIONS TO ENFORCE.—A civil action to enforce a

subpena or order of the Secretary or Administrator under subsection (a) of this section may be brought in the district court of

the United States for any judicial district in which the proceeding

by the Secretary or Administrator is conducted. The court may

punish a failure to obey an order of the court to comply with the

subpena or order of the Secretary or Administrator as a contempt

of court.

(c) DISCLOSURE OF INFORMATION.—The Secretary and the Administrator each shall disclose information obtained under this

chapter (except information obtained under section 32904(c) of this

title) under section 552 of title 5. However, the Secretary or Administrator may withhold information under section 552(b)(4) of title

5 only if the Secretary or Administrator decides that disclosure of

the information would cause significant competitive damage. A

matter referred to in section 552(b)(4) and relevant to an administrative or judicial proceeding under this chapter may be disclosed

in that proceeding. A measurement or calculation under section
301 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32912

32904(c) of this title shall be disclosed under section 552 of title 5

without regard to section 552(b).

(d) REGULATIONS.—The Administrator may prescribe regulations to carry out duties of the Administrator under this chapter.

§ 32911. Compliance

(a) GENERAL.—A person commits a violation if the person fails

to comply with this chapter and regulations and standards prescribed and orders issued under this chapter (except sections

32902, 32903, 32908(b), 32917(b), and 32918 and regulations and

standards prescribed and orders issued under those sections). The

Secretary of Transportation shall conduct a proceeding, with an opportunity for a hearing on the record, to decide whether a person

has committed a violation. Any interested person may participate

in a proceeding under this subsection.

(b) AUTOMOBILE MANUFACTURERS.—A manufacturer of automobiles commits a violation if the manufacturer fails to comply

with an applicable average fuel economy standard under section

32902 of this title. Compliance is determined after considering

credits available to the manufacturer under section 32903 of this

title. If average fuel economy calculations under section 32904(c) of

this title indicate that a manufacturer has violated this subsection,

the Secretary shall conduct a proceeding, with an opportunity for

a hearing on the record, to decide whether a violation has been

committed. The Secretary may not conduct the proceeding if further measurements of fuel economy, further calculations of average

fuel economy, or other information indicates a violation has not

been committed. The results of the measurements and calculations

and the information shall be published in the Federal Register.

Any interested person may participate in a proceeding under this

subsection.

§ 32912. Civil penalties

(a) GENERAL PENALTY.—A person that violates section 32911(a)

of this title is liable to the United States Government for a civil

penalty of not more than $10,000 for each violation. A separate violation occurs for each day the violation continues.

(b) PENALTY FOR MANUFACTURER VIOLATIONS OF FUEL ECONOMY STANDARDS.—Except as provided in subsection (c) of this section, a manufacturer that violates a standard prescribed for a

model year under section 32902 of this title is liable to the Government for a civil penalty of $5 multiplied by each .1 of a mile a gallon by which the applicable average fuel economy standard under

that section exceeds the average fuel economy—

(1) calculated under section 32904(a)(1)(A) or (B) of this

title for automobiles to which the standard applies manufactured by the manufacturer during the model year;

(2) multiplied by the number of those automobiles; and

(3) reduced by the credits available to the manufacturer

under section 32903 of this title for the model year.

(c) HIGHER PENALTY AMOUNTS.—(1)(A) The Secretary of Transportation shall prescribe by regulation a higher amount for each .1

of a mile a gallon to be used in calculating a civil penalty under

subsection (b) of this section, if the Secretary decides that the increase in the penalty—
§ 32912 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 302

(i) will result in, or substantially further, substantial energy conservation for automobiles in model years in which the

increased penalty may be imposed; and

(ii) will not have a substantial deleterious impact on the

economy of the United States, a State, or a region of a State.

(B) The amount prescribed under subparagraph (A) of this paragraph may not be more than $10 for each .1 of a mile a gallon.

(C) The Secretary may make a decision under subparagraph

(A)(ii) of this paragraph only when the Secretary decides that it is

likely that the increase in the penalty will not— (i) cause a significant increase in unemployment in a State

or a region of a State;

(ii) adversely affect competition; or

(iii) cause a significant increase in automobile imports.

(D) A higher amount prescribed under subparagraph (A) of this

paragraph is effective for the model year beginning at least 18

months after the regulation stating the higher amount becomes

final.

(2) The Secretary shall publish in the Federal Register a proposed regulation under this subsection and a statement of the basis

for the regulation and provide each manufacturer of automobiles a

copy of the proposed regulation and the statement. The Secretary

shall provide a period of at least 45 days for written public comments on the proposed regulation. The Secretary shall submit a

copy of the proposed regulation to the Federal Trade Commission

and request the Commission to comment on the proposed regulation within that period. After that period, the Secretary shall give

interested persons and the Commission an opportunity at a public

hearing to present oral information, views, and arguments and to

direct questions about disputed issues of material fact to—

(A) other interested persons making oral presentations;

(B) employees and contractors of the Government that

made written comments or an oral presentation or participated

in the development or consideration of the proposed regulation;

and

(C) experts and consultants that provided information to a

person that the person includes, or refers to, in an oral presentation.

(3) The Secretary may restrict the questions of an interested

person and the Commission when the Secretary decides that the

questions are duplicative or not likely to result in a timely and effective resolution of the issues. A transcript shall be kept of a public hearing under this subsection. A copy of the transcript and written comments shall be available to the public at the cost of reproduction.

(4) The Secretary shall publish a regulation prescribed under

this subsection in the Federal Register with the decisions required

under paragraph (1) of this subsection.

(5) An officer or employee of a department, agency, or instrumentality of the Government violates section 1905 of title 18 by

disclosing, except in an in camera proceeding by the Secretary or

a court, information—

(A) provided to the Secretary or the court during consideration or review of a regulation prescribed under this subsection; and
303 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32914

(B) decided by the Secretary to be confidential under section 11(d) of the Energy Supply and Environmental Coordination Act of 1974 (15 U.S.C. 796(d)).

(d) WRITTEN NOTICE REQUIREMENT.—The Secretary shall impose a penalty under this section by written notice.

§ 32913. Compromising and remitting civil penalties

(a) GENERAL AUTHORITY AND LIMITATIONS.—The Secretary of

Transportation may compromise or remit the amount of a civil penalty imposed under section 32912(a) or (b) of this title. However,

the amount of a penalty imposed under section 32912(b) may be

compromised or remitted only to the extent— (1) necessary to prevent the insolvency or bankruptcy of

the manufacturer of automobiles;

(2) the manufacturer shows that the violation was caused

by an act of God, a strike, or a fire; or

(3) the Federal Trade Commission certifies under subsection (b)(1) of this section that a reduction in the penalty is

necessary to prevent a substantial lessening of competition.

(b) CERTIFICATION BY COMMISSION.—(1) A manufacturer liable

for a civil penalty under section 32912(b) of this title may apply to

the Commission for a certification that a reduction in the penalty

is necessary to prevent a substantial lessening of competition in

the segment of the motor vehicle industry subject to the standard

that was violated. The Commission shall make the certification

when it finds that reduction is necessary to prevent the lessening.

The Commission shall state in the certification the maximum

amount by which the penalty may be reduced.

(2) An application under this subsection must be made not

later than 30 days after the Secretary decides that the manufacturer has violated section 32911(b) of this title. To the maximum

extent practicable, the Commission shall make a decision on an application by the 90th day after the application is filed. A proceeding

under this subsection may not delay the manufacturer’s liability for

the penalty for more than 90 days after the application is filed.

(3) When a civil penalty is collected in a civil action under this

chapter before a decision of the Commission under this subsection

is final, the payment shall be paid to the court in which the action

was brought. The court shall deposit the payment in the general

fund of the Treasury on the 90th day after the decision of the Commission becomes final. When the court is holding payment of a penalty reduced under subsection (a)(3) of this section, the Secretary

shall direct the court to remit the appropriate amount of the penalty to the manufacturer.

§ 32914. Collecting civil penalties

(a) CIVIL ACTIONS.—If a person does not pay a civil penalty

after it becomes a final order of the Secretary of Transportation or

a judgment of a court of appeals of the United States for a circuit,

the Attorney General shall bring a civil action in an appropriate

district court of the United States to collect the penalty. The validity and appropriateness of the final order imposing the penalty is

not reviewable in the action.

(b) PRIORITY OF CLAIMS.—A claim of a creditor against a bankrupt or insolvent manufacturer of automobiles has priority over a
§ 32915 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 304

claim of the United States Government against the manufacturer

for a civil penalty under section 32912(b) of this title when the

creditor’s claim is for credit extended before a final judgment (without regard to section 32913(b)(1) and (2) of this title) in an action

to collect under subsection (a) of this section.

§ 32915. Appealing civil penalties

Any interested person may appeal a decision of the Secretary

of Transportation to impose a civil penalty under section 32912(a)

or (b) of this title, or of the Federal Trade Commission under section 32913(b)(1) of this title, in the United States Court of Appeals

for the District of Columbia Circuit or in the court of appeals of the

United States for the circuit in which the person resides or has its

principal place of business. A person appealing a decision must file

a notice of appeal with the court not later than 30 days after the

decision and, at the same time, send a copy of the notice by certified mail to the Secretary or the Commission. The Secretary or

the Commission promptly shall file with the court a certified copy

of the record of the proceeding in which the decision was made.

§ 32916. Reports to Congress

(a) ANNUAL REPORT.—Not later than January 15 of each year,

the Secretary of Transportation shall submit to each House of Congress, and publish in the Federal Register, a report on the review

by the Secretary of average fuel economy standards prescribed

under this chapter.

(b) JOINT EXAMINATIONS AFTER GRANTING EXEMPTIONS.—(1)

After an exemption has been granted under section 32904(b)(6) of

this title, the Secretaries of Transportation and Labor shall conduct

annually a joint examination of the extent to which section

32904(b)(6)—

(A) achieves the purposes of this chapter;

(B) improves fuel efficiency (thereby facilitating conservation of petroleum and reducing petroleum imports);

(C) has promoted employment in the United States related

to automobile manufacturing;

(D) has not caused unreasonable harm to the automobile

manufacturing sector in the United States; and

(E) has permitted manufacturers that have assembled passenger automobiles deemed to be manufactured domestically

under section 32904(b)(2) of this title thereafter to assemble in

the United States passenger automobiles of the same model

that have less than 75 percent of their value added in the

United States or Canada, together with the reasons.

(2) The Secretary of Transportation shall include the results of

the examination under paragraph (1) of this subsection in each report submitted under subsection (a) of this section more than 180

days after an exemption has been granted under section

32904(b)(6) of this title, or submit the results of the examination

directly to Congress before the report is submitted when circumstances warrant.

§ 32917. Standards for executive agency automobiles

(a) DEFINITION.—In this section, ‘‘executive agency’’ has the

same meaning given that term in section 105 of title 5.
305 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 32918

(b) FLEET AVERAGE FUEL ECONOMY.—(1) The President shall

prescribe regulations that require passenger automobiles leased for

at least 60 consecutive days or bought by executive agencies in a

fiscal year to achieve a fleet average fuel economy (determined

under paragraph (2) of this subsection) for that year of at least the

greater of—

(A) 18 miles a gallon; or

(B) the applicable average fuel economy standard under

section 32902(b) or (c) of this title for the model year that includes January 1 of that fiscal year.

(2) Fleet average fuel economy is— (A) the total number of passenger automobiles leased for

at least 60 consecutive days or bought by executive agencies in

a fiscal year (except automobiles designed for combat-related

missions, law enforcement work, or emergency rescue work);

divided by

(B) the sum of the fractions obtained by dividing the number of automobiles of each model leased or bought by the fuel

economy of that model.

§ 32918. Retrofit devices

(a) DEFINITION.—In this section, the term ‘‘retrofit device’’ means any component, equipment, or other device— (1) that is designed to be installed in or on an automobile

(as an addition to, as a replacement for, or through alteration

or modification of, any original component, equipment, or other

device); and

(2) that any manufacturer, dealer, or distributor of the device represents will provide higher fuel economy than would

have resulted with the automobile as originally equipped,

as determined under regulations of the Administrator of the Environmental Protection Agency. The term also includes a fuel additive for use in an automobile.

(b) EXAMINATION OF FUEL ECONOMY REPRESENTATIONS.—The

Federal Trade Commission shall establish a program for systematically examining fuel economy representations made with respect to

retrofit devices. Whenever the Commission has reason to believe

that any representation may be inaccurate, the Commission shall

request the Administrator to evaluate, in accordance with subsection (c) of this section, the retrofit device with respect to which

the representation was made.

(c) EVALUATION OF RETROFIT DEVICES.—(1) On application of

any manufacturer of a retrofit device (or prototype of a retrofit device), on request of the Commission under subsection (b) of this section, or on the motion of the Administrator, the Administrator shall

evaluate, in accordance with regulations prescribed under subsection (e) of this section, any retrofit device to determine whether

the retrofit device increases fuel economy and to determine whether the representations, if any, made with respect to the retrofit device are accurate.

(2) If under paragraph (1) of this subsection, the Administrator

tests, or causes to be tested, any retrofit device on the application

of a manufacturer of the device, the manufacturer shall supply, at

the manufacturer’s expense, one or more samples of the device to

the Administrator and shall be liable for the costs of testing in-
§ 32919 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 306

curred by the Administrator. The procedures for testing retrofit devices so supplied may include a requirement for preliminary testing

by a qualified independent testing laboratory, at the expense of the

manufacturer of the device.

(d) RESULTS OF TESTS AND PUBLICATION IN FEDERAL REGISTER.—(1) The Administrator shall publish in the Federal Register

a summary of the results of all tests conducted under this section,

together with the Administrator’s conclusions as to—

(A) the effect of any retrofit device on fuel economy;

(B) the effect of the device on emissions of air pollutants;

and

(C) any other information the Administrator determines to

be relevant in evaluating the device.

(2) The summary and conclusions shall also be submitted to

the Secretary of Transportation and the Commission.

(e) REGULATIONS ESTABLISHING TESTS AND PROCEDURES FOR

EVALUATION OF RETROFIT DEVICES.—The Administrator shall prescribe regulations establishing—

(1) testing and other procedures for evaluating the extent

to which retrofit devices affect fuel economy and emissions of

air pollutants; and

(2) criteria for evaluating the accuracy of fuel economy representations made with respect to retrofit devices.

§ 32919. Preemption

(a) GENERAL.—When an average fuel economy standard prescribed under this chapter is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related

to fuel economy standards or average fuel economy standards for

automobiles covered by an average fuel economy standard under

this chapter.

(b) REQUIREMENTS MUST BE IDENTICAL.—When a requirement

under section 32908 of this title is in effect, a State or a political

subdivision of a State may adopt or enforce a law or regulation on

disclosure of fuel economy or fuel operating costs for an automobile

covered by section 32908 only if the law or regulation is identical

to that requirement.

(c) STATE AND POLITICAL SUBDIVISION AUTOMOBILES.—A State

or a political subdivision of a State may prescribe requirements for

fuel economy for automobiles obtained for its own use.

CHAPTER 331—THEFT PREVENTION

Sec.

33101. Definitions.

33102. Theft prevention standard for high theft lines.

33103. Theft prevention standard for other lines.

33104. Designation of high theft vehicle lines and parts.

33105. Cost limitations.

33106. Exemption for passenger motor vehicles equipped with anti-theft devices.

33107. Voluntary vehicle identification standards.

33108. Monitoring compliance of manufacturers.

33109. National Stolen Passenger Motor Vehicle Information System.

33110. Verifications involving junk and salvage motor vehicles.

33111. Verifications involving motor vehicle major parts.

33112. Insurance reports and information.

33113. Theft reports.

33114. Prohibited acts.
307 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 33101

1So in law. Reference in paragraph (6)(L) probably should be to ‘‘subparagraphs (A)–(K) of

this paragraph’’.

33115. Civil penalties and enforcement.

33116. Confidentiality of information.

33117. Judicial review.

33118. Preemption of State and local law.

§ 33101. Definitions

In this chapter—

(1) ‘‘chop shop’’ means a building, lot, facility, or other

structure or premise at which at least one person engages in

receiving, concealing, destroying, disassembling, dismantling,

reassembling, or storing a passenger motor vehicle or passenger motor vehicle part that has been unlawfully obtained—

(A) to alter, counterfeit, deface, destroy, disguise, falsify, forge, obliterate, or remove the identity of the vehicle

or part, including the vehicle identification number or a

derivative of that number; and

(B) to distribute, sell, or dispose of the vehicle or part

in interstate or foreign commerce.

(2) ‘‘covered major part’’ means a major part selected under

section 33104 of this title for coverage by the vehicle theft prevention standard prescribed under section 33102 or 33103 of

this title.

(3) ‘‘existing line’’ means a line introduced into commerce

before January 1, 1990.

(4) ‘‘first purchaser’’ means the person making the first

purchase other than for resale.

(5) ‘‘line’’ means a name that a manufacturer of motor vehicles applies to a group of motor vehicle models of the same

make that have the same body or chassis, or otherwise are

similar in construction or design.

(6) ‘‘major part’’ means—

(A) the engine;

(B) the transmission;

(C) each door to the passenger compartment;

(D) the hood;

(E) the grille;

(F) each bumper;

(G) each front fender;

(H) the deck lid, tailgate, or hatchback;

(I) each rear quarter panel;

(J) the trunk floor pan;

(K) the frame or, for a unitized body, the supporting

structure serving as the frame; and

(L) any other part of a passenger motor vehicle that

the Secretary of Transportation by regulation specifies as

comparable in design or function to any of the parts listed

in subclauses (A)–(K) of this clause. 1

(7) ‘‘major replacement part’’ means a major part that is—

(A) an original major part in or on a completed motor

vehicle and customized or modified after manufacture of

the vehicle but before the time of its delivery to the first

purchaser; or
§ 33102 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 308

1So in law. Reference in section 33102(a)(1)(B) probably should be to ‘‘subparagraph (A)’’.

(B) not installed in or on a motor vehicle at the time

of its delivery to the first purchaser and the equitable or

legal title to the vehicle has not been transferred to a first

purchaser.

(8) ‘‘model year’’ has the same meaning given that term in

section 32901(a) of this title.

(9) ‘‘new line’’ means a line introduced into commerce after

December 31, 1989.

(10) ‘‘passenger motor vehicle’’ includes a multipurpose

passenger vehicle or light duty truck when that vehicle or

truck is rated at not more than 6,000 pounds gross vehicle

weight.

(11) ‘‘vehicle theft prevention standard’’ means a minimum

performance standard for identifying major parts of new motor

vehicles and major replacement parts by inscribing or affixing

numbers or symbols on those parts.

§ 33102. Theft prevention standard for high theft lines

(a) GENERAL.—(1) The Secretary of Transportation by regulation shall prescribe a vehicle theft prevention standard that conforms to the requirements of this chapter. The standard shall apply

to—

(A) covered major parts that manufacturers install in passenger motor vehicles in lines designated under section 33104

of this title as high theft lines; and

(B) major replacement parts for the major parts described

in clause (A) 1 of this paragraph.

(2) The standard may apply only to—

(A) major parts that manufacturers install in passenger

motor vehicles having a model year designation later than the

calendar year in which the standard takes effect; and

(B) major replacement parts manufactured after the standard takes effect.

(b) STANDARD REQUIREMENTS.—The standard shall be practicable and provide relevant objective criteria.

(c) LIMITATIONS ON MAJOR PART AND REPLACEMENT PART

STANDARDS.—(1) For a major part installed by the manufacturer of

the motor vehicle, the standard may not require a part to have

more than one identification.

(2) For a major replacement part, the standard may not

require—

(A) identification of a part not designed as a replacement

for a major part required to be identified under the standard;

or

(B) the inscribing or affixing of identification except a symbol identifying the manufacturer and a common symbol identifying the part as a major replacement part.

(d) RECORDS AND REPORTS.—This chapter does not authorize

the Secretary to require a person to keep records or make reports,

except as provided in sections 33104(c), 33106(c), 33108(a), and

33112 of this title.
309 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 33103

§ 33103. Theft prevention standard for other lines

(a) GENERAL.—Not later than October 25, 1994, the Secretary

of Transportation shall prescribe a vehicle theft standard that conforms to the requirements of this chapter for covered major parts

that manufacturers install in passenger motor vehicles (except

light duty trucks) in not more than 50 percent of the lines not designated under section 33104 of this title as high theft lines.

(b) EXTENSION OF APPLICATION.—(1) Not later than 3 years

after the standard is prescribed under subsection (a) of this section

and based on the finding of the Attorney General under subsection

(c) of this section to apply the standard, the Secretary shall apply

that standard to covered major parts and major replacement parts

for covered parts that manufacturers install in the lines of passenger motor vehicles (except light duty trucks)—

(A) not designated under section 33104 of this title as high

theft lines; and

(B) not covered by the standard prescribed under subsection (a) of this section.

(2) The Secretary shall include as part of the regulatory proceeding under this subsection the finding of, and the record developed by, the Attorney General under subsection (c) of this section.

(c) INITIAL REVIEW OF EFFECTIVENESS.—Before the Secretary

begins a regulatory proceeding under subsection (b) of this section,

the Attorney General shall make a finding that the Secretary shall

apply the standard prescribed under subsection (a) of this section

unless the Attorney General finds, based on information collected

and analyzed under section 33112 of this title and other information the Attorney General develops after providing notice and an

opportunity for a public hearing, that applying the standard prescribed in subsection (a) to the remaining lines of passenger motor

vehicles (except light duty trucks) not covered by that standard

would not substantially inhibit chop shop operations and motor vehicle thefts. The Attorney General also shall consider and include

in the record additional costs, effectiveness, competition, and available alternative factors. The Attorney General shall submit to the

Secretary the finding and record on which the finding is based.

(d) LONG RANGE REVIEW OF EFFECTIVENESS.—(1) Not later

than December 31, 1999, the Attorney General shall make separate

findings, after notice and an opportunity for a public hearing, on

the following:

(A) whether the application of the standard under subsection (a) or (b) of this subsection, or both, have been effective

in substantially inhibiting the operation of chop shops and

motor vehicle theft.

(B) whether the anti-theft devices for which the Secretary

has granted exemptions under section 33106 of this title are an

effective substitute for parts marking in substantially inhibiting motor vehicle theft.

(2)(A) In making the finding under paragraph (1)(A) of this

subsection, the Attorney General shall—

(i) consider the additional cost, competition, and available

alternatives;

(ii) base that finding on information collected and analyzed

under section 33112 of this title;
§ 33104 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 310

1So in law. Reference in section 33104(a)(1)(B) probably should be to ‘‘subparagraph (A)’’.

(iii) consider the effectiveness, the extent of use, and the

extent to which civil and criminal penalties under section

33115(b) of this title and section 2322 of title 18 on chop shops

have been effective in substantially inhibiting operation of chop

shops and motor vehicle theft;

(iv) base that finding on the 3-year and 5-year reports

issued by the Secretary under section 33113 of this title; and

(v) base that finding on other information the Attorney

General develops and includes in the public record.

(B) The Attorney General shall submit a finding under paragraph (1)(A) of this subsection promptly to the Secretary. If the Attorney General finds that the application of the standard under

subsection (a) or (b) of this section, or both, has not been effective,

the Secretary shall issue, not later than 180 days after receiving

that finding, an order terminating the standard the Attorney General found was ineffective. The termination is effective for the

model year beginning after the order is issued.

(3) In making a finding under paragraph (1)(B) of this subsection, the Secretary shall consider the additional cost, competition, and available alternatives. If the Attorney General finds that

the anti-theft devices are an effective substitute, the Secretary

shall continue to grant exemptions under section 33106 of this title

for the model years after model year 2000 at one of the following

levels that the Attorney General decides: at the level authorized before October 25, 1992, or at the level provided in section

33106(b)(2)(C) of this title for model year 2000.

(e) EFFECTIVE DATE OF STANDARD.—A standard prescribed

under this section takes effect at least 6 months after the date the

standard is prescribed, except that the Secretary may prescribe an

earlier effective date if the Secretary—

(1) decides with good cause that the earlier date is in the

public interest; and

(2) publishes the reasons for the decision.

(f) NOTIFICATION OF CONGRESS.—The Secretary and the Attorney General shall inform the appropriate legislative committees of

Congress with jurisdiction over this part and section 2322 of title

18 of actions taken or planned under this section.

§ 33104. Designation of high theft vehicle lines and parts

(a) DESIGNATION, NONAPPLICATION, SELECTION, AND PROCEDURES.—(1) For purposes of the standard under section 33102 of

this title, the following are high theft lines:

(A) a passenger motor vehicle line determined under subsection (b) of this section to have had a new passenger motor

vehicle theft rate in the 2-year period covering calendar years

1990 and 1991 greater than the median theft rate for all new

passenger motor vehicle thefts in that 2-year period.

(B) a passenger motor vehicle line initially introduced into

commerce in the United States after December 31, 1989, that

is selected under paragraph (3) of this subsection as likely to

have a theft rate greater than the median theft rate referred

to in clause (A) 1 of this paragraph.
311 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 33104

(C) subject to paragraph (2) of this subsection, a passenger

motor vehicle line having (for existing lines) or likely to have

(for new lines) a theft rate below the median theft rate referred

to in clause (A) 1 of this paragraph, if the major parts in the

vehicles are selected under paragraph (3) of this subsection as

interchangeable with the majority of the major parts that are

subject to the standard and are contained in the motor vehicles

of a line described in clause (A) 1 or (B) of this paragraph.

(2) The standard may not apply to any major part of a line described in paragraph (1)(C) of this subsection if all the passenger

motor vehicles of lines that are, or are likely to be, below the median theft rate, and that contain parts interchangeable with the

major parts of the line involved, account (for existing lines), or the

Secretary of Transportation determines they are likely to account

(for new lines), for more than 90 percent of the total annual production of all lines of that manufacturer containing those interchangeable parts.

(3) The lines, and the major parts of the passenger motor vehicles in those lines, that are to be subject to the standard may be

selected by agreement between the manufacturer and the Secretary. If the manufacturer and the Secretary disagree on the selection, the Secretary shall select the lines and parts, after notice

to the manufacturer and opportunity for written comment, and

subject to the confidentiality requirements of this chapter.

(4) To the maximum extent practicable, the Secretary shall

prescribe reasonable procedures designed to ensure that a selection

under paragraph (3) of this subsection is made at least 6 months

before the first applicable model year beginning after the selection.

(5) A manufacturer may not be required to comply with the

standard under a selection under paragraph (3) of this subsection

for a model year beginning earlier than 6 months after the date of

the selection.

(6) A passenger motor vehicle line subject on October 25, 1992,

to parts marking requirements under sections 602 and 603 of the

Motor Vehicle Information and Cost Savings Act (Public Law 92–

513, 86 Stat. 947), as added by section 101(a) of the Motor Vehicle

Theft Law Enforcement Act of 1984 (Public Law 98–547, 98 Stat.

2756), continues to be subject to the requirements of this section

and section 33102 of this title unless the line is exempted under

section 33106 of this title.

(b) DETERMINING THEFT RATE FOR PASSENGER VEHICLES.—(1)

In this subsection, ‘‘new passenger motor vehicle thefts’’, when

used in reference to a calendar year, means thefts in the United

States in that year of passenger motor vehicles with the same

model-year designation as that calendar year.

(2) Under subsection (a) of this section, the theft rate for passenger motor vehicles of a line shall be determined by a fraction—

(A) the numerator of which is the number of new passenger motor vehicle thefts for that line during the 2-year period referred to in subsection (a)(1)(A) of this section; and

(B) the denominator of which is the sum of the respective

production volumes of all passenger motor vehicles of that line

(as reported to the Administrator of the Environmental Protection Agency under chapter 329 of this title) that are of model
§ 33105 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 312

years 1990 and 1991 and are distributed for sale in commerce

in the United States.

(3) Under subsection (a) of this section, the median theft rate

for all new passenger motor vehicle thefts during that 2-year period

is the theft rate midway between the highest and the lowest theft

rates determined under paragraph (2) of this subsection. If there

is an even number of theft rates determined under paragraph (2),

the median theft rate is the arithmetic average of the 2 adjoining

theft rates midway between the highest and the lowest of those

theft rates.

(4) In consultation with the Director of the Federal Bureau of

Investigation, the Secretary periodically shall obtain from the most

reliable source accurate and timely theft and recovery information

and publish the information for review and comment. To the greatest extent possible, the Secretary shall use theft information reported by United States Government, State, and local police. After

publication and opportunity for comment, the Secretary shall use

the theft information to determine the median theft rate under this

subsection. The Secretary and the Director shall take any necessary actions to improve the accuracy, reliability, and timeliness

of the information, including ensuring that vehicles represented as

stolen are really stolen.

(5) The Secretary periodically (but not more often than once

every 2 years) may redetermine and prescribe by regulation the

median theft rate under this subsection.

(c) PROVIDING INFORMATION.—The Secretary by regulation

shall require each manufacturer to provide information necessary

to select under subsection (a)(3) of this section the high theft lines

and the major parts to be subject to the standard.

(d) APPLICATION.—Except as provided in section 33106 of this

title, the Secretary may not make the standard inapplicable to a

line that has been subject to the standard.

§ 33105. Cost limitations

(a) MAXIMUM MANUFACTURER COSTS.—A standard under section 33102 or 33103 of this title may not impose—

(1) on a manufacturer of motor vehicles, compliance costs

of more than $15 a motor vehicle; or

(2) on a manufacturer of major replacement parts, compliance costs for each part of more than the reasonable amount

(but less than $15) that the Secretary of Transportation specifies in the standard.

(b) COSTS INVOLVED IN ENGINES AND TRANSMISSIONS.—For a

manufacturer engaged in identifying engines or transmissions on

October 25, 1984, in a way that substantially complies with the

standard—

(1) the costs of identifying engines and transmissions may

not be considered in calculating the manufacturer’s costs under

subsection (a) of this section; and

(2) the manufacturer may not be required under the standard to conform to any identification system for engines and

transmissions that imposes greater costs on the manufacturer

than are incurred under the identification system used by the

manufacturer on October 25, 1984.

(c) COST ADJUSTMENTS.—(1) In this subsection—
313 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 33106

(A) ‘‘base period’’ means calendar year 1984.

(B) ‘‘price index’’ means the average over a calendar year

of the Consumer Price Index (all items—United States city average) published monthly by the Secretary of Labor.

(2) At the beginning of each calendar year, as necessary data

become available from the Bureau of Labor Statistics, the Secretary of Labor shall certify to the Secretary of Transportation and

publish in the Federal Register the percentage difference between

the price index for the 12 months before the beginning of the calendar year and the price index for the base period. For model years

beginning in that calendar year, the amounts specified in subsection (a) of this section shall be adjusted by the percentage difference.

§ 33106. Exemption for passenger motor vehicles equipped

with anti-theft devices

(a) DEFINITIONS.—In this section— (1) ‘‘anti-theft device’’ means a device to reduce or deter

theft that—

(A) is in addition to the theft-deterrent devices required by motor vehicle safety standard numbered 114 in

section 571.114 of title 49, Code of Federal Regulations;

(B) the manufacturer believes will be effective in reducing or deterring theft of motor vehicles; and

(C) does not use a signaling device reserved by State

law for use on police, emergency, or official vehicles, or on

schoolbuses.

(2) ‘‘standard equipment’’ means equipment already installed in a motor vehicle when it is delivered from the manufacturer and not an accessory or other item that the first purchaser customarily has the option to have installed.

(b) GRANTING EXEMPTIONS AND LIMITATIONS.—(1) A manufacturer may petition the Secretary of Transportation for an exemption from a requirement of a standard prescribed under section

33102 or 33103 of this title for a line of passenger motor vehicles

equipped as standard equipment with an anti-theft device that the

Secretary decides is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the standard.

(2) The Secretary may grant an exemption—

(A) for model year 1987, for not more than 2 lines of a

manufacturer;

(B) for each of the model years 1988–1996, for not more

than 2 additional lines of a manufacturer;

(C) for each of the model years 1997–2000, for not more

than one additional line of a manufacturer; and

(D) for each of the model years after model year 2000, for

the number of lines that the Attorney General decides under

section 33103(d)(3) of this title.

(3) An additional exemption granted under paragraph (2)(B) or

(C) of this subsection does not affect an exemption previously

granted.

(c) PETITIONING PROCEDURE.—A petition must be filed not later

than 8 months before the start of production for the first model

year covered by the petition. The petition must include—

(1) a detailed description of the device;
§ 33107 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 314

(2) the reasons for the manufacturer’s conclusion that the

device will be effective in reducing and deterring theft of motor

vehicles; and

(3) additional information the Secretary reasonably may

require to make the decision described in subsection (b)(1) of

this section.

(d) DECISIONS AND APPROVALS.—The Secretary shall make a

decision about a petition filed under this section not later than 120

days after the date the petition is filed. A decision approving a petition must be based on substantial evidence. The Secretary may approve a petition in whole or in part. If the Secretary does not make

a decision within the 120-day period, the petition shall be deemed

to be approved and the manufacturer shall be exempt from the

standard for the line covered by the petition for the subsequent

model year.

(e) RESCISSIONS.—The Secretary may rescind an exemption if

the Secretary decides that the anti-theft device has not been as effective in reducing and deterring motor vehicle theft as compliance

with the standard. A rescission may be effective only—

(1) for a model year after the model year in which the rescission occurs; and

(2) at least 6 months after the manufacturer receives written notice of the rescission from the Secretary.

§ 33107. Voluntary vehicle identification standards

(a) ELECTION TO INSCRIBE OR AFFIX IDENTIFYING MARKS.—The

Secretary of Transportation by regulation may prescribe a vehicle

theft prevention standard under which a person may elect to inscribe or affix an identifying number or symbol on major parts of

a motor vehicle manufactured or owned by the person for purposes

of section 511 of title 18 and related provisions. The standard may

include provisions for registration of the identification with the Secretary or a person designated by the Secretary.

(b) STANDARD REQUIREMENTS.—The standard under this section shall be practicable and provide relevant objective criteria.

(c) VOLUNTARY COMPLIANCE.—Compliance with the standard

under this section is voluntary. Failure to comply does not subject

a person to a penalty or enforcement under this chapter.

(d) COMPLIANCE WITH OTHER STANDARDS.—Compliance with

the standard under this section does not relieve a manufacturer

from a requirement of a standard prescribed under section 33102

or 33103 of this title.

§ 33108. Monitoring compliance of manufacturers

(a) RECORDS, REPORTS, INFORMATION, AND INSPECTION.—To enable the Secretary of Transportation to decide whether a manufacturer of motor vehicles containing a part subject to a standard prescribed under section 33102 or 33103 of this title, or a manufacturer of major replacement parts subject to the standard, is complying with this chapter and the standard, the Secretary may require the manufacturer to—

(1) keep records;

(2) make reports;

(3) provide items and information; and
315 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 33109

(4) allow an officer or employee designated by the Secretary to inspect the vehicles and parts and relevant records

of the manufacturer.

(b) ENTRY AND INSPECTION.—To enforce this chapter, an officer

or employee designated by the Secretary, on presenting appropriate

credentials and a written notice to the owner, operator, or agent in

charge, may inspect a facility in which motor vehicles containing

major parts subject to the standard, or major replacement parts

subject to the standard, are manufactured, held for introduction

into interstate commerce, or held for sale after introduction into

interstate commerce. An inspection shall be conducted at a reasonable time, in a reasonable way, and with reasonable promptness.

(c) CERTIFICATION OF COMPLIANCE.—(1) A manufacturer of a

motor vehicle subject to the standard, and a manufacturer of a

major replacement part subject to the standard, shall provide at

the time of delivery of the vehicle or part a certification that the

vehicle or part conforms to the applicable motor vehicle theft prevention standard. The certification shall accompany the vehicle or

part until its delivery to the first purchaser. The Secretary by regulation may prescribe the type and form of the certification.

(2) This subsection does not apply to a motor vehicle or major

replacement part that is—

(A) intended only for export;

(B) labeled only for export on the vehicle or replacement

part and the outside of any container until exported; and

(C) exported.

(d) NOTIFICATION OF ERROR.—A manufacturer shall notify the

Secretary if the manufacturer discovers that—

(1) there is an error in the identification (required by the

standard) applied to a major part installed by the manufacturer in a motor vehicle during its assembly, or to a major replacement part manufactured by the manufacturer; and

(2) the motor vehicle or major replacement part has entered interstate commerce.

§ 33109. National Stolen Passenger Motor Vehicle Information System

(a) GENERAL REQUIREMENTS.—(1) Not later than July 25, 1993,

the Attorney General shall establish, and thereafter maintain, a

National Stolen Passenger Motor Vehicle Information System containing the vehicle identification numbers of stolen passenger

motor vehicles and stolen passenger motor vehicle parts. The System shall be located in the National Crime Information Center and

shall include at least the following information on each passenger

motor vehicle reported to a law enforcement authority as stolen

and not recovered:

(A) the vehicle identification number.

(B) the make and model year.

(C) the date on which the vehicle was reported as stolen.

(D) the location of the law enforcement authority that received the report of the theft of the vehicle.

(E) the identification numbers of the vehicle parts (or derivatives of those numbers), at the time of the theft, if those

numbers are different from the vehicle identification number of

the vehicle.
§ 33109 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 316

(2) In establishing the System, the Attorney General shall consult with—

(A) State and local law enforcement authorities; and

(B) the National Crime Information Center Policy Advisory

Board to ensure the security of the information in the System

and that the System will not compromise the security of stolen

passenger motor vehicle and passenger motor vehicle parts information in the System.

(3) If the Attorney General decides that the Center is not able

to perform the functions of the System, the Attorney General shall

make an agreement for the operation of the System separate from

the Center.

(4) The Attorney General shall prescribe by regulation the effective date of the System.

(b) REQUESTS FOR INFORMATION.—(1) The Attorney General

shall prescribe by regulation procedures under which an individual

or entity intending to transfer a passenger motor vehicle or passenger motor vehicle part may obtain information on whether the

vehicle or part is listed in the System as stolen.

(2) On request of an insurance carrier, a person lawfully selling or distributing passenger motor vehicle parts in interstate commerce, or an individual or enterprise engaged in the business of repairing passenger motor vehicles, the Attorney General (or the entity the Attorney General designates) immediately shall inform the

insurance carrier, person, individual, or enterprise whether the

System has a record of a vehicle or vehicle part with a particular

vehicle identification number (or derivative of that number) being

reported as stolen. The Attorney General may require appropriate

verification to ensure that the request is legitimate and will not

compromise the security of the System.

(c) ADVISORY COMMITTEE.—(1) Not later than December 24,

1992, the Attorney General shall establish in the Department of

Justice an advisory committee. The Attorney General shall develop

the System with the advice and recommendations of the committee.

(2)(A) The committee is composed of the following 10 members:

(i) the Attorney General.

(ii) the Secretary of Transportation.

(iii) one individual who is qualified to represent the interests of the law enforcement community at the State level.

(iv) one individual who is qualified to represent the interests of the law enforcement community at the local level.

(v) one individual who is qualified to represent the interests of the automotive recycling industry.

(vi) one individual who is qualified to represent the interests of the automotive repair industry.

(vii) one individual who is qualified to represent the interests of the automotive rebuilders industry.

(viii) one individual who is qualified to represent the interests of the automotive parts suppliers industry.

(ix) one individual who is qualified to represent the interests of the insurance industry.

(x) one individual who is qualified to represent the interests of consumers.
317 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 33110

(B) The Attorney General shall appoint the individuals described in subparagraph (A)(iii)–(x) of this paragraph and shall

serve as chairman of the committee.

(3) The committee shall make recommendations on developing

and carrying out— (A) the National Stolen Passenger Motor Vehicle Information System; and

(B) the verification system under section 33110 of this

title.

(4) Not later than April 25, 1993, the committee shall submit

to the Attorney General, the Secretary, and Congress a report including the recommendations of the committee.

(d) IMMUNITY.—Any person performing any activity under this

section or section 33110 or 33111 in good faith and with the reasonable belief that such activity was in accordance with such section shall be immune from any civil action respecting such activity

which is seeking money damages or equitable relief in any court of

the United States or a State.

§ 33110. Verifications involving junk and salvage motor vehicles

(a) DEFINITION.—In this section, ‘‘vehicle identification number’’ means a unique identification number (or derivative of that

number) assigned to a passenger motor vehicle by a manufacturer

in compliance with applicable regulations.

(b) GENERAL REQUIREMENTS.—(1) If an insurance carrier selling comprehensive motor vehicle insurance coverage obtains possession of and transfers a junk motor vehicle or a salvage motor

vehicle, the carrier shall—

(A) under procedures the Attorney General prescribes by

regulation under section 33109 of this title in consultation with

the Secretary of Transportation, verify whether the vehicle is

reported as stolen; and

(B) provide the purchaser or transferee of the vehicle from

the insurance carrier verification identifying the vehicle identification number and verifying that the vehicle has not been reported as stolen or, if reported as stolen, that the carrier has

recovered the vehicle and has proper legal title to the vehicle.

(2)(A) This subsection does not prohibit an insurance carrier

from transferring a motor vehicle if, within a reasonable period of

time during normal business operations (as decided by the Attorney General under section 33109 of this title) using reasonable efforts, the carrier—

(i) has not been informed under the procedures prescribed

in section 33109 of this title that the vehicle has not been reported as stolen; or

(ii) has not otherwise established whether the vehicle has

been reported as stolen.

(B) When a carrier transfers a motor vehicle for which the carrier has not established whether the vehicle has been reported as

stolen, the carrier shall provide written certification to the transferee that the carrier has not established whether the vehicle has

been reported as stolen.

(c) REGULATIONS.—In consultation with the Secretary, the Attorney General shall prescribe regulations necessary to ensure that
§ 33111 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 318

verification performed and provided by an insurance carrier under

subsection (b)(1)(B) of this section is uniform, effective, and resistant to fraudulent use.

§ 33111. Verifications involving motor vehicle major parts

(a) GENERAL REQUIREMENTS.—A person engaged in the business of salvaging, dismantling, recycling, or repairing passenger

motor vehicles may not knowingly sell in commerce or transfer or

install a major part marked with an identification number

without—

(1) first establishing, through a procedure the Attorney

General by regulation prescribes in consultation with the Secretary of Transportation under section 33109 of this title, that

the major part has not been reported as stolen; and

(2) providing the purchaser or transferee with a

verification— (A) identifying the vehicle identification number (or

derivative of that number) of that major part; and

(B) verifying that the major part has not been reported

as stolen.

(b) NONAPPLICATION.—(1) Subsection (a) of this section does

not apply to a person that— (A) is the manufacturer of the major part;

(B) has purchased the major part directly from the manufacturer; or

(C) has received a verification from an insurance carrier

under section 33110 of this title that the motor vehicle from

which the major part is derived has not been reported as stolen, or that the carrier has not established whether that vehicle has been stolen.

(2) A person described under paragraph (1)(C) of this subsection that subsequently transfers or sells in commerce the motor

vehicle or a major part of the vehicle shall provide the verification

received from the carrier to the person to whom the vehicle or part

is transferred or sold.

(c) REGULATIONS.—The Attorney General shall prescribe regulations to carry out this section. The regulations shall include regulations prescribed in consultation with the Secretary that are necessary to ensure that a verification a person provides under subsection (a)(2) of this section is uniform, effective, and resistant to

fraudulent use.

§ 33112. Insurance reports and information

(a) PURPOSES.—The purposes of this section are—

(1) to prevent or discourage the theft of motor vehicles,

particularly those stolen for the removal of certain parts;

(2) to prevent or discourage the sale and distribution in

interstate commerce of used parts that are removed from those

vehicles; and

(3) to help reduce the cost to consumers of comprehensive

insurance coverage for motor vehicles.

(b) DEFINITIONS.—In this section—

(1) ‘‘insurer’’ includes a person (except a governmental authority) having a fleet of at least 20 motor vehicles that are

used primarily for rental or lease and are not covered by a
319 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 33112

theft insurance policy issued by an insurer of passenger motor

vehicles.

(2) ‘‘motor vehicle’’ includes a truck, a multipurpose passenger vehicle, and a motorcycle.

(c) ANNUAL INFORMATION REQUIREMENT.—(1) An insurer providing comprehensive coverage for motor vehicles shall provide annually to the Secretary of Transportation information on—

(A) the thefts and recoveries (in any part) of motor vehicles;

(B) the number of vehicles that have been recovered intact;

(C) the rating rules and plans, such as loss information

and rating characteristics, used by the insurer to establish premiums for comprehensive coverage, including the basis for the

premiums, and premium penalties for motor vehicles considered by the insurer as more likely to be stolen;

(D) the actions taken by the insurer to reduce the premiums, including changing rate levels for comprehensive coverage because of a reduction in thefts of motor vehicles;

(E) the actions taken by the insurer to assist in deterring

or reducing thefts of motor vehicles; and

(F) other information the Secretary requires to carry out

this chapter and to make the report and findings required by

this chapter.

(2) The information on thefts and recoveries shall include an

explanation on how the information is obtained, the accuracy and

timeliness of the information, and the use made of the information,

including the extent and frequency of reporting the information to

national, public, and private entities such as the Federal Bureau

of Investigation and State and local police.

(d) REPORTS ON REDUCED CLAIMS PAYMENTS.—An insurer shall

report promptly in writing to the Secretary if the insurer, in paying

a claim under an adjustment or negotiation between the insurer

and the insured for a stolen motor vehicle—

(1) reduces the payment to the insured by the amount of

the value, salvage or otherwise, of a recovered part subject to

a standard prescribed under section 33102 or 33103 of this

title; and

(2) the reduction is not made at the express election of the

insured.

(e) GENERAL EXEMPTIONS.—The Secretary shall exempt from

this section, for one or more years, an insurer that the Secretary

decides should be exempted because—

(1) the cost of preparing and providing the information is

excessive in relation to the size of the insurer’s business; and

(2) the information from that insurer will not contribute

significantly to carrying out this chapter.

(f) SMALL INSURER EXEMPTIONS.—(1) In this subsection, ‘‘small

insurer’’ means an insurer whose premiums for motor vehicle insurance issued directly or through an affiliate, including a pooling

arrangement established under State law or regulation for the

issuance of motor vehicle insurance, account for—

(A) less than one percent of the total premiums for all

forms of motor vehicle insurance issued by insurers in the

United States; and
§ 33113 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 320

(B) less than 10 percent of the total premiums for all forms

of motor vehicle insurance issued by insurers in any State.

(2) The Secretary shall exempt by regulation a small insurer

from this section if the Secretary finds that the exemption will not

significantly affect the validity or usefulness of the information collected and compiled under this section, nationally or State-byState. However, the Secretary may not exempt an insurer under

this paragraph that is considered an insurer only because of subsection (b)(1) of this section.

(3) Regulations under this subsection shall provide that eligibility as a small insurer shall be based on the most recent calendar

year for which adequate information is available, and that, once attained, the eligibility shall continue without further demonstration

of eligibility for one or more years, as the Secretary considers appropriate.

(g) PRESCRIBED FORM.—Information required by this section

shall be provided in the form the Secretary prescribes.

(h) PERIODIC COMPILATIONS.—Subject to section 552 of title 5,

the Secretary periodically shall compile and publish information

obtained by the Secretary under this section, in a form that will

be helpful to the public, the police, and Congress.

(i) CONSULTATION.—In carrying out this section, the Secretary

shall consult with public and private agencies and associations the

Secretary considers appropriate.

§ 33113. Theft reports

(a) TRUCK, MULTIPURPOSE PASSENGER VEHICLE, AND MOTORCYCLE REPORT.—Not later than October 25, 1995, the Secretary of

Transportation shall submit a report to Congress that includes—

(1) information on the number of trucks, multipurpose passenger vehicles, and motorcycles distributed for sale in interstate commerce that are stolen and recovered annually, compiled by model, make, and line;

(2) information on the extent to which trucks, multipurpose passenger vehicles, and motorcycles stolen annually are

dismantled to recover parts or are exported;

(3) a description of the market for the stolen parts;

(4) information on the premiums charged by insurers of

comprehensive coverage of trucks, multipurpose passenger vehicles, or motorcycles, including any increase in the premiums

charged because any of those motor vehicles is a likely candidate for theft;

(5) an assessment of whether the identification of parts of

trucks, multipurpose passenger vehicles, and motorcycles is

likely—

(A) to decrease the theft rate of those motor vehicles;

(B) to increase the recovery rate of those motor vehicles;

(C) to decrease the trafficking in stolen parts of those

motor vehicles;

(D) to stem the export and import of those stolen

motor vehicles or parts; or

(E) to have benefits greater than the costs of the identification; and
321 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 33113

(6) recommendations on whether, and to what extent, the

identification of trucks, multipurpose passenger vehicles, and

motorcycles should be required by law.

(b) MOTOR VEHICLE REPORT.—Not later than October 25, 1997,

the Secretary shall submit a report to Congress that includes—

(1) information on—

(A) the methods and procedures used by public and

private entities to collect, compile, and disseminate information on the theft and recovery of motor vehicles, including classes of motor vehicles; and

(B) the reliability and timeliness of the information

and how the information can be improved;

(2) information on the number of motor vehicles distributed for sale in interstate commerce that are stolen and recovered annually, compiled by class, model, make, and line;

(3) information on the extent to which motor vehicles stolen annually are dismantled to recover parts or are exported;

(4) a description of the market for the stolen parts;

(5) information on—

(A) the costs to manufacturers and purchasers of passenger motor vehicles of compliance with the standards

prescribed under this chapter;

(B) the beneficial impacts of the standards and the

monetary value of the impacts; and

(C) the extent to which the monetary value is greater

than the costs;

(6) information on the experience of officials of the United

States Government, States, and localities in—

(A) making arrests and successfully prosecuting persons for violating a law set forth in title II or III of the

Motor Vehicle Theft Law Enforcement Act of 1984;

(B) preventing or reducing the number and rate of

thefts of motor vehicles that are dismantled for parts subject to this chapter; and

(C) preventing or reducing the availability of used

parts that are stolen from motor vehicles subject to this

chapter;

(7) information on the premiums charged by insurers of

comprehensive coverage of motor vehicles subject to this chapter, including any increase in the premiums charged because

a motor vehicle is a likely candidate for theft, and the extent

to which the insurers have reduced for the benefit of consumers the premiums, or foregone premium increases, because

of this chapter;

(8) information on the adequacy and effectiveness of laws

of the United States and the States aimed at preventing the

distribution and sale of used parts that have been removed

from stolen motor vehicles and the adequacy of systems available to enforcement personnel for tracing parts to determine if

they have been stolen from a motor vehicle;

(9) an assessment of whether the identification of parts of

other classes of motor vehicles is likely—

(A) to decrease the theft rate of those vehicles;

(B) to increase the recovery rate of those vehicles;
§ 33114 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 322

1So in law. The word ‘‘and’’ in section 33113(b)(9)(E) probably should not appear after the

semicolon.

(C) to decrease the trafficking in stolen parts of those

vehicles;

(D) to stem the export and import of those stolen vehicles, parts, or components; or

(E) to have benefits greater than the costs of the identification; and 1

(10) other relevant and reliable information available to

the Secretary about the impact, including the beneficial impact, of the laws set forth in titles II and III of the Motor Vehicle Theft Law Enforcement Act of 1984 on law enforcement,

consumers, and manufacturers; and

(11) recommendations (including, as appropriate, legislative and administrative recommendations) for—

(A) continuing without change the standards prescribed under this chapter;

(B) amending this chapter to cover more or fewer lines

of passenger motor vehicles;

(C) amending this chapter to cover other classes of

motor vehicles; or

(D) ending the standards for all future motor vehicles.

(c) BASES OF REPORTS.—(1) The reports under subsections (a)

and (b) of this section each shall be based on—

(A) information reported under this chapter by insurers of

motor vehicles and manufacturers of motor vehicles and major

replacement parts;

(B) information provided by the Federal Bureau of Investigation;

(C) experience obtained in carrying out this chapter;

(D) experience of the Government under the laws set forth

in titles II and III of the Motor Vehicle Theft Law Enforcement

Act of 1984; and

(E) other relevant and reliable information available to the

Secretary.

(2) In preparing each report, the Secretary shall consult with

the Attorney General and State and local law enforcement officials,

as appropriate.

(3) The report under subsection (b) of this section shall—

(A) cover a period of at least 4 years after the standards

required by this chapter are prescribed; and

(B) reflect any information, as appropriate, from the report

under subsection (a) of this section, updated from the date of

the report.

(4) At least 90 days before submitting each report to Congress,

the Secretary shall publish a proposed report for public review and

an opportunity of at least 45 days for written comment. The Secretary shall consider those comments in preparing the report to be

submitted and include a summary of the comments with the submitted report.

§ 33114. Prohibited acts

(a) GENERAL.—A person may not—
323 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 33115

(1) manufacture for sale, sell, offer for sale, introduce or

deliver for introduction in interstate commerce, or import into

the United States, a motor vehicle or major replacement part

subject to a standard prescribed under section 33102 or 33103

of this title, unless it conforms to the standard;

(2) fail to comply with a regulation prescribed by the Secretary of Transportation or Attorney General under this chapter;

(3) fail to keep specified records, refuse access to or copying of records, fail to make reports or provide items or information, or fail or refuse to allow entry or inspection, as required

by this chapter;

(4) fail to provide the certification required by section

33108(c) of this title, or provide a certification that the person

knows, or in the exercise of reasonable care has reason to

know, is false or misleading in a material respect; or

(5) knowingly—

(A) own, operate, maintain, or control a chop shop;

(B) conduct operations in a chop shop; or

(C) transport a passenger motor vehicle or passenger

motor vehicle part to or from a chop shop.

(b) NONAPPLICATION.—Subsection (a)(1) of this section does not

apply to a person establishing that in the exercise of reasonable

care the person did not have reason to know that the motor vehicle

or major replacement part was not in conformity with the standard.

§ 33115. Civil penalties and enforcement

(a) GENERAL PENALTY AND CIVIL ACTIONS TO COLLECT.—(1) A

person that violates section 33114(a)(1)–(4) of this title is liable to

the United States Government for a civil penalty of not more than

$1,000 for each violation. The failure of more than one part of a

single motor vehicle to conform to an applicable standard under

section 33102 or 33103 of this title is only a single violation. The

maximum penalty under this subsection for a related series of violations is $250,000.

(2) The Secretary of Transportation imposes a civil penalty

under this subsection. The Secretary may compromise the amount

of a penalty.

(3) In determining the amount of a civil penalty or compromise

under this subsection, the Secretary shall consider the size of the

person’s business and the gravity of the violation.

(4) The Attorney General shall bring a civil action in a United

States district court to collect a civil penalty imposed under this

subsection.

(5) The Government may deduct the amount of a civil penalty

imposed or compromised under this subsection from amounts it

owes the person liable for the penalty.

(b) CHOP SHOP PENALTY AND ENFORCEMENT.—(1) A person

that violates section 33114(a)(5) of this title is liable to the Government for a civil penalty of not more than $100,000 a day for each

violation.

(2) As appropriate and in consultation with the Attorney General, the Secretary shall—
§ 33116 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. 324

1So in law. Reference in section 33115(b)(2)(C) probably should be to ‘‘subparagraphs (A) and

(B)’’.

(A) bring a civil action for a temporary or permanent injunction to restrain a person violating section 33114(a)(5) of

this section;

(B) impose and recover the penalty described in paragraph

(1) of this subsection; or

(C) take both the actions described in clauses (A) and (B) 1

of this paragraph.

(c) CIVIL ACTIONS TO ENFORCE.—(1) The Attorney General may

bring a civil action in a United States district court to enjoin a violation of this chapter or the sale, offer for sale, introduction or delivery for introduction in interstate commerce, or importation into

the United States, of a passenger motor vehicle containing a major

part, or of a major replacement part, that is subject to the standard

and is determined before the sale of the vehicle or part to a first

purchaser not to conform to the standard.

(2)(A) When practicable, the Secretary—

(i) shall notify a person against whom an action under this

subsection is planned;

(ii) shall give the person an opportunity to present that

person’s views; and

(iii) except for a knowing and willful violation, shall give

the person a reasonable opportunity to comply.

(B) The failure of the Secretary to comply with subparagraph

(A) of this paragraph does not prevent a court from granting appropriate relief.

(d) JURY TRIAL DEMAND.—In a trial for criminal contempt for

violating an injunction or restraining order issued under subsection

(c) of this section, the violation of which is also a violation of this

chapter, the defendant may demand a jury trial. The defendant

shall be tried as provided in rule 42(b) of the Federal Rules of

Criminal Procedure (18 App. U.S.C.).

(e) VENUE.—A civil action under subsection (a) or (c) of this

section may be brought in the judicial district in which the violation occurred or the defendant resides, is found, or transacts business. Process in the action may be served in any other judicial district in which the defendant resides or is found. A subpena for a

witness in the action may be served in any judicial district.

§ 33116. Confidentiality of information

(a) GENERAL.—Information obtained by the Secretary of Transportation under this chapter related to a confidential matter referred to in section 1905 of title 18 may be disclosed only—

(1) to another officer or employee of the United States Government for use in carrying out this chapter; or

(2) in a proceeding under this chapter (except a proceeding

under section 33104(a)(3)).

(b) WITHHOLDING INFORMATION FROM CONGRESS.—This section

does not authorize information to be withheld from a committee of

Congress authorized to have the information.
325 TITLE 49, UNITED STATES CODE—MOTOR VEHICLE INFO. § 33118

§ 33117. Judicial review

A person that may be adversely affected by a regulation prescribed under this chapter may obtain judicial review of the regulation under section 32909 of this title. A remedy under this section

is in addition to any other remedies provided by law.

§ 33118. Preemption of State and local law

When a motor vehicle theft prevention standard prescribed

under section 33102 or 33103 of this title is in effect, a State or

political subdivision of a State may not have a different motor vehicle theft prevention standard for a motor vehicle or major replacement part.

327

APPENDIX: ADMINISTRATIVE PROCEDURE AND

JUDICIAL REVIEW

329

APPENDIX: ADMINISTRATIVE PROCEDURE AND

JUDICIAL REVIEW

CONTENTS

ADMINISTRATIVE PROCEDURE

TITLE 5, UNITED STATES CODE—GOVERNMENT ORGANIZATION AND

EMPLOYEES (SELECTED PROVISIONS)

PART I—THE AGENCIES GENERALLY

CHAPTER 3—POWERS

Sec. Page

301. Departmental regulations ............................................................................ 331

302. Delegation of authority ................................................................................. 331

CHAPTER 5—ADMINISTRATIVE PROCEDURE

500. Administrative practice; general provisions ............................................... 331

503. Witness fees and allowances ........................................................................ 332

551. Definitions ..................................................................................................... 332

552. Public information; agency rules, opinions, orders, records and proceedings ................................................................................................................. 334

552a. Records maintained on individuals ............................................................. 343

552b. Open meetings .............................................................................................. 359

553. Rulemaking .................................................................................................... 365

554. Adjudications ................................................................................................. 365

555. Ancillary matters .......................................................................................... 367

556. Hearings; presiding employees; powers and duties; burden of proof;

evidence; record as basis of decision ................................................................... 367

557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record ........................................................................ 369

558. Imposition of sanctions; determination of applications for licenses; suspension, revocation, and expiration of licenses .................................................. 371

559. Effect on other laws; effect of subsequent statute ...................................... 371

CHAPTER 7—JUDICIAL REVIEW

701. Application; definitions ................................................................................. 371

702. Right of review .............................................................................................. 372

703. Form and venue of proceeding ..................................................................... 372

704. Actions reviewable ........................................................................................ 373

705. Relief pending review ................................................................................... 373

706. Scope of review .............................................................................................. 373

CHAPTER 8—CONGRESSIONAL REVIEW OF AGENCY RULEMAKING

801. Congressional review .................................................................................... 374

802. Congressional disapproval procedure .......................................................... 376

803. Special rule on statutory, regulatory, and judicial deadlines .................... 378

804. Definitions ..................................................................................................... 378

805. Judicial review .............................................................................................. 379

806. Applicability; severability ............................................................................. 379

807. Exemption for monetary policy .................................................................... 379
Contents APPENDIX 330

808. Effective date of certain rules ...................................................................... 379

PART III—EMPLOYEES

CHAPTER 31—AUTHORITY FOR EMPLOYMENT

3105. Appointment of administrative law judges ............................................... 380

CHAPTER 33—EXAMINATION, SELECTION, AND PLACEMENT

3344. Details; administrative law judges ............................................................ 380

CHAPTER 53—PAY RATES AND SYSTEMS

5372. Administrative law judges .......................................................................... 380

CHAPTER 75—ADVERSE ACTIONS

7521. Actions against administrative law judges ............................................... 381

JUDICIAL REVIEW

TITLE 28, UNITED STATES CODE—JUDICIARY AND JUDICIAL

PROCEDURE (SELECTED PROVISIONS)

PART IV—JURISDICTION AND VENUE

CHAPTER 81—SUPREME COURT

1254. Courts of appeals; certiorari; certified questions ...................................... 383

CHAPTER 85—DISTRICT COURTS; JURISDICTION

1331. Federal question .......................................................................................... 383

CHAPTER 85—DISTRICT COURTS; VENUE

1391(e). Venue generally ........................................................................................ 383

PART V—PROCEDURE

CHAPTER 133—REVIEW—MISCELLANEOUS PROVISIONS

2112. Record on review and enforcement of agency orders ............................... 384

PART VI—PARTICULAR PROCEEDINGS

CHAPTER 158—ORDERS OF FEDERAL AGENCIES; REVIEW

2341. Definitions ................................................................................................... 387

2342. Jurisdiction of court of appeals .................................................................. 387

2343. Venue ........................................................................................................... 388

2344. Review of orders; time; notice; contents of petition; service .................... 388

2345. Prehearing conference ................................................................................. 388

2346. Certification of record on review ................................................................ 388

2347. Petitions to review; proceedings ................................................................. 388

2348. Representation in proceedings; intervention ............................................ 389

2349. Jurisdiction of the proceeding .................................................................... 389

2350. Review in Supreme Court on certiorari or certification ........................... 390

2351. Enforcement of orders by district courts ................................................... 390
331

ADMINISTRATIVE PROCEDURE

TITLE 5, UNITED STATES CODE—GOVERNMENT ORGANIZATION AND EMPLOYEES (SELECTED PROVISIONS)

PART I—THE AGENCIES GENERALLY

* * * * * * *

CHAPTER 3—POWERS

§ 301. Departmental regulations

The head of an Executive department or military department

may prescribe regulations for the government of his department,

the conduct of its employees, the distribution and performance of

its business, and the custody, use, and preservation of its records,

papers, and property. This section does not authorize withholding

information from the public or limiting the availability of records

to the public.

§ 302. Delegation of authority

(a) For the purpose of this section, ‘‘agency’’ has the meaning

given it by section 5721 of this title.

(b) In addition to the authority to delegate conferred by other

law, the head of an agency may delegate to subordinate officials

the authority vested in him—

(1) by law to take final action on matters pertaining to the

employment, direction, and general administration of personnel under his agency; and

(2) by section 3702 of title 44 to authorize the publication

of advertisements, notices, or proposals.

* * * * * * *

CHAPTER 5—ADMINISTRATIVE PROCEDURE

SUBCHAPTER I—GENERAL PROVISIONS

§ 500. Administrative practice; general provisions

(a) For the purpose of this section— (1) ‘‘agency’’ has the meaning given it by section 551 of this

title; and

(2) ‘‘State’’ means a State, a territory or possession of the

United States including a Commonwealth, or the District of

Columbia.

(b) An individual who is a member in good standing of the bar

of the highest court of a State may represent a person before an

agency on filing with the agency a written declaration that he is
§ 503 APPENDIX: ADMINISTRATIVE PROCEDURE 332

currently qualified as provided by this subsection and is authorized

to represent the particular person in whose behalf he acts.

(c) An individual who is duly qualified to practice as a certified

public accountant in a State may represent a person before the Internal Revenue Service of the Treasury Department on filing with

that agency a written declaration that he is currently qualified as

provided by this subsection and is authorized to represent the particular person in whose behalf he acts.

(d) This section does not— (1) grant or deny to an individual who is not qualified as

provided by subsection (b) or (c) of this section the right to appear for or represent a person before an agency or in an agency

proceeding;

(2) authorize or limit the discipline, including disbarment,

of individuals who appear in a representative capacity before

an agency;

(3) authorize an individual who is a former employee of an

agency to represent a person before an agency when the representation is prohibited by statute or regulation; or

(4) prevent an agency from requiring a power of attorney

as a condition to the settlement of a controversy involving the

payment of money.

(e) Subsections (b)–(d) of this section do not apply to practice

before the United States Patent and Trademark Office with respect

to patent matters that continue to be covered by chapter 3 (sections

31–33) of title 35.

(f) When a participant in a matter before an agency is represented by an individual qualified under subsection (b) or (c) of

this section, a notice or other written communication required or

permitted to be given the participant in the matter shall be given

to the representative in addition to any other service specifically required by statute. When a participant is represented by more than

one such qualified representative, service on any one of the representatives is sufficient.

* * * * * * *

§ 503. Witness fees and allowances

(a) For the purpose of this section, ‘‘agency’’ has the meaning

given it by section 5721 of this title.

(b) A witness is entitled to the fees and allowances allowed by

statute for witnesses in the courts of the United States when— (1) he is subpenaed under section 304(a) of this title; or

(2) he is subpenaed to and appears at a hearing before an

agency authorized by law to hold hearings and subpena witnesses to attend the hearings.

* * * * * * *

SUBCHAPTER II—ADMINISTRATIVE PROCEDURE

§ 551. Definitions

For the purpose of this subchapter—

(1) ‘‘agency’’ means each authority of the Government of

the United States, whether or not it is within or subject to review by another agency, but does not include—
333 TITLE 5, UNITED STATES CODE § 551

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of

the United States;

(D) the government of the District of Columbia;

or except as to the requirements of section 552 of this

title— (E) agencies composed of representatives of the parties

or of representatives of organizations of the parties to the

disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of

war or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743,

and 1744 of title 12; chapter 2 of title 41; subchapter II of

chapter 471 of title 49; or sections 1884, 1891–1902, and

former section 1641(b)(2), of title 50, appendix;

(2) ‘‘person’’ includes an individual, partnership, corporation, association, or public or private organization other than

an agency;

(3) ‘‘party’’ includes a person or agency named or admitted

as a party, or properly seeking and entitled as of right to be

admitted as a party, in an agency proceeding, and a person or

agency admitted by an agency as a party for limited purposes;

(4) ‘‘rule’’ means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements

of an agency and includes the approval or prescription for the

future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or

practices bearing on any of the foregoing;

(5) ‘‘rule making’’ means agency process for formulating,

amending, or repealing a rule;

(6) ‘‘order’’ means the whole or a part of a final disposition,

whether affirmative, negative, injunctive, or declaratory in

form, of an agency in a matter other than rule making but including licensing;

(7) ‘‘adjudication’’ means agency process for the formulation of an order;

(8) ‘‘license’’ includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership,

statutory exemption or other form of permission;

(9) ‘‘licensing’’ includes agency process respecting the

grant, renewal, denial, revocation, suspension, annulment,

withdrawal, limitation, amendment, modification, or conditioning of a license;

(10) ‘‘sanction’’ includes the whole or a part of an agency— (A) prohibition, requirement, limitation, or other condition affecting the freedom of a person;

(B) withholding of relief;

(C) imposition of penalty or fine;

(D) destruction, taking, seizure, or withholding of

property;
§ 552 APPENDIX: ADMINISTRATIVE PROCEDURE 334

(E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees;

(F) requirement, revocation, or suspension of a license;

or

(G) taking other compulsory or restrictive action;

(11) ‘‘relief’’ includes the whole or a part of an agency— (A) grant of money, assistance, license, authority, exemption, exception, privilege, or remedy;

(B) recognition of a claim, right, immunity, privilege,

exemption, or exception; or

(C) taking of other action on the application or petition

of, and beneficial to, a person;

(12) ‘‘agency proceeding’’ means an agency process as defined by paragraphs (5), (7), and (9) of this section;

(13) ‘‘agency action’’ includes the whole or a part of an

agency rule, order, license, sanction, relief, or the equivalent or

denial thereof, or failure to act; and

(14) ‘‘ex parte communication’’ means an oral or written

communication not on the public record with respect to which

reasonable prior notice to all parties is not given, but it shall

not include requests for status reports on any matter or proceeding covered by this subchapter.

§ 552. Public information; agency rules, opinions, orders,

records, and proceedings

(a) Each agency shall make available to the public information

as follows:

(1) Each agency shall separately state and currently publish in

the Federal Register for the guidance of the public—

(A) descriptions of its central and field organization and

the established places at which, the employees (and in the case

of a uniformed service, the members) from whom, and the

methods whereby, the public may obtain information, make

submittals or requests, or obtain decisions;

(B) statements of the general course and method by which

its functions are channeled and determined, including the nature and requirements of all formal and informal procedures

available;

(C) rules of procedure, descriptions of forms available or

the places at which forms may be obtained, and instructions as

to the scope and contents of all papers, reports, or examinations;

(D) substantive rules of general applicability adopted as

authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by

the agency; and

(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of

the terms thereof, a person may not in any manner be required to

resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of

persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of

the Director of the Federal Register.
335 TITLE 5, UNITED STATES CODE § 552

(2) Each agency, in accordance with published rules, shall

make available for public inspection and copying— (A) final opinions, including concurring and dissenting

opinions, as well as orders, made in the adjudication of cases;

(B) those statements of policy and interpretations which

have been adopted by the agency and are not published in the

Federal Register;

(C) administrative staff manuals and instructions to staff

that affect a member of the public;

(D) copies of all records, regardless of form or format,

which have been released to any person under paragraph (3)

and which, because of the nature of their subject matter, the

agency determines have become or are likely to become the

subject of subsequent requests for substantially the same

records; and

(E) a general index of the records referred to under subparagraph (D);

unless the materials are promptly published and copies offered for

sale. For records created on or after November 1, 1996, within one

year after such date, each agency shall make such records available, including by computer telecommunications or, if computer

telecommunications means have not been established by the agency, by other electronic means. To the extent required to prevent a

clearly unwarranted invasion of personal privacy, an agency may

delete identifying details when it makes available or publishes an

opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D). However,

in each case the justification for the deletion shall be explained

fully in writing, and the extent of such deletion shall be indicated

on the portion of the record which is made available or published,

unless including that indication would harm an interest protected

by the exemption in subsection (b) under which the deletion is

made. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made.

Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated

after July 4, 1967, and required by this paragraph to be made

available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by

order published in the Federal Register that the publication would

be unnecessary and impracticable, in which case the agency shall

nonetheless provide copies of such index on request at a cost not

to exceed the direct cost of duplication. Each agency shall make the

index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. A final order, opinion,

statement of policy, interpretation, or staff manual or instruction

that affects a member of the public may be relied on, used, or cited

as precedent by an agency against a party other than an agency

only if—

(i) it has been indexed and either made available or published as provided by this paragraph; or

(ii) the party has actual and timely notice of the terms

thereof.
§ 552 APPENDIX: ADMINISTRATIVE PROCEDURE 336

(3)(A) Except with respect to the records made available under

paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (i) reasonably describes such records and

(ii) is made in accordance with published rules stating the time,

place, fees (if any), and procedures to be followed, shall make the

records promptly available to any person.

(B) In making any record available to a person under this

paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible

by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are

reproducible for purposes of this section.

(C) In responding under this paragraph to a request for

records, an agency shall make reasonable efforts to search for the

records in electronic form or format, except when such efforts

would significantly interfere with the operation of the agency’s

automated information system.

(D) For purposes of this paragraph, the term ‘‘search’’ means

to review, manually or by automated means, agency records for the

purpose of locating those records which are responsive to a request.

(4)(A)(i) In order to carry out the provisions of this section,

each agency shall promulgate regulations, pursuant to notice and

receipt of public comment, specifying the schedule of fees applicable

to the processing of requests under this section and establishing

procedures and guidelines for determining when such fees should

be waived or reduced. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of

public comment, by the Director of the Office of Management and

Budget and which shall provide for a uniform schedule of fees for

all agencies.

(ii) Such agency regulations shall provide that—

(I) fees shall be limited to reasonable standard charges for

document search, duplication, and review, when records are requested for commercial use;

(II) fees shall be limited to reasonable standard charges for

document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or

scientific research; or a representative of the news media; and

(III) for any request not described in (I) or (II), fees shall

be limited to reasonable standard charges for document search

and duplication.

(iii) Documents shall be furnished without any charge or at a

charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely

to contribute significantly to public understanding of the operations

or activities of the government and is not primarily in the commercial interest of the requester.

(iv) Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination

of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of

withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving
337 TITLE 5, UNITED STATES CODE § 552

issues of law or policy that may be raised in the course of processing a request under this section. No fee may be charged by any

agency under this section— (I) if the costs of routine collection and processing of the

fee are likely to equal or exceed the amount of the fee; or

(II) for any request described in clause (ii) (II) or (III) of

this subparagraph for the first two hours of search time or for

the first one hundred pages of duplication.

(v) No agency may require advance payment of any fee unless

the requester has previously failed to pay fees in a timely fashion,

or the agency has determined that the fee will exceed $250.

(vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of

fees for particular types of records.

(vii) In any action by a requester regarding the waiver of fees

under this section, the court shall determine the matter de novo:

Provided, That the court’s review of the matter shall be limited to

the record before the agency.

(B) On complaint, the district court of the United States in the

district in which the complainant resides, or has his principal place

of business, or in which the agency records are situated, or in the

District of Columbia, has jurisdiction to enjoin the agency from

withholding agency records and to order the production of any

agency records improperly withheld from the complainant. In such

a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine

whether such records or any part thereof shall be withheld under

any of the exemptions set forth in subsection (b) of this section, and

the burden is on the agency to sustain its action. In addition to any

other matters to which a court accords substantial weight, a court

shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility under

paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).

(C) Notwithstanding any other provision of law, the defendant

shall serve an answer or otherwise plead to any complaint made

under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless

the court otherwise directs for good cause shown.

[(D) Repealed.]

(E) The court may assess against the United States reasonable

attorney fees and other litigation costs reasonably incurred in any

case under this section in which the complainant has substantially

prevailed.

(F) Whenever the court orders the production of any agency

records improperly withheld from the complainant and assesses

against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that

the circumstances surrounding the withholding raise questions

whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation

and consideration of the evidence submitted, shall submit his find-
§ 552 APPENDIX: ADMINISTRATIVE PROCEDURE 338

ings and recommendations to the administrative authority of the

agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The

administrative authority shall take the corrective action that the

Special Counsel recommends.

(G) In the event of noncompliance with the order of the court,

the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible

member.

(5) Each agency having more than one member shall maintain

and make available for public inspection a record of the final votes

of each member in every agency proceeding.

(6)(A) Each agency, upon any request for records made under

paragraph (1), (2), or (3) of this subsection, shall—

(i) determine within 20 (excepting Saturdays, Sundays,

and legal public holidays) after the receipt of any such request

whether to comply with such request and shall immediately

notify the person making such request of such determination

and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and

(ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public

holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld,

the agency shall notify the person making such request of the

provisions for judicial review of that determination under paragraph (4) of this subsection.

(B)(i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii)

of subparagraph (A) may be extended by written notice to the person making such request setting forth the unusual circumstances

for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that

would result in an extension for more than ten working days, except as provided in clause (ii) of this subparagraph.

(ii) With respect to a request for which a written notice under

clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to

limit the scope of the request so that it may be processed within

that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. Refusal by the person to reasonably modify the request or

arrange such an alternative time frame shall be considered as a

factor in determining whether exceptional circumstances exist for

purposes of subparagraph (C).

(iii) As used in this subparagraph, ‘‘unusual circumstances’’

means, but only to the extent reasonably necessary to the proper

processing of the particular requests—

(I) the need to search for and collect the requested records

from field facilities or other establishments that are separate

from the office processing the request;
339 TITLE 5, UNITED STATES CODE § 552

(II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records

which are demanded in a single request; or

(III) the need for consultation, which shall be conducted

with all practicable speed, with another agency having a substantial interest in the determination of the request or among

two or more components of the agency having substantial subject-matter interest therein.

(iv) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation

of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such

requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple

requests involving unrelated matters shall not be aggregated.

(C)(i) Any person making a request to any agency for records

under paragraph (1), (2), or (3) of this subsection shall be deemed

to have exhausted his administrative remedies with respect to such

request if the agency fails to comply with the applicable time limit

provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due

diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review

of the records. Upon any determination by an agency to comply

with a request for records, the records shall be made promptly

available to such person making such request. Any notification of

denial of any request for records under this subsection shall set

forth the names and titles or positions of each person responsible

for the denial of such request.

(ii) For purposes of this subparagraph, the term ‘‘exceptional

circumstances’’ does not include a delay that results from a predictable agency workload of requests under this section, unless the

agency demonstrates reasonable progress in reducing its backlog of

pending requests.

(iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request

(or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request

shall be considered as a factor in determining whether exceptional

circumstances exist for purposes of this subparagraph.

(D)(i) Each agency may promulgate regulations, pursuant to

notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time

(or both) involved in processing requests.

(ii) Regulations under this subparagraph may provide a person

making a request that does not qualify for the fastest multitrack

processing an opportunity to limit the scope of the request in order

to qualify for faster processing.

(iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence.

(E)(i) Each agency shall promulgate regulations, pursuant to

notice and receipt of public comment, providing for expedited processing of requests for records—
§ 552 APPENDIX: ADMINISTRATIVE PROCEDURE 340

(I) in cases in which the person requesting the records

demonstrates a compelling need; and

(II) in other cases determined by the agency.

(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure— (I) that a determination of whether to provide expedited

processing shall be made, and notice of the determination shall

be provided to the person making the request, within 10 days

after the date of the request; and

(II) expeditious consideration of administrative appeals of

such determinations of whether to provide expedited processing.

(iii) An agency shall process as soon as practicable any request

for records to which the agency has granted expedited processing

under this subparagraph. Agency action to deny or affirm denial of

a request for expedited processing pursuant to this subparagraph,

and failure by an agency to respond in a timely manner to such a

request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the

agency at the time of the determination.

(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response

to the request.

(v) For purposes of this subparagraph, the term ‘‘compelling

need’’ means—

(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected

to pose an imminent threat to the life or physical safety of an

individual; or

(II) with respect to a request made by a person primarily

engaged in disseminating information, urgency to inform the

public concerning actual or alleged Federal Government activity.

(vi) A demonstration of a compelling need by a person making

a request for expedited processing shall be made by a statement

certified by such person to be true and correct to the best of such

person’s knowledge and belief.

(F) In denying a request for records, in whole or in part, an

agency shall make a reasonable effort to estimate the volume of

any requested matter the provision of which is denied, and shall

provide any such estimate to the person making the request, unless

providing such estimate would harm an interest protected by the

exemption in subsection (b) pursuant to which the denial is made.

(b) This section does not apply to matters that are— (1)(A) specifically authorized under criteria established by

an Executive order to be kept secret in the interest of national

defense or foreign policy and (B) are in fact properly classified

pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute (other

than section 552b of this title), provided that such statute (A)

requires that the matters be withheld from the public in such

a manner as to leave no discretion on the issue, or (B) estab-
341 TITLE 5, UNITED STATES CODE § 552

lishes particular criteria for withholding or refers to particular

types of matters to be withheld;

(4) trade secrets and commercial or financial information

obtained from a person and privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters

which would not be available by law to a party other than an

agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion

of personal privacy;

(7) records or information compiled for law enforcement

purposes, but only to the extent that the production of such

law enforcement records or information (A) could reasonably be

expected to interfere with enforcement proceedings, (B) would

deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably

be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential

basis, and, in the case of a record or information compiled by

criminal law enforcement authority in the course of a criminal

investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a

confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or

would disclose guidelines for law enforcement investigations or

prosecutions if such disclosure could reasonably be expected to

risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;

(8) contained in or related to examination, operating, or

condition reports prepared by, on behalf of, or for the use of an

agency responsible for the regulation or supervision of financial

institutions; or

(9) geological and geophysical information and data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to

any person requesting such record after deletion of the portions

which are exempt under this subsection. The amount of information deleted shall be indicated on the released portion of the record,

unless including that indication would harm an interest protected

by the exemption in this subsection under which the deletion is

made. If technically feasible, the amount of the information deleted

shall be indicated at the place in the record where such deletion

is made.

(c)(1) Whenever a request is made which involves access to

records described in subsection (b)(7)(A) and—

(A) the investigation or proceeding involves a possible violation of criminal law; and

(B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii)

disclosure of the existence of the records could reasonably be

expected to interfere with enforcement proceedings,
§ 552 APPENDIX: ADMINISTRATIVE PROCEDURE 342

the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this

section.

(2) Whenever informant records maintained by a criminal law

enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s

name or personal identifier, the agency may treat the records as

not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to

records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long

as the existence of the records remains classified information, treat

the records as not subject to the requirements of this section.

(d) This section does not authorize withholding of information

or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold

information from Congress.

(e)(1) On or before February 1 of each year, each agency shall

submit to the Attorney General of the United States a report which

shall cover the preceding fiscal year and which shall include—

(A) the number of determinations made by the agency not

to comply with requests for records made to such agency under

subsection (a) and the reasons for each such determination;

(B)(i) the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for the

action upon each appeal that results in a denial of information;

and

(ii) a complete list of all statutes that the agency relies

upon to authorize the agency to withhold information under

subsection (b)(3), a description of whether a court has upheld

the decision of the agency to withhold information under each

such statute, and a concise description of the scope of any information withheld;

(C) the number of requests for records pending before the

agency as of September 30 of the preceding year, and the median number of days that such requests had been pending before the agency as of that date;

(D) the number of requests for records received by the

agency and the number of requests which the agency processed;

(E) the median number of days taken by the agency to

process different types of requests;

(F) the total amount of fees collected by the agency for

processing requests; and

(G) the number of full-time staff of the agency devoted to

processing requests for records under this section, and the total

amount expended by the agency for processing such requests.

(2) Each agency shall make each such report available to the

public including by computer telecommunications, or if computer

telecommunications means have not been established by the agency, by other electronic means.
343 TITLE 5, UNITED STATES CODE § 552a

(3) The Attorney General of the United States shall make each

report which has been made available by electronic means available at a single electronic access point. The Attorney General of the

United States shall notify the Chairman and ranking minority

member of the Committee on Government Reform and Oversight of

the House of Representatives and the Chairman and ranking minority member of the Committees on Governmental Affairs and the

Judiciary of the Senate, no later than April 1 of the year in which

each such report is issued, that such reports are available by electronic means.

(4) The Attorney General of the United States, in consultation

with the Director of the Office of Management and Budget, shall

develop reporting and performance guidelines in connection with

reports required by this subsection by October 1, 1997, and may establish additional requirements for such reports as the Attorney

General determines may be useful.

(5) The Attorney General of the United States shall submit an

annual report on or before April 1 of each calendar year which

shall include for the prior calendar year a listing of the number of

cases arising under this section, the exemption involved in each

case, the disposition of such case, and the cost, fees, and penalties

assessed under subparagraphs (E), (F), and (G) of subsection (a)(4).

Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.

(f) For purposes of this section, the term—

(1) ‘‘agency’’ as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other

establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency; and

(2) ‘‘record’’ and any other term used in this section in reference to information includes any information that would be

an agency record subject to the requirements of this section

when maintained by an agency in any format, including an

electronic format.

(g) The head of each agency shall prepare and make publicly

available upon request, reference material or a guide for requesting

records or information from the agency, subject to the exemptions

in subsection (b), including—

(1) an index of all major information systems of the agency;

(2) a description of major information and record locator

systems maintained by the agency; and

(3) a handbook for obtaining various types and categories

of public information from the agency pursuant to chapter 35

of title 44, and under this section.

§ 552a. Records maintained on individuals

(a) DEFINITIONS.—For purposes of this section—
§ 552a APPENDIX: ADMINISTRATIVE PROCEDURE 344

1So in law. The reference in section 552a(a)(1) to section 552(e) probably should be to section

552(f). Section 1802(b) of Public Law 99–570, 100 Stat. 3207–49, October 27, 1986, redesignated

subsection (e) of section 552 as subsection (f).

(1) the term ‘‘agency’’ means agency as defined in section

552(e) 1 of this title;

(2) the term ‘‘individual’’ means a citizen of the United

States or an alien lawfully admitted for permanent residence;

(3) the term ‘‘maintain’’ includes maintain, collect, use, or

disseminate;

(4) the term ‘‘record’’ means any item, collection, or grouping of information about an individual that is maintained by

an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment

history and that contains his name, or the identifying number,

symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;

(5) the term ‘‘system of records’’ means a group of any

records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual;

(6) the term ‘‘statistical record’’ means a record in a system

of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by section 8 of title 13;

(7) the term ‘‘routine use’’ means, with respect to the disclosure of a record, the use of such record for a purpose which

is compatible with the purpose for which it was collected;

(8) the term ‘‘matching program’’—

(A) means any computerized comparison of— (i) two or more automated systems of records or a

system of records with non-Federal records for the

purpose of—

(I) establishing or verifying the eligibility of,

or continuing compliance with statutory and regulatory requirements by, applicants for, recipients

or beneficiaries of, participants in, or providers of

services with respect to, cash or in-kind assistance

or payments under Federal benefit programs, or

(II) recouping payments or delinquent debts

under such Federal benefit programs, or

(ii) two or more automated Federal personnel or

payroll systems of records or a system of Federal personnel or payroll records with non-Federal records,

(B) but does not include— (i) matches performed to produce aggregate statistical data without any personal identifiers;

(ii) matches performed to support any research or

statistical project, the specific data of which may not

be used to make decisions concerning the rights, benefits, or privileges of specific individuals;

(iii) matches performed, by an agency (or component thereof) which performs as its principal function

any activity pertaining to the enforcement of criminal
345 TITLE 5, UNITED STATES CODE § 552a

laws, subsequent to the initiation of a specific criminal

or civil law enforcement investigation of a named person or persons for the purpose of gathering evidence

against such person or persons;

(iv) matches of tax information (I) pursuant to section 6103(d) of the Internal Revenue Code of 1986, (II)

for purposes of tax administration as defined in section 6103(b)(4) of such Code, (III) for the purpose of

intercepting a tax refund due an individual under authority granted by section 404(e), 464, or 1137 of the

Social Security Act; or (IV) for the purpose of intercepting a tax refund due an individual under any

other tax refund intercept program authorized by statute which has been determined by the Director of the

Office of Management and Budget to contain verification, notice, and hearing requirements that are substantially similar to the procedures in section 1137 of

the Social Security Act;

(v) matches— (I) using records predominantly relating to

Federal personnel, that are performed for routine

administrative purposes (subject to guidance provided by the Director of the Office of Management

and Budget pursuant to subsection (v)); or

(II) conducted by an agency using only records

from systems of records maintained by that

agency;

if the purpose of the match is not to take any adverse

financial, personnel, disciplinary, or other adverse action against Federal personnel;

(vi) matches performed for foreign counterintelligence purposes or to produce background checks for

security clearances of Federal personnel or Federal

contractor personnel;

(vii) matches performed incident to a levy described in section 6103(k)(8) of the Internal Revenue

Code of 1986; or

(viii) matches performed pursuant to section

202(x)(3) or 1611(e)(1) of the Social Security Act (42

U.S.C. 402(x)(3), 1382(e)(1));

(9) the term ‘‘recipient agency’’ means any agency, or contractor thereof, receiving records contained in a system of

records from a source agency for use in a matching program;

(10) the term ‘‘non-Federal agency’’ means any State or

local government, or agency thereof, which receives records

contained in a system of records from a source agency for use

in a matching program;

(11) the term ‘‘source agency’’ means any agency which discloses records contained in a system of records to be used in

a matching program, or any State or local government, or

agency thereof, which discloses records to be used in a matching program;

(12) the term ‘‘Federal benefit program’’ means any program administered or funded by the Federal Government, or

by any agent or State on behalf of the Federal Government,
§ 552a APPENDIX: ADMINISTRATIVE PROCEDURE 346

providing cash or in-kind assistance in the form of payments,

grants, loans, or loan guarantees to individuals; and

(13) the term ‘‘Federal personnel’’ means officers and employees of the Government of the United States, members of

the uniformed services (including members of the Reserve

Components), individuals entitled to receive immediate or deferred retirement benefits under any retirement program of the

Government of the United States (including survivor benefits).

(b) CONDITIONS OF DISCLOSURE.—No agency shall disclose any

record which is contained in a system of records by any means of

communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of,

the individual to whom the record pertains, unless disclosure of the

record would be—

(1) to those officers and employees of the agency which

maintains the record who have a need for the record in the

performance of their duties;

(2) required under section 552 of this title;

(3) for a routine use as defined in subsection (a)(7) of this

section and described under subsection (e)(4)(D) of this section;

(4) to the Bureau of the Census for purposes of planning

or carrying out a census or survey or related activity pursuant

to the provisions of title 13;

(5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used

solely as a statistical research or reporting record, and the

record is to be transferred in a form that is not individually

identifiable;

(6) to the National Archives and Records Administration

as a record which has sufficient historical or other value to

warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United

States or the designee of the Archivist to determine whether

the record has such value;

(7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the

United States for a civil or criminal law enforcement activity

if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency

which maintains the record specifying the particular portion

desired and the law enforcement activity for which the record

is sought;

(8) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if

upon such disclosure notification is transmitted to the last

known address of such individual;

(9) to either House of Congress, or, to the extent of matter

within its jurisdiction, any committee or subcommittee thereof,

any joint committee of Congress or subcommittee of any such

joint committee;

(10) to the Comptroller General, or any of his authorized

representatives, in the course of the performance of the duties

of the General Accounting Office;
347 TITLE 5, UNITED STATES CODE § 552a

1So in law. The word ‘‘and’’ in subsection (b)(11) probably should be ‘‘or’’.

(11) pursuant to the order of a court of competent jurisdiction; and 1

(12) to a consumer reporting agency in accordance with

section 3711(e) of title 31.

(c) ACCOUNTING OF CERTAIN DISCLOSURES.—Each agency, with

respect to each system of records under its control shall— (1) except for disclosures made under subsections (b)(1) or

(b)(2) of this section, keep an accurate accounting of— (A) the date, nature, and purpose of each disclosure of

a record to any person or to another agency made under

subsection (b) of this section; and

(B) the name and address of the person or agency to

whom the disclosure is made;

(2) retain the accounting made under paragraph (1) of this

subsection for at least five years or the life of the record,

whichever is longer, after the disclosure for which the accounting is made;

(3) except for disclosures made under subsection (b)(7) of

this section, make the accounting made under paragraph (1) of

this subsection available to the individual named in the record

at his request; and

(4) inform any person or other agency about any correction

or notation of dispute made by the agency in accordance with

subsection (d) of this section of any record that has been disclosed to the person or agency if an accounting of the disclosure was made.

(d) ACCESS TO RECORDS.—Each agency that maintains a system of records shall—

(1) upon request by any individual to gain access to his

record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record

and have a copy made of all or any portion thereof in a form

comprehensible to him, except that the agency may require the

individual to furnish a written statement authorizing discussion of that individual’s record in the accompanying person’s

presence;

(2) permit the individual to request amendment of a record

pertaining to him and— (A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of

such request, acknowledge in writing such receipt; and

(B) promptly, either— (i) make any correction of any portion thereof

which the individual believes is not accurate, relevant,

timely, or complete; or

(ii) inform the individual of its refusal to amend

the record in accordance with his request, the reason

for the refusal, the procedures established by the

agency for the individual to request a review of that

refusal by the head of the agency or an officer designated by the head of the agency, and the name and

business address of that official;
§ 552a APPENDIX: ADMINISTRATIVE PROCEDURE 348

1So in law. Paragraph (5) of subsection (d) probably should be a separate sentence.

(3) permit the individual who disagrees with the refusal of

the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make

a final determination unless, for good cause shown, the head

of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in

accordance with the request, permit the individual to file with

the agency a concise statement setting forth the reasons for his

disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing

official’s determination under subsection (g)(1)(A) of this section;

(4) in any disclosure, containing information about which

the individual has filed a statement of disagreement, occurring

after the filing of the statement under paragraph (3) of this

subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency

deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested,

to persons or other agencies to whom the disputed record has

been disclosed; and

(5) nothing in this section shall allow an individual access

to any information compiled in reasonable anticipation of a

civil action or proceeding. 1

(e) AGENCY REQUIREMENTS.—Each agency that maintains a

system of records shall—

(1) maintain in its records only such information about an

individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or

by executive order of the President;

(2) collect information to the greatest extent practicable directly from the subject individual when the information may

result in adverse determinations about an individual’s rights,

benefits, and privileges under Federal programs;

(3) inform each individual whom it asks to supply information, on the form which it uses to collect the information or on

a separate form that can be retained by the individual—

(A) the authority (whether granted by statute, or by

executive order of the President) which authorizes the solicitation of the information and whether disclosure of such

information is mandatory or voluntary;

(B) the principal purpose or purposes for which the information is intended to be used;

(C) the routine uses which may be made of the information, as published pursuant to paragraph (4)(D) of this

subsection; and

(D) the effects on him, if any, of not providing all or

any part of the requested information;

(4) subject to the provisions of paragraph (11) of this subsection, publish in the Federal Register upon establishment or
349 TITLE 5, UNITED STATES CODE § 552a

revision a notice of the existence and character of the system

of records, which notice shall include—

(A) the name and location of the system;

(B) the categories of individuals on whom records are

maintained in the system;

(C) the categories of records maintained in the system;

(D) each routine use of the records contained in the

system, including the categories of users and the purpose

of such use;

(E) the policies and practices of the agency regarding

storage, retrievability, access controls, retention, and disposal of the records;

(F) the title and business address of the agency official

who is responsible for the system of records;

(G) the agency procedures whereby an individual can

be notified at his request if the system of records contains

a record pertaining to him;

(H) the agency procedures whereby an individual can

be notified at his request how he can gain access to any

record pertaining to him contained in the system of

records, and how he can contest its content; and

(I) the categories of sources of records in the system;

(5) maintain all records which are used by the agency in

making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;

(6) prior to disseminating any record about an individual

to any person other than an agency, unless the dissemination

is made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes;

(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom

the record is maintained or unless pertinent to and within the

scope of an authorized law enforcement activity;

(8) make reasonable efforts to serve notice on an individual

when any record on such individual is made available to any

person under compulsory legal process when such process becomes a matter of public record;

(9) establish rules of conduct for persons involved in the

design, development, operation, or maintenance of any system

of records, or in maintaining any record, and instruct each

such person with respect to such rules and the requirements

of this section, including any other rules and procedures adopted pursuant to this section and the penalties for noncompliance;

(10) establish appropriate administrative, technical, and

physical safeguards to insure the security and confidentiality of

records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to

any individual on whom information is maintained;
§ 552a APPENDIX: ADMINISTRATIVE PROCEDURE 350

(11) at least 30 days prior to publication of information

under paragraph (4)(D) of this subsection, publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to

the agency; and

(12) if such agency is a recipient agency or a source agency

in a matching program with a non-Federal agency, with respect to any establishment or revision of a matching program,

at least 30 days prior to conducting such program, publish in

the Federal Register notice of such establishment or revision.

(f) AGENCY RULES.—In order to carry out the provisions of this

section, each agency that maintains a system of records shall promulgate rules, in accordance with the requirements (including general notice) of section 553 of this title, which shall— (1) establish procedures whereby an individual can be notified in response to his request if any system of records named

by the individual contains a record pertaining to him;

(2) define reasonable times, places, and requirements for

identifying an individual who requests his record or information pertaining to him before the agency shall make the record

or information available to the individual;

(3) establish procedures for the disclosure to an individual

upon his request of his record or information pertaining to

him, including special procedure, if deemed necessary, for the

disclosure to an individual of medical records, including psychological records pertaining to him;

(4) establish procedures for reviewing a request from an

individual concerning the amendment of any record or information pertaining to the individual, for making a determination

on the request, for an appeal within the agency of an initial

adverse agency determination, and for whatever additional

means may be necessary for each individual to be able to exercise fully his rights under this section; and

(5) establish fees to be charged, if any, to any individual

for making copies of his record, excluding the cost of any

search for and review of the record.

The Office of the Federal Register shall biennially compile and publish the rules promulgated under this subsection and agency notices published under subsection (e)(4) of this section in a form

available to the public at low cost.

(g)(1) CIVIL REMEDIES.—Whenever any agency—

(A) makes a determination under subsection (d)(3) of this

section not to amend an individual’s record in accordance with

his request, or fails to make such review in conformity with

that subsection;

(B) refuses to comply with an individual request under

subsection (d)(1) of this section;

(C) fails to maintain any record concerning any individual

with such accuracy, relevance, timeliness, and completeness as

is necessary to assure fairness in any determination relating to

the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such

record, and consequently a determination is made which is adverse to the individual; or
351 TITLE 5, UNITED STATES CODE § 552a

(D) fails to comply with any other provision of this section,

or any rule promulgated thereunder, in such a way as to have

an adverse effect on an individual,

the individual may bring a civil action against the agency, and the

district courts of the United States shall have jurisdiction in the

matters under the provisions of this subsection.

(2)(A) In any suit brought under the provisions of subsection

(g)(1)(A) of this section, the court may order the agency to amend

the individual’s record in accordance with his request or in such

other way as the court may direct. In such a case the court shall

determine the matter de novo.

(B) The court may assess against the United States reasonable

attorney fees and other litigation costs reasonably incurred in any

case under this paragraph in which the complainant has substantially prevailed.

(3)(A) In any suit brought under the provisions of subsection

(g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of

any agency records improperly withheld from him. In such a case

the court shall determine the matter de novo, and may examine the

contents of any agency records in camera to determine whether the

records or any portion thereof may be withheld under any of the

exemptions set forth in subsection (k) of this section, and the burden is on the agency to sustain its action.

(B) The court may assess against the United States reasonable

attorney fees and other litigation costs reasonably incurred in any

case under this paragraph in which the complainant has substantially prevailed.

(4) In any suit brought under the provisions of subsection

(g)(1)(C) or (D) of this section in which the court determines that

the agency acted in a manner which was intentional or willful, the

United States shall be liable to the individual in an amount equal

to the sum of— (A) actual damages sustained by the individual as a result

of the refusal or failure, but in no case shall a person entitled

to recovery receive less than the sum of $1,000; and

(B) the costs of the action together with reasonable attorney fees as determined by the court.

(5) An action to enforce any liability created under this section

may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place

of business, or in which the agency records are situated, or in the

District of Columbia, without regard to the amount in controversy,

within two years from the date on which the cause of action arises,

except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed

to an individual and the information so misrepresented is material

to establishment of the liability of the agency to the individual

under this section, the action may be brought at any time within

two years after discovery by the individual of the misrepresentation. Nothing in this section shall be construed to authorize any

civil action by reason of any injury sustained as the result of a disclosure of a record prior to September 27, 1975.

(h) RIGHTS OF LEGAL GUARDIANS.—For the purposes of this

section, the parent of any minor, or the legal guardian of any indi-
§ 552a APPENDIX: ADMINISTRATIVE PROCEDURE 352

vidual who has been declared to be incompetent due to physical or

mental incapacity or age by a court of competent jurisdiction, may

act on behalf of the individual.

(i)(1) CRIMINAL PENALTIES.—Any officer or employee of an

agency, who by virtue of his employment or official position, has

possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited

by this section or by rules or regulations established thereunder,

and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.

(2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements

of subsection (e)(4) of this section shall be guilty of a misdemeanor

and fined not more than $5,000.

(3) Any person who knowingly and willfully requests or obtains

any record concerning an individual from an agency under false

pretenses shall be guilty of a misdemeanor and fined not more than

$5,000.

(j) GENERAL EXEMPTIONS.—The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this

title, to exempt any system of records within the agency from any

part of this section except subsections (b), (c)(1) and (2), (e)(4)(A)

through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of

records is—

(1) maintained by the Central Intelligence Agency; or

(2) maintained by an agency or component thereof which

performs as its principal function any activity pertaining to the

enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and

the activities of prosecutors, courts, correctional, probation,

pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and

parole and probation status; (B) information compiled for the

purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled

at any stage of the process of enforcement of the criminal laws

from arrest or indictment through release from supervision.

At the time rules are adopted under this subsection, the agency

shall include in the statement required under section 553(c) of this

title, the reasons why the system of records is to be exempted from

a provision of this section.

(k) SPECIFIC EXEMPTIONS.—The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this

title, to exempt any system of records within the agency from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section

if the system of records is—
353 TITLE 5, UNITED STATES CODE § 552a

(1) subject to the provisions of section 552(b)(1) of this

title;

(2) investigatory material compiled for law enforcement

purposes, other than material within the scope of subsection

(j)(2) of this section: Provided, however, That if any individual

is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except

to the extent that the disclosure of such material would reveal

the identity of a source who furnished information to the Government under an express promise that the identity of the

source would be held in confidence, or, prior to the effective

date of this section, under an implied promise that the identity

of the source would be held in confidence;

(3) maintained in connection with providing protective

services to the President of the United States or other individuals pursuant to section 3056 of title 18;

(4) required by statute to be maintained and used solely as

statistical records;

(5) investigatory material compiled solely for the purpose

of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or

access to classified information, but only to the extent that the

disclosure of such material would reveal the identity of a

source who furnished information to the Government under an

express promise that the identity of the source would be held

in confidence, or, prior to the effective date of this section,

under an implied promise that the identity of the source would

be held in confidence;

(6) testing or examination material used solely to determine individual qualifications for appointment or promotion in

the Federal service the disclosure of which would compromise

the objectivity or fairness of the testing or examination process;

or

(7) evaluation material used to determine potential for promotion in the armed services, but only to the extent that the

disclosure of such material would reveal the identity of a

source who furnished information to the Government under an

express promise that the identity of the source would be held

in confidence, or, prior to the effective date of this section,

under an implied promise that the identity of the source would

be held in confidence.

At the time rules are adopted under this subsection, the agency

shall include in the statement required under section 553(c) of this

title, the reasons why the system of records is to be exempted from

a provision of this section.

(l)(1) ARCHIVAL RECORDS.—Each agency record which is accepted by the Archivist of the United States for storage, processing,

and servicing in accordance with section 3103 of title 44 shall, for

the purposes of this section, be considered to be maintained by the

agency which deposited the record and shall be subject to the provisions of this section. The Archivist of the United States shall not

disclose the record except to the agency which maintains the
§ 552a APPENDIX: ADMINISTRATIVE PROCEDURE 354

record, or under rules established by that agency which are not inconsistent with the provisions of this section.

(2) Each agency record pertaining to an identifiable individual

which was transferred to the National Archives of the United

States as a record which has sufficient historical or other value to

warrant its continued preservation by the United States Government, prior to the effective date of this section, shall, for the purposes of this section, be considered to be maintained by the National Archives and shall not be subject to the provisions of this

section, except that a statement generally describing such records

(modeled after the requirements relating to records subject to subsections (e)(4)(A) through (G) of this section) shall be published in

the Federal Register.

(3) Each agency record pertaining to an identifiable individual

which is transferred to the National Archives of the United States

as a record which has sufficient historical or other value to warrant

its continued preservation by the United States Government, on or

after the effective date of this section, shall, for the purposes of this

section, be considered to be maintained by the National Archives

and shall be exempt from the requirements of this section except

subsections (e)(4)(A) through (G) and (e)(9) of this section.

(m) GOVERNMENT CONTRACTORS.—(1) When an agency provides

by a contract for the operation by or on behalf of the agency of a

system of records to accomplish an agency function, the agency

shall, consistent with its authority, cause the requirements of this

section to be applied to such system. For purposes of subsection (i)

of this section any such contractor and any employee of such contractor, if such contract is agreed to on or after the effective date

of this section, shall be considered to be an employee of an agency.

(2) A consumer reporting agency to which a record is disclosed

under section 3711(e) of title 31 shall not be considered a contractor for the purposes of this section.

(n) MAILING LISTS.—An individual’s name and address may not

be sold or rented by an agency unless such action is specifically authorized by law. This provision shall not be construed to require

the withholding of names and addresses otherwise permitted to be

made public.

(o) MATCHING AGREEMENTS.—(1) No record which is contained

in a system of records may be disclosed to a recipient agency or

non-Federal agency for use in a computer matching program except

pursuant to a written agreement between the source agency and

the recipient agency or non-Federal agency specifying—

(A) the purpose and legal authority for conducting the program;

(B) the justification for the program and the anticipated

results, including a specific estimate of any savings;

(C) a description of the records that will be matched, including each data element that will be used, the approximate

number of records that will be matched, and the projected

starting and completion dates of the matching program;

(D) procedures for providing individualized notice at the

time of application, and notice periodically thereafter as directed by the Data Integrity Board of such agency (subject to

guidance provided by the Director of the Office of Management

and Budget pursuant to subsection (v)), to—
355 TITLE 5, UNITED STATES CODE § 552a

1The Committee on Government Operations was renamed the Committee on Government Reform and Oversight by H. Res. 6 in the 104th Congress and again renamed the Committee on

Government Reform by H. Res. 5 in the 106th Congress.

(i) applicants for and recipients of financed assistance

or payments under Federal benefit programs, and

(ii) applicants for and holders of positions as Federal

personnel,

that any information provided by such applicants, recipients,

holders, and individuals may be subject to verification through

matching programs;

(E) procedures for verifying information produced in such

matching program as required by subsection (p);

(F) procedures for the retention and timely destruction of

identifiable records created by a recipient agency or non-Federal agency in such matching program;

(G) procedures for ensuring the administrative, technical,

and physical security of the records matched and the results of

such programs;

(H) prohibitions on duplication and redisclosure of records

provided by the source agency within or outside the recipient

agency or the non-Federal agency, except where required by

law or essential to the conduct of the matching program;

(I) procedures governing the use by a recipient agency or

non-Federal agency of records provided in a matching program

by a source agency, including procedures governing return of

the records to the source agency or destruction of records used

in such program;

(J) information on assessments that have been made on

the accuracy of the records that will be used in such matching

program; and

(K) that the Comptroller General may have access to all

records of a recipient agency or a non-Federal agency that the

Comptroller General deems necessary in order to monitor or

verify compliance with the agreement.

(2)(A) A copy of each agreement entered into pursuant to paragraph (1) shall—

(i) be transmitted to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations 1 of the House of Representatives; and

(ii) be available upon request to the public.

(B) No such agreement shall be effective until 30 days after the

date on which such a copy is transmitted pursuant to subparagraph (A)(i).

(C) Such an agreement shall remain in effect only for such period, not to exceed 18 months, as the Data Integrity Board of the

agency determines is appropriate in light of the purposes, and

length of time necessary for the conduct, of the matching program.

(D) Within 3 months prior to the expiration of such an agreement pursuant to subparagraph (C), the Data Integrity Board of

the agency may, without additional review, renew the matching

agreement for a current, ongoing matching program for not more

than one additional year if—

(i) such program will be conducted without any change;

and
§ 552a APPENDIX: ADMINISTRATIVE PROCEDURE 356

(ii) each party to the agreement certifies to the Board in

writing that the program has been conducted in compliance

with the agreement.

(p) VERIFICATION AND OPPORTUNITY TO CONTEST FINDINGS.—

(1) In order to protect any individual whose records are used in a

matching program, no recipient agency, non-Federal agency, or

source agency may suspend, terminate, reduce, or make a final denial of any financial assistance or payment under a Federal benefit

program to such individual, or take other adverse action against

such individual, as a result of information produced by such matching program, until—

(A)(i) the agency has independently verified the information; or

(ii) the Data Integrity Board of the agency, or in the case

of a non-Federal agency the Data Integrity Board of the source

agency, determines in accordance with guidance issued by the

Director of the Office of Management and Budget that—

(I) the information is limited to identification and

amount of benefits paid by the source agency under a Federal benefit program; and

(II) there is a high degree of confidence that the information provided to the recipient agency is accurate;

(B) the individual receives a notice from the agency containing a statement of its findings and informing the individual of the opportunity to contest such findings; and

(C)(i) the expiration of any time period established for the

program by statue or regulation for the individual to respond

to that notice; or

(ii) in the case of a program for which no such period is

established, the end of the 30-day period beginning on the date

on which notice under subparagraph (B) is mailed or otherwise

provided to the individual.

(2) Independent verification referred to in paragraph (1) requires investigation and confirmation of specific information relating to an individual that is used as a basis for an adverse action

against the individual, including where applicable investigation

and confirmation of—

(A) the amount of any asset or income involved;

(B) whether such individual actually has or had access to

such asset or income for such individual’s own use; and

(C) the period or periods when the individual actually had

such asset or income.

(3) Notwithstanding paragraph (1), an agency may take any

appropriate action otherwise prohibited by such paragraph if the

agency determines that the public health or public safety may be

adversely affected or significantly threatened during any notice period required by such paragraph.

(q) SANCTIONS.—(1) Notwithstanding any other provision of

law, no source agency may disclose any record with is contained in

a system of records to a recipient agency or non-Federal agency for

a matching program if such source agency has reason to believe

that the requirements of subsection (p), or any matching agreement

entered into pursuant to subsection (o), or both, are not being met

by such recipient agency.
357 TITLE 5, UNITED STATES CODE § 552a

1The Committee on Government Operations was renamed the Committee on Government Reform and Oversight by H. Res. 6 in the 104th Congress and again renamed the Committee on

Government Reform by H. Res. 5 in the 106th Congress.

(2) No source agency may renew a matching agreement

unless—

(A) the recipient agency or non-Federal agency has certified that it has complied with the provisions of that agreement; and

(B) the source agency has no reason to believe that the certification is inaccurate.

(r) REPORT ON NEW SYSTEMS AND MATCHING PROGRAMS.—

Each agency that proposes to establish or make a significant

change in a system of records or a matching program shall provide

adequate advance notice of any such proposal (in duplicate) to the

Committee on Government Operations 1 of the House of Representatives, the Committee on Governmental Affairs of the Senate, and

the Office of Management and Budget in order to permit an evaluation of the probable or potential effect of such proposal on the privacy or other rights of individuals.

(s) BIENNIAL REPORT.—The President shall biennially submit

to the Speaker of the House of Representatives and the President

pro tempore of the Senate a report—

(1) describing the actions of the Director of the Office of

Management and Budget pursuant to section 6 of the Privacy

Act of 1974 during the preceding 2 years;

(2) describing the exercise of individual rights of access

and amendment under this section during such years;

(3) identifying changes in or additions to systems of

records;

(4) containing such other information concerning administration of this section as may be necessary or useful to the

Congress in reviewing the effectiveness of this section in carrying out the purposes of the Privacy Act of 1974.

(t)(1) EFFECT OF OTHER LAWS.—No agency shall rely on any

exemption contained in section 552 of this title to withhold from an

individual any record which is otherwise accessible to such individual under the provisions of this section.

(2) No agency shall rely on any exemption in this section to

withhold from an individual any record which is otherwise accessible to such individual under the provisions of section 552 of this

title.

(u) DATA INTEGRITY BOARDS.—(1) Every agency conducting or

participating in a matching program shall establish a Data Integrity Board to oversee and coordinate among the various components of such agency the agency’s implementation of this section.

(2) Each Data Integrity Board shall consist of senior officials

designated by the head of the agency, and shall include any senior

official designated by the head of the agency as responsible for implementation of this section, and the inspector general of the agency, if any. The inspector general shall not serve as chairman of the

Data Integrity Board.

(3) Each Data Integrity Board—

(A) shall review, approve, and maintain all written agreements for receipt or disclosure of agency records for matching
§ 552a APPENDIX: ADMINISTRATIVE PROCEDURE 358

programs to ensure compliance with subsection (o), and all relevant statutes, regulations, and guidelines;

(B) shall review all matching programs in which the agency has participated during the year, either as a source agency

or recipient agency, determine compliance with applicable

laws, regulations, guidelines, and agency agreements, and assess the costs and benefits of such programs;

(C) shall review all recurring matching programs in which

the agency has participated during the year, either as a source

agency or recipient agency, for continued justification for such

disclosures;

(D) shall compile an annual report, which shall be submitted to the head of the agency and the Office of Management

and Budget and made available to the public on request, describing the matching activities of the agency, including— (i) matching programs in which the agency has participated as a source agency or recipient agency;

(ii) matching agreements proposed under subsection

(o) that were disapproved by the Board;

(iii) any changes in membership to structure of the

Board in the preceding year;

(iv) the reasons for any waiver of the requirement in

paragraph (4) of this section for completion and submission

of a cost-benefit analysis prior to the approval of a matching program;

(v) any violations of matching agreements that have

been alleged or identified and any corrective action taken;

and

(vi) any other information required by the Director of

the Office of Management and Budget to be included in

such report;

(E) shall serve as a clearinghouse for receiving and providing information on the accuracy, completeness, and reliability of records used in matching programs;

(F) shall provide interpretation and guidance to agency

components and personnel on the requirements of this section

for matching programs;

(G) shall review agency recordkeeping and disposal policies

and practices for matching programs to assure compliance with

this section; and

(H) may review and report on any agency matching activities that are not matching programs.

(4)(A) Except as provided in subparagraphs (B) and (C), a Data

Integrity Board shall not approve any written agreement for a

matching program unless the agency has completed and submitted

to such Board a cost-benefit analysis of the proposed program and

such analysis demonstrates that the program is likely to be cost effective.

(B) The Board may waive the requirements of subparagraph

(A) of this paragraph if it determines in writing, in accordance with

guidelines prescribed by the Director of the Office of Management

and Budget, that a cost-benefit analysis is not required.

(C) A cost-benefit analysis shall not be required under subparagraph (A) prior to the initial approval of a written agreement

for a matching program that is specifically required by statute. Any
359 TITLE 5, UNITED STATES CODE § 552b

1The Committee on Government Operations was renamed the Committee on Government Reform and Oversight by H. Res. 6 in the 104th Congress and again renamed the Committee on

Government Reform by H. Res. 5 in the 106th Congress.

subsequent written agreement for such a program shall not be approved by the Data Integrity Board unless the agency has submitted a cost-benefit analysis of the program as conducted under

the preceding approval of such agreement.

(5)(A) If a matching agreement is disapproved by a Data Integrity Board, any party to such agreement may appeal the disapproval to the Director of the Office of Management and Budget.

Timely notice of the filing of such an appeal shall be provided by

the Director of the Office of Management and Budget to the Committee on Governmental Affairs of the Senate and the Committee

on Government Operations 1 of the House of Representatives.

(B) The Director of the Office of Management and Budget may

approve a matching agreement notwithstanding the disapproval of

a Data Integrity Board if the Director determines that—

(i) the matching program will be consistent with all applicable legal, regulatory, and policy requirements;

(ii) there is adequate evidence that the matching agreement will be cost-effective; and

(iii) the matching program is in the public interest.

(C) The decision of the Director to approve a matching agreement shall not take effect until 30 days after it is reported to committees described in subparagraph (A).

(D) If the Data Integrity Board and the Director of the Office

of Management and Budget disapprove a matching program proposed by the inspector general of an agency, the inspector general

may report the disapproval to the head of the agency and to the

Congress.

(6) In the reports required by paragraph (3)(D), agency matching activities that are not matching programs may be reported on

an aggregate basis, if and to the extent necessary to protect ongoing law enforcement or counterintelligence investigations.

(v) OFFICE OF MANAGEMENT AND BUDGET RESPONSIBILITIES.—

The Director of the Office of Management and Budget shall—

(1) develop and, after notice and opportunity for public

comment, prescribe guidelines and regulations for the use of

agencies in implementing the provisions of this section; and

(2) provide continuing assistance to an oversight of the implementation of this section by agencies.

§ 552b. Open meetings

(a) For purposes of this section—

(1) the term ‘‘agency’’ means any agency, as defined in section 552(e) of this title, headed by a collegial body composed of

two or more individual members, a majority of whom are appointed to such position by the President with the advice and

consent of the Senate, and any subdivision thereof authorized

to act on behalf of the agency;

(2) the term ‘‘meeting’’ means the deliberations of at least

the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official
§ 552b APPENDIX: ADMINISTRATIVE PROCEDURE 360

agency business, but does not include deliberations required or

permitted by subsection (d) or (e); and

(3) the term ‘‘member’’ means an individual who belongs to

a collegial body heading an agency.

(b) Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided

in subsection (c), every portion of every meeting of an agency shall

be open to public observation.

(c) Except in a case where the agency finds that the public interest requires otherwise, the second sentence of subsection (b)

shall not apply to any portion of an agency meeting, and the requirements of subsections (d) and (e) shall not apply to any information pertaining to such meeting otherwise required by this section to be disclosed to the public, where the agency properly determines that such portion or portions of its meeting or the disclosure

of such information is likely to— (1) disclose matters that are (A) specifically authorized

under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy and

(B) in fact properly classified pursuant to such Executive order;

(2) relate solely to the internal personnel rules and practices of an agency;

(3) disclose matters specifically exempted from disclosure

by statute (other than section 552 of this title), provided that

such statute (A) requires that the matters be withheld from

the public in such a manner as to leave no discretion on the

issue, or (B) establishes particular criteria for withholding or

refers to particular types of matters to be withheld;

(4) disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) involve accusing any person of a crime, or formally censuring any person;

(6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

(7) disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair

trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of

a confidential source and, in the case of a record compiled by

a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national

security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or

physical safety of law enforcement personnel;

(8) disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of,

or for the use of an agency responsible for the regulation or supervision of financial institutions;

(9) disclose information the premature disclosure of which

would—
361 TITLE 5, UNITED STATES CODE § 552b

(A) in the case of an agency which regulates currencies, securities, commodities, or financial institutions,

be likely to (i) lead to significant financial speculation in

currencies, securities, or commodities, or (ii) significantly

endanger the stability of any financial institution; or

(B) in the case of any agency, be likely to significantly

frustrate implementation of a proposed agency action,

except that subparagraph (B) shall not apply in any instance

where the agency has already disclosed to the public the content or nature of its proposed action, or where the agency is

required by law to make such disclosure on its own initiative

prior to taking final agency action on such proposal; or

(10) specifically concern the agency’s issuance of a subpena, or the agency’s participation in a civil action or proceeding, an action in a foreign court or international tribunal,

or an arbitration, or the initiation, conduct, or disposition by

the agency of a particular case of formal agency adjudication

pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity

for a hearing.

(d)(1) Action under subsection (c) shall be taken only when a

majority of the entire membership of the agency (as defined in subsection (a)(1)) votes to take such action. A separate vote of the

agency members shall be taken with respect to each agency meeting a portion or portions of which are proposed to be closed to the

public pursuant to subsection (c), or with respect to any information which is proposed to be withheld under subsection (c). A single

vote may be taken with respect to a series of meetings, a portion

or portions of which are proposed to be closed to the public, or with

respect to any information concerning such series of meetings, so

long as each meeting in such series involves the same particular

matters and is scheduled to be held no more than thirty days after

the initial meeting in such series. The vote of each agency member

participating in such vote shall be recorded and no proxies shall be

allowed.

(2) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the agency close such

portion to the public for any of the reasons referred to in paragraph

(5), (6), or (7) of subsection (c), the agency, upon request of any one

of its members, shall vote by recorded vote whether to close such

meeting.

(3) Within one day of any vote taken pursuant to paragraph (1)

or (2), the agency shall make publicly available a written copy of

such vote reflecting the vote of each member on the question. If a

portion of a meeting is to be closed to the public, the agency shall,

within one day of the vote taken pursuant to paragraph (1) or (2)

of this subsection, make publicly available a full written explanation of its action closing the portion together with a list of all

persons expected to attend the meeting and their affiliation.

(4) Any agency, a majority of whose meetings may properly be

closed to the public pursuant to paragraph (4), (8), (9)(A), or (10)

of subsection (c), or any combination thereof, may provide by regulation for the closing of such meetings or portions thereof in the

event that a majority of the members of the agency votes by recorded vote at the beginning of such meeting, or portion thereof, to
§ 552b APPENDIX: ADMINISTRATIVE PROCEDURE 362

close the exempt portion or portions of the meeting, and a copy of

such vote, reflecting the vote of each member on the question, is

made available to the public. The provisions of paragraphs (1), (2),

and (3) of this subsection and subsection (e) shall not apply to any

portion of a meeting to which such regulations apply: Provided, That the agency shall, except to the extent that such information

is exempt from disclosure under the provisions of subsection (c),

provide the public with public announcement of the time, place,

and subject matter of the meeting and of each portion thereof at

the earliest practicable time.

(e)(1) In the case of each meeting, the agency shall make public

announcement, at least one week before the meeting, of the time,

place, and subject matter of the meeting, whether it is to be open

or closed to the public, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting. Such announcement shall be made unless

a majority of the members of the agency determines by a recorded

vote that agency business requires that such meeting be called at

an earlier date, in which case the agency shall make public announcement of the time, place, and subject matter of such meeting,

and whether open or closed to the public, at the earliest practicable

time.

(2) The time or place of a meeting may be changed following

the public announcement required by paragraph (1) only if the

agency publicly announces such change at the earliest practicable

time. The subject matter of a meeting, or the determination of the

agency to open or close a meeting, or portion of a meeting, to the

public, may be changed following the public announcement required by this subsection only if (A) a majority of the entire membership of the agency determines by a recorded vote that agency

business so requires and that no earlier announcement of the

change was possible, and (B) the agency publicly announces such

change and the vote of each member upon such change at the earliest practicable time.

(3) Immediately following each public announcement required

by this subsection, notice of the time, place, and subject matter of

a meeting, whether the meeting is open or closed, any change in

one of the preceding, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting, shall also be submitted for publication in

the Federal Register.

(f)(1) For every meeting closed pursuant to paragraphs (1)

through (10) of subsection (c), the General Counsel or chief legal officer of the agency shall publicly certify that, in his or her opinion,

the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification, together

with a statement from the presiding officer of the meeting setting

forth the time and place of the meeting, and the persons present,

shall be retained by the agency. The agency shall maintain a complete transcript or electronic recording adequate to record fully the

proceedings of each meeting, or portion of a meeting, closed to the

public, except that in the case of a meeting, or portion of a meeting,

closed to the public pursuant to paragraph (8), (9)(A), or (10) of

subsection (c), the agency shall maintain either such a transcript

or recording, or a set of minutes. Such minutes shall fully and
363 TITLE 5, UNITED STATES CODE § 552b

clearly describe all matters discussed and shall provide a full and

accurate summary of any actions taken, and the reasons therefor,

including a description of each of the views expressed on any item

and the record of any rollcall vote (reflecting the vote of each member on the question). All documents considered in connection with

any action shall be identified in such minutes.

(2) The agency shall make promptly available to the public, in

a place easily accessible to the public, the transcript, electronic recording, or minutes (as required by paragraph (1)) of the discussion

of any item on the agenda, or of any item of the testimony of any

witness received at the meeting, except for such item or items of

such discussion or testimony as the agency determines to contain

information which may be withheld under subsection (c). Copies of

such transcript, or minutes, or a transcription of such recording

disclosing the identity of each speaker, shall be furnished to any

person at the actual cost of duplication or transcription. The agency

shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each

meeting, or portion of a meeting, closed to the public, for a period

of at least two years after such meeting, or until one year after the

conclusion of any agency proceeding with respect to which the

meeting or portion was held, whichever occurs later.

(g) Each agency subject to the requirements of this section

shall, within 180 days after the date of enactment of this section,

following consultation with the Office of the Chairman of the Administrative Conference of the United States and published notice

in the Federal Register of at least thirty days and opportunity for

written comment by any person, promulgate regulations to implement the requirements of subsections (b) through (f) of this section.

Any person may bring a proceeding in the United States District

Court for the District of Columbia to require an agency to promulgate such regulations if such agency has not promulgated such regulations within the time period specified herein. Subject to any limitations of time provided by law, any person may bring a proceeding in the United States Court of Appeals for the District of

Columbia to set aside agency regulations issued pursuant to this

subsection that are not in accord with the requirements of subsections (b) through (f) of this section and to require the promulgation of regulations that are in accord with such subsections.

(h)(1) The district courts of the United States shall have jurisdiction to enforce the requirements of subsections (b) through (f) of

this section by declaratory judgment, injunctive relief, or other relief as may be appropriate. Such actions may be brought by any

person against an agency prior to, or within sixty days after, the

meeting out of which the violation of this section arises, except that

if public announcement of such meeting is not initially provided by

the agency in accordance with the requirements of this section,

such action may be instituted pursuant to this section at any time

prior to sixty days after any public announcement of such meeting.

Such actions may be brought in the district court of the United

States for the district in which the agency meeting is held or in

which the agency in question has its headquarters, or in the District Court for the District of Columbia. In such actions a defendant

shall serve his answer within thirty days after the service of the

complaint. The burden is on the defendant to sustain his action. In
§ 552b APPENDIX: ADMINISTRATIVE PROCEDURE 364

deciding such cases the court may examine in camera any portion

of the transcript, electronic recording, or minutes of a meeting

closed to the public, and may take such additional evidence as it

deems necessary. The court, having due regard for orderly administration and the public interest, as well as the interests of the parties, may grant such equitable relief as it deems appropriate, including granting an injunction against future violations of this section or ordering the agency to make available to the public such

portion of the transcript, recording, or minutes of a meeting as is

not authorized to be withheld under subsection (c) of this section.

(2) Any Federal court otherwise authorized by law to review

agency action may, at the application of any person properly participating in the proceeding pursuant to other applicable law, inquire into violations by the agency of the requirements of this section and afford such relief as it deems appropriate. Nothing in this

section authorizes any Federal court having jurisdiction solely on

the basis of paragraph (1) to set aside, enjoin, or invalidate any

agency action (other than an action to close a meeting or to withhold information under this section) taken or discussed at any

agency meeting out of which the violation of this section arose.

(i) The court may assess against any party reasonable attorney

fees and other litigation costs reasonably incurred by any other

party who substantially prevails in any action brought in accordance with the provisions of subsection (g) or (h) of this section, except that costs may be assessed against the plaintiff only where the

court finds that the suit was initiated by the plaintiff primarily for

frivolous or dilatory purposes. In the case of assessment of costs

against an agency, the costs may be assessed by the court against

the United States.

(j) Each agency subject to the requirements of this section shall

annually report to the Congress regarding the following:

(1) The changes in the policies and procedures of the agency under this section that have occurred during the preceding

1-year period.

(2) A tabulation of the number of meetings held, the exemptions applied to close meetings, and the days of public notice provided to close meetings.

(3) A brief description of litigation or formal complaints

concerning the implementation of this section by the agency.

(4) A brief explanation of any changes in law that have affected the responsibilities of the agency under this section.

(k) Nothing herein expands or limits the present rights of any

person under section 552 of this title, except that the exemptions

set forth in subsection (c) of this section shall govern in the case

of any request made pursuant to section 552 to copy or inspect the

transcripts, recordings, or minutes described in subsection (f) of

this section. The requirements of chapter 33 of title 44, United

States Code, shall not apply to the transcripts, recordings, and

minutes described in subsection (f) of this section.

(l) This section does not constitute authority to withhold any

information from Congress, and does not authorize the closing of

any agency meeting or portion thereof required by any other provision of law to be open.

(m) Nothing in this section authorizes any agency to withhold

from any individual any record, including transcripts, recordings,
365 TITLE 5, UNITED STATES CODE § 554

or minutes required by this section, which is otherwise accessible

to such individual under section 552a of this title.

§ 553. Rule making

(a) This section applies, according to the provisions thereof, except to the extent that there is involved— (1) a military or foreign affairs function of the United

States; or

(2) a matter relating to agency management or personnel

or to public property, loans, grants, benefits, or contracts.

(b) General notice of proposed rule making shall be published

in the Federal Register, unless persons subject thereto are named

and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— (1) a statement of the time, place, and nature of public

rule making proceedings;

(2) reference to the legal authority under which the rule is

proposed; and

(3) either the terms or substance of the proposed rule or

a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply—

(A) to interpretative rules, general statements of policy, or

rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates

the finding and a brief statement of reasons therefor in the

rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

(c) After notice required by this section, the agency shall give

interested persons an opportunity to participate in the rule making

through submission of written data, views, or arguments with or

without opportunity for oral presentation. After consideration of

the relevant matter presented, the agency shall incorporate in the

rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record

after opportunity for an agency hearing, sections 556 and 557 of

this title apply instead of this subsection.

(d) The required publication or service of a substantive rule

shall be made not less than 30 days before its effective date,

except—(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause

found and published with the rule.

(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

§ 554. Adjudications

(a) This section applies, according to the provisions thereof, in

every case of adjudication required by statute to be determined on

the record after opportunity for an agency hearing, except to the

extent that there is involved—

(1) a matter subject to a subsequent trial of the law and

the facts de novo in a court;
§ 554 APPENDIX: ADMINISTRATIVE PROCEDURE 366

1So in law. The word ‘‘a’’ in section 554(a)(2) probably should be ‘‘an’’.

(2) the selection or tenure of an employee, except a 1 administrative law judge appointed under section 3105 of this

title;

(3) proceedings in which decisions rest solely on inspections, tests, or elections;

(4) the conduct of military or foreign affairs functions;

(5) cases in which an agency is acting as an agent for a

court; or

(6) the certification of worker representatives.

(b) Persons entitled to notice of an agency hearing shall be

timely informed of—

(1) the time, place, and nature of the hearings;

(2) the legal authority and jurisdiction under which the

hearing is to be held; and

(3) the matters of fact and law asserted.

When private persons are the moving parties, other parties to the

proceeding shall give prompt notice of issues controverted in fact

or law; and in other instances agencies may by rule require responsive pleading. In fixing the time and place for hearings, due regard

shall be had for the convenience and necessity of the parties or

their representatives.

(c) The agency shall give all interested parties opportunity

for—

(1) the submission and consideration of facts, arguments,

offers of settlement, or proposals of adjustment when time, the

nature of the proceeding, and the public interest permit; and

(2) to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice

and in accordance with sections 556 and 557 of this title.

(d) The employee who presides at the reception of evidence

pursuant to section 556 of this title shall make the recommended

decision or initial decision required by section 557 of this title, unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law,

such an employee may not—

(1) consult a person or party on a fact in issue, unless on

notice and opportunity for all parties to participate; or

(2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.

An employee or agent engaged in the performance of investigative

or prosecuting functions for an agency in a case may not, in that

or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 557 of

this title, except as witness or counsel in public proceedings. This

subsection does not apply—

(A) in determining applications for initial licenses;

(B) to proceedings involving the validity or application of

rates, facilities, or practices of public utilities or carriers; or

(C) to the agency or a member or members of the body

comprising the agency.
367 TITLE 5, UNITED STATES CODE § 556

(e) The agency, with like effect as in the case of other orders,

and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.

§ 555. Ancillary matters

(a) This section applies, according to the provisions thereof, except as otherwise provided by this subchapter.

(b) A person compelled to appear in person before an agency

or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by

other qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified representative in

an agency proceeding. So far as the orderly conduct of public business permits, an interested person may appear before an agency or

its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding,

whether interlocutory, summary, or otherwise, or in connection

with an agency function. With due regard for the convenience and

necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. This subsection does not grant or deny a person who

is not a lawyer the right to appear for or represent others before

an agency or in an agency proceeding.

(c) Process, requirement of a report, inspection, or other investigative act or demand may not be issued, made, or enforced except

as authorized by law. A person compelled to submit data or evidence is entitled to retain or, on payment of lawfully prescribed

costs, procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding the witness may for good cause be

limited to inspection of the official transcript of his testimony.

(d) Agency subpenas authorized by law shall be issued to a

party on request and, when required by rules of procedure, on a

statement or showing of general relevance and reasonable scope of

the evidence sought. On contest, the court shall sustain the subpena or similar process or demand to the extent that it is found

to be in accordance with law. In a proceeding for enforcement, the

court shall issue an order requiring the appearance of the witness

or the production of the evidence or data within a reasonable time

under penalty of punishment for contempt in case of contumacious

failure to comply.

(e) Prompt notice shall be given of the denial in whole or in

part of a written application, petition, or other request of an interested person made in connection with any agency proceedings. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the

grounds for denial.

§ 556. Hearings; presiding employees; powers and duties;

burden of proof; evidence; record as basis of decision

(a) This section applies, according to the provisions thereof, to

hearings required by section 553 or 554 of this title to be conducted

in accordance with this section.

(b) There shall preside at the taking of evidence—

(1) the agency;
§ 556 APPENDIX: ADMINISTRATIVE PROCEDURE 368

(2) one or more members of the body which comprises the

agency; or

(3) one or more administrative law judges appointed under

section 3105 of this title.

This subchapter does not supersede the conduct of specified classes

of proceedings, in whole or in part, by or before boards or other employees specially provided for by or designated under statute. The

functions of presiding employees and of employees participating in

decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating employee may at any time disqualify himself. On the filing in good

faith of a timely and sufficient affidavit of personal bias or other

disqualification of a presiding or participating employee, the agency

shall determine the matter as a part of the record and decision in

the case.

(c) Subject to published rules of the agency and within its powers, employees presiding at hearings may— (1) administer oaths and affirmations;

(2) issue subpenas authorized by law;

(3) rule on offers of proof and receive relevant evidence;

(4) take depositions or have depositions taken when the

ends of justice would be served;

(5) regulate the course of the hearing;

(6) hold conferences for the settlement or simplification of

the issues by consent of the parties or by the use of alternative

means of dispute resolution as provided in subchapter IV of

this chapter;

(7) inform the parties as to the availability of one or more

alternative means of dispute resolution, and encourage use of

such methods;

(8) require the attendance at any conference held pursuant

to paragraph (6) of at least one representative of each party

who has authority to negotiate concerning resolution of issues

in controversy;

(9) dispose of procedural requests or similar matters;

(10) make or recommend decisions in accordance with section 557 of this title; and

(11) take other action authorized by agency rule consistent

with this subchapter.

(d) Except as otherwise provided by statute, the proponent of

a rule or order has the burden of proof. Any oral or documentary

evidence may be received, but the agency as a matter of policy

shall provide for the exclusion of irrelevant, immaterial, or unduly

repetitious evidence. A sanction may not be imposed or rule or

order issued except on consideration of the whole record or those

parts thereof cited by a party and supported by and in accordance

with the reliable, probative, and substantial evidence. The agency

may, to the extent consistent with the interests of justice and the

policy of the underlying statutes administered by the agency, consider a violation of section 557(d) of this title sufficient grounds for

a decision adverse to a party who has knowingly committed such

violation or knowingly caused such violation to occur. A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the
369 TITLE 5, UNITED STATES CODE § 557

1Designation so in law. Paragraphs (2) and (3) of subsection (c) probably should be paragraph

(2)(A) and (B).

facts. In rule making or determining claims for money or benefits

or applications for initial licenses an agency may, when a party will

not be prejudiced thereby, adopt procedures for the submission of

all or part of the evidence in written form.

(e) The transcript of testimony and exhibits, together with all

papers and requests filed in the proceeding, constitutes the exclusive record for decision in accordance with section 557 of this title

and, on payment of lawfully prescribed costs, shall be made available to the parties. When an agency decision rests on official notice

of a material fact not appearing in the evidence in the record, a

party is entitled, on timely request, to an opportunity to show the

contrary.

§ 557. Initial decisions; conclusiveness; review by agency;

submissions by parties; contents of decisions;

record

(a) This section applies, according to the provisions thereof,

when a hearing is required to be conducted in accordance with section 556 of this title.

(b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section

554(d) of this title, an employee qualified to preside at hearings

pursuant to section 556 of this title, shall initially decide the case

unless the agency requires, either in specific cases or by general

rule, the entire record to be certified to it for decision. When the

presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial

decision, the agency has all the powers which it would have in

making the initial decision except as it may limit the issues on notice or by rule. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to

section 556 of this title shall first recommend a decision, except

that in rule making or determining applications for initial

licenses—

(1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or

(2) this procedure may be omitted in a case in which the

agency finds on the record that due and timely execution of its

functions imperatively and unavoidably so requires.

(c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees,

the parties are entitled to a reasonable opportunity to submit for

the consideration of the employees participating in the decisions—

(1) proposed findings and conclusions; or

(2) 1 exceptions to the decisions or recommended decisions

of subordinate employees or to tentative agency decisions; and

(3) 1 supporting reasons for the exceptions or proposed

findings or conclusions.
§ 557 APPENDIX: ADMINISTRATIVE PROCEDURE 370

The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended,

and tentative decisions, are a part of the record and shall include

a statement of—

(A) findings and conclusions, and the reasons or basis

therefor, on all the material issues of fact, law, or discretion

presented on the record; and

(B) the appropriate rule, order, sanction, relief, or denial

thereof.

(d)(1) In any agency proceeding which is subject to subsection

(a) of this section, except to the extent required for the disposition

of ex parte matters as authorized by law—

(A) no interested person outside the agency shall make or

knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in

the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding;

(B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the

proceeding, shall make or knowingly cause to be made to any

interested person outside the agency an ex parte communication relevant to the merits of the proceeding;

(C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably

be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be

made, a communication prohibited by this subsection shall

place on the public record of the proceeding:

(i) all such written communications;

(ii) memoranda stating the substance of all such oral

communications; and

(iii) all written responses, and memoranda stating the

substance of all oral responses, to the materials described

in clauses (i) and (ii) of this subparagraph;

(D) upon receipt of a communication knowingly made or

knowingly caused to be made by a party in violation of this

subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent

with the interests of justice and the policy of the underlying

statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such

violation; and

(E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case

shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for

the communication has knowledge that it will be noticed, in

which case the prohibitions shall apply beginning at the time

of his acquisition of such knowledge.

(2) This subsection does not constitute authority to withhold

information from Congress.
371 TITLE 5, UNITED STATES CODE § 701

§ 558. Imposition of sanctions; determination of applications

for licenses; suspension, revocation, and expiration

of licenses

(a) This section applies, according to the provisions thereof, to

the exercise of a power or authority.

(b) A sanction may not be imposed or a substantive rule or

order issued except within jurisdiction delegated to the agency and

as authorized by law.

(c) When application is made for a license required by law, the

agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required to be conducted in accordance with sections 556 and 557 of this title or

other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest,

or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given— (1) notice by the agency in writing of the facts or conduct

which may warrant the action; and

(2) opportunity to demonstrate or achieve compliance with

all lawful requirements.

When the licensee has made timely and sufficient application for

a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not

expire until the application has been finally determined by the

agency.

§ 559. Effect on other laws; effect of subsequent statute

This subchapter, chapter 7, and sections 1305, 3105, 3344,

4301(2)(E), 5372, and 7521 of this title, and the provisions of section 5335(a)(B) of this title that relate to administrative law judges,

do not limit or repeal additional requirements imposed by statute

or otherwise recognized by law. Except as otherwise required by

law, requirements or privileges relating to evidence or procedure

apply equally to agencies and persons. Each agency is granted the

authority necessary to comply with the requirements of this subchapter through the issuance of rules or otherwise. Subsequent

statute may not be held to supersede or modify this subchapter,

chapter 7, sections 1305, 3105, 3344, 4301(2)(E), 5372, or 7521 of

this title, or the provisions of section 5335(a)(B) of this title that

relate to administrative law judges, except to the extent that it

does so expressly.

* * * * * * *

CHAPTER 7—JUDICIAL REVIEW

* * * * * * *

§ 701. Application; definitions

(a) This chapter applies, according to the provisions thereof, except to the extent that— (1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

(b) For the purpose of this chapter—
§ 702 APPENDIX: ADMINISTRATIVE PROCEDURE 372

(1) ‘‘agency’’ means each authority of the Government of

the United States, whether or not it is within or subject to review by another agency, but does not include—

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of

the United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives of the parties

or of representatives of organizations of the parties to the

disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of

war or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743,

and 1744 of title 12; chapter 2 of title 41; subchapter II of

chapter 471 of title 49; or sections 1884, 1891–1902, and

former section 1641(b)(2), of title 50, appendix; and

(2) ‘‘person’’, ‘‘rule’’, ‘‘order’’, ‘‘license’’, ‘‘sanction’’, ‘‘relief’’,

and ‘‘agency action’’ have the meanings given them by section

551 of this title.

§ 702. Right of review

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning

of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money

damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under

color of legal authority shall not be dismissed nor relief therein be

denied on the ground that it is against the United States or that

the United States is an indispensable party. The United States

may be named as a defendant in any such action, and a judgment

or decree may be entered against the United States: Provided, That

any mandatory or injunctive decree shall specify the Federal officer

or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other

limitations on judicial review or the power or duty of the court to

dismiss any action or deny relief on any other appropriate legal or

equitable ground; or (2) confers authority to grant relief if any

other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

§ 703. Form and venue of proceeding

The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court

specified by statute or, in the absence or inadequacy thereof, any

applicable form of legal action, including actions for declaratory

judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review

may be brought against the United States, the agency by its official

title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by
373 TITLE 5, UNITED STATES CODE § 706

law, agency action is subject to judicial review in civil or criminal

proceedings for judicial enforcement.

§ 704. Actions reviewable

Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are

subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject

to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is

final for the purposes of this section whether or not there has been

presented or determined an application for a declaratory order, for

any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.

§ 705. Relief pending review

When an agency finds that justice so requires, it may postpone

the effective date of action taken by it, pending judicial review. On

such conditions as may be required and to the extent necessary to

prevent irreparable injury, the reviewing court, including the court

to which a case may be taken on appeal from or on application for

certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an

agency action or to preserve status or rights pending conclusion of

the review proceedings.

§ 706. Scope of review

To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine the meaning

or applicability of the terms of an agency action. The reviewing

court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings,

and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege,

or immunity;

(C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by

statute; or

(F) unwarranted by the facts to the extent that the

facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the

whole record or those parts of it cited by a party, and due account

shall be taken of the rule of prejudicial error.
§ 801 APPENDIX: ADMINISTRATIVE PROCEDURE 374

CHAPTER 8—CONGRESSIONAL REVIEW OF AGENCY

RULEMAKING

* * * * * * *

§ 801. Congressional review

(a)(1)(A) Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress

and to the Comptroller General a report containing—

(i) a copy of the rule;

(ii) a concise general statement relating to the rule, including whether it is a major rule; and

(iii) the proposed effective date of the rule.

(B) On the date of the submission of the report under subparagraph (A), the Federal agency promulgating the rule shall submit

to the Comptroller General and make available to each House of

Congress—

(i) a complete copy of the cost-benefit analysis of the rule,

if any;

(ii) the agency’s actions relevant to sections 603, 604, 605,

607, and 609;

(iii) the agency’s actions relevant to sections 202, 203, 204,

and 205 of the Unfunded Mandates Reform Act of 1995; and

(iv) any other relevant information or requirements under

any other Act and any relevant Executive orders.

(C) Upon receipt of a report submitted under subparagraph

(A), each House shall provide copies of the report to the chairman

and ranking member of each standing committee with jurisdiction

under the rules of the House of Representatives or the Senate to

report a bill to amend the provision of law under which the rule

is issued.

(2)(A) The Comptroller General shall provide a report on each

major rule to the committees of jurisdiction in each House of the

Congress by the end of 15 calendar days after the submission or

publication date as provided in section 802(b)(2). The report of the

Comptroller General shall include an assessment of the agency’s

compliance with procedural steps required by paragraph (1)(B).

(B) Federal agencies shall cooperate with the Comptroller General by providing information relevant to the Comptroller General’s

report under subparagraph (A).

(3) A major rule relating to a report submitted under paragraph (1) shall take effect on the latest of—

(A) the later of the date occurring 60 days after the date

on which—

(i) the Congress receives the report submitted under

paragraph (1); or

(ii) the rule is published in the Federal Register, if so

published;

(B) if the Congress passes a joint resolution of disapproval

described in section 802 relating to the rule, and the President

signs a veto of such resolution, the earlier date—

(i) on which either House of Congress votes and fails

to override the veto of the President; or
375 TITLE 5, UNITED STATES CODE § 801

(ii) occurring 30 session days after the date on which

the Congress received the veto and objections of the President; or

(C) the date the rule would have otherwise taken effect, if

not for this section (unless a joint resolution of disapproval

under section 802 is enacted).

(4) Except for a major rule, a rule shall take effect as otherwise

provided by law after submission to Congress under paragraph (1).

(5) Notwithstanding paragraph (3), the effective date of a rule

shall not be delayed by operation of this chapter beyond the date

on which either House of Congress votes to reject a joint resolution

of disapproval under section 802.

(b)(1) A rule shall not take effect (or continue), if the Congress

enacts a joint resolution of disapproval, described under section

802, of the rule.

(2) A rule that does not take effect (or does not continue) under

paragraph (1) may not be reissued in substantially the same form,

and a new rule that is substantially the same as such a rule may

not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.

(c)(1) Notwithstanding any other provision of this section (except subject to paragraph (3)), a rule that would not take effect by

reason of subsection (a)(3) may take effect, if the President makes

a determination under paragraph (2) and submits written notice of

such determination to the Congress.

(2) Paragraph (1) applies to a determination made by the

President by Executive order that the rule should take effect because such rule is—

(A) necessary because of an imminent threat to health or

safety or other emergency;

(B) necessary for the enforcement of criminal laws;

(C) necessary for national security; or

(D) issued pursuant to any statute implementing an international trade agreement.

(3) An exercise by the President of the authority under this

subsection shall have no effect on the procedures under section 802

or the effect of a joint resolution of disapproval under this section.

(d)(1) In addition to the opportunity for review otherwise provided under this chapter, in the case of any rule for which a report

was submitted in accordance with subsection (a)(1)(A) during the

period beginning on the date occurring— (A) in the case of the Senate, 60 session days, or

(B) in the case of the House of Representatives, 60 legislative days,

before the date the Congress adjourns a session of Congress

through the date on which the same or succeeding Congress first

convenes its next session, section 802 shall apply to such rule in

the succeeding session of Congress.

(2)(A) In applying section 802 for purposes of such additional

review, a rule described under paragraph (1) shall be treated as

though—

(i) such rule were published in the Federal Register (as a

rule that shall take effect) on—

(I) in the case of the Senate, the 15th session day, or
§ 802 APPENDIX: ADMINISTRATIVE PROCEDURE 376

(II) in the case of the House of Representatives, the

15th legislative day,

after the succeeding session of Congress first convenes; and

(ii) a report on such rule were submitted to Congress

under subsection (a)(1) on such date.

(B) Nothing in this paragraph shall be construed to affect the

requirement under subsection (a)(1) that a report shall be submitted to Congress before a rule can take effect.

(3) A rule described under paragraph (1) shall take effect as

otherwise provided by law (including other subsections of this section).

(e)(1) For purposes of this subsection, section 802 shall also

apply to any major rule promulgated between March 1, 1996, and

the date of the enactment of this chapter.

(2) In applying section 802 for purposes of Congressional review, a rule described under paragraph (1) shall be treated as

though—

(A) such rule were published in the Federal Register on

the date of enactment of this chapter; and

(B) a report on such rule were submitted to Congress

under subsection (a)(1) on such date.

(3) The effectiveness of a rule described under paragraph (1)

shall be as otherwise provided by law, unless the rule is made of

no force or effect under section 802.

(f) Any rule that takes effect and later is made of no force or

effect by enactment of a joint resolution under section 802 shall be

treated as though such rule had never taken effect.

(g) If the Congress does not enact a joint resolution of disapproval under section 802 respecting a rule, no court or agency

may infer any intent of the Congress from any action or inaction

of the Congress with regard to such rule, related statute, or joint

resolution of disapproval.

§ 802. Congressional disapproval procedure

(a) For purposes of this section, the term ‘‘joint resolution’’ means only a joint resolution introduced in the period beginning on

the date on which the report referred to in section 801(a)(1)(A) is

received by Congress and ending 60 days thereafter (excluding

days either House of Congress is adjourned for more than 3 days

during a session of Congress), the matter after the resolving clause

of which is as follows: ‘‘That Congress disapproves the rule submitted by the ll relating to ll, and such rule shall have no

force or effect.’’ (The blank spaces being appropriately filled in).

(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction.

(2) For purposes of this section, the term ‘‘submission or publication date’’ means the later of the date on which— (A) the Congress receives the report submitted under section 801(a)(1); or

(B) the rule is published in the Federal Register, if so published.

(c) In the Senate, if the committee to which is referred a joint

resolution described in subsection (a) has not reported such joint

resolution (or an identical joint resolution) at the end of 20 cal-
377 TITLE 5, UNITED STATES CODE § 802

endar days after the submission or publication date defined under

subsection (b)(2), such committee may be discharged from further

consideration of such joint resolution upon a petition supported in

writing by 30 Members of the Senate, and such joint resolution

shall be placed on the calendar.

(d)(1) In the Senate, when the committee to which a joint resolution is referred has reported, or when a committee is discharged

(under subsection (c)) from further consideration of a joint resolution described in subsection (a), it is at any time thereafter in order

(even though a previous motion to the same effect has been disagreed to) for a motion to proceed to the consideration of the joint

resolution, and all points of order against the joint resolution (and

against consideration of the joint resolution) are waived. The motion is not subject to amendment, or to a motion to postpone, or to

a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution shall

remain the unfinished business of the Senate until disposed of.

(2) In the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion further to limit debate is in order and not debatable. An

amendment to, or a motion to postpone, or a motion to proceed to

the consideration of other business, or a motion to recommit the

joint resolution is not in order.

(3) In the Senate, immediately following the conclusion of the

debate on a joint resolution described in subsection (a), and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate, the vote on final passage of

the joint resolution shall occur.

(4) Appeals from the decisions of the Chair relating to the application of the rules of the Senate to the procedure relating to a

joint resolution described in subsection (a) shall be decided without

debate.

(e) In the Senate the procedure specified in subsection (c) or (d)

shall not apply to the consideration of a joint resolution respecting

a rule—

(1) after the expiration of the 60 session days beginning

with the applicable submission or publication date, or

(2) if the report under section 801(a)(1)(A) was submitted

during the period referred to in section 801(d)(1), after the expiration of the 60 session days beginning on the 15th session

day after the succeeding session of Congress first convenes.

(f) If, before the passage by one House of a joint resolution of

that House described in subsection (a), that House receives from

the other House a joint resolution described in subsection (a), then

the following procedures shall apply:

(1) The joint resolution of the other House shall not be referred to a committee.

(2) With respect to a joint resolution described in subsection (a) of the House receiving the joint resolution—
§ 803 APPENDIX: ADMINISTRATIVE PROCEDURE 378

(A) the procedure in that House shall be the same as

if no joint resolution had been received from the other

House; but

(B) the vote on final passage shall be on the joint resolution of the other House.

(g) This section is enacted by Congress—

(1) as an exercise of the rulemaking power of the Senate

and House of Representatives, respectively, and as such it is

deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in

that House in the case of a joint resolution described in subsection (a), and it supersedes other rules only to the extent

that it is inconsistent with such rules; and

(2) with full recognition of the constitutional right of either

House to change the rules (so far as relating to the procedure

of that House) at any time, in the same manner, and to the

same extent as in the case of any other rule of that House.

§ 803. Special rule on statutory, regulatory, and judicial

deadlines

(a) In the case of any deadline for, relating to, or involving any

rule which does not take effect (or the effectiveness of which is terminated) because of enactment of a joint resolution under section

802, that deadline is extended until the date 1 year after the date

of enactment of the joint resolution. Nothing in this subsection

shall be construed to affect a deadline merely by reason of the postponement of a rule’s effective date under section 801(a).

(b) The term ‘‘deadline’’ means any date certain for fulfilling

any obligation or exercising any authority established by or under

any Federal statute or regulation, or by or under any court order

implementing any Federal statute or regulation.

§ 804. Definitions

For purposes of this chapter—

(1) The term ‘‘Federal agency’’ means any agency as that

term is defined in section 551(1).

(2) The term ‘‘major rule’’ means any rule that the Administrator of the Office of Information and Regulatory Affairs of

the Office of Management and Budget finds has resulted in or

is likely to result in—

(A) an annual effect on the economy of $100,000,000

or more;

(B) a major increase in costs or prices for consumers,

individual industries, Federal, State, or local government

agencies, or geographic regions; or

(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

The term does not include any rule promulgated under the

Telecommunications Act of 1996 and the amendments made by

that Act.

(3) The term ‘‘rule’’ has the meaning given such term in

section 551, except that such term does not include—
379 TITLE 5, UNITED STATES CODE § 808

(A) any rule of particular applicability, including a

rule that approves or prescribes for the future rates,

wages, prices, services, or allowances therefor, corporate or

financial structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing

on any of the foregoing;

(B) any rule relating to agency management or personnel; or

(C) any rule of agency organization, procedure, or

practice that does not substantially affect the rights or obligations of non-agency parties.

§ 805. Judicial review

No determination, finding, action, or omission under this chapter shall be subject to judicial review.

§ 806. Applicability; severability

(a) This chapter shall apply notwithstanding any other provision of law.

(b) If any provision of this chapter or the application of any

provision of this chapter to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances, and the remainder of this chapter, shall not be affected thereby.

§ 807. Exemption for monetary policy

Nothing in this chapter shall apply to rules that concern monetary policy proposed or implemented by the Board of Governors of

the Federal Reserve System or the Federal Open Market Committee.

§ 808. Effective date of certain rules

Notwithstanding section 801—

(1) any rule that establishes, modifies, opens, closes, or

conducts a regulatory program for a commercial, recreational,

or subsistence activity related to hunting, fishing, or camping,

or

(2) any rule which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor

in the rule issued) that notice and public procedure thereon are

impracticable, unnecessary, or contrary to the public interest,

shall take effect at such time as the Federal agency promulgating

the rule determines.

* * * * * * *

PART III—EMPLOYEES

* * * * * * *

Subpart B—Employment and Retention

CHAPTER 31—AUTHORITY FOR EMPLOYMENT

SUBCHAPTER I—EMPLOYMENT AUTHORITIES

* * * * * * *
§ 3105 APPENDIX: ADMINISTRATIVE PROCEDURE 380

§ 3105. Appointment of administrative law judges

Each agency shall appoint as many administrative law judges

as are necessary for proceedings required to be conducted in accordance with sections 556 and 557 of this title. Administrative law

judges shall be assigned to cases in rotation so far as practicable,

and may not perform duties inconsistent with their duties and responsibilities as administrative law judges.

* * * * * * *

CHAPTER 33—EXAMINATION, SELECTION, AND

PLACEMENT

* * * * * * *

SUBCHAPTER III—EXAMINATION, CERTIFICATION, AND

APPOINTMENT

* * * * * * *

§ 3344. Details; administrative law judges

An agency as defined by section 551 of this title which occasionally or temporarily is insufficiently staffed with administrative

law judges appointed under section 3105 of this title may use administrative law judges selected by the Office of Personnel Management from and with the consent of other agencies.

* * * * * * *

Subpart D—Pay and Allowances

* * * * * * *

CHAPTER 53—PAY RATES AND SYSTEMS

* * * * * * *

SUBCHAPTER VII—MISCELLANEOUS PROVISIONS

* * * * * * *

§ 5372. Administrative law judges

(a) For the purposes of this section, the term ‘‘administrative

law judge’’ means an administrative law judge appointed under

section 3105.

(b)(1)(A) There shall be 3 levels of basic pay for administrative

law judges (designated as AL–1, 2, and 3, respectively), and each

such judge shall be paid at 1 of those levels, in accordance with the

provisions of this section.

(B) Within level AL–3, there shall be 6 rates of basic pay, designated as AL–3, rates A through F, respectively. Level AL–2 and

level AL–1 shall each have 1 rate of basic pay.

(C) The rate of basic pay for AL–3, rate A, may not be less

than 65 percent of the rate of basic pay for level IV of the Executive Schedule, and the rate of basic pay for AL–1 may not exceed

the rate for level IV of the Executive Schedule.

(2) The Office of Personnel Management shall determine in accordance with procedures which the Office shall by regulation prescribe, the level in which each administrative-law-judge position
381 TITLE 5, UNITED STATES CODE § 7521

shall be placed and the qualifications to be required for appointment to each level.

(3)(A) Upon appointment to a position in AL–3, an administrative law judge shall be paid at rate A of AL–3, and shall be advanced successively to rates B, C, and D of that level at the beginning of the next pay period following completion of 52 weeks of

service in the next lower rate, and to rates E and F of that level

at the beginning of the next pay period following completion of 104

weeks or service in the next lower rate.

(B) The Office of Personnel Management may provide for appointment of an administrative law judge in AL–3 at an advanced

rate under such circumstances as the Office may determine appropriate.

(4) Subject to paragraph (1), effective at the beginning of the

first applicable pay period commencing on or after the first day of

the month in which an adjustment takes effect under section 5303

in the rates of basic pay under the General Schedule, each rate of

basic pay for administrative law judges shall be adjusted by an

amount determined by the President to be appropriate.

(c) The Office is Personnel Management shall prescribe regulations necessary to administer this section.

* * * * * * *

Subpart F—Labor-Management and Employee Relations

* * * * * * *

CHAPTER 75—ADVERSE ACTIONS

* * * * * * *

SUBCHAPTER III—ADMINISTRATIVE LAW JUDGES

§ 7521. Actions against administrative law judges

(a) An action may be taken against an administrative law

judge appointed under section 3105 of this title by the agency in

which the administrative law judge is employed only for good cause

established and determined by the Merit Systems Protection Board

on the record after opportunity for hearing before the Board.

(b) The actions covered by this section are—

(1) a removal;

(2) a suspension;

(3) a reduction in grade;

(4) a reduction in pay; and

(5) a furlough of 30 days or less;

but do not include—

(A) a suspension or removal under section 7532 of this

title;

(B) a reduction-in-force action under section 3502 of this

title; or

(C) any action initiated under section 1215 of this title.

* * * * * * *

383

1So in law. The semicolon at the end of section 1254(1) probably should be a period.

JUDICIAL REVIEW

TITLE 28, UNITED STATES CODE—JUDICIARY AND

JUDICIAL PROCEDURE (SELECTED PROVISIONS)

* * * * * * *

PART IV—JURISDICTION AND VENUE

* * * * * * *

CHAPTER 81—SUPREME COURT

* * * * * * *

§ 1254. Courts of appeals; certiorari; certified questions

Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition of

judgment or decree; 1

(2) By certification at any time by a court of appeals of any

question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme

Court may give binding instructions or require the entire

record to be sent up for decision of the entire matter in controversy.

* * * * * * *

CHAPTER 85—DISTRICT COURTS; JURISDICTION

* * * * * * *

§ 1331. Federal question

The district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the

United States.

* * * * * * *

CHAPTER 87—DISTRICT COURTS; VENUE

* * * * * * *

§ 1391. Venue generally

* * * * * * *

(e) A civil action in which a defendant is an officer or employee

of the United States or any agency thereof acting in his official ca-
§ 2112 APPENDIX: JUDICIAL REVIEW 384

pacity or under color of legal authority, or an agency of the United

States, or the United States, may, except as otherwise provided by

law, be brought in any judicial district in which (1) a defendant in

the action resides, (2) a substantial part of the events or omissions

giving rise to the claim occurred, or a substantial part of property

that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with

the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of

its officers, employees, or agencies were not a party.

The summons and complaint in such an action shall be served

as provided by the Federal Rules of Civil Procedure except that the

delivery of the summons and complaint to the officer or agency as

required by the rules may be made by certified mail beyond the

territorial limits of the district in which the action is brought.

* * * * * * *

PART V—PROCEDURE

* * * * * * *

CHAPTER 133—REVIEW—MISCELLANEOUS PROVISIONS

* * * * * * *

§ 2112. Record on review and enforcement of agency orders

(a) The rules prescribed under the authority of section 2072 of

this title may provide for the time and manner of filing and the

contents of the record in all proceedings instituted in the courts of

appeals to enjoin, set aside, suspend, modify, or otherwise review

or enforce orders of administrative agencies, boards, commissions,

and officers. Such rules may authorize the agency, board, commission, or officer to file in the court a certified list of the materials

comprising the record and retain and hold for the court all such

materials and transmit the same or any part thereof to the court,

when and as required by it, at any time prior to the final determination of the proceeding, and such filing of such certified list of

the materials comprising the record and such subsequent transmittal of any such materials when and as required shall be deemed

full compliance with any provision of law requiring the filing of the

record in the court. The record in such proceedings shall be certified and filed in or held for and transmitted to the court of appeals by the agency, board, commission, or officer concerned within

the time and in the manner prescribed by such rules. If proceedings are instituted in two or more courts of appeals with respect to the same order, the following shall apply:

(1) If within ten days after issuance of the order the agency, board, commission, or officer concerned receives, from the

persons instituting the proceedings, the petition for review

with respect to proceedings in at least two courts of appeals,

the agency, board, commission, or officer shall proceed in accordance with paragraph (3) of this subsection. If within ten

days after the issuance of the order the agency, board, commission, or officer concerned receives, from the persons instituting

the proceedings, the petition for review with respect to pro-
385 TITLE 28, UNITED STATES CODE § 2112

ceedings in only one court of appeals, the agency, board, commission, or officer shall file the record in that court notwithstanding the institution in any other court of appeals of proceedings for review of that order. In all other cases in which

proceedings have been instituted in two or more courts of appeals with respect to the same order, the agency, board, commission, or officer concerned shall file the record in the court

in which proceedings with respect to the order were first instituted.

(2) For purposes of paragraph (1) of this subsection, a copy

of the petition or other pleading which institutes proceedings

in a court of appeals and which is stamped by the court with

the date of filing shall constitute the petition for review. Each

agency, board, commission, or officer, as the case may be, shall

designate by rule the office and the officer who must receive

petitions for review under paragraph (1).

(3) If an agency, board, commission, or officer receives two

or more petitions for review of an order in accordance with the

first sentence of paragraph (1) of this subsection, the agency,

board, commission, or officer shall, promptly after the expiration of the ten-day period specified in that sentence, so notify

the judicial panel on multidistrict litigation authorized by section 1407 of this title, in such form as that panel shall prescribe. The judicial panel on multidistrict litigation shall, by

means of random selection, designate one court of appeals,

from among the courts of appeals in which petitions for review

have been filed and received within the ten-day period specified in the first sentence of paragraph (1), in which the record

is to be filed, and shall issue an order consolidating the petitions for review in that court of appeals. The judicial panel on

multidistrict litigation shall, after providing notice to the public and an opportunity for the submission of comments, prescribe rules with respect to the consolidation of proceedings

under this paragraph. The agency, board, commission, or officer concerned shall file the record in the court of appeals designated pursuant to this paragraph.

(4) Any court of appeals in which proceedings with respect

to an order of an agency, board, commission, or officer have

been instituted may, to the extent authorized by law, stay the

effective date of the order. Any such stay may thereafter be

modified, revoked, or extended by a court of appeals designated

pursuant to paragraph (3) with respect to that order or by any

other court of appeals to which the proceedings are transferred.

(5) All courts in which proceedings are instituted with respect to the same order, other than the court in which the

record is filed pursuant to this subsection, shall transfer those

proceedings to the court in which the record is so filed. For the

convenience of the parties in the interest of justice, the court

in which the record is filed may thereafter transfer all the proceedings with respect to that order to any other court of appeals.

(b) The record to be filed in the court of appeals in such a proceeding shall consist of the order sought to be reviewed or enforced,

the findings or report upon which it is based, and the pleadings,
§ 2112 APPENDIX: JUDICIAL REVIEW 386

evidence, and proceedings before the agency, board, commission, or

officer concerned, or such portions thereof (1) as the rules prescribed under the authority of section 2072 of this title may require

to be included therein, or (2) as the agency, board, commission, or

officer concerned, the petitioner for review or respondent in enforcement, as the case may be, and any intervenor in the court proceeding by written stipulation filed with the agency, board, commission, or officer concerned or in the court in any such proceeding

may consistently with the rules prescribed under the authority of

section 2072 of this title designate to be included therein, or (3) as

the court upon motion of a party or, after a prehearing conference,

upon its own motion may by order in any such proceeding designate to be included therein. Such a stipulation or order may provide in an appropriate case that no record need be filed in the court

of appeals. If, however, the correctness of a finding of fact by the

agency, board, commission, or officer is in question all of the evidence before the agency, board, commission, or officer shall be included in the record except such as the agency, board, commission,

or officer concerned, the petitioner for review or respondent in enforcement, as the case may be, and any intervenor in the court proceeding by written stipulation filed with the agency, board, commission, or officer concerned or in the court agree to omit as wholly

immaterial to the questioned finding. If there is omitted from the

record any portion of the proceedings before the agency, board,

commission, or officer which the court subsequently determines to

be proper for it to consider to enable it to review or enforce the

order in question the court may direct that such additional portion

of the proceedings be filed as a supplement to the record. The agency, board, commission, or officer concerned may, at its option and

without regard to the foregoing provisions of this subsection, and

if so requested by the petitioner for review or respondent in enforcement shall, file in the court the entire record of the proceedings before it without abbreviation.

(c) The agency, board, commission, or officer concerned may

transmit to the court of appeals the original papers comprising the

whole or any part of the record or any supplemental record, otherwise true copies of such papers certified by an authorized officer or

deputy of the agency, board, commission, or officer concerned shall

be transmitted. Any original papers thus transmitted to the court

of appeals shall be returned to the agency, board, commission, or

officer concerned upon the final determination of the review or enforcement proceeding. Pending such final determination any such

papers may be returned by the court temporarily to the custody of

the agency, board, commission, or officer concerned if needed for

the transaction of the public business. Certified copies of any papers included in the record or any supplemental record may also

be returned to the agency, board, commission, or officer concerned

upon the final determination of review or enforcement proceedings.

(d) The provisions of this section are not applicable to proceedings to review decisions of the Tax Court of the United States

or to proceedings to review or enforce those orders of administrative agencies, boards, commissions, or officers which are by law reviewable or enforceable by the district courts.

* * * * * * *
387 TITLE 28, UNITED STATES CODE § 2342

PART VI—PARTICULAR PROCEEDINGS

* * * * * * *

CHAPTER 158—ORDERS OF FEDERAL AGENCIES;

REVIEW

* * * * * * *

§ 2341. Definitions

As used in this chapter—

(1) ‘‘clerk’’ means the clerk of the court in which the petition for the review of an order, reviewable under this chapter,

is filed;

(2) ‘‘petitioner’’ means the party or parties by whom a petition to review an order, reviewable under this chapter, is filed;

and

(3) ‘‘agency’’ means—

(A) the Commission, when the order sought to be reviewed was entered by the Federal Communications Commission, the Federal Maritime Commission, or the Atomic

Energy Commission, as the case may be;

(B) the Secretary, when the order was entered by the

Secretary of Agriculture or the Secretary of Transportation;

(C) the Administration, when the order was entered by

the Maritime Administration;

(D) the Secretary, when the order is under section 812

of the Fair Housing Act; and

(E) the Board, when the order was entered by the Surface Transportation Board.

§ 2342. Jurisdiction of court of appeals

The court of appeals (other than the United States Court of

Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin,

set aside, suspend (in whole or in part), or to determine the validity

of—

(1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47;

(2) all final orders of the Secretary of Agriculture made

under chapters 9 and 20A of title 7, except orders issued under

sections 210(e), 217a, and 499g(a) of title 7;

(3) all rules, regulations, or final orders of—

(A) the Secretary of Transportation issued pursuant to

section 2, 9, 37, or 41 of the Shipping Act, 1916 (46 U.S.C.

App. 802, 803, 808, 835, 839, and 841a) or pursuant to

part B or C of subtitle IV of title 49; and

(B) the Federal Maritime Commission issued pursuant

to—

(i) section 19 of the Merchant Marine Act, 1920

(46 U.S.C. App. 876);

(ii) section 14 or 17 of the Shipping Act of 1984

(46 U.S.C. App. 1713 or 1716); or

(iii) section 2(d) or 3(d) of the Act of November 6,

1966 (46 U.S.C. App. 817d(d) or 817e(d));
§ 2343 APPENDIX: JUDICIAL REVIEW 388

(4) all final orders of the Atomic Energy Commission made

reviewable by section 2239 of title 42;

(5) all rules, regulations, or final orders of the Surface

Transportation Board made reviewable by section 2321 of this

title;

(6) all final orders under section 812 of the Fair Housing

Act; and

(7) all final agency actions described in section 20114(c) of

title 49.

Jurisdiction is invoked by filing a petition as provided by section

2344 of this title.

§ 2343. Venue

The venue of a proceeding under this chapter is in the judicial

circuit in which the petitioner resides or has its principal office, or

in the United States Court of Appeals for the District of Columbia

Circuit.

§ 2344. Review of orders; time; notice; contents of petition;

service

On the entry of a final order reviewable under this chapter, the

agency shall promptly give notice thereof by service or publication

in accordance with its rules. Any party aggrieved by the final order

may, within 60 days after its entry, file a petition to review the

order in the Court of Appeals wherein venue lies. The action shall

be against the United States. The petition shall contain a concise

statement of—

(1) the nature of the proceedings as to which review is

sought;

(2) the facts on which venue is based;

(3) the grounds on which relief is sought; and

(4) the relief prayed.

The petitioner shall attach to the petition, as exhibits, copies of the

order, report, or decision of the agency. The clerk shall serve a true

copy of the petition on the agency and on the Attorney General by

registered mail, with request for a return receipt.

§ 2345. Prehearing conference

The court of appeals may hold a prehearing conference or direct a judge of the court to hold a prehearing conference.

§ 2346. Certification of record on review

Unless the proceeding has been terminated on a motion to dismiss the petition, the agency shall file in the office of the clerk the

record on review as provided by section 2112 of this title.

§ 2347. Petitions to review; proceedings

(a) Unless determined on a motion to dismiss, petitions to review orders reviewable under this chapter are heard in the court

of appeals on the record of the pleadings, evidence adduced and

proceedings before the agency, when the agency has held a hearing

whether or not required to do so by law.

(b) When the agency has not held a hearing before taking the

action of which review is sought by the petition, the court of ap-
389 TITLE 28, UNITED STATES CODE § 2349

peals shall determine whether a hearing is required by law. After

that determination, the court shall— (1) remand the proceedings to the agency to hold a hearing, when a hearing is required by law;

(2) pass on the issues presented, when a hearing is not required by law and it appears from the pleadings and affidavits

filed by the parties that no genuine issue of material fact is

presented; or

(3) transfer the proceedings to a district court for the district in which the petitioner resides or has its principal office

for a hearing and determination as if the proceedings were

originally initiated in the district court, when a hearing is not

required by law and a genuine issue of material fact is presented. The procedure in these cases in the district court is

governed by the Federal Rules of Civil Procedure.

(c) If a party to a proceeding to review applies to the court of

appeals in which the proceeding is pending for leave to adduce additional evidence and shows to the satisfaction of the court that— (1) the additional evidence is material; and

(2) there were reasonable grounds for failure to adduce the

evidence before the agency;

the court may order the additional evidence and any

counterevidence the opposite party desires to offer to be taken by

the agency. The agency may modify its findings of fact, or make

new findings, by reason of the additional evidence so taken, and

may modify or set aside its order, and shall file in the court the

additional evidence, the modified findings or new findings, and the

modified order or the order setting aside the original order.

§ 2348. Representation in proceedings; intervention

The Attorney General is responsible for and has control of the

interests of the Government in all court proceedings under this

chapter. The agency, and any party in interest in the proceeding

before the agency whose interests will be affected if an order of the

agency is or is not enjoined, set aside, or suspended, may appear

as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review the order. Communities, associations, corporations, firms, and individuals, whose interests are affected by the order of the agency, may intervene in

any proceeding to review the order. The Attorney General may not

dispose of or discontinue the proceeding to review over the objection of any party or intervenor, but any intervenor may prosecute,

defend, or continue the proceeding unaffected by the action or inaction of the Attorney General.

§ 2349. Jurisdiction of the proceeding

(a) The court of appeals has jurisdiction of the proceeding on

the filing and service of a petition to review. The court of appeals

in which the record on review is filed, on the filing, has jurisdiction

to vacate stay orders or interlocutory injunctions previously granted by any court, and has exclusive jurisdiction to make and enter,

on the petition, evidence, and proceedings set forth in the record

on review, a judgment determining the validity of, and enjoining,

setting aside, or suspending, in whole or in part, the order of the

agency.
§ 2350 APPENDIX: JUDICIAL REVIEW 390

(b) The filing of the petition to review does not of itself stay

or suspend the operation of the order of the agency, but the court

of appeals in its discretion may restrain or suspend, in whole or in

part, the operation of the order pending the final hearing and determination of the petition. When the petitioner makes application

for an interlocutory injunction restraining or suspending the enforcement, operation, or execution of, or setting aside, in whole or

in part, any order reviewable under this chapter, at least 5 days’

notice of the hearing thereon shall be given to the agency and to

the Attorney General. In a case in which irreparable damage would

otherwise result to the petitioner, the court of appeals may, on

hearing, after reasonable notice to the agency and to the Attorney

General, order a temporary stay or suspension, in whole or in part,

of the operation of the order of the agency for not more than 60

days from the date of the order pending the hearing on the application for the interlocutory injunction, in which case the order of the

court of appeals shall contain a specific finding, based on evidence

submitted to the court of appeals, and identified by reference thereto, that irreparable damage would result to the petitioner and

specifying the nature of the damage. The court of appeals, at the

time of hearing the application for an interlocutory injunction, on

a like finding, may continue the temporary stay or suspension, in

whole or in part, until decision on the application.

§ 2350. Review in Supreme Court on certiorari or certification

(a) An order granting or denying an interlocutory injunction

under section 2349(b) of this title and a final judgment of the court

of appeals in a proceeding to review under this chapter are subject

to review by the Supreme Court on a writ of certiorari as provided

by section 1254(1) of this title. Application for the writ shall be

made within 45 days after entry of the order and within 90 days

after entry of the judgment, as the case may be. The United States,

the agency, or an aggrieved party may file a petition for a writ of

certiorari.

(b) The provisions of section 1254(2) of this title, regarding certification, and of section 2101(f) of this title, regarding stays, also

apply to proceedings under this chapter.

§ 2351. Enforcement of orders by district courts

The several district courts have jurisdiction specifically to enforce, and to enjoin and restrain any person from violating any

order issued under section 193 of title 7.

* * * * * * *