16 CFR 406.5 The rule.
(a) On the basis of the foregoing, the Commission concludes that, in
connection with the sale in commerce of lubricating oil composed in
whole or in part of previously used oil, the practices of (1) failing to
disclose clearly and conspicuously the fact that such oil has been
previously used; (2) representing directly or by implication that such
oil is new or unused; and (3) representing that such oil has been
''re-refined'' when the physical and chemical contaminants acquired
through use have not been removed by a refining process; have the
capacity and tendency to mislead and deceive purchasers and prospective
purchasers and to divert business from competitors who truthfully and
properly describe and label their products. The Commission further
concludes that these practices are violative of section 5 of the Federal
Trade Commission Act, and that the public interest in preventing their
use is specific and substantial.
(b) Accordingly, for the purpose of preventing such unlawful
practices, the Commission hereby promulgates, as a Trade Regulation
Rule, its conclusions and determination that in connection with the sale
or offering for sale of lubricating oil composed in whole or in part of
previously used lubricating oil, in commerce, as ''commerce'' is defined
in the Federal Trade Commission Act, it constitutes an unfair method of
competition and an unfair and deceptive act or practice to:
(1) Represent in any manner that such used lubricating oil is new or
unused; or
(2) Fail to disclose clearly and conspicuously that such used
lubricating oil has been previously used, in all advertising, sales
promotional material and on each front or face panel of the container.
For the purpose of this Part 406 the front or face panel means the part
(or parts) of the container on which the brand name is usually featured
and which is customarily exposed to the view of prospective purchasers
when displayed at point of retail sales; or
(3) Use the term ''re-refined,'' or any other word or term of similar
import, to describe previously used lubricating oil unless the physical
and chemical contaminants acquired through previous use have been
removed by a refining process. (As used in this part, the term
''lubricating oil'' refers to any oil used for lubricating purposes
including but not limited to, motor and transmission oil.)
16 CFR 406.5 PART 408 -- UNFAIR OR DECEPTIVE ADVERTISING AND LABELING
OF CIGARETTES IN RELATION TO THE HEALTH HAZARDS OF SMOKING
Cross Reference: For a statement of basis and purpose of Trade
Regulation Rule, see 29 FR 8325 of July 2, 1964.
(30 FR 9485, July 29, 1965)
16 CFR 406.5 PART 409 -- INCANDESCENT LAMP (LIGHT BULB) INDUSTRY
16 CFR 409.1 The Rule.
The Commission, on the basis of its findings in this proceeding, as
set forth in the accompanying statement of basis and purpose, hereby
promulgates as a trade regulation rule its determination that in
connection with the sale of general service incandescent electric lamps
(light bulbs) in commerce, as ''commerce'' is defined in the Federal
Trade Commission Act, it constitutes an unfair method of competition and
an unfair and deceptive act or practice to:
(a) Fail to disclose clearly and conspicuously the following
information for such lamps on the sleeves or paper containers in which
they are packaged:
(1) The electrical power consumed expressed in average initial
wattage;
(2) The light output expressed in average initial lumens;
(3) The average laboratory life expressed in hours;
Provided, however, Whenever lamps are sold in universal or
interchangeable sleeves where no wattage, lumen, life, or voltage
ratings are shown thereon, the disclosures required by paragraphs (a)
and (b) of this section must be clearly and conspicuously made on the
lamps themselves in a manner visible at point of sale in lieu of the
disclosures on the sleeves.
(b) Fail to disclose clearly and conspicuously on the lamps
themselves the average initial wattage and the design voltage for such
lamps: Provided, however, Whenever lamps are sold out of the sleeves or
paper containers the lumen and life disclosures required by paragraph
(a) of this section shall in addition be clearly and conspicuously made
on the lamps themselves.
(c) Represent or imply in any manner that savings either in lamp cost
or cost of light will result from the use of certain lamps because of
the lamps' life or light output (e.g., ''Same light for less money'',
''Outlasts ---- ordinary bulbs'', ''Save ------ dollars for more
light'') unless in computing such savings the following factors are
taken into account and clearly and conspicuously disclosed for the lamps
with which comparison is being made and the lamps being offered for
sale: Lamp cost, electrical power cost (wattage and electric rate),
labor cost for lamp replacement (if any), actual light output in terms
of average initial lumens, and average laboratory life: Provided,
however, That when two lamps of identical average initial wattage,
average initial lumens, and average laboratory life are being compared,
and cost savings represented or implied apply only to initial purchase
price, then the disclosures described in this paragraph for the lamp
which is used for comparison need not be made.
(d) Represent or imply in any manner that certain lamps will give
more light, maintain brightness longer or furnish longer life by the use
of terms such as ''long life'', ''extended life'', ''medium life'',
''brighter light'', ''better light'', ''stays brighter longer'', or any
other words or terms of similar meaning or import without clearly and
conspicuously disclosing the light output in average initial lumens, the
laboratory life in average hours and the average initial wattage of the
lamps with which the comparison is being made and the lamps being
offered for sale. In the case of claims that lamps ''maintain
brightness longer'', there shall be, in addition to the lumen, life, and
wattage disclosures required above, a clear and conspicuous disclosure
of the light output after an interval equal to 70 percent of rated life
(maintained average lumens) for the lamps being compared and those being
offered for sale.
Note 1: The average initial wattage, average initial lumen and
average laboratory life disclosures required by this section shall be in
accordance with the requirements of interim Federal Specification, Lamp,
Incandescent (Electric, Large, Tungsten-Filament), W-L-00101G and shall
be based upon generally accepted and approved test methods and
procedures. The lumen and life disclosures shall be expressed as
averages, i.e., ''average'' lumens and ''average'' life. Lamps in
shapes which are generally comparable to the ''A'' bulb shapes listed in
this Federal specification should be measured by the criteria which are
applicable to lamps in the nearest comparable shape of the same wattage
and voltage even though such lamps may not be covered precisely by the
specification. The calculation of average initial wattage, average
initial lumen and average laboratory life ratings shall be determined on
the basis of operation of the lamp at the stated design voltage. This,
however, shall not preclude lumen disclosures for various voltage
ratings of any specific lamp type of the same wattage and life from
being represented as 120-volt rated information, thereby recognizing a
slight variation which, of necessity, must exist from one voltage rating
to another if life and wattage are to remain constant.
Since multiple filament lamps (three-way bulbs) are not covered by
the Federal specification; wattage, lumen and life ratings based on
tests conducted by each industry member will be sufficient: Provided,
Such tests are based upon generally accepted and approved test methods
and procedures: And provided further, That the life rating is based on
the life of the first filament which fails and that the specific method
used to determine the life rating is disclosed, i.e., lamp being burned
on all three positions equally; based on life of major filament (medium
light level) of lamp, etc.
Note 2: For a period of one (1) year from the effective date of this
section, except on the bulb itself, wherever the term ''lumens'' is
used, there shall be a brief explanation of the term such as ''light
output''.
Note 3: The term ''general service incandescent electric lamps'' as
used in this section includes all medium screw base incandescent
electric lamps, 15-watt through 150-watt, 115-volt through 130-volt.
The term includes not only such lamps in the customary ''A'' type and
other bulb shapes included in Interim Federal Specification W-L-00101G,
but also such lamps which are produced in generally comparable bulb
shapes for sale in competition with other general service incandescent
lamps. Specifically excluded, however, are lamps designed and promoted
primarily for decorative applications, appliances, traffic signals,
showcases, projectors, airport equipment, trains, and lamps such as
color, flood, reflector, rough service, and vibration service.
Note 4: For purposes of paragraph (a) of this section, the
requirement of clear and conspicuous disclosure means that the required
disclosures shall appear on at least two panels of the outer sleeve or
container in which bulbs are displayed and additionally on all panels of
the inner and the outer sleeve which contain any reference to wattage
lumens, life, or voltage. In addition, in order to be considered clear
and conspicuous, the lumen and life disclosures shall be in immediate
conjunction with the wattage rating on each panel in bold or medium
faced type which is at least two-fifths ( 2/5) the height of the wattage
rating figures (on the same panel) or three-sixteenths of an inch (
3/16'') in height, whichever is larger.
In the case of multiple filament lamps (three-way bulbs); the lumen
and life disclosures shall meet the above criteria except for the type
size which shall, in this case, be medium faced type which is at least
two-fifths ( 2/5) the height of the wattage rating figures or one-eighth
of an inch ( 1/8'') in height, whichever is larger.
(38 Stat. 717, as amended; 15 U.S.C. 41-58)
(35 FR 11784, July 23, 1970)
16 CFR 409.1 PART 410 -- DECEPTIVE ADVERTISING AS TO SIZES OF VIEWABLE PICTURES SHOWN BY TELEVISION RECEIVING SETS
16 CFR 410.1 The Rule.
In connection with the sale of television receiving sets, in
commerce, as ''commerce'' is defined in the Federal Trade Commission
Act, it is an unfair method of competition and an unfair and deceptive
act or practice to use any figure or size designation to refer to the
size of the picture shown by a television receiving set or the picture
tube contained therein unless such indicated size is the actual size of
the viewable picture area measured on a single plane basis. If the
indicated size is other than the horizontal dimension of the actual
viewable picture area such size designation shall be accompanied by a
statement, in close connection and conjunction therewith, clearly and
conspicuously showing the manner of measurement.
Note 1: For the purposes of this part, measurement of the picture
area on a single plane basis refers to a measurement of the distance
between the outer extremities (sides) of the picture area which does not
take into account the curvature of the tube.
Note 2: Any referenced or footnote disclosure of the manner of
measurement by means of the asterisk or some similar symbol does not
satisfy the ''close connection and conjunction'' requirement of this
part.
Examples of proper size descriptions when a television receiving set
shows a 20-inch picture measured diagonally, a 19-inch picture measured
horizontally, a 15-inch picture measured vertically, and a picture area
of 262 square inches include:
''20 inch picture measured diagonally'' or
''19 inch 15 inch picture'' or
''19 inch picture'' or
''19 inch'' or
''262 square inch picture.''
Examples of improper size descriptions of a television set showing a
picture of the size described above include:
''21 inch set'' or
''21 inch diagonal set'' or
''21 inch over-all diagonal -- 262 square inch picture'' or
''Brand Name 21.''
(38 Stat. 717, as amended, 15 U.S.C. 41-58)
(36 FR 21518, Nov. 10, 1971; 36 FR 22286, Nov. 24, 1971)
16 CFR 410.1 PART 412 -- DISCRIMINATORY PRACTICES IN MEN'S AND BOYS'
TAILORED CLOTHING INDUSTRY
Sec.
412.1 Basis of the proceeding.
412.2 The Trade Regulation Rule proceeding.
412.3 Conclusions.
412.4 Purpose.
412.5 Definitions.
412.6 The Rule.
Appendix to Part 412
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58; 49 Stat.
1526; 15 U.S.C. 12, et seq.
Source: 32 FR 15584, Nov. 9, 1967, unless otherwise noted.
16 CFR 410.1 Statement of Basis and Purpose
16 CFR 412.1 Basis of the proceeding.
(a) The Commission focused its attention on the wearing apparel
industry after having received numerous complaints from small apparel
retailers, small manufacturers and apparel salesmen. These complainants
asserted that many manufacturers of apparel, particularly in the
outerwear categories of women's and misses' dresses, suits, coats,
sweaters and blouses, and men's and boys' suits, coats, slacks, shirts
and sweaters, had discriminated in the granting of advertising
allowances to their competing customers, in violation of section 2(d) of
the Clayton Act, as amended. In order to obtain further information
concerning the practices alleged in these complaints, the Commission in
1961 issued orders requiring approximately 230 of the leading buying
offices, including the large department store chains, to file special
reports, pursuant to section 6(b) of the Federal Trade Commission Act.
Subsequently, additional orders were issued requiring over 400 sellers
or suppliers of apparel, including approximately 35 suppliers of men's
and boys' tailored clothing, to file similar reports. An examination of
the data furnished in these reports indicated that violations of section
2(d) of the amended Clayton Act were widespread in the wearing apparel
industry. 1100 Moreover, it appeared that such violations usually
occurred in situations where sellers failed to furnish competing
customers with written promotional plans.
(b) On the basis of the information developed by this inquiry, the
Commission afforded those manufacturers or suppliers which it had reason
to believe were engaged in practices violative of section 2(d) of the
amended Clayton Act opportunity to enter into consent agreements which
included orders to cease and desist from engaging in such unlawful
practices. 2101 Of the more than 300 manufacturers or suppliers of
apparel which were the subject of cease and desist orders subsequently
issued, approximately 25 were manufacturers of men's and boys' tailored
clothing.
(c) The Men's and Boys' Tailored Clothing Industry, a sizable segment
of the apparel trade, comprised some 635 establishments according to the
1963 Census of Manufacturers published by the Bureau of the Census. In
1964 the net value of shipments by manufacturers amounted to almost two
billion dollars. Representatives of this industry petitioned the
Commission to initiate an informal enforcement program for obtaining
industrywide compliance with sections 2 (d) and (e) of the amended
Clayton Act. 3102 In connection with this petition a preliminary inquiry
into industry practices was conducted in the course of which interviews
were had with knowledgeable sources, including other government
agencies, trade associations and retail organizations. After giving
consideration to the industry petition in the light of the information
developed in this inquiry, together with that obtained in the earlier
investigations, the Commission initiated a Trade Regulation Rule
proceeding in the Men's and Boys' Tailored Clothing Industry. Before
deciding upon this course of action, the Commission considered
alternative methods of obtaining correction of the practices in
question, including the case-by-case approach. It was concluded,
however, that this purpose could be accomplished most expeditiously and
equitably through the initiation of a Trade Regulation Rule proceeding.
1001Rabiner & Jontow, Inc., Docket No. 8629 (Sept. 19, 1966) p. 3.
1012Abby Kent Co., Inc., et al., Docket No. C-328 et al. (Aug. 9,
1967).
1023Subsections (d) and (e) of sec. 2 of the Clayton Act, as
amended, are set forth in an appendix to the rule.
16 CFR 412.2 The Trade Regulation Rule proceeding.
(a) A notice of proposed rule making, including a proposed rule, was
published in the Federal Register on November 9, 1966, affording all
interested or affected parties an opportunity to submit data, views or
arguments concerning the proposed rule, in writing or orally at a public
hearing which was held on January 18, 1967. The proposed rule provided
in substance that the granting or furnishing of advertising allowances
or special services or facilities would be presumed to be unlawful
unless made pursuant to a written plan furnished by the supplier to all
of his competing customers.
(b) In the course of the public hearing, industry representatives
asserted that violations of sections 2 (d) and (e) of the amended
Clayton Act were widespread in the industry and attributed this
primarily to the absence of written promotional plans. In support of
this assertion a representative of a men's and boys' clothing
manufacturers association who estimated that considerably more than 60
percent of this industry's production is covered by cooperative
advertising plans, introduced a summary of a survey conducted among some
of its members representing a cross-section of the industry. This
survey showed that out of 48 manufacturers, 36 believed that their
competitors deviated from their oral plans and granted discriminatory
allowances, whereas significantly fewer manufacturers felt that their
competitors discriminated when written plans were involved. Of the
manufacturers polled, approximately 77 percent were of the opinion that
retailers pressured manufacturers to deviate from their plans.
(c) Another association representing retail establishments selling
men's wear referred to a survey made among its members which showed that
of approximately 100 retailers of apparel polled, half believed that
their suppliers discriminated among their customers in granting
advertising allowances. Thirty expressed no opinion and 20 did not
believe that manufacturers discriminated. It was stated that the ratio
-- 50 believed yes and 20 no -- fairly reflected the opinion of the
entire membership of more than 3,000 members of the retail organization.
(d) According to both written and oral statements received in the
proceeding many retailers, especially the larger ones, exert pressure on
their suppliers for special treatment and even in the absence of such
pressure oral arrangements by their nature are subject to deviations in
an industry where many salesmen serve numerous customers. Industry
representatives also expressed the opinion that the use of written plans
supplied to all competing customers would enable a manufacturer to
resist more successfully pressures for preferred treatment brought by
retailers, and thus better assure lawful treatment to all of the
seller's competing customers.
(e) In summary, information received during the proceeding from
attorneys, businessmen and association executives representing the
manufacturing segment of the Men's and Boys' Tailored Clothing Industry
fully supports the conclusion that the granting or furnishing of
discriminatory advertising allowances or services in violation of
section 2(d) of the amended Clayton Act is widespread in the Men's and
Boys' Tailored Clothing Industry, and the further conclusion that such
violations have occurred usually when sellers have failed to furnish
their competing customers with written promotional plans.
(f) The information developed in this Trade Regulation Rule
proceeding accords with the Commission's experience in the enforcement
of sections 2 (d) and (e) of the Clayton Act, as amended, particularly
in the application of these statutory provisions to practices in the
wearing apparel industry. It is not by coincidence that oral plans were
involved in all of the litigated cases arising out of the 1961
investigation of the apparel industry4103 and in all but one of the
cases in the Men's and Boys' Tailored Clothing Industry disposed of by
consent orders. On the basis of this information and experience, the
Commission believes that written notification of promotional plans
appears to be the most -- and perhaps the only -- completely reliable
and fair method of assuring compliance with the law. 5104
1034Rabiner & Jontow, Inc., Docket No. 8629 (Sept. 19, 1966),
Gladstone-Arcuni, Inc., Initial Decision, Docket No. 8664 (Feb. 10,
1967), House of Lord's, Inc., Docket No. 8631 (Jan 18, 1966), and Best
& Co., Inc., Docket No. 8669 (Sept. 7, 1967).
1045House of Lord's, Inc., supra at p. 18; see also: Vanity Fair
Paper Mills, Inc. v. Federal Trade Commission, 311 F. 2d 480, 485-486
(2d Cir. 1962).
16 CFR 412.3 Conclusions.
In view of the foregoing the Commission concludes that:
(a) The practice of granting or furnishing discriminatory advertising
allowances or services in violation of sections 2 (d) and (e) of the
amended Clayton Act is widespread in the Men's and Boys' Tailored
Clothing Industry;
(b) These violations usually occur when sellers fail to supply
written promotional plans to their customers who compete in the resale
of their products;
(c) A reasonable relationship exists between the facts shown and the
presumption stated in the rule; and
(d) The rule affords the most expeditious and equitable means of
eliminating and preventing such violations.
16 CFR 412.4 Purpose.
The purpose of this rule is to inform all interested or affected
parties of the Commission's position with respect to the practices in
question and to aid the Commission in the prevention of practices
violative of sections 2 (d) and (e) of the Clayton Act, as amended, in
the Men's and Boys' Tailored Clothing Industry, on an equitable and
industrywide basis.
16 CFR 412.4 The Rule
16 CFR 412.5 Definitions.
For the purpose of this rule the following definitions apply:
(a) Products. Men's youths' and boys' suits, coats, overcoats,
topcoats, jackets, dress trousers and uniforms.
(b) Seller. Any person, firm, corporation or organization engaged in
the sale of products for resale with or without further processing.
(c) Customer or purchaser. Persons, firms, corporations or
organizations engaged in the purchase of products for resale.
(d) Customers competing in the resale and competing customers. Mean
those customers who compete with each other in the distribution of a
seller's products.
16 CFR 412.6 The Rule.
The Commission hereby promulgates as a Trade Regulation Rule its
conclusions and determination that the granting or furnishing, in whole
or in part, of any advertising payment or promotional allowance, service
or facility, by any seller of men's, youths' and boys' suits, coats,
overcoats, topcoats, jackets, dress trousers and uniforms to a customer
engaged in the resale of such products, will be presumed not to have
been made available on proportionally equal terms to all the seller's
customers competing in the resale of such products within the purview of
sections 2 (d) and (e) of the amended Clayton Act, unless such payments
or allowances, services or facilities, have been made available pursuant
to and in accordance with all the terms and conditions of a written plan
supplied to all such competing customers.
16 CFR 412.6 Pt. 412, App.
16 CFR 412.6 Appendix to Part 412
Set forth below are subsections (d) and (e) of section 2 of the
Clayton Act, as amended:
''(d) That it shall be unlawful for any person engaged in commerce to
pay or contract for the payment of anything of value to or for the
benefit of a customer of such person in the course of such commerce as
compensation or in consideration for any services or facilities
furnished by or through such customer in connection with the processing,
handling, sale, or offering for sale of any products or commodities
manufactured, sold, or offered for sale by such person, unless such
payment or consideration is available on proportionally equal terms to
all other customers competing in the distribution of such products or
commodities.
''(e) That it shall be unlawful for any person to discriminate in
favor of one purchaser against another purchaser or purchasers of a
commodity bought for resale, with or without processing, by contracting
to furnish or furnishing, or by contributing to the furnishing of, any
services or facilities connected with the processing, handling, sale, or
offering for sale of such commodity so purchased upon terms not accorded
to all purchasers on proportionally equal terms.''
16 CFR 412.6 PART 413 -- FAILURE TO DISCLOSE THAT SKIN IRRITATION MAY
RESULT FROM WASHING OR HANDLING GLASS FIBER CURTAINS AND DRAPERIES AND
GLASS FIBER CURTAIN AND DRAPERY FABRICS
Sec.
413.1 Basis of the proceeding.
413.2 The practice involved.
413.3 Deceptive character of the practice.
413.4 Data, views and arguments concerning the rule.
413.5 Purpose of the rule.
413.6 The rule.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 32 FR 11023, July 28, 1967, unless otherwise noted.
16 CFR 412.6 Statement of Basis and Purpose
16 CFR 413.1 Basis of the proceeding.
This proceeding was initiated by the Commission after consideration
of statements by members of the consuming public that they had
experienced skin irritation after washing or handling glass fiber
curtains and draperies and glass fiber curtain and drapery fabrics.
16 CFR 413.2 The practice involved.
Marketers of glass fiber curtains and draperies and glass fiber
curtain and drapery fabrics usually furnish washing instructions for
such products in the form of package inserts, labels, or tags. Normally
these instructions, among other things, advise the purchaser to hand
wash the products separately and rinse the container thoroughly after
each washing. Purchasers are not cautioned, however, that skin
irritation may result when the products are handled without protective
covering, as by washing, sewing or hanging, or that such irritation may
also occur when the skin is exposed to articles, such as clothing or bed
sheets, which have been washed with glass fiber products, or in a
container previously used for washing glass fiber products unless such
container has been thoroughly cleansed of glass particles which may
remain in the container.
16 CFR 413.3 Deceptive character of the practice.
(a) Most glass fibers currently used in weaving fabrics for producing
curtains and draperies become increasingly brittle with enlargement of
the denier of such fibers. When such fabrics are handled, as by
washing, sewing, or hanging, minute glass particles may break off and
become lodged in the exposed skin of persons handling them. Likewise
when certain articles, such as garments or bed sheets, are washed with
glass fiber curtain or drapery fabrics, or washed in a container
previously used for washing such fabrics, minute glass particles may
become embedded in such articles and transmitted to the exposed skin of
the user or wearer thereof. In either event, skin irritation may
result.
(b) Although some washing instructions advise purchasers to hand wash
glass fiber fabrics separately and rinse the container thoroughly after
each washing, such purchasers are not warned as to the consequences of
the failure to observe this advice. Such washing instructions may serve
as warnings for the care of the fabric but do not serve as warnings that
skin irritation may result.
(c) The Commission concludes therefore that the failure to disclose
that skin irritation may result from body contact with glass fiber
drapery and curtain fabrics, and clothing or other articles which have
been washed with such glass fiber products or in containers previously
used for washing such products when that container has not been cleansed
of glass particles, has the capacity and tendency to mislead and deceive
purchasers and prospective purchasers and to divert business from
competitors whose products may be washed or handled without the
resulting irritation. The Commission further concludes that such
practice is violative of section 5 of the Federal Trade Commission Act,
and that the public interest in preventing this practice is specific and
substantial.
16 CFR 413.4 Data, views and arguments concerning the rule.
(a) Some interested parties claimed that the record in this
proceeding has not established that severe skin irritation results from
the handling of glass fiber curtains, draperies, and fabrics and argued
that no rule in the matter is justified. Although the factual
information does not show that the handling of, or exposure to the
products involved will generally result in immediate severe skin
irritation, nevertheless such information is to the effect that exposure
to the products involved may cause varying degrees of skin irritation.
For example, some industry members and other affected parties, and
doctors who presented statements on their behalf, concede that some skin
reaction or discomfort may occur when the products in question are
washed or handled. Further, the record is replete with consumer
statements relating their experiences with varying degrees of irritation
resulting from the exposure of their skin to particles from glass fiber
curtains, draperies, and fabrics. The Commission was urged to disregard
such consumer statements on the basis that such statements are medically
unconfirmed self-diagnoses and hearsay, and thus of little probative
value. However, the Commission is of the opinion that these statements,
particularly when coupled with the concession of industry members and
affected parties that the products involved may cause skin reaction or
discomfort, should be given consideration. Such weight as the
Commission has given to expressions of consumer experiences in this
proceeding is not counter to or mitigated by medical statements in the
record since the consumer statements related the varying degrees of
irritation experienced by the writers, while the medical statements were
primarily directed to showing that the glass particles did not cause
severe skin irritation.
(b) It is concluded, therefore, that skin irritation may result from
the handling, as by washing, sewing or hanging, of glass fiber
draperies, curtains and yard goods and from body contact with clothing
or other articles which have been washed with such glass fiber products
or in a container previously used for washing such products when that
container has not been cleansed of glass particles.
16 CFR 413.5 Purpose of the rule.
The purpose of this rule is to inform all members of the industry and
other interested or affected parties of the Commission's position with
respect to the problem at hand and, in the public interest, to eliminate
the unlawful deception and unfair competition resulting from the failure
to make the disclosure required by the rule.
16 CFR 413.5 The Rule
16 CFR 413.6 The rule.
The Commission hereby promulgates, as a Trade Regulation Rule, its
conclusions and determination that in connection with the sale or
offering for sale of glass fiber curtains and draperies and glass fiber
curtain and drapery fabrics in commerce, as ''commerce'' is defined in
the Federal Trade Commission Act, it is an unfair method of competition
and an unfair and deceptive act or practice to fail to disclose, clearly
and conspicuously, by tag or label affixed to the products with such
permanence as to remain thereon until sale to purchasers, and on
containers in which the products are delivered to purchasers, that skin
irritation may result:
(a) To the exposed skin of persons handling such glass fiber
products; and
(b) From body contact with clothing or other articles, such as bed
sheets, which have been washed (1) with such glass fiber products, or
(2) in a container previously used for washing such glass fiber products
unless the glass particles have been removed from such container by
cleaning.
16 CFR 413.6 PART 417 -- FAILURE TO DISCLOSE THE LETHAL EFFECTS OF
INHALING QUICK-FREEZE AEROSOL SPRAY PRODUCTS USED FOR FROSTING COCKTAIL
GLASSES
Sec.
417.1 Basis of the proceeding.
417.2 The practice involved.
417.3 Deceptive character of the practice.
417.4 Data, views, and arguments concerning the rule.
417.5 Purpose of the rule.
417.6 The rule.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 34 FR 2417, Feb. 20, 1969, unless otherwise noted.
16 CFR 413.6 Statement of Basis and Purpose
16 CFR 417.1 Basis of the proceeding.
This proceeding was initiated by the Commission on receipt of
information showing that deaths had been caused by the inhaling of
aerosol spray products sold for the purpose of frosting cocktail
glasses.
16 CFR 417.2 The practice involved.
Marketers of aerosol spray products designed for frosting cocktail
glasses, engaged in the sale of such products in commerce, as
''commerce'' is defined in the Federal Trade Commission Act, have failed
to caution purchasers that death may result from inhaling this product.
16 CFR 417.3 Deceptive character of the practice.
(a) Aerosol spray products designed for frosting cocktail glasses
contain Fluorocarbon 12 (Dichlorodifluoro- methane) which if inhaled in
a concentrated amount may cause injury or death. Marketers, in the
labeling of such products, have failed to provide a clear and
conspicuous warning to the purchaser of the harmful effects of inhaling
the product.
(b) The Commission concludes therefore that the failure to disclose
that serious harm or death may result from inhaling quick-freeze aerosol
spray has the capacity and tendency to mislead and deceive purchasers
and prospective purchasers. The Commission further concludes that such
practice is violative of section 5 of the Federal Trade Commission Act,
and that the public interest in preventing this practice is specific and
substantial.
16 CFR 417.4 Data, views, and arguments concerning the rule.
Some industry representatives asserted that the warning statement is
unreasonable because the product is harmless when used as directed.
Although recognizing that the problem involves a misuse of a product,
since the record establishes that in several cases direct inhalation of
quick-freeze aerosol spray, albeit intentional, has resulted in death,
the Commission concludes that it is in the public interest to caution
purchasers who may not otherwise be aware of the lethal effects of
inhaling the product.
16 CFR 417.5 Purpose of the rule.
The purpose of this rule is to inform all members of the industry and
other interested or affected parties of the Commission's position with
respect to the problem at hand and, in the public interest, to eliminate
the unlawful deception resulting from the failure to make the disclosure
required by the rule.
16 CFR 417.5 The Rule
16 CFR 417.6 The rule.
The Commission hereby promulgates, as a Trade Regulation Rule, its
conclusion and determination that in connection with the sale or
offering for sale in commerce, as ''commerce'' is defined in the Federal
Trade Commission Act, of quick-freeze aerosol spray products containing
Fluorocarbon 12 (Dichlorodifluoromethane) designed for the frosting of
beverage glasses it is an unfair or deceptive act or practice to fail to
provide a clear and conspicuous warning on the labels of such products,
that the contents thereof should not be inhaled in concentrated form and
that injury or death may result from such inhalation. Examples of
proper warning statements include:
(1) ''Warning: Use only as directed -- inhalation of the
concentrated vapors of this product is harmful and may cause death.''
(2) ''Warning: Use only as directed -- misuse of this product by
inhaling its concentrated vapors is harmful and may cause death.''
16 CFR 417.6 PART 418 -- DECEPTIVE ADVERTISING AND LABELING AS TO
LENGTH OF EXTENSION LADDERS
Sec.
418.1 Basis of the proceeding.
418.2 Purpose of the rule.
418.3 The practice involved.
418.4 Data, views and arguments concerning the rule.
418.5 Deceptive character of the practice.
418.6 The rule.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 34 FR 929, June 22, 1969, unless otherwise noted.
16 CFR 417.6 Statement of Basis and Purpose
16 CFR 418.1 Basis of the proceeding.
This proceeding was initiated by the Commission after consideration
of complaints by the consuming public and advertising of extension
ladders wherein the sizes of such ladders were represented in terms of
the total length of the sections thereof.
16 CFR 418.2 Purpose of the rule.
The purpose of the rule is to inform all members of the industry and
other interested or affected parties of the Commission's position with
respect to the practice in question and to aid the Commission in the
prevention of practices violative of section 5 of the Federal Trade
Commission Act on an equitable and industrywide basis.
16 CFR 418.3 The practice involved.
The record in this proceeding shows that marketers of extension
ladders represent the sizes or lengths of their products in terms of the
total length of the sections thereof, e.g., a ''20-foot'' or ''20-foot
size'' extension ladder consists of two 10-foot sections. With few
exceptions, no other representation as to size is made in marking,
labeling or advertising. It is also shown that in fully extending an
extension ladder for use there must be an overlapping of the sections
thereof for strength and safety purposes. As a result, footage is lost
in such overlapping. Consequently, the maximum working or useful length
of an extension ladder is invariably less than the total length of the
component sections.
16 CFR 418.4 Data, views and arguments concerning the rule.
(a) Some marketers have argued that deception does not result from
the use of unqualified size or length representations solely in terms of
the total length of the component sections. In support of this they
assert that the practice in question dates back over 100 years as a
result of marketing ladders on a per-foot price basis and that such
practice has been codified by numerous standards and safety codes
employed by government and industrial users.
(b) Some marketers also argue that consumers are informed through
labels, catalogs, and point-of-sale material, that overlapping is
necessary in positioning an extension ladder for use. Not all members
of the industry utilize such informative material in connection with the
sale of their products. Frequently such information, when provided, is
in small print or otherwise so inconspicuous as to be ineffective in
informing purchasers of the actual safe useful length.
16 CFR 418.5 Deceptive character of the practice.
(a) Due to rising costs in home care and improvements, the number of
do-it-yourself consumers has increased sharply. These users need
extension ladders in cleaning gutters, painting, cleaning and for other
household maintenance or repair purposes. Although the practice of
representing extension ladder lengths in terms of the total of the
lengths of the sections thereof has been followed for a substantial
period of time and may be understood by tradesmen and industrial and
governmental purchasers, there is no showing in this proceeding that
this method of representing extension ladder lengths or sizes has
acquired a secondary meaning among other consumers of such products. To
the contrary, the Commission believes that this method of representing
sizes is not understood by the average consumer. The Commission
concludes that the present industry practice of representing extension
ladder sizes or lengths tends to mislead the general consuming public
into the erroneous belief that such represented sizes or lengths are the
maximum working or useful lengths of the products so described.
(b) Although it appears that some industry members provide
overlapping figures, it is shown that such disclosures are usually
inadequate or so inconspicuous as to be of no value in curing the
inherent deceptive tendency present when the primary emphasis in size or
length representations is on the total length of the component sections.
(c) On the basis of the entire record and the Commission's
accumulated experience with size or length representations the
Commission concludes that the practice of representing the lengths of
extension ladders solely in terms of the total length of the component
sections thereof is deceptive and tends to divert business from
competitors who conspicuously disclose the working or usable length of
their products. The Commission also concludes that such practice is
violative of section 5 of the Federal Trade Commission Act and that the
public interest in preventing this practice is specific and substantial.
(d) The Commission further concludes that the deception resulting
from the use of unqualified size or length representations in terms of
the total length of the component sections of an extension ladder would
be removed and the public interest fully protected by a statement
clearly and conspicuously showing the basis of such length calculation
when accompanied by a clear and conspicuous disclosure of the maximum
working or useful length of the ladder so described.
16 CFR 418.5 The Rule
16 CFR 418.6 The rule.
Accordingly, for the purpose of preventing such unlawful practice,
the Commission hereby promulgates, as a Trade Regulation Rule, its
conclusion and determination that in connection with the sale of
extension ladders in commerce, as ''commerce'' is defined in the Federal
Trade Commission Act, it is an unfair method of competition and an
unfair or deceptive act or practice to represent, directly or by
implication, the size or length of any such product in terms of the
total length of the component sections thereof, in advertising, labeling
marking or otherwise, unless --
(a) Such size or length representation is accompanied by the words
''total length of sections'' or words or terms of similar import clearly
indicating the basis of the representation; and
(b) Such size or length representation is accompanied by a statement,
in close connection and conjunction therewith, clearly and conspicuously
showing the maximum length of such product when fully extended for use
(i.e., excluding footage lost in overlapping), and by an explanation of
the basis for such representation.
Examples of proper length representations when the product consists
of two ten foot sections are --
''maximum working length 17', total length of sections 20'''
or
''17' extension ladder''.
16 CFR 418.6 PART 419 -- GAMES OF CHANCE IN THE FOOD RETAILING AND GASOLINE INDUSTRIES
16 CFR 419.1 The Rule.
The Commission, on the basis of the findings made by it in this
proceeding, as set forth in the accompanying Statement of Basis and
Purpose, hereby promulgates as a Trade Regulation Rule its determination
that in connection with the use of games of chance in the food retailing
and gasoline industries, it constitutes an unfair and deceptive act or
practice for users, promoters, or manufacturers of such games to:
(a) Engage in advertising or other promotions which misrepresent by
any means, directly or indirectly, participants' chances of winning any
prize.
(b) Engage in any advertising, including newspaper and broadcast
media advertising, or other promotions such as store signs, window
streamers, banners, or display materials, or issue any game piece if
such game piece refers, on the exposed portion thereof, in any manner to
prizes or their number or availability which fail to disclose clearly
and conspicuously:
(1) The exact number of prizes in each category or denomination to be
made available during the game program and the odds of winning each such
prize made available, this disclosure, for prizes in the amount or value
of $25 or more, to be revised each week a game extends beyond 30 days to
reflect the number of such unredeemed prizes still available and the
odds existing of winning each such unredeemed prize; and
(2) The geographic area covered by the game (e.g., ''Nation-wide,''
''Washington, D.C. metropolitan area,'' etc.); and
(3) The total number of retail outlets participating in the game;
and
(4) The scheduled termination date of the game.
(c) Fail to mix, distribute, and disperse all game pieces totally and
solely on a random basis throughout the game program and throughout the
geographic area covered by the game, and fail to maintain such records
as are necessary to demonstrate to the Commission that total randomness
was used in such mixing, distribution, and dispersal.
(d) Promote, sell, or use any game which is capable of or susceptible
to being solved or ''broken'' so that winning game pieces or prizes are
predetermined or preidentified by such methods rather than by random
distribution to the participating public.
(e) Fail to post clearly and conspicuously at the conclusion of each
game in each individual retail outlet which used the game:
(1) The names and addresses of all persons who redeemed a prize in
the individual participating retail outlet, and the amount or value of
each prize;
(2) The total number of game pieces distributed in all participating
retail outlets;
(3) The total number of prizes in each category or denomination which
were made available in all participating retail outlets; and
(4) The total number of prizes in each category or denomination which
were awarded in all participating retail outlets.
The information required by paragraphs (e) (2), (3), and (4) of this
section, as well as a complete list of the names and addresses of
winners of a game, is required to be retained in the records of the game
promoter for a period of not less than three (3) years. Upon reasonable
request, such information shall be made immediately available to the
Commission and its staff for inspection.
(f) Promote or use any new game without a break in time between the
new game and any game previously employed in the same retail
establishment equivalent to the duration of the game previously
employed, or 30 days, whichever is less.
(g) Terminate any game, regardless of the scheduled termination date,
prior to the distribution of all game pieces to the participating
public.
(h) Add additional winning game pieces during the course of a game,
or in any manner replenish the prize structure of a game in progress.
(38 Stat. 717, as amended; 15 U.S.C. 41-58)
(34 FR 13302, Aug. 16, 1969, as amended at 46 FR 36840, July 16,
1981)
16 CFR 419.1 PART 423 -- CARE LABELING OF TEXTILE WEARING APPAREL AND
CERTAIN PIECE GOODS AS AMENDED
Sec.
423.1 Definitions.
423.2 Terminology.
423.3 What this regulation does.
423.4 Who is covered.
423.5 Unfair or deceptive acts or practices.
423.6 Textile wearing apparel.
423.7 Certain piece goods.
423.8 Exemptions.
423.9 Conflict with flammability standards.
423.10 Stayed or invalid parts.
Appendix A to Part 423 -- Glossary of Standard Terms
Authority: 38 Stat. 717, as amended; (15 U.S.C. 41, et seq.)
Source: 48 FR 22743, May 20, 1983; 48 FR 24869, June 3, 1983,
unless otherwise noted.
16 CFR 423.1 Definitions.
(a) Care label means a permanent label or tag, containing regular
care information and instructions, that is attached or affixed in such a
manner that it will not become separated from the product and will
remain legible during the useful life of the product.
(b) Certain Piece Goods means textile products sold by the piece from
bolts or rolls for the purpose of making home sewn textile wearing
apparel. This includes remnants, the fiber content of which is known,
that are cut by or for a retailer but does not include manufacturers'
remnants, up to ten yards long, that are clearly and conspicuously
marked pound goods or fabrics of undetermined origin (i.e., fiber
content is not known and cannot be easily ascertained) and trim, up to
five inches wide.
(c) Dryclean means a commercial process by which soil is removed from
products or specimens in a machine which uses any common organic solvent
(e.g. petroleum, perchlorethylene, fluorocarbon). The process may also
include adding moisture to the solvent, up to 75% relative humidity, hot
tumble drying up to 160 degrees F (71 degrees C) and restoration by
steam press or steam-air finishing.
(d) Machine Wash means a process by which soil is removed from
products in a specially designed machine using water, detergent or soap
and agitation. When no temperature is given, e.g., warm or cold, hot
water up to 150 degrees F (66 degrees C) can be regularly used.
(e) Regular Care means customary and routine care, not spot care.
(f) Textile Product means any commodity, woven, knit or otherwise
made primarily of fiber, yarn or fabric and intended for sale or resale,
requiring care and maintenance to effectuate ordinary use and enjoyment.
(g) Textile Wearing Apparel means any finished garment or article of
clothing made from a textile product that is customarily used to cover
or protect any part of the body, including hosiery, excluding footwear,
gloves, hats or other articles used exclusively to cover or protect the
head or hands.
16 CFR 423.2 Terminology.
(a) Any appropriate terms may be used on care labels or care
instructions so long as they clearly and accurately describe regular
care procedures and otherwise fulfill the requirements of this
regulation.
(b) Any appropriate symbols may be used on care labels or care
instructions, in addition to the required appropriate terms so long as
the terms fulfill the requirements of this regulation.
(c) The terminology set forth in Appendix A may be used to fulfill
the requirements of this regulation.
16 CFR 423.3 What this regulation does.
This regulation requires manufacturers and importers of textile
wearing apparel and certain piece goods, in or affecting commerce, as
''commerce'' is defined in the Federal Trade Commission Act, to provide
regular care instructions at the time such products are sold to
purchasers through the use of care labels or other methods described in
this rule.
16 CFR 423.4 Who is covered.
Manufacturers and importers of textile wearing apparel and certain
piece goods are covered by this regulation. This includes any person or
organization that directs or controls the manufacture or importation of
covered products.
16 CFR 423.5 Unfair or deceptive acts or practices.
(a) Textile wearing apparel and certain piece goods. In connection
with the sale, in or affecting commerce, of textile wearing apparel and
certain piece goods, it is an unfair or deceptive act or practice for a
manufacturer or importer:
(1) To fail to disclose to a purchaser, prior to sale, instructions
which prescribe a regular care procedure necessary for the ordinary use
and enjoyment of the product;
(2) To fail to warn a purchaser, prior to sale, when the product
cannot be cleaned by any cleaning procedure, without being harmed;
(3) To fail to warn a purchaser, prior to sale, when any part of the
prescribed regular care procedure, which a consumer or professional
cleaner could reasonably be expected to use, would harm the product or
others being cleaned with it;
(4) To fail to provide regular care instructions and warnings, except
as to piece goods, in a form that can be referred to by the consumer
throughout the useful life of the product;
(5) To fail to possess, prior to sale, a reasonable basis for all
regular care information disclosed to the purchaser.
(b) Violations of this regulation. The Commission has adopted this
regulation to prevent the unfair or deceptive acts or practices, defined
in paragraph (a) of this Section. Each manufacturer or importer covered
by this regulation must comply with the requirements in 423.2 and
423.6 through 423.8 of this regulation. Any manufacturer or importer
who complies with the requirements of 423.2 and 423.6 through 423.8
does not violate this regulation.
(Approved by the Office of Management and Budget under control number
3084-0046)
16 CFR 423.6 Textile wearing apparel.
This section applies to textile wearing apparel.
(a) Manufacturers and importers must attach care labels so that they
can be seen or easily found when the product is offered for sale to
consumers. If the product is packaged, displayed, or folded so that
customers cannot see or easily find the label, the care information must
also appear on the outside of the package or on a hang tag fastened to
the product.
(b) Care labels must state what regular care is needed for the
ordinary use of the product. In general, labels for textile wearing
apparel must have either a washing instruction or a drycleaning
instruction. If a washing instruction is included, it must comply with
the requirements set forth in paragraph (b)(1) of this section. If a
drycleaning instruction is included, it must comply with the
requirements set forth in paragraph (b)(2) of this section. If either
washing or drycleaning can be used on the product, the label need have
only one of these instructions. If the product cannot be cleaned by any
available cleaning method without being harmed, the label must so state.
(For example, if a product would be harmed both by washing and by
drycleaning, the label might say ''Do not wash -- do not dryclean,'' or
''Cannot be successfully cleaned.'') The instructions for washing and
drycleaning are as follows:
(1) Washing, drying, ironing, bleaching and warning instructions must
follow these requirements:
(i) Washing. The label must state whether the product should be
washed by hand or machine. The label must also state a water
temperature that may be used. However, if the regular use of hot water
will not harm the product, the label need not mention any water
temperature. (For example, ''Machine wash'' means hot, warm or cold
water can be used.)
(ii) Drying. The label must state whether the product should be
dried by machine or by some other method. If machine drying is called
for, the label must also state a drying temperature that may be used.
However, if the regular use of a high temperature will not harm the
product, the label need not mention any drying temperature. (For
example, ''Tumble dry'' means that a high, medium, or low temperature
setting can be used.)
(iii) Ironing. Ironing must be mentioned on a label only if it will
be needed on a regular basis to preserve the appearance of the product,
or if it is required under paragraph (b)(1)(v) of this section,
Warnings. If ironing is mentioned, the label must also state an ironing
temperature that may be used. However, if the regular use of a hot iron
will not harm the product, the label need not mention any ironing
temperature.
(iv) Bleaching. (A) If all commercially available bleaches can
safely be used on a regular basis, the label need not mention bleaching.
(B) If all commercially available bleaches would harm the product
when used on a regular basis, the label must say ''No bleach'' or ''Do
not bleach.''
(C) If regular use of chlorine bleach would harm the product, but
regular use of a non-chlorine bleach would not, the label must say
''Only non-chlorine bleach, when needed.''
(v) Warnings. (A) If there is any part of the prescribed washing
procedure which consumers can reasonably be expected to use that would
harm the product or others being washed with it in one or more washings,
the label must contain a warning to this effect. The warning must use
words ''Do not,'' ''No,'' ''Only,'' or some other clear wording. (For
example, if a shirt is not colorfast, its label should state ''Wash with
like colors'' or ''Wash separately.'' If a pair of pants will be harmed
by ironing, its label should state ''Do not iron.'')
(B) Warnings are not necessary for any procedure that is an
alternative to the procedure prescribed on the label. (For example, if
an instruction states ''Dry flat,'' it is not necessary to give the
warning ''Do not tumble dry.'')
(2) Drycleaning. -- (i) General. If a drycleaning instruction is
included on the label, it must also state at least one type of solvent
that may be used. However, if all commercially available types of
solvent can be used, the label need not mention any types of solvent.
The terms ''Drycleanable'' or ''Commercially Dryclean'' may not be used
in an instruction. (For example, if drycleaning in perchlorethylene
would harm a coat, the label might say ''Professionally dryclean:
fluorocarbon or petroleum.'')
(ii) Warnings. (A) If there is any part of the drycleaning procedure
which consumers or drycleaners can reasonably be expected to use that
would harm the product or others being cleaned with it, the label must
contain a warning to this effect. The warning must use the words ''Do
not,'' ''No,'' ''Only,'' or some other clear wording. (For example, the
drycleaning process normally includes moisture addition to solvent up to
75% relative humidity, hot tumble drying up to 160 degrees F and
restoration by steam press or steam-air finish. If a product can be
drycleaned in all solvents but steam should not be used, its label
should state ''Professionally dryclean. No steam.'')
(B) Warnings are not necessary to any procedure which is an
alternative to the procedure prescribed on the label. (For example, if
an instruction states ''Professionally dryclean, fluorocarbon,'' it is
not necessary to give the warning ''Do not use perchlorethylene.'')
(c) A manufacturer or importer must establish a reasonable basis for
care information by processing prior to sale:
(1) Reliable evidence that the product was not harmed when cleaned
reasonably often according to the instructions on the label, including
instructions when silence has a meaning. (For example, if a shirt is
labeled ''Machine wash. Tumble dry. Cool iron.,'' the manufacturer or
importer must have reliable proof that the shirt is not harmed when
cleaned by machine washing (in hot water), with any type of bleach,
tumble dried (at a high setting), and ironed with a cool iron); or
(2) Reliable evidence that the product or a fair sample of the
product was harmed when cleaned by methods warned against on the label.
However, the manufacturer or importer need not have proof of harm when
silence does not constitute a warning. (For example, if a shirt is
labeled ''Machine wash warm. Tumble dry medium'', the manufacturer need
not have proof that the shirt would be harmed if washed in hot water or
dried on high setting); or
(3) Reliable evidence, like that described in paragraph (c) (1) or
(2) of this section, for each component part of the product; or
(4) Reliable evidence that the product or a fair sample of the
product was successfully tested. The tests may simulate the care
suggested or warned against on the label; or
(5) Reliable evidence of current technical literature, past
experience, or the industry expertise supporting the care information on
the label; or
(6) Other reliable evidence.
16 CFR 423.7 Certain piece goods.
This section applies to certain piece goods.
(a) Manufacturers and importers of certain piece goods must provide
care information clearly and conspicuously on the end of each bolt or
roll.
(b) Care information must say what regular care is needed for the
ordinary use of the product, pursuant to the instructions set forth in
423.6. Care information on the end of the bolt need only address
information applicable to the fabric.
16 CFR 423.8 Exemptions.
(a) Any item of textile wearing apparel, without pockets, that is
totally reversible (i.e., the product is designed to be used with either
side as the outer part or face) is exempt from the care label
requirement.
(b) Manufacturers or importers can ask for an exemption from the care
label requirement for any other textile wearing apparel product or
product line, if the label would harm the appearance or usefulness of
the product. The request must be made in writing to the Secretary of
the Commission. The request must be accompanied by a labeled sample of
the product and a full statement explaining why the request should be
granted.
(c) If an item is exempt from care labeling under paragraph (a) or
(b), of this section the consumers still must be given the required care
information for the product. However, the care information can be put
on a hang tag, on the package, or in some other conspicuous place, so
that consumers will be able to see the care information before buying
the product.
(d) Manufacturers and importers of products covered by 423.5 are
exempt from the requirement for a permanent care label if the product
can be cleaned safely under the harshest procedures. This exemption is
available only if there is reliable proof that all of the following
washing and drycleaning procedures can safely be used on a product:
(1) Machine washing in hot water;
(2) Machine drying at a high setting;
(3) Ironing at a hot setting;
(4) Bleaching with all commercially available bleaches;
(5) Drycleaning with all commercially available solvents. In such
case, the statement ''wash or dry clean, any normal method'' must appear
on a hang tag, on the package, or in some other conspicuous place, so
that consumers will be able to see the statement before buying the
product.
If a product meets the requirements outlined above, it is
automatically exempt from the care label requirement. It is not
necessary to file a request for this exemption.
(e) Manufacturers and importers need not provide care information
with products sold to institutional buyers for commercial use.
(f) All exemption granted under 423.1(c) (1) or (2) or the Care
Labeling Rule issued on December 9, 1971, will continue to be in effect
if the product still meets the standards on which the original exemption
was based. Otherwise, the exemption is automatically revoked.
16 CFR 423.9 Conflict with flammability standards.
If there is a conflict between this regulation and any regulations
issued under the Flammable Fabrics Act, the Flammable Fabics regulation
govern over this one.
16 CFR 423.10 Stayed or invalid parts.
If any part of this regulation is stayed or held invalid, the rest of
it will stay in force.
16 CFR 423.10 Pt. 423, App. A
16 CFR 423.10 Appendix A to Part 423 -- Glossary of Standard Terms
1. Washing, Machine Methods:
a. ''Machine wash'' -- a process by which soil may be removed from
products or specimens through the use of water, detergent or soap,
agitation and a machine designed for this purpose. When no temperature
is given, e.g., ''warm'' or ''cold'', hot water up to 150 F (66 C) can
be regularly used.
b. ''Warm'' -- initial water temperature setting 90 to 110 F (32
to 43 C) (hand comfortable).
c. ''Cold'' -- initial water temperature setting same as cold water
tap up to 85 F (29 C).
d. ''Do not have commercially laundered'' -- do not employ a laundry
which uses special formulations, sour rinses, extermely large loads or
extermely high temperatures or which otherwise is employed for
commercial, industrial or institutional use. Employ laundering methods
designed for residential use or use in a self-service establishment.
e. ''Small load'' -- smaller than normal washing load.
f. ''Delicate cycle'' or ''gentle cycle'' -- slow agitation and
reduced time.
g. ''Durable press cycle'' or ''permanent press cycle'' -- cool down
rinse or cold rinse before reduced spinning.
h. ''Separately'' -- alone.
i. ''With like colors'' -- with colors of similar hue and intensity.
j. ''Wash inside out'' -- turn product inside out to protect face of
fabric.
k. ''Warm rinse'' -- initial water temperature setting 90 to 110 F
(32 to 43 C).
l. ''Cold rinse'' -- initial water temperature setting same as cold
water tap up to 85 F (29 C).
m. ''Rinse thoroughly'' -- rinse several times to remove detergent,
soap, and bleach.
n. ''No spin'' or ''Do not spin'' -- remove material start of final
spin cycle.
o. ''No wring'' or ''Do not wring'' -- do not use roller wringer, nor
wring by hand.
2. Washing, Hand Methods:
a. ''Hand wash'' -- a process by which soil may be manually removed
from products or specimens through the use of water, detergent or soap,
and gentle squeezing action. When no temperature is given, e.g.,
''warm'' or ''cold'', hot water up to 150 F (66 C) can be regularly
used.
b. ''Warm'' -- initial water temperature 90 to 110 F (32 to 43 C)
(hand comfortable).
c. ''Cold'' -- initial water temperature same as cold water tap up to
85 F (29 C).
d. ''Separately'' -- alone.
e. ''With like colors'' -- with colors of similar hue and intensity.
f. ''No wring or twist'' -- handle to avoid wrinkles and distortion.
g. ''Rinse thoroughly'' -- rinse several times to remove detergent,
soap, and bleach.
h. ''Damp wipe only'' -- surface clean with damp cloth or sponge.
3. Drying, All Methods:
a. ''Tumble dry'' -- use machine dryer. When no temperature setting
is given, machine drying at a hot setting may be regularly used.
b. ''Medium'' -- set dryer at medium heat.
c. ''Low'' -- set dryer at low heat.
d. ''Durable press'' or ''Permanent press'' -- set dryer at permanent
press setting.
e. ''No heat'' -- set dryer to operate without heat.
f. ''Remove promptly'' -- when items are dry, remove immediately to
prevent wrinkling.
g. ''Drip dry'' -- hang dripping wet with or without hand shaping and
smoothing.
h. ''Line dry'' -- hang damp from line or bar in or out of doors.
i. ''Line dry in shade'' -- dry away from sun.
j. ''Line dry away from heat'' -- dry away from heat.
k. ''Dry flat'' -- lay out horizontally for drying.
l. ''Block to dry'' -- reshape to original dimensions while drying.
m. ''Smooth by hand'' -- by hand, while wet, remove wrinkles,
straighten seams and facings.
4. Ironing and Pressing:
a. ''Iron'' -- Ironing is needed. When no temperature is given iron
at the highest temperature setting may be regularly used.
b. ''Warm iron'' -- medium temperature setting.
c. ''Cool iron'' -- lowest temperature setting.
d. ''Do not iron'' -- item not to be smoothed or finished with an
iron.
e. ''Iron wrong side only'' -- article turned inside out for ironing
or pressing.
f. ''No steam'' or ''Do not steam'' -- steam in any form not to be
used.
g. ''Steam only'' -- steaming without contact pressure.
h. ''Steam press'' or ''Steam iron'' -- use iron at steam setting.
i. ''Iron damp'' -- articles to be ironed should feel moist.
j. ''Use press cloth'' -- use a dry or a damp cloth between iron and
fabric.
5. Bleaching:
a. ''Bleach when needed'' -- all bleaches may be used when necessary.
b. ''No bleach'' or ''Do not bleach'' -- no bleaches may be used.
c. ''Only non-chlorine bleach, when needed'' -- only the bleach
specified may be used when necessary. Chlorine bleach may not be used.
6. Washing or Drycleaning:
a. ''Wash or dryclean, any normal method'' -- can be machine washed
in hot water, can be machine dried at a high setting, can be ironed at a
hot setting, can be bleached with all commercially available bleaches
and can be drycleaned with all commercially available solvents.
7. Drycleaning, All Procedures:
a. ''Dryclean'' -- a process by which soil may be removed from
products or specimens in a machine which uses any common organic solvent
(for example, petroleum, perchlorethylene, fluorocarbon) located in any
commercial establishment. The process may include moisture addition to
solvent up to 75% relative humidity, hot tumble drying up to 160 F (71
C) and restoration by steam press or steam-air finishing.
b. ''Professionally dryclean'' -- use the drycleaning process but
modified to ensure optimum results either by a drycleaning attendant or
through the use of a drycleaning machine which permits such
modifications or both. Such modifications or special warnings must be
included in the care instruction.
c. ''Petroleum'', ''Fluorocarbon'', or ''Perchlorethylene'' -- employ
solvent(s) specified to dryclean the item.
d. ''Short cycle'' -- reduced or minimum cleaning time, depending
upon solvent used.
e. ''Minimum extraction'' -- least possible extraction time.
f. ''Reduced moisture'' or ''Low moisture'' -- decreased relative
humidity.
g. ''No tumble'' or ''Do not tumble'' -- do not tumble dry.
h. ''Tumble warm'' -- tumble dry up to 120 F (49 C).
i. ''Tumble cool'' -- tumble dry at room temperature.
j. ''Cabinet dry warm'' -- cabinet dry up to 120 F (49 C).
k. ''Cabinet dry cool'' -- cabinet dry at room temperature.
l. ''Steam only'' -- employ no contact pressure when steaming.
m. ''No steam'' or ''Do not steam'' -- do not use steam in pressing,
finishing, steam cabinets or wands.
8. Leather and Suede Cleaning:
a. ''Leather clean'' -- have cleaned only by a professional cleaner
who uses special leather or suede care methods.
(48 FR 22743, May 20, 1983; 48 FR 24868, June 3, 1983; 48 FR 27225,
June 14, 1983)
16 CFR 423.10 PART 424 -- RETAIL FOOD STORE ADVERTISING AND MARKETING
PRACTICES
Sec.
424.1 Unfair or deceptive acts or practices.
424.2 Defenses.
Authority: 88 Stat. 2193, as amended: 15 U.S.C. 57a(a)(1)(B).
16 CFR 424.1 Unfair or deceptive acts or practices.
In connection with the sale of offering for sale by retail food
stores of food, grocery products or other merchandise to consumers in or
affecting commerce as ''commerce'' is defined in section 4 of the
Federal Trade Commission Act, 15 U.S.C. 44, it is an unfair or deceptive
act or practice in violation of section 5(a)(1) of the Federal Trade
Commission Act, 15 U.S.C. 45(a)(1), to offer any such products for sale
at a stated price, by means of an advertisement disseminated in an area
served by any stores which are covered by the advertisement, if those
stores do not have the advertised products in stock and readily
available to customers during the effective period of the advertisement,
unless the advertisement clearly and adequately discloses that supplies
of the advertised products are limited or the advertised products are
available only at some outlets.
(54 FR 35467, Aug. 28, 1989)
16 CFR 424.2 Defenses.
No violation of 424.1 shall be found if:
(a) The advertised products were ordered in adequate time for
delivery in quantities sufficient to meet reasonably anticipated demand;
(b) The food retailer offers a ''raincheck'' for the advertised
products;
(c) The food retailer offers at the advertised price or at a
comparable price reduction a similar product that is at least comparable
in value to the advertised product; or
(d) The food retailer offers other compensation at least equal to the
advertised value.
I dissent from the Commission's decision today to amend the Retail
Food Store Advertising and Marketing Practices Trade Regulation Rule
(the Unavailability Rule). The Commission has acknowledged today that
the original Unavailability Rule is not justified, and approved
amendments designed to lower its costs to grocers. However, in my view,
common sense tells us that in the highly competitive grocery store
business, where consumers return week after week to the same store, any
supermarket that frustrates its customers through unavailability of
advertised items will not long keep those customers. In other words, it
is clear to me that existing market forces adequately police
unavailability, and that, therefore, no Federal Trade Commission rule is
necessary, amended or otherwise. The Commission's action today to
retain even an amended Unavailability Rule does not conform to common
sense.
Food Store Advertising and Marketing Practices Rule
Although revising the ''Unavailability Rule'' has a certain intuitive
appeal, there is insufficient evidence on the record to conclude that
these changes will result in net consumer benefits. Accordingly, I
could not support amending the Rule in this manner. However, now that
the step has been taken, it is to be hoped that experience will bear out
the optimistic expectations of the Commission majority.
(54 FR 35467, Aug. 28, 1989)
16 CFR 424.2 PART 425 -- USE OF NEGATIVE OPTION PLANS BY SELLERS IN COMMERCE
16 CFR 425.1 The rule.
(a) In connection with the sale, offering for sale, or distribution
of goods and merchandise in commerce, as ''commerce'' is defined in the
Federal Trade Commission Act, it is an unfair method of competition and
an unfair or deceptive act or practice, for a seller in connection with
the use of any negative option plan to fail to comply with the following
requirements:
(1) Promotional material shall clearly and conspicuously disclose the
material terms of the plan, including:
(i) That aspect of the plan under which the subscriber must notify
the seller, in the manner provided for by the seller, if he does not
wish to purchase the selection;
(ii) Any obligation assumed by the subscriber to purchase a minimum
quantity of merchandise;
(iii) The right of a contract-complete subscriber to cancel his
membership at any time;
(iv) Whether billing charges will include an amount for postage and
handling;
(v) A disclosure indicating that the subscriber will be provided with
at least ten (10) days in which to mail any form, contained in or
accompanying an announcement identifying the selection, to the seller;
(vi) A disclosure that the seller will credit the return of any
selections sent to a subscriber, and guarantee to the Postal Service or
the subscriber postage to return such selections to the seller when the
announcement and form are not received by the subscriber in time to
afford him at least ten (10) days in which to mail his form to the
seller;
(vii) The frequency with which the announcements and forms will be
sent to the subscriber and the maximum number of announcements and forms
which will be sent to him during a 12-month period.
(2) Prior to sending any selection, the seller shall mail to its
subscribers, within the time specified by paragraph (a)(3) of this
section:
(i) An announcement identifying the selection;
(ii) A form, contained in or accompanying the announcement, clearly
and conspicuously disclosing that the subscriber will receive the
selection identified in the announcement unless he instructs the seller
that he does not want the selection, designating a procedure by which
the form may be used for the purpose of enabling the subscriber so to
instruct the seller, and specifying either the return date or the
mailing date.
(3) The seller shall mail the announcement and form either at least
twenty (20) days prior to the return date or at least fifteen (15) days
prior to the mailing date, or provide a mailing date at least ten (10)
days after receipt by the subscriber, provided, however, that whichever
system the seller chooses for mailing the announcement and form, such
system must provided the subscriber with at least ten (10) days in which
to mail his form.
(b) In connection with the sale or distribution of goods and
merchandise in commerce, as ''commerce'' is defined in the Federal Trade
Commission Act, it shall constitute an unfair method of competition and
an unfair or deceptive act or practice for a seller in connection with
the use of any negative option plan to:
(1) Refuse to credit, for the full invoiced amount thereof, the
return of any selection sent to a subscriber, and to guarantee to the
Postal Service or the subscriber postage adequate to return such
selection to the seller, when:
(i) The selection is sent to a subscriber whose form indicating that
he does not want to receive the selection was received by the seller by
the return date or was mailed by the subscriber by the mailing date;
(ii) Such form is received by the seller after the return date, but
has been mailed by the subscriber and postmarked at least 3 days prior
to the return date;
(iii) Prior to the date of shipment of such selection, the seller has
received from a contract-complete subscriber, a written notice of
cancellation of membership adequately identifying the subscriber;
however, this provision is applicable only to the first selection sent
to a canceling contract-complete subscriber after the seller has
received written notice of cancellation. After the first selection
shipment, all selection shipments thereafter are deemed to be unordered
merchandise pursuant to section 3009 of the Postal Reorganization Act of
1970, as adopted by the Federal Trade Commission in its public notice,
dated September 11, 1970;
(iv) The announcement and form are not received by the subscriber in
time to afford him at least ten (10) days in which to mail his form.
(2) Fail to notify a subscriber known by the seller to be within any
of the circumstances set forth in paragraphs (b)(1)(i) through (iv) of
this section, that if the subscriber elects, the subscriber may return
the selection with return postage guaranteed and receive a credit to his
account.
(3) Refuse to ship within 4 weeks after receipt of an order
merchandise due subscribers as introductory and bonus merchandise,
unless the seller is unable to deliver the merchandise originally
offered due to unanticipated circumstances beyond the seller's control
and promptly makes a reasonably equivalent alternative offer. However,
where the subscriber refuses to accept alternatively offered
introductory merchandise, but instead insists upon termination of his
membership due to the seller's failure to provide the subscriber with
his originally requested introductory merchandise, or any portion
thereof, the seller must comply with the subscriber's request for
cancellation of membership, provided the subscriber returns to the
seller any introductory merchandise which already may have been sent
him.
(4) Fail to terminate promptly the membership of a properly
identified contract-complete subscriber upon his written request.
(5) Ship, without the express consent of the subscriber, substituted
merchandise for that ordered by the subscriber.
Note: The Commission is aware of the fact that many of the consumer
complaints received during the course of the proceeding involve
allegations of erroneous or unfair billing practices of a type which
would be covered by its proposed trade regulation rule involving billing
practices arising out of the administration of customer accounts by
credit card issuers and other retail establishments, which proceeding
has been postponed indefinitely as a result of and for the reasons
stated in the Commission's announcement dated January 7, 1971. In view
of the fact that the problems encountered by users of the negative
option system or merchandising are no different from those contemplated
by the billing practices proceeding which was designed to be applicable
to all sellers similarly situated, the Commission has not seen fit to
include provisions governing such practices in this part, but would
instead visualize that any subsequent rule or statute on the subject
would be equally applicable to the members of this industry. In the
meantime, abuses in this area will be dealt with on a case-by-case
basis.
(c) For the purposes of this part:
(1) ''Negative option plan'' refers to a contractual plan or
arrangement under which a seller periodically sends to subscribers an
announcement which identifies merchandise (other than annual supplements
to previously acquired merchandise) it proposes to send to subscribers
to such plan, and the subscribers thereafter receive and are billed for
the merchandise identified in each such announcement, unless by a date
or within a time specified by the seller with respect to each such
announcement the subscribers, in conformity with the provisions of such
plan, instruct the seller not to send the identified merchandise.
(2) ''Subscriber'' means any person who has agreed to receive the
benefits of, and assume the obligations entailed in, membership in any
negative option plan and whose membership in such negative option plan
has been approved and accepted by the seller.
(3) ''Contract-complete subscriber'' refers to a subscriber who has
purchased the minimum quantity of merchandise required by the terms of
membership in a negative option plan.
(4) ''Promotional material'' refers to an advertisement containing or
accompanying any device or material which a prospective subscriber sends
to the seller to request acceptance or enrollment in a negative option
plan.
(5) ''Selection'' refers to the merchandise identified by a seller
under any negative option plan as the merchandise which the subscriber
will receive and be billed for, unless by the date, or within the period
specified by the seller, the subscriber instructs the seller not to send
such merchandise.
(6) ''Announcement'' refers to any material sent by a seller using a
negative option plan in which the selection is identified and offered to
subscribers.
(7) ''Form'' refers to any form which the subscriber returns to the
seller to instruct the seller not to send the selection.
(8) ''Return date'' refers to a date specified by a seller using a
negative option plan as the date by which a form must be received by the
seller to prevent shipment of the selection.
(9) ''Mailing date'' refers to the time specified by a seller using a
negative option plan as the time by or within which a form must be
mailed by a subscriber to prevent shipment of the selection.
(38 Stat. 717, as amended; 15 U.S.C. 41-58)
(38 FR 4896; Feb. 22, 1973; 38 FR 6991, Mar. 15, 1973)
16 CFR 425.1 PART 429 -- COOLING-OFF PERIOD FOR DOOR-TO-DOOR SALES
16 CFR 429.1 The Rule.
In connection with any door-to-door sale, it constitutes an unfair
and deceptive act or practice for any seller to:
(a) Fail to furnish the buyer with a fully completed receipt or copy
of any contract pertaining to such sale at the time of its execution,
which is in the same language, e.g., Spanish, as that principally used
in the oral sales presentation and which shows the date of the
transaction and contains the name and address of the seller, and in
immediate proximity to the space reserved in the contract for the
signature of the buyer or on the front page of the receipt if a contract
is not used and in bold face type of a minimum size of 10 points, a
statement in substantially the following form:
''You, the buyer, may cancel this transaction at any time prior to
midnight of the third business day after the date of this transaction.
See the attached notice of cancellation form for an explanation of this
right.''
The seller may select the method of providing the buyer with the
duplicate notice of cancellation form set forth in paragraph (b) of this
section, provided however, that in the event of cancellation the buyer
must be able to retain a complete copy of the contract or receipt.
Furthermore, if both forms are not attached to the contract or receipt,
the seller is required to alter the last sentence in the statement above
to conform to the actual location of the forms.
(b) Fail to furnish each buyer, at the time the buyer signs the
door-to-door sales contract or otherwise agrees to buy consumer goods or
services from the seller, a completed form in duplicate, captioned
either ''NOTICE OF RIGHT TO CANCEL'' or ''NOTICE OF CANCELLATION,''
which shall (where applicable) contain in ten point bold face type the
following information and statements in the same language, e.g.,
Spanish, as that used in the contract.
(enter date of transaction)
(Date)
YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION,
WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE.
IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY YOU UNDER
THE CONTRACT OR SALE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL
BE RETURNED WITHIN 10 BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF
YOUR CANCELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE
TRANSACTION WILL BE CANCELED.
IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT YOUR
RESIDENCE, IN SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY
GOODS DELIVERED TO YOU UNDER THIS CONTRACT OR SALE; OR YOU MAY IF YOU
WISH, COMPLY WITH THE INSTRUCTIONS OF THE SELLER REGARDING THE RETURN
SHIPMENT OF THE GOODS AT THE SELLER'S EXPENSE AND RISK.
IF YOU DO MAKE THE GOODS AVAILABLE TO THE SELLER AND THE SELLER DOES
NOT PICK THEM UP WITHIN 20 DAYS OF THE DATE OF YOUR NOTICE OF
CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE GOODS WITHOUT ANY FURTHER
OBLIGATION. IF YOU FAIL TO MAKE THE GOODS AVAILABLE TO THE SELLER, OR
IF YOU AGREE TO RETURN THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN
YOU REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT.
TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND DATED COPY
OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE, OR SEND A
TELEGRAM, TO (Name of seller), AT (address of seller's place of
business) NOT LATER THAN MIDNIGHT OF XXXXXX (date).
I HEREBY CANCEL THIS TRANSACTION.
(Date)XXXXXXXXXXXXX
(Buyer's signature)
(c) Fail, before furnishing copies of the ''Notice of Cancellation''
to the buyer, to complete both copies by entering the name of the
seller, the address of the seller's place of business, the date of the
transaction, and the date, not earlier than the third business day
following the date of the transaction, by which the buyer may give
notice of cancellation.
(d) Include in any door-to-door contract or receipt any confession of
judgment or any waiver of any of the rights to which the buyer is
entitled under this section including specifically his right to cancel
the sale in accordance with the provisions of this section.
(e) Fail to inform each buyer orally, at the time he signs the
contract or purchases the goods or services, of his right to cancel.
(f) Misrepresent in any manner the buyer's right to cancel.
(g) Fail or refuse to honor any valid notice of cancellation by a
buyer and within 10 business days after the receipt of such notice, to:
(i) Refund all payments made under the contract or sale; (ii) return
any goods or property traded in, in substantially as good condition as
when received by the seller; (iii) cancel and return any negotiable
instrument executed by the buyer in connection with the contract or sale
and take any action necessary or appropriate to terminate promptly any
security interest created in the transaction.
(h) Negotiate, transfer, sell, or assign any note or other evidence
of indebtedness to a finance company or other third party prior to
midnight of the fifth business day following the day the contract was
signed or the goods or services were purchased.
(i) Fail, within 10 business days of receipt of the buyer's notice of
cancellation, to notify him whether the seller intends to repossess or
to abandon any shipped or delivered goods.
Note 1: Definitions. For the purposes of this section the following
definitions shall apply:
(a) Door-to-Door Sale -- A sale, lease, or rental of consumer goods
or services with a purchase price of $25 or more, whether under single
or multiple contracts, in which the seller or his representative
personally solicits the sale, including those in response to or
following an invitation by the buyer, and the buyer's agreement or offer
to purchase is made at a place other than the place of business of the
seller. The term ''door-to-door sale'' does not include a transaction:
(1) Made pursuant to prior negotiations in the course of a visit by
the buyer to a retail business establishment having a fixed permanent
location where the goods are exhibited or the services are offered for
sale on a continuing basis; or
(2) In which the consumer is accorded the right of recision by the
provisions of the Consumer Credit Protection Act (15 U.S.C. 1635) or
regulations issued pursuant thereto; or
(3) In which the buyer has initiated the contact and the goods or
services are needed to meet a bona fide immediate personal emergency of
the buyer, and the buyer furnishes the seller with a separate dated and
signed personal statement in the buyer's handwriting describing the
situation requiring immediate remedy and expressly acknowledging and
waiving the right to cancel the sale within 3 business days; or
(4) Conducted and consummated entirely by mail or telephone; and
without any other contact between the buyer and the seller or its
representative prior to delivery of the goods or performance of the
services; or
(5) In which the buyer has initiated the contact and specifically
requested the seller to visit his home for the purpose of repairing or
performing maintenance upon the buyer's personal property. If in the
course of such a visit, the seller sells the buyer the right to receive
additional services or goods other than replacement parts necessarily
used in performing the maintenance or in making the repairs, the sale of
those additional goods or services would not fall within this exclusion;
or
(6) Pertaining to the sale or rental of real property, to the sale of
insurance or to the sale of securities or commodities by a broker-dealer
registered with the Securities and Exchange Commission.
(b) Consumer Goods or Services -- Goods or services purchased,
leased, or rented primarily for personal, family, or household purposes,
including courses of instruction or training regardless of the purpose
for which they are taken.
(c) Seller -- Any person, partnership, corporation, or association
engaged in the door-to-door sale of consumer goods or services.
(d) Place of Business -- The main or permanent branch office or local
address of a seller.
(e) Purchase Price -- The total price paid or to be paid for the
consumer goods or services, including all interest and service charges.
(f) Business Day -- Any calendar day except Sunday, or the following
business holidays:
New Year's Day, Washington's Birthday, Memorial Day, Independence
Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, and
Christmas Day.
Note 2: Effect on State Laws and Municipal Ordinances.
(a) The Commission is cognizant of the significant burden imposed
upon door-to-door sellers by the various and often inconsistent State
laws which provide the buyer with the right to cancel door-to-door sales
transactions. However, it does not believe that this constitutes
sufficient justification for preempting all of the provisions of such
laws or of the ordinances of the political subdivisions of the various
States. The Record in the proceedings supports the view that the joint
and coordinated efforts of both the Commission and State and local
officials are required to insure that a consumer who has purchased from
a door-to-door seller something he does not want, does not need, or
cannot afford, is accorded a unilateral right to rescind, without
penalty, his agreement to purchase the goods or services.
(b) This section will not be construed to annual, or exempt any
seller from complying with the laws of any State, or with the ordinances
of political subdivisions thereof, regulating door-to-door sales, except
to the extent that such laws or ordinances, if they permit door-to-door
selling, are directly inconsistent with the provisions of this section.
Such laws or ordinances which do not accord the buyer, with respect to
the particular transaction, a right to cancel a door-to-door sale which
is substantially the same or greater than that provided in this section,
or which permit the imposition of any fee or penalty on the buyer for
the exercise of such right, or which do not provide for giving the buyer
notice of his right to cancel the transaction in substantially the same
form and manner provided for in this section, are among those which will
be considered directly inconsistent.
(15 U.S.C. 41-58)
(37 FR 22934, Oct. 26, 1972, as amended at 38 FR 30105, Nov. 1, 1973;
38 FR 31828, Nov. 19, 1973; 53 FR 45459, Nov. 10, 1988)
16 CFR 429.1 PART 432 -- POWER OUTPUT CLAIMS FOR AMPLIFIERS UTILIZED IN
HOME ENTERTAINMENT PRODUCTS
Sec.
432.1 Scope.
432.2 Required disclosures.
432.3 Standard test conditions.
432.4 Optional disclosures.
432.5 Prohibited disclosures.
432.6 Liability for violation.
Authority: 38 Stat. 717, as amended; (15 U.S.C. 41-58).
Source: 39 FR 15387, May 3, 1974, unless otherwise noted.
16 CFR 432.1 Scope.
(a) Except as provided in paragraph (b) of this section, this part
shall apply whenever any power output (in watts or otherwise), power
band or power frequency response, or distortion capability or
characteristic is represented, either expressly or by implication, in
connection with the advertising, sale, or offering for sale, in commerce
as ''commerce'' is defined in the Federal Trade Commission Act, of sound
power amplification equipment manufactured or sold for home
entertainment purposes, such as for example, radios, record and tape
players, radio-phonograph and/or tape combinations, component audio
amplifiers and the like.
(b) Representations shall be exempt from this part if all
representations of performance characteristics referred to in paragraph
(a) of this section clearly and conspicuously disclose a manufacturer's
rated power output and that rated output does not exceed two (2) watts
(per channel or total).
(c) It is an unfair method of competition and an unfair or deceptive
act or practice within the meaning of section 5(a)(1) of the Federal
Trade Commission Act (15 U.S.C. 45(a)(1)) to violate any applicable
provision of this part.
16 CFR 432.2 Required disclosures.
Whenever any direct or indirect representation is made of the power
output, power band or power frequency response, or distortion
characteristics of sound power amplification equipment, the following
disclosures shall be made clearly, conspicuously, and more prominently
than any other representations or disclosures permitted under this part:
(a) The manufacturer's rated minimum sine wave continuous average
power output, in watts, per channel (if the equipment is designed to
amplify two or more channels simultaneously) --
(1) For each load impedance required to be disclosed in paragraph (b)
of this section, when measured with resistive load or loads equal to
such (nominal) load impedance or impedances, and
(2) Measured with all associated channels fully driven to rated per
channel power;
(b) The load impedance or impedances, in Ohms, for which the
manufacturer designs the equipment to be used by the consumer;
(c) The manufacturer's rated power band or power frequency response,
in Hertz (Hz), for each rated power output required to be disclosed in
paragraph (a)(1) of this section; and
(d) The manufacturer's rated percentage of maximum total harmonic
distortion at any power level from 250 mW to the rated power output, for
each such rated power output and its corresponding rated power band or
power frequency response.
16 CFR 432.3 Standard test conditions.
For purposes of performing the tests necessary to make the
disclosures required under 432.2 of this part:
(a) The power line voltage shall be 120 volts AC (230 volts when the
equipment is made for foreign sale or use, unless a different nameplate
rating is permanently affixed to the product by the manufacturer in
which event the latter figure would control), RMS, using a sinusoidal
wave containing less than 2 percent total harmonic content. In the case
of equipment designed for battery operation only, tests shall be made
with the battery power supply for which the particular equipment is
designed and such test voltage must be disclosed under the required
disclosures of 432.2 of this part. If capable of both AC and DC
battery operation, testing shall be with AC line operation;
(b) The AC power line frequency for domestic equipment shall be 60 Hz
and 50 Hz for equipment made for foreign sale or use;
(c) The amplifier shall be preconditioned by simultaneously operating
all channels at one-third of rated power output for one hour using a
sinusoidal wave at a frequency of 1,000 Hz;
(d) The preconditioning and testing shall be in still air and an
ambient temperature of at least 77 F (25 C);
(e) Rated power shall be obtainable at all frequencies within the
rated power band without exceeding the rated maximum percentage of total
harmonic distortion after input signals at said frequencies have been
continuously applied at full rated power for not less than five (5)
minutes at the amplifier's auxiliary input, or if not provided, at the
phono input.
(f) At all times during warm-up and testing, tone loudness-contour
and other controls shall be preset for the flattest response.
16 CFR 432.4 Optional disclosures.
Other operating characteristics and technical specifications not
required in 432.2 of this part may be disclosed: Provided:
(a) That any other power output is rated by the manufacturer, is
expressed in minimum watts per channel, and such power output
representation(s) complies with the provisions of 432.2 of this part;
except that if a peak or other instantaneous power rating, such as music
power or peak power, is represented under this section, the maximum
percentage of total harmonic distortion (see 432.2(d) of this part) may
be disclosed only at such rated output: And provided further,
(b) That all disclosures or representations made under this section
are less conspicuously, and prominently made than the disclosures
required in 432.2 of this part; and
(c) The rating and testing methods or standards used in determining
such representations are disclosed, and well known and generally
recognized by the industry at the time the representations or
disclosures are made, are neither intended nor likely to deceive or
confuse the consumers and are not otherwise likely to frustrate the
purpose of this part.
Note 1: For the purpose of paragraph (b) of this section, optional
disclosures will not be considered less prominent if they are either
bold faced or are more than two-thirds the height of the disclosures
required by 432.2.
Note 2: Use of the asterisk in effecting any of the disclosures
required by 432.2 and permitted by 432.4 shall not be deemed
conspicuous disclosure.
(39 FR 15387, May 3, 1974; 39 FR 17838, May 21, 1974)
16 CFR 432.5 Prohibited disclosures.
No performance characteristics to which this part applies shall be
represented or disclosed if they are not obtainable as represented or
disclosed when the equipment is operated by the consumer in the usual
and normal manner without the use of extraneous aids.
16 CFR 432.6 Liability for violation.
If the manufacturer or, in the case of foreign made products, the
importer or domestic sales representative of a foreign manufacturer, of
any product covered by this part furnishes the information required or
permitted under this part, then any other seller of the product shall
not be deemed to be in violation of 432.5 of this part due to his
reliance upon or transmittal of the written representations of the
manufacturer or importer if such seller has been furnished by the
manufacturer, importer, or sales representative a written certification
attesting to the accuracy of the representations to which this part
applies: And provided further, That such seller is without actual
knowledge of the violation contained in said written certification.
16 CFR 432.6 PART 433 -- PRESERVATION OF CONSUMERS' CLAIMS AND DEFENSES
Sec.
433.1 Definitions.
433.2 Preservation of consumers' claims and defenses, unfair or
deceptive acts or practices.
433.3 Exemption of sellers taking or receiving open end consumer
credit contracts before November 1, 1977 from requirements of 433.2(a).
Authority: 38 Stat. 717, as amended; (15 U.S.C. 41, et seq.)
16 CFR 433.1 Definitions.
(a) Person. An individual, corporation, or any other business
organization.
(b) Consumer. A natural person who seeks or acquires goods or
services for personal, family, or household use.
(c) Creditor. A person who, in the ordinary course of business,
lends purchase money or finances the sale of goods or services to
consumers on a deferred payment basis; Provided, such person is not
acting, for the purposes of a particular transaction, in the capacity of
a credit card issuer.
(d) Purchase money loan. A cash advance which is received by a
consumer in return for a ''Finance Charge'' within the meaning of the
Truth in Lending Act and Regulation Z, which is applied, in whole or
substantial part, to a purchase of goods or services from a seller who
(1) refers consumers to the creditor or (2) is affiliated with the
creditor by common control, contract, or business arrangement.
(e) Financing a sale. Extending credit to a consumer in connection
with a ''Credit Sale'' within the meaning of the Truth in Lending Act
and Regulation Z.
(f) Contract. Any oral or written agreement, formal or informal,
between a creditor and a seller, which contemplates or provides for
cooperative or concerted activity in connection with the sale of goods
or services to consumers or the financing thereof.
(g) Business arrangement. Any understanding, procedure, course of
dealing, or arrangement, formal or informal, between a creditor and a
seller, in connection with the sale of goods or services to consumers or
the financing thereof.
(h) Credit card issuer. A person who extends to cardholders the
right to use a credit card in connection with purchases of goods or
services.
(i) Consumer credit contract. Any instrument which evidences or
embodies a debt arising from a ''Purchase Money Loan'' transaction or a
''financed sale'' as defined in paragraphs (d) and (e) of this section.
(j) Seller. A person who, in the ordinary course of business, sells
or leases goods or services to consumers.
(40 FR 53506, Nov. 18, 1975)
16 CFR 433.2 Preservation of consumers' claims and defenses, unfair or
deceptive acts or practices.
In connection with any sale or lease of goods or services to
consumers, in or affecting commerce as ''commerce'' is defined in the
Federal Trade Commission Act, it is an unfair or deceptive act or
practice within the meaning of section 5 of that Act for a seller,
directly or indirectly, to:
(a) Take or receive a consumer credit contract which fails to contain
the following provision in at least ten point, bold face, type:
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS
AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS
OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF.
RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE
DEBTOR HEREUNDER.
or,
(b) Accept, as full or partial payment for such sale or lease, the
proceeds of any purchase money loan (as purchase money loan is defined
herein), unless any consumer credit contract made in connection with
such purchase money loan contains the following provision in at least
ten point, bold face, type:
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS
AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS
OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY
THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
(40 FR 53506, Nov. 18, 1975; 40 FR 58131, Dec. 15, 1975)
16 CFR 433.3 Exemption of sellers taking or receiving open end consumer
credit contracts before November 1, 1977 from requirements of 433.2(a).
(a) Any seller who has taken or received an open end consumer credit
contract before November 1, 1977, shall be exempt from the requirements
of 16 CFR Part 433 with respect to such contract provided the contract
does not cut off consumers' claims and defenses.
(b) Definitions. The following definitions apply to this exemption:
(1) All pertinent definitions contained in 16 CFR 433.1.
(2) Open end consumer credit contract: a consumer credit contract
pursuant to which ''open end credit'' is extended.
(3) ''Open end credit'': consumer credit extended on an account
pursuant to a plan under which a creditor may permit an applicant to
make purchases or make loans, from time to time, directly from the
creditor or indirectly by use of a credit card, check, or other device,
as the plan may provide. The term does not include negotiated advances
under an open-end real estate mortgage or a letter of credit.
(4) Contract which does not cut off consumers' claims and defenses:
A consumer credit contract which does not constitute or contain a
negotiable instrument, or contain any waiver, limitation, term, or
condition which has the effect of limiting a consumer's right to assert
against any holder of the contract all legally sufficient claims and
defenses which the consumer could assert against the seller of goods or
services purchased pursuant to the contract.
(42 FR 19490, Apr. 14, 1977, as amended at 42 FR 46510, Sept. 16,
1977)
16 CFR 433.3 PART 435 -- MAIL ORDER MERCHANDISE
Sec.
435.1 The Rule.
435.2 Definitions.
16 CFR 435.1 The Rule.
In connection with mail order sales in commerce, as ''commerce'' is
defined in the Federal Trade Commission Act, it constitutes an unfair
method of competition, and an unfair or deceptive act and practice for a
seller:
(a)(1) To solicit any order for the sale of merchandise to be ordered
by the buyer through the mails unless, at the time of the solicitation,
the seller has a reasonable basis to expect that he will be able to ship
any ordered merchandise to the buyer: (i) Within that time clearly and
conspicuously stated in any such solicitation, or (ii) if no time is
clearly and conspicuously stated, within thirty (30) days after receipt
of a properly completed order from the buyer.
(2) To provide any buyer with any revised shipping date, as provided
in paragraph (b) of this section, unless, at the time any such revised
shipping date is provided, the seller has a reasonable basis for making
such representation regarding a definite revised shipping date.
(3) To inform any buyer that he is unable to make any representation
regarding the length of any delay unless (i) the seller has a reasonable
basis for so informing the buyer and (ii) the seller informs the buyer
of the reason or reasons for the delay.
(4) In any action brought by the Federal Trade Commission, alleging a
violation of this part, the failure of a respondent-seller to have
records or other documentary proof establishing his use of systems and
procedures which assure the shipment of merchandise in the ordinary
course of business within any applicable time set forth in this part
will create a rebuttable presumption that the seller lacked a reasonable
basis for any expectation of shipment within said applicable time.
(b)(1) Where a seller is unable to ship merchandise within the
applicable time set forth in paragraph (a)(1) of this section, to fail
to offer to the buyer, clearly and conspicuously and without prior
demand, an option either to consent to a delay in shipping or to cancel
his order and receive a prompt refund. Said offer shall be made within
a reasonable time after the seller first becomes aware of his inability
to ship within the applicable time set forth in paragraph (a)(1) of this
section, but in no event later than said applicable time.
(i) Any offer to the buyer of such an option shall fully inform the
buyer regarding his right to cancel the order and to obtain a prompt
refund and shall provide a definite revised shipping date, but where the
seller lacks a reasonable basis for providing a definite revised
shipping date the notice shall inform the buyer that the seller is
unable to make any representation regarding the length of the delay.
(ii) Where the seller has provided a definite revised shipping date
which is thirty (30) days or less later than the applicable time set
forth in paragraph (a)(1) of this section, the offer of said option
shall expressly inform the buyer that, unless the seller receives, prior
to shipment and prior to the expiration of the definite revised shipping
date, a response from the buyer rejecting the delay and cancelling the
order, the buyer will be deemed to have consented to a delayed shipment
on or before the definite revised shipping date.
(iii) Where the seller has provided a definite revised shipping date
which is more than thirty (30) days later than the applicable time set
forth in paragraph (a)(1) of this section or where the seller is unable
to provide a definite revised shipping date and therefore informs the
buyer that he is unable to make any representation regarding the length
of the delay, the offer of said option shall also expressly inform the
buyer that his order will automatically be deemed to have been cancelled
unless (A) the seller has shipped the merchandise within thirty (30)
days of the applicable time set forth in paragraph (a)(1) of this
section, and has received no cancellation prior to shipment, or (B) the
seller has received from the buyer within thirty (30) days of said
applicable time, a response specifically consenting to said shipping
delay. Where the seller informs the buyer that he is unable to make any
representation regarding the length of the delay, the buyer shall be
expressly informed that, should he consent to an indefinite delay, he
will have a continuing right to cancel his order at any time after the
applicable time set forth in paragraph (a)(1) of this section by so
notifying the seller prior to actual shipment.
(iv) Nothing in this paragraph shall prohibit a seller who furnishes
a definite revised shipping date pursuant to paragraph (b)(1)(i) of this
section, from requesting, simultaneously with or at any time subsequent
to the offer of an option pursuant to paragraph (b)(1) of this section,
the buyer's express consent to a further unanticipated delay beyond the
definite revised shipping date in the form of a response from the buyer
specifically consenting to said further delay. Provided, however, That
where the seller solicits consent to an unanticipated indefinite delay
the solicitation shall expressly inform the buyer that, should he so
consent to an indefinite delay, he shall have a continuing right to
cancel his order at any time after the definite revised shipping date by
so notifying the seller prior to actual shipment.
(2) Where a seller is unable to ship merchandise on or before the
definite revised shipping date provided under paragraph (b)(1)(i) of
this section and consented to by the buyer pursuant to paragraph
(b)(1)(ii) or (iii) of this section, to fail to offer to the buyer,
clearly and conspicuously and without prior demand, a renewed option
either to consent to a further delay or to cancel the order and to
receive a prompt refund. Said offer shall be made within a reasonable
time after the seller first becomes aware of his inability to ship
before the said definite revised date, but in no event later than the
expiration of the definite revised shipping date:
Provided, however, That where the seller previously has obtained the
buyer's express consent to an unanticipated delay until a specific date
beyond the definite revised shipping date, pursuant to paragraph
(b)(1)(iv) of this section or to a further delay until a specific date
beyond the definite revised shipping date pursuant to paragraph (b)(2)
of this section, that date to which the buyer has expressly consented
shall supersede the definite revised shipping date for purposes of
paragraph (b)(2) of this section.
(i) Any offer to the buyer of said renewed option shall provide the
buyer with a new definite revised shipping date, but where the seller
lacks a reasonable basis for providing a new definite revised shipping
date, the notice shall inform the buyer that the seller is unable to
make any representation regarding the length of the further delay.
(ii) The offer of a renewed option shall expressly inform the buyer
that, unless the seller receives, prior to the expiration of the old
definite revised shipping date or any date superseding the old definite
revised shipping date, notification from the buyer specifically
consenting to the further delay, the buyer will be deemed to have
rejected any further delay, and to have cancelled the order if the
seller is in fact unable to ship prior to the expiration of the old
definite revised shipping date or any date superseding the old definite
revised shipping date: Provided, however, That where the seller offers
the buyer the option to consent to an indefinite delay the offer shall
expressly inform the buyer that, should he so consent to an indefinite
delay, he shall have a continuing right to cancel his order at any time
after the old definite revised shipping date or any date superseding the
old definite revised shipping date.
(iii) Paragraph (b)(2) of this section shall not apply to any
situation where a seller, pursuant to the provisions of paragraph
(b)(1)(iv) of this section, has previously obtained consent from the
buyer to an indefinite extension beyond the first revised shipping date.
(3) Wherever a buyer has the right to exercise any option under this
part or to cancel an order by so notifying the seller prior to shipment,
to fail to furnish the buyer with adequate means, at the seller's
expense, to exercise such option or to notify the seller regarding
cancellation. In any action brought by the Federal Trade Commission
alleging a violation of this part, the failure of a respondent-seller:
(i) To provide any offer, notice or option required by this part in
writing and by first class mail will create a rebuttable presumption
that the respondent-seller failed to offer a clear and conspicuous
offer, notice or option;
(ii) To provide the buyer with the means in writing (by business
reply mail or with postage prepaid by the seller) to exercise any option
or to notify the seller regarding a decision to cancel, will create a
rebuttable presumption that the respondent-seller did not provide the
buyer with adequate means pursuant to paragraph (b)(3) of this section.
Nothing in paragraph (b) of this section shall prevent a seller,
where he is unable to make shipment within the time set forth in
paragraph (a)(1) of this section or within a delay period consented to
by the buyer, from deciding to consider the order cancelled and
providing the buyer with notice of said decision within a reasonable
time after he becomes aware of said inability to ship, together with a
prompt refund.
(c) To fail to deem an order cancelled and to make a prompt refund to
the buyer whenever:
(1) The seller receives, prior to the time of shipment, notification
from the buyer cancelling the order pursuant to any option, renewed
option or continuing option under this part;
(2) The seller has, pursuant to paragraph (b)(1)(iii) of this
section, provided the buyer with a definite revised shipping date which
is more than thirty (30) days later than the applicable time set forth
in paragraph (a)(1) of this section or has notified the buyer that he is
unable to make any representation regarding the length of the delay and
the seller (i) has not shipped the merchandise within thirty (30) days
of the applicable time set forth in paragraph (a) (1) of this section,
and (ii) has not received the buyer's express consent to said shipping
delay within said thirty (30) days;
(3) The seller is unable to ship within the applicable time set forth
in paragraph (b)(2) of this section, and has not received, within the
said applicable time, the buyer's consent to any further delay;
(4) The seller has notified the buyer of his inability to make
shipment and has indicated his decision not to ship the merchandise;
(5) The seller fails to offer the option prescribed in paragraph
(b)(1) of this section and has not shipped the merchandise within the
applicable time set forth in paragraph (a)(1) of this section.
(d) In any action brought by the Federal Trade Commission, alleging a
violation of this part, the failure of a respondent-seller to have
records or other documentary proof establishing his use of systems and
procedures which assure compliance, in the ordinary course of business,
with any requirement of paragraph (b) or (c) of this section will create
a rebuttable presumption that the seller failed to comply with said
requirements.
Note 1: This part shall not apply to subscriptions, such as magazine
sales, ordered for serial delivery, after the initial shipment is made
in compliance with this part.
Note 2: This part shall not apply to orders of seeds and growing
plants.
Note 3: This part shall not apply to orders made on a
collect-on-delivery (C.O.D.) basis.
Note 4: This part shall not apply to transactions governed by the
Federal Trade Commission's Trade Regulation Rule entitled ''Use of
Negative Option Plans by Sellers in Commerce'', 16 CFR Part 425.
Note 5: By taking action in this area, the Federal Trade Commission
does not intend to preempt action in the same area, which is not
inconsistent with this part, by any State, municipal, or other local
government. This part does not annul or diminish any rights or remedies
provided to consumers by any State law, municipal ordinance, or other
local regulation, insofar as those rights or remedies are equal to or
greater than those provided by this part. In addition, this part does
not supersede those provisions of any State law, municipal ordinance, or
other local regulation which impose obligations or liabilities upon
sellers, when sellers subject to this part are not in compliance
therewith. This part does supersede those provisions of any State law,
municipal ordinance, or other local regulation which are inconsistent
with this part to the extent that those provisions do not provide a
buyer with rights which are equal to or greater than those rights
granted a buyer by this part. This part also supersedes those
provisions of any State law, municipal ordinance, or other local
regulation requiring that a buyer be notified of a right which is the
same as a right provided by this part but requiring that a buyer be
given notice of this right in a language, form, or manner which is
different in any way from that required by this part.
In those instances where any State law, municipal ordinance, or other
local regulation contains provisions, some but not all of which are
partially or completely superseded by this part, the provisions or
portions of those provisions which have not been superseded retain their
full force and effect.
Note 6: If any provision of this part or its application to any
person, partnership, corporation, act or practice is held invalid, the
remainder of this part or the application of the provision to any other
person, partnership, corporation, act or practice shall not be affected
thereby.
Note 7: Section 435.1(a)(1) of this part governs all solicitations
where the time of solicitation is more than 100 days after promulgation
of this part. The remainder of this part governs all transactions where
receipt of a properly completed order occurs more than 100 days after
promulgation of this part.
(38 Stat. 717, as amended; 15 U.S.C. 41, et seq.)
(40 FR 49492, Oct. 22, 1975)
16 CFR 435.2 Definitions.
For purposes of this part:
(a) Shipment shall mean the act by which the merchandise is
physically placed in the possession of the carrier.
(b) Receipt of a properly completed order shall mean:
(1) Where there is a credit sale and the buyer has not previously
tendered partial payment, the time at which the seller charges the
buyer's account;
(2) Where the buyer tenders full or partial payment in the proper
amount in the form of cash, check or money order, the time at which the
seller has received both said payment and an order from the buyer
containing all the information needed by the seller to process and ship
the order.
Provided, however, That where the seller receives notice that the
check or money order tendered by the buyer has been dishonored or that
the buyer does not qualify for a credit sale, receipt of a properly
completed order shall mean the time at which (i) the seller receives
notice that a check or money order for the proper amount tendered by the
buyer has been honored, (ii) the buyer tenders cash in the proper amount
or (iii) the seller receives notice that the buyer qualifies for a
credit sale.
(c) Refund shall mean:
(1) Where the buyer tendered full payment for the unshipped
merchandise in the form of cash, check or money order, a return of the
amount tendered in the form of cash, check or money order;
(2) Where there is a credit sale:
(i) And the seller is a creditor, a copy of a credit memorandum or
the like or an account statement reflecting the removal or absence of
any remaining charge incurred as a result of the sale from the buyer's
account;
(ii) And a third party is the creditor, a copy of an appropriate
credit memorandum or the like to the third party creditor which will
remove the charge from the buyer's account or a statement from the
seller acknowledging the cancellation of the order and representing that
he has not taken any action regarding the order which will result in a
charge to the buyer's account with the third party;
(iii) And the buyer tendered partial payment for the unshipped
merchandise in the form of cash, check or money order, a return of the
amount tendered in the form of cash, check or money order.
(d) Prompt refund shall mean:
(1) Where a refund is made pursuant to paragraph (c)(1) or (2)(iii)
of this section a refund sent to the buyer by first class mail within
seven (7) working days of the date on which the buyer's right to refund
vests under the provisions of this part;
(2) Where a refund is made pursuant to paragraph (c)(2) (i) or (ii)
of this section, a refund sent to the buyer by first class mail within
one (1) billing cycle from the date on which the buyer's right to refund
vests under the provisions of this part.
(e) The time of solicitation of an order shall mean that time when
the seller has:
(1) Mailed or otherwise disseminated the solicitation to a
prospective purchaser,
(2) Made arrangements for an advertisement containing the
solicitation to appear in a newspaper, magazine or the like or on radio
or television which cannot be changed or cancelled without incurring
substantial expense, or
(3) Made arrangements for the printing of a catalog, brochure or the
like which cannot be changed without incurring substantial expense, in
which the solicitation in question forms an insubstantial part.
(38 Stat. 717, as amended; 15 U.S.C. 41, et seq.)
(40 FR 49492, Oct. 22, 1975)
16 CFR 435.2 PART 436 -- DISCLOSURE REQUIREMENTS AND PROHIBITIONS
CONCERNING FRANCHISING AND BUSINESS OPPORTUNITY VENTURES
Sec.
436.1 The Rule.
436.2 Definitions.
436.3 Severability.
Authority: 38 Stat. 717, as amended, 15 U.S.C. 41-58.
Source: 43 FR 59614, Dec. 21, 1978, unless otherwise noted.
16 CFR 436.1 The Rule.
In connection with the advertising, offering, licensing, contracting,
sale, or other promotion in or affecting commerce, as ''commerce'' is
defined in the Federal Trade Commission Act, of any franchise, or any
relationship which is represented either orally or in writing to be a
franchise, it is an unfair or deceptive act or practice within the
meaning of section 5 of that Act for any franchisor or franchise broker:
(a) To fail to furnish any prospective franchisee with the following
information accurately, clearly, and concisely stated, in a legible,
written document at the earlier of the ''time for making of
disclosures'' or the first ''personal meeting'':
(1)(i) The official name and address and principal place of business
of the franchisor, and of the parent firm or holding company of the
franchisor, if any;
(ii) The name under which the franchisor is doing or intends to do
business; and
(iii) The trademarks, trade names, service marks, advertising or
other commercial symbols (hereinafter collectively referred to as
''marks'') which identify the goods, commodities, or services to be
offered, sold, or distributed by the prospective franchisee, or under
which the prospective franchisee will be operating.
(2) The business experience during the past 5 years, stated
individually, of each of the franchisor's current directors and
executive officers (including, and hereinafter to include, the chief
executive and chief operating officer, financial, franchise marketing,
training and service officers). With regard to each person listed,
those persons' principal occupations and employers must be included.
(3) The business experience of the franchisor and the franchisor's
parent firm (if any), including the length of time each: (i) Has
conducted a business of the type to be operated by the franchisee; (ii)
has offered or sold a franchise for such business; (iii) has conducted
a business or offered or sold a franchise for a business (A) operating
under a name using any mark set forth under paragraph (a)(1)(iii) of
this section, or (B) involving the sale, offering, or distribution of
goods, commodities, or services which are identified by any mark set
forth under paragraph (a)(1)(iii) of this section; and (iv) has offered
for sale or sold franchises in other lines of business, together with a
description of such other lines of business.
(4) A statement disclosing who, if any, of the persons listed in
paragraphs (a) (2) and (3) of this section:
(i) Has, at any time during the previous seven fiscal years, been
convicted of a felony or pleaded nolo contendere to a felony charge if
the felony involved fraud (including violation of any franchise law, or
unfair or deceptive practices law), embezzlement, fraudulent conversion,
misappropriation of property, or restraint of trade;
(ii) Has, at any time during the previous seven fiscal years, been
held liable in a civil action resulting in a final judgment or has
settled out of court any civil action or is a party to any civil action
(A) involving allegations of fraud (including violation of any franchise
law, or unfair or deceptive practices law), embezzlement, fraudulent
conversion, misappropriation of property, or restraint of trade, or (B)
which was brought by a present or former franchisee or franchisees and
which involves or involved the franchise relationship; Provided,
however, That only material individual civil actions need be so listed
pursuant to paragraph (4)(ii) of this section, including any group of
civil actions which, irrespective of the materiality of any single such
action, in the aggregate is material;
(iii) Is subject to any currently effective State or Federal agency
or court injunctive or restrictive order, or is a party to a proceeding
currently pending in which such order is sought, relating to or
affecting franchise activities or the franchisor-franchisee
relationship, or involving fraud (including violation of any franchise
law, or unfair or deceptive practices law), embezzlement, fraudulent
conversion, misappropriation of property, or restraint of trade.
Such statement shall set forth the identity and location of the court
or agency; the date of conviction, judgment, or decision; the penalty
imposed; the damages assessed; the terms of settlement or the terms of
the order; and the date, nature, and issuer of each such order or
ruling. A franchisor may include a summary opinion of counsel as to any
pending litigation, but only if counsel's consent to the use of such
opinion is included in the disclosure statement.
(5) A statement disclosing who, if any, of the persons listed in
paragraphs (a) (2) and (3) of this section at any time during the
previous 7 fiscal years has:
(i) Filed in bankruptcy;
(ii) Been adjudged bankrupt;
(iii) Been reorganized due to insolvency; or
(iv) Been a principal, director, executive officer, or partner of any
other person that has so filed or was so adjudged or reorganized, during
or within 1 year after the period that such person held such position in
such other person. If so, the name and location of the person having so
filed, or having been so adjudged or reorganized, the date thereof, and
any other material facts relating thereto, shall be set forth.
(6) A factual description of the franchise offered to be sold by the
franchisor.
(7) A statement of the total funds which must be paid by the
franchisee to the franchisor or to a person affiliated with the
franchisor, or which the franchisor or such affiliated person imposes or
collects in whole or in part on behalf of a third party, in order to
obtain or commence the franchise operation, such as initial franchise
fees, deposits, downpayments, prepaid rent, and equipment and inventory
purchases. If all or part of these fees or deposits are returnable
under certain conditions, these conditions shall be set forth; and if
not returnable, such fact shall be disclosed.
(8) A statement describing any recurring funds required to be paid,
in connection with carrying on the franchise business, by the franchisee
to the franchisor or to a person affiliated with the franchisor, or
which the franchisor or such affiliated person imposes or collects in
whole or in part on behalf of a third party, including, but not limited
to, royalty, lease, advertising, training, and sign rental fees, and
equipment or inventory purchases.
(9) A statement setting forth the name of each person (including the
franchisor) the franchisee is directly or indirectly required or advised
to do business with by the franchisor, where such persons are affiliated
with the franchisor.
(10) A statement describing any real estate, services, supplies,
products, inventories, signs, fixtures, or equipment relating to the
establishment or the operation of the franchise business which the
franchisee is directly or indirectly required by the franchisor to
purchase, lease or rent; and if such purchases, leases or rentals must
be made from specific persons (including the franchisor), a list of the
names and addresses of each such person. Such list may be made in a
separate document delivered to the prospective franchisee with the
prospectus if the existence of such separate document is disclosed in
the prospectus.
(11) A description of the basis for calculating, and, if such
information is readily available, the actual amount of, any revenue or
other consideration to be received by the franchisor or persons
affiliated with the franchisor from suppliers to the prospective
franchisee in consideration for goods or services which the franchisor
requires or advises the franchisee to obtain from such suppliers.
(12)(i) A statement of all the material terms and conditions of any
financing arrangement offered directly or indirectly by the franchisor,
or any person affiliated with the franchisor, to the prospective
franchisee; and
(ii) A description of the terms by which any payment is to be
received by the franchisor from (A) any person offering financing to a
prospective franchisee; and (B) any person arranging for financing for
a prospective franchisee.
(13) A statement describing the material facts of whether, by the
terms of the franchise agreement or other device or practice, the
franchisee is:
(i) Limited in the goods or services he or she may offer for sale;
(ii) Limited in the customers to whom he or she may sell such goods
or services;
(iii) Limited in the geographic area in which he or she may offer for
sale or sell goods or services; or
(iv) Granted territorial protection by the franchisor, by which, with
respect to a territory or area, (A) the franchisor will not establish
another, or more than any fixed number of, franchises or company-owned
outlets, either operating under, or selling, offering, or distributing
goods, commodities or services, identified by any mark set forth under
paragraph (a)(1)(iii) of this section; or (B) the franchisor or its
parent will not establish other franchises or company-owned outlets
selling or leasing the same or similar products or services under a
different trade name, trademark, service mark, advertising or other
commercial symbol.
(14) A statement of the extent to which the franchisor requires the
franchisee (or, if the franchisee is a corporation, any person
affiliated with the franchisee) to participate personally in the direct
operation of the franchise.
(15) A statement disclosing, with respect to the franchise agreement
and any related agreements:
(i) The term (i.e., duration of arrangement), if any, of such
agreement, and whether such term is or may be affected by any agreement
(including leases or subleases) other than the one from which such term
arises;
(ii) The conditions under which the franchisee may renew or extend;
(iii) The conditions under which the franchisor may refuse to renew
or extend;
(iv) The conditions under which the franchisee may terminate;
(v) The conditions under which the franchisor may terminate;
(vi) The obligations (including lease or sublease obligations) of the
franchisee after termination of the franchise by the franchisor, and the
obligations of the franchisee (including lease or sublease obligations)
after termination of the franchise by the franchisee and after the
expiration of the franchise;
(vii) The franchisee's interest upon termination of the franchise, or
upon refusal to renew or extend the franchise, whether by the franchisor
or by the franchisee;
(viii) The conditions under which the franchisor may repurchase,
whether by right of first refusal or at the option of the franchisor
(and if the franchisor has the option to repurchase the franchise,
whether there will be an independent appraisal of the franchise, whether
the repurchase price will be determined by a predetermined formula and
whether there will be a recognition of goodwill or other intangibles
associated therewith in the repurchase price to be given the
franchisee);
(ix) The conditions under which the franchisee may sell or assign all
or any interest in the ownership of the franchise, or of the assets of
the franchise business;
(x) The conditions under which the franchisor may sell or assign, in
whole or in part, its interest under such agreements;
(xi) The conditions under which the franchisee may modify;
(xii) The conditions under which the franchisor may modify;
(xiii) The rights of the franchisee's heirs or personal
representative upon the death or incapacity of the franchisee; and
(xiv) The provisions of any covenant not to compete.
(16) A statement disclosing, with respect to the franchisor and as to
the particular named business being offered:
(i) The total number of franchises operating at the end of the
preceding fiscal year;
(ii) The total number of company-owned outlets operating at the end
of the preceding fiscal year;
(iii) The names, addresses, and telephone numbers of (A) The 10
franchised outlets of the named franchise business nearest the
prospective franchisee's intended location; or (B) all franchisees of
the franchisor, or (C) all franchisees of the franchisor in the State in
which the prospective franchisee lives or where the proposed franchise
is to be located, Provided, however, That there are more than 10 such
franchisees. If the number of franchisees to be disclosed pursuant to
paragraph (a)(16)(iii)(B) or (C) of this section exceeds 50, such
listing may be made in a separate document delivered to the prospective
franchisee with the prospectus if the existence of such separate
document is disclosed in the prospectus;
(iv) The number of franchises voluntarily terminated or not renewed
by franchisees within, or at the conclusion of, the term of the
franchise agreement, during the preceding fiscal year;
(v) The number of franchises reacquired by purchase by the franchisor
during the term of the franchise agreement, and upon the conclusion of
the term of the franchise agreement, during the preceding fiscal year;
(vi) The number of franchises otherwise reacquired by the franchisor
during the term of the franchise agreement, and upon the conclusion of
the term of the franchise agreement, during the preceding fiscal year;
(vii) The number of franchises for which the franchisor refused
renewal of the franchise agreement or other agreements relating to the
franchise during the preceding fiscal year; and
(viii) The number of franchises that were canceled or terminated by
the franchisor during the term of the franchise agreement, and upon
conclusion of the term of the franchise agreement, during the preceding
fiscal year.
With respect to the disclosures required by paragraphs (a)(16) (v),
(vi), (vii), and (viii) of this section, the disclosure statement shall
also include a general categorization of the reasons for such
reacquisitions, refusals to renew or terminations, and the number
falling within each such category, including but not limited to the
following: failure to comply with quality control standards, failure to
make sufficient sales, and other breaches of contract.
(17) (i) If site selection or approval thereof by the franchisor is
involved in the franchise relationship, a statement disclosing the range
of time that has elapsed between signing of franchise agreements or
other agreements relating to the franchise and site selection, for
agreements entered into during the preceding fiscal year; and
(ii) If operating franchise outlets are to be provided by the
franchisor, a statement disclosing the range of time that has elapsed
between the signing of franchise agreements or other agreements relating
to the franchise and the commencement of the franchisee's business, for
agreements entered into during the preceding fiscal year.
With respect to the disclosures required by paragraphs (a)(17) (i)
and (ii) of this section, a franchisor may at its option also provide a
distribution chart using meaningful classifications with respect to such
ranges of time.
(18) If the franchisor offers an initial training program or informs
the prospective franchisee that it intends to provide such person with
initial training, a statement disclosing:
(i) The type and nature of such training;
(ii) The minimum amount, if any, of training that will be provided to
a franchisee; and
(iii) The cost, if any, to be borne by the franchisee for the
training to be provided, or for obtaining such training.
(19) If the name of a public figure is used in connection with a
recommendation to purchase a franchise, or as a part of the name of the
franchise operation, or if the public figure is stated to be involved
with the management of the franchisor, a statement disclosing:
(i) The nature and extent of the public figure's involvement and
obligations to the franchisor, including but not limited to the
promotional assistance the public figure will provide to the franchisor
and to the franchisee;
(ii) The total investment of the public figure in the franchise
operation; and
(iii) The amount of any fee or fees the franchisee will be obligated
to pay for such involvement or assistance provided by the public figure.
(20) (i) A balance sheet (statement of financial position) for the
franchisor for the most recent fiscal year, and an income statement
(statement of results of operations) and statement of changes in
financial position for the franchisor for the most recent 3 fiscal
years. Such statements are required to have been examined in accordance
with generally accepted auditing standards by an independent certified
or licensed public accountant.
Provided, however, That where a franchisor is a subsidiary of another
corporation which is permitted under generally accepted accounting
principles to prepare financial statements on a consolidated or combined
statement basis, the above information may be submitted for the parent
if (A) the corresponding unaudited financial statements of the
franchisor are also provided, and (B) the parent absolutely and
irrevocably has agreed to guarantee all obligations of the subsidiary;
(ii) Unaudited statements shall be used only to the extent that
audited statements have not been made, and provided that such statements
are accompanied by a clear and conspicuous disclosure that they are
unaudited. Statements shall be prepared on an audited basis as soon as
practicable, but, at a minimum, financial statements for the first full
fiscal year following the date on which the franchisor must first comply
with this part shall contain a balance sheet opinion prepared by an
independent certified or licensed public accountant, and financial
statements for the following fiscal year shall be fully audited.
(21) All of the foregoing information in paragraphs (a) (1) through
(20) of this section shall be contained in a single disclosure statement
or prospectus, which shall not contain any materials or information
other than that required by this part or by State law not preempted by
this part. This does not preclude franchisors or franchise brokers from
giving other nondeceptive information orally, visually, or in separate
literature so long as such information is not contradictory to the
information in the disclosure statement required by paragraph (a) of
this section. This disclosure statement shall carry a cover sheet
distinctively and conspicuously showing the name of the franchisor, the
date of issuance of the disclosure statement, and the following notice
imprinted thereon in upper and lower case bold-face type of not less
than 12 point size:
To protect you, we've required your franchisor to give you this
information. We haven't checked it, and don't know if it's correct. It
should help you make up your mind. Study it carefully. While it
includes some information about your contract, don't rely on it alone to
understand your contract. Read all of your contract carefully. Buying
a franchise is a complicated investment. Take your time to decide. If
possible, show your contract and this information to an advisor, like a
lawyer or an accountant. If you find anything you think may be wrong or
anything important that's been left out, you should let us know about
it. It may be against the law.
There may also be laws on franchising in your state. Ask your state
agencies about them.
Federal Trade Commission,
Washington, D.C.
Provided, That the obligation to furnish such disclosure statement
shall be deemed to have been met for both the franchisor and the
franchise broker if either such party furnishes the prospective
franchisee with such disclosure statement.
(22) All information contained in the disclosure statement shall be
current as of the close of the franchisor's most recent fiscal year.
After the close of each fiscal year, the franchisor shall be given a
period not exceeding 90 days to prepare a revised disclosure statement
and, following such 90 days, may distribute only the revised prospectus
and no other. The franchisor shall, within a reasonable time after the
close of each quarter of the fiscal year, prepare revisions to be
attached to the disclosure statement to reflect any material change in
the franchisor or relating to the franchise business of the franchisor,
about which the franchisor or franchise broker, or any agent,
representative, or employee thereof, knows or should know. Each
prospective franchisee shall have in his or her possession, at the
''time for making of disclosures,'' the disclosure statement and
quarterly revision for the period most recent to the ''time for making
of disclosures'' and available at that time. Information which is
required to be audited pursuant to paragraph (a)(20) of this section is
not required to be audited for quarterly revisions, Provided, however,
That the unaudited information be accompanied by a statement in
immediate conjunction therewith that clearly and conspicuously discloses
that such information has not been audited.
(23) A table of contents shall be included within the disclosure
statement.
(24) The disclosure statement shall include a comment which either
positively or negatively responds to each disclosure item required to be
in the disclosure statement, by use of a statement which fully
incorporates the information required by the item. Each disclosure item
therein must be preceded by the appropriate heading, as set forth in
Note 3 of this part.
(b) To make any oral, written, or visual representation to a
prospective franchisee which states a specific level of potential sales,
income, gross or net profit for that prospective franchisee, or which
states other facts which suggest such a specific level, unless:
(1) At the time such representation is made, such representation is
relevant to the geographic market in which the franchise is to be
located;
(2) At the time such representation is made, a reasonable basis
exists for such representation and the franchisor has in its possession
material which constitutes a reasonable basis for such representation,
and such material is made available to any prospective franchisee and to
the Commission or its staff upon reasonable demand.
Provided, further, That in immediate conjunction with such
representation, the franchisor shall disclose in a clear and conspicuous
manner that such material is available to the prospective franchisee;
and Provided, however, That no provision within paragraph (b) of this
section shall be construed as requiring the disclosure to any
prospective franchisee of the identity of any specific franchisee or of
information reasonably likely to lead to the disclosure of such person's
identity; and Provided, further, That no additional representation as
to a prospective franchisee's potential sales, income, or profits may be
made later than the ''time for making of disclosures'';
(3) Such representation is set forth in detail along with the
material bases and assumptions therefor in a single legible written
document whose text accurately, clearly and concisely discloses such
information, and none other than that provided for by this part or by
State law not preempted by this part. Each prospective franchisee to
whom the representation is made shall be furnished with such document no
later than the ''time for making of disclosures''; Provided, however,
That if the representation is made at or prior to a ''personal meeting''
and such meeting occurs before the ''time for making of disclosures'',
the document shall be furnished to the prospective franchisee to whom
the representation is made at that ''personal meeting'';
(4) The following statement is clearly and conspicuously disclosed in
the document described by paragraph (b)(3) of this section in immediate
conjunction with such representation and in not less than twelve point
upper and lower-case boldface type:
These figures are only estimates of what we think you may earn.
There is no assurance you'll do as well. If you rely upon our figures,
you must accept the risk of not doing as well.
(5) The following information is clearly and conspicuously disclosed
in the document described by paragraph (b)(3) of this section in
immediate conjunction with such representation:
(i) The number and percentage of outlets of the named franchise
business which are located in the geographic markets that form the basis
for any such representation and which are known to the franchisor or
franchise broker to have earned or made at least the same sales, income,
or profits during a period of corresponding length in the immediate past
as those potential sales, income, or profits represented; and
(ii) The beginning and ending dates for the corresponding time period
referred to by paragraph (b)(5)(i) of this section, Provided, however,
That any franchisor without prior franchising experience as to the named
franchise business so indicate such lack of experience in the document
described in paragraph (b)(3) of this section.
Except, That representations of the sales, income or profits of
existing franchise outlets need not comply with paragraph (b) of this
section.
(c) To make any oral, written or visual representation to a
prospective franchisee which states a specific level of sales, income,
gross or net profits of existing outlets (whether franchised or
company-owned) of the named franchise business, or which states other
facts which suggest such a specific level, unless:
(1) At the time such representation is made, such representation is
relevant to the geographic market in which the franchise is to be
located;
(2) At the time such representation is made, a reasonable basis
exists for such representation and the franchisor has in its possession
material which constitutes a reasonable basis for such representation,
and such material is made available to any prospective franchisee and to
the Commission or its staff upon reasonable demand,
Provided, however, That in immediate conjunction with such
representation, the franchisor discloses in a clear and conspicuous
manner that such material is available to the prospective franchisee;
and Provided, further, That no provision within paragraph (c) of this
section shall be construed as requiring the disclosure to any
prospective franchisee of the identity of any specific franchisee or of
information reasonably likely to lead to the disclosure of such person's
identity; and Provided, further, That no additional representation as
to the sales, income, or gross or net profits of existing outlets
(whether franchised or company-owned) of the named franchise business
may be made later than the ''time for making of disclosures'';
(3) Such representation is set forth in detail along with the
material bases and assumptions therefor in a single legible written
document which accurately, clearly and concisely discloses such
information, and none other than that provided for by this part or by
State law not preempted by this part. Each prospective franchisee to
whom the representation is made shall be furnished with such document no
later than the ''time for making of disclosures'',
Provided, however, That if the representation is made at or prior to
a ''personal meeting'' and such meeting occurs before the ''time for
making of disclosures,'' the document shall be furnished to the
prospective franchisee to whom the representation is made at that
''personal meeting'';
(4) The underlying data on which the representation is based have
been prepared in accordance with generally accepted accounting
principles;
(5) The following statement is clearly and conspicuously disclosed in
the document described by paragraph (c)(3) of this section in immediate
conjunction with such representation, and in not less than twelve point
upper and lower case boldface type:
Some outlets have (sold) (earned) this amount. There is no assurance
you'll do as well. If you rely upon our figures, you must accept the
risk of not doing as well.
(6) The following information is clearly and conspicuously disclosed
in the document described by paragraph (c)(3) of this section in
immediate conjunction with such representation:
(i) The number and percentage of outlets of the named franchise
business which are located in the geographic markets that form the basis
for any such representation and which are known to the franchisor or
franchise broker to have earned or made at least the same sales, income,
or profits during a period of corresponding length in the immediate past
as those sales, income, or profits represented; and
(ii) The beginning and ending dates for the corresponding time period
referred to by paragraph (c)(6)(i) of this section,
Provided, however, That any franchisor without prior franchising
experience as to the named franchise business so indicate such lack of
experience in the document described in paragraph (c)(3) of this
section.
(d) To fail to provide the following information within the
document(s) required by paragraphs (b)(3) and (c)(3) of this section
whenever any representation is made to a prospective franchisee
regarding its potential sales, income, or profits, or the sales, income,
gross or net profits of existing outlets (whether franchised or
company-owned) of the named franchise business:
(1) A cover sheet distinctively and conspicuously showing the name of
the franchisor, the date of issuance of the document and the following
notice imprinted thereon in upper and lower case boldface type of not
less than twelve point size:
To protect you, we've required the franchisor to give you this
information. We haven't checked it and don't know if it's correct.
Study these facts and figures carefully. If possible, show them to
someone who can advise you, like a lawyer or an accountant. Then take
your time and think it over.
If you find anything you think may be wrong or anything important
that's been left out, let us know about it. It may be against the law.
There may also be laws on franchising in your State. Ask your State
agencies about them.
Federal Trade Commission,
Washington, D.C.
(2) A table of contents.
Provided, however, That each prospective franchisee to whom the
representation is made shall be notified at the ''time for making of
disclosures'' of any material change (about which the franchisor,
franchise broker, or any of the agents, representatives, or employees
thereof, knows or should know) in the information contained in the
document(s) described by paragraphs (b)(3) and (c)(3) of this section.
(e) To make any oral, written, or visual representation for general
dissemination (not otherwise covered by paragraph (b) or (c) of this
section) which states a specific level of sales, income, gross or net
profits, either actual or potential, of existing or prospective outlets
(whether franchised or company-owned) of the named franchise business or
which states other facts which suggest such a specific level, unless:
(1) At the time such representation is made, a reasonable basis
exists for such representation and the franchisor has in its possession
material which constitutes a reasonable basis for such representation
and which is made available to the Commission or its staff upon
reasonable demand;
(2) The underlying data on which each representation of sales, income
or profit for existing outlets is based have been prepared in accordance
with generally accepted accounting principles;
(3) In immediate conjunction with such representation, there shall be
clearly and conspicuously disclosed the number and percentage of outlets
of the named franchise business which the franchisor or the franchise
broker knows to have earned or made at least the same sales, income, or
profits during a period of corresponding length in the immediate past as
those sales, income, or profits represented, and the beginning and
ending dates for said time period;
(4) In immediate conjuction with each such representation of
potential sales, income or profits, the following statement shall be
clearly and conspicuously disclosed:
These figures are only estimates; there is no assurance you'll do as
well. If you rely upon our figures, you must accept the risk of not
doing as well.
Provided, however, That if such representation is not based on actual
experience of existing outlets of the named franchise business, that
fact also should be disclosed;
(5) No later than the earlier of the first ''personal meeting'' or
the ''time for making of disclosures,'' each prospective franchisee
shall be given a single, legible written document which accurately,
clearly and concisely sets forth the following information and materials
(and none other than that provided for by this part or by State law not
preempted by this part):
(i) The representation, set forth in detail along with the material
bases and assumptions therefor;
(ii) The number and percentage of outlets of the named franchise
business which the franchisor or the franchise broker knows to have
earned or made at least the same sales, income or profits during a
period of corresponding length in the immediate past as those sales,
income, or profits represented, and the beginning and ending dates for
said time period;
(iii) With respect to each such representation of sales, income, or
profits of existing outlets, the following statement shall be clearly
and conspicuously disclosed in immediate conjunction therewith, printed
in not less than 12 point upper and lower case boldface type:
Some outlets have (sold) (earned) this amount. There is no assurance
you'll do as well. If you rely upon our figures, you must accept the
risk of not doing as well.
(iv) With respect to each such representation of potential sales,
income, or profits, the following statement shall be clearly and
conspicuously disclosed in immediate conjunction therewith, printed in
not less than 12 point upper and lower case boldface type:
These figures are only estimates. There is no assurance that you'll
do as well. If you rely upon our figures, you must accept the risk of
not doing as well.
(v) If applicable, a statement clearly and conspicuously disclosing
that the franchisor lacks prior franchising experience as to the named
franchise business;
(vi) If applicable, a statement clearly and conspicuously disclosing
that the franchisor has not been in business long enough to have actual
business data;
(vii) A cover sheet, distinctively and conspicuously showing the name
of the franchisor, the date of issuance of the document, and the
following notice printed thereon in not less than 12 point upper and
lower case boldface type:
To protect you, we've required the franchisor to give you this
information. We haven't checked it and don't know if it's correct.
Study these facts and figures carefully. If possible, show them to
someone who can advise you, like a lawyer or an accountant. If you find
anything you think may be wrong or anything important that's been left
out, let us know about it. It may be against the law. There may also
be laws about franchising in your State. Ask your State agencies about
them.
Federal Trade Commisssion,
Washington, D.C.
(viii) A table of contents;
(6) Each prospective franchisee shall be notified at the ''time for
making of disclosures'' of any material changes that have occurred in
the information contained in this document.
(f) To make any claim or representation which is contradictory to the
information required to be disclosed by this part.
(g) To fail to furnish the prospective franchisee with a copy of the
franchisor's franchise agreement and related agreements with the
document, and a copy of the completed franchise and related agreements
intended to be executed by the parties at least 5 business days prior to
the date the agreements are to be executed.
Provided, however, That the obligations defined in paragraphs (b)
through (g) of this section shall be deemed to have been met for both
the franchisor and the franchise broker if either such person furnishes
the prospective franchisee with the written disclosures required
thereby.
(h) To fail to return any funds or deposits in accordance with any
conditions disclosed pursuant to paragraph (a)(7) of this section.
16 CFR 436.2 Definitions.
As used in this part, the following definitions shall apply:
(a) The term ''franchise'' means any continuing commercial
relationship created by any arrangement or arrangements whereby:
(1)(i)(A) a person (hereinafter ''franchisee'') offers, sells, or
distributes to any person other than a ''franchisor'' (as hereinafter
defined), goods, commodities, or services which are:
(1) Identified by a trademark, service mark, trade name, advertising
or other commercial symbol designating another person (hereinafter
''franchisor''); or
(2) Indirectly or directly required or advised to meet the quality
standards prescribed by another person (hereinafter ''franchisor'')
where the franchisee operates under a name using the trademark, service
mark, trade name, advertising or other commercial symbol designating the
franchisor; and
(B)(1) The franchisor exerts or has authority to exert a significant
degree of control over the franchisee's method of operation, including
but not limited to, the franchisee's business organization, promotional
activities, management, marketing plan or business affairs; or
(2) The franchisor gives significant assistance to the franchisee in
the latter's method of operation, including, but not limited to, the
franchisee's business organization, management, marketing plan,
promotional activities, or business affairs; Provided, however, That
assistance in the franchisee's promotional activities shall not, in the
absence of assistance in other areas of the franchisee's method of
operation, constitute significant assistance; or
(ii)(A) A person (hereinafter ''franchisee'') offers, sells, or
distributes to any person other than a ''franchisor'' (as hereinafter
defined), goods, commodities, or services which are:
(1) Supplied by another person (hereinafter ''franchisor''), or
(2) Supplied by a third person (e.g., a supplier) with whom the
franchisee is directly or indirectly required to do business by another
person (hereinafter ''franchisor''); or
(3) Supplied by a third person (e.g., a supplier) with whom the
franchisee is directly or indirectly advised to do business by another
person (hereinafter ''franchisor'') where such third person is
affiliated with the franchisor; and
(B) The franchisor:
(1) Secures for the franchisee retail outlets or accounts for said
goods, commodities, or services; or
(2) Secures for the franchisee locations or sites for vending
machines, rack displays, or any other product sales display used by the
franchisee in the offering, sale, or distribution of said goods,
commodities, or services; or
(3) Provides to the franchisee the services of a person able to
secure the retail outlets, accounts, sites or locations referred to in
paragraphs (a)(1)(ii)(B) (1) and (2) of this section; and
(2) The franchisee is required as a condition of obtaining or
commencing the franchise operation to make a payment or a commitment to
pay to the franchisor, or to a person affiliated with the franchisor.
(3) Exemptions. The provisions of this part shall not apply to a
franchise:
(i) Which is a ''fractional franchise''; or
(ii) Where pursuant to a lease, license, or similar agreement, a
person offers, sells, or distributes goods, commodities, or services on
or about premises occupied by a retailer-grantor primarily for the
retailer-grantor's own merchandising activities, which goods,
commodities, or services are not purchased from the retailer-grantor or
persons whom the lessee is directly or indirectly (A) required to do
business with by the retailer-grantor or (B) advised to do business with
by the retailer-grantor where such person is affiliated with the
retailer-grantor; or
(iii) Where the total of the payments referred to in paragraph (a)(2)
of this section made during a period from any time before to within 6
months after commencing operation of the franchisee's business, is less
than $500; or
(iv) Where there is no writing which evidences any material term or
aspect of the relationship or arrangement.
(4) Exclusions. The term ''franchise'' shall not be deemed to
include any continuing commercial relationship created solely by:
(i) The relationship between an employer and an employee, or among
general business partners; or
(ii) Membership in a bona fide ''cooperative association''; or
(iii) An agreement for the use of a trademark, service mark, trade
name, seal, advertising, or other commercial symbol designating a person
who offers on a general basis, for a fee or otherwise, a bona fide
service for the evaluation, testing, or certification of goods,
commodities, or services;
(iv) An agreement between a licensor and a single licensee to license
a trademark, trade name, service mark, advertising or other commercial
symbol where such license is the only one of its general nature and type
to be granted by the licensor with respect to that trademark, trade
name, service mark, advertising, or other commercial symbol.
(5) Any relationship which is represented either orally or in writing
to be a franchise (as defined in this paragraphs (a) (1) and (2) of this
section) is subject to the requirements of this part.
(b) The term ''person'' means any individual, group, association,
limited or general partnership, corporation, or any other business
entity.
(c) The term ''franchisor'' means any person who participates in a
franchise relationship as a franchisor, as denoted in paragraph (a) of
this section.
(d) The term ''franchisee'' means any person (1) who participates in
a franchise relationship as a franchisee, as denoted in paragraph (a) of
this section, or (2) to whom an interest in a franchise is sold.
(e) The term ''prospective franchisee'' includes any person,
including any representative, agent, or employee of that person, who
approaches or is approached by a franchisor or franchise broker, or any
representative, agent, or employee thereof, for the purpose of
discussing the establishment, or possible establishment, of a franchise
relationship involving such a person.
(f) The term ''business day'' means any day other than Saturday,
Sunday, or the following national holidays: New Year's Day,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans' Day, Thanksgiving, and Christmas.
(g) The term ''time for making of disclosures'' means ten (10)
business days prior to the earlier of (1) the execution by a prospective
franchisee of any franchise agreement or any other agreement imposing a
binding legal obligation on such prospective franchisee, about which the
franchisor, franchise broker, or any agent, representative, or employee
thereof, knows or should know, in connection with the sale or proposed
sale of a franchise, or (2) the payment by a prospective franchisee,
about which the franchisor, franchise broker, or any agent,
representative, or employee thereof, knows or should know, of any
consideration in connection with the sale or proposed sale of a
franchise.
(h) The term ''fractional franchise'' means any relationship, as
denoted by paragraph (a) of this section, in which the person described
therein as a franchisee, or any of the current directors or executive
officers thereof, has been in the type of business represented by the
franchise relationship for more than 2 years and the parties
anticipated, or should have anticipated, at the time the agreement
establishing the franchise relationship was reached, that the sales
arising from the relationship would represent no more than 20 percent of
the sales in dollar volume of the franchisee.
(i) The term ''affiliated person'' means a person (as defined in
paragraph (b) of this section):
(1) Which directly or indirectly controls, is controlled by, or is
under common control with, a franchisor; or
(2) Which directly or indirectly owns, controls, or holds with power
to vote, 10 percent or more of the outstanding voting securities of a
franchisor; or
(3) Which has, in common with a franchisor, one or more partners,
officers, directors, trustees, branch managers, or other persons
occupying similar status or performing similar functions.
(j) The term ''franchise broker'' means any person other than a
franchisor or a franchisee who sells, offers for sale, or arranges for
the sale of a franchise.
(k) The term ''sale of a franchise'' includes a contract or agreement
whereby a person obtains a franchise or interest in a franchise for
value by purchase, license, or otherwise. This term shall not be deemed
to include the renewal or extension of an existing franchise where there
is no interruption in the operation of the franchised business by the
franchisee, unless the new contracts or agreements contain material
changes from those in effect between the franchisor and franchisee prior
thereto.
(l) A ''cooperative association'' is either (1) an association of
producers of agricultural products authorized by section 1 of the
Capper-Volstead Act, 7 U.S.C. 291; or (2) an organization operated on a
cooperative basis by and for independent retailers which wholesales
goods or furnishes services primarily to its member-retailers.
(m) The term ''fiscal year'' means the franchisor's fiscal year.
(n) The terms ''material,'' ''material fact,'' and ''material
change'' shall include any fact, circumstance, or set of conditions
which has a substantial likelihood of influencing a reasonable
franchisee or a reasonable prospective franchisee in the making of a
significant decision relating to a named franchise business or which has
any significant financial impact on a franchisee or prospective
franchisee.
(o) The term ''personal meeting'' means a face-to-face meeting
between a franchisor or franchise broker (or any agent, representative,
or employee thereof) and a prospective franchisee which is held for the
purpose of discussing the sale or possible sale of a franchise.
16 CFR 436.3 Severability.
If any provision of this part or its application to any person, act,
or practice is held invalid, the remainder of the part or the
application of its provisions to any person, act, or practice shall not
be affected thereby.
Note 1: The Commission expresses no opinion as to the legality of
any practice mentioned in this part. A provision for disclosure should
not be construed as condonation or approval with respect to the matter
required to be disclosed, nor as an indication of the Commission's
intention not to enforce any applicable statute.
Note 2: By taking action in this area, the Federal Trade Commission
does not intend to annul, alter, or affect, or exempt any person subject
to the provisions of this part from complying with the laws or
regulations of any State, municipality, or other local government with
respect to franchising practices, except to the extent that those laws
or regulations are inconsistent with any provision of this part, and
then only to the extent of the inconsistency. For the purposes of this
part, a law or regulation of any State, municipality, or other local
government is not inconsistent with this part if the protection such law
or regulation affords any prospective franchisee is equal to or greater
than that provided by this part. Examples of provisions which provide
protection equal to or greater than that provided by this part include
laws or regulations which require more complete record keeping by the
franchisor or the disclosure of more complete information to the
franchisee.
Note 3: (As per 436.1(a)(24) of this part):
Pursuant to 16 CFR 436.1 et seq., a Trade Regulation Rule of the
Federal Trade Commission regarding Disclosure Requirements and
Prohibitions Concerning Franchising and Business Opportunity Ventures,
the following information is set forth on (name of franchisor) for your
examination:
1. Identifying information as to franchisor.
2. Business experience of franchisor's directors and executive
officers.
3. Business experience of the franchisor.
4. Litigation history.
5. Bankruptcy history.
6. Description of franchise.
7. Initial funds required to be paid by a franchisee.
8. Recurring funds required to be paid by a franchisee.
9. Affiliated persons the franchisee is required or advised to do
business with by the franchisor.
10. Obligations to purchase.
11. Revenues received by the franchisor in consideration of purchases
by a franchisee.
12. Financing arrangements.
13. Restriction of sales.
14. Personal participation required of the franchisee in the
operation of the franchise.
15. Termination, cancellation, and renewal of the franchise.
16. Statistical information concerning the number of franchises (and
company-owned outlets).
17. Site selection.
18. Training programs.
19. Public figure involvement in the franchise.
20. Financial information concerning the franchisor
16 CFR 436.3 PART 444 -- CREDIT PRACTICES
Sec.
444.1 Definitions.
444.2 Unfair credit practices.
444.3 Unfair or deceptive cosigner practices.
444.4 Late charges.
444.5 State exemptions.
Authority: Sec. 18(a), 88 Stat. 2193, as amended 93 Stat. 95 (15
U.S.C. 57a); 80 Stat. 383, as amended, 81 Stat. 54 (5 U.S.C. 552).
Source: 49 FR 7789, Mar. 1, 1984, unless otherwise noted.
16 CFR 444.1 Definitions.
(a) Lender. A person who engages in the business of lending money to
consumers within the jurisdiction of the Federal Trade Commission.
(b) Retail installment seller. A person who sells goods or services
to consumers on a deferred payment basis or pursuant to a lease-purchase
arrangement within the jurisdiction of the Federal Trade Commission.
(c) Person. An individual, corporation, or other business
organization.
(d) Consumer. A natural person who seeks or acquires goods,
services, or money for personal, family, or household use.
(e) Obligation. An agreement between a consumer and a lender or
retail installment seller.
(f) Creditor. A lender or a retail installment seller.
(g) Debt. Money that is due or alleged to be due from one to
another.
(h) Earnings. Compensation paid or payable to an individual or for
his or her account for personal services rendered or to be rendered by
him or her, whether denominated as wages, salary, commission, bonus, or
otherwise, including periodic payments pursuant to a pension,
retirement, or disability program.
(i) Household goods. Clothing, furniture, appliances, one radio and
one television, linens, china, crockery, kitchenware, and personal
effects (including wedding rings) of the consumer and his or her
dependents, provided that the following are not included within the
scope of the term ''household goods'':
(1) Works of art;
(2) Electronic entertainment equipment (except one television and one
radio);
(3) Items acquired as antiques; and
(4) Jewelry (except wedding rings).
(j) Antique. Any item over one hundred years of age, including such
items that have been repaired or renovated without changing their
original form or character.
(k) Cosigner. A natural person who renders himself or herself liable
for the obligation of another person without compensation. The term
shall include any person whose signature is requested as a condition to
granting credit to another person, or as a condition for forbearance on
collection of another person's obligation that is in default. The term
shall not include a spouse whose signature is required on a credit
obligation to perfect a security interest pursuant to State law. A
person who does not receive goods, services, or money in return for a
credit obligation does not receive compensation within the meaning of
this definition. A person is a cosigner within the meaning of this
definition whether or not he or she is designated as such on a credit
obligation.
16 CFR 444.2 Unfair credit practices.
(a) In connection with the extension of credit to consumers in or
affecting commerce, as commerce is defined in the Federal Trade
Commission Act, it is an unfair act or practice within the meaning of
Section 5 of that Act for a lender or retail installment seller directly
or indirectly to take or receive from a consumer an obligation that:
(1) Constitutes or contains a cognovit or confession of judgment (for
purposes other than executory process in the State of Louisiana),
warrant of attorney, or other waiver of the right to notice and the
opportunity to be heard in the event of suit or process thereon.
(2) Constitutes or contains an executory waiver or a limitation of
exemption from attachment, execution, or other process on real or
personal property held, owned by, or due to the consumer, unless the
waiver applies solely to property subject to a security interest
executed in connection with the obligation.
(3) Constitutes or contains an assignment of wages or other earnings
unless:
(i) The assignment by its terms is revocable at the will of the
debtor, or
(ii) The assignment is a payroll deduction plan or preauthorized
payment plan, commencing at the time of the transaction, in which the
consumer authorizes a series of wage deductions as a method of making
each payment, or
(iii) The assignment applies only to wages or other earnings already
earned at the time of the assignment.
(4) Constitutes or contains a nonpossessory security interest in
household goods other than a purchase money security interest.
16 CFR 444.3 Unfair or deceptive cosigner practices.
(a) In connection with the extension of credit to consumers in or
affecting commerce, as commerce is defined in the Federal Trade
Commission Act, it is:
(1) A deceptive act or practice within the meaning of section 5 of
that Act for a lender or retail installment seller, directly or
indirectly, to misrepresent the nature or extent of cosigner liability
to any person.
(2) An unfair act or practice within the meaning of section 5 of that
Act for a lender or retail installment seller, directly or indirectly,
to obligate a cosigner unless the cosigner is informed prior to becoming
obligated, which in the case of open end credit shall mean prior to the
time that the agreement creating the cosigner's liability for future
charges is executed, of the nature of his or her liability as cosigner.
(b) Any lender or retail installment seller who complies with the
preventive requirements in paragraph (c) of this section does not
violate paragraph (a) of this section.
(c) To prevent these unfair or deceptive acts or practices, a
disclosure, consisting of a separate document that shall contain the
following statement and no other, shall be given to the cosigner prior
to becoming obligated, which in the case of open end credit shall mean
prior to the time that the agreement creating the cosigner's liability
for future charges is executed:
You are being asked to guarantee this debt. Think carefully before
you do. If the borrower doesn't pay the debt, you will have to. Be
sure you can afford to pay if you have to, and that you want to accept
this responsibility.
You may have to pay up to the full amount of the debt if the borrower
does not pay. You may also have to pay late fees or collection costs,
which increase this amount.
The creditor can collect this debt from you without first trying to
collect from the borrower. The creditor can use the same collection
methods against you that can be used against the borrower, such as suing
you, garnishing your wages, etc. If this debt is ever in default, that
fact may become a part of your credit record.
This notice is not the contract that makes you liable for the debt.
16 CFR 444.4 Late charges.
(a) In connection with collecting a debt arising out of an extension
of credit to a consumer in or affecting commerce, as commerce is defined
in the Federal Trade Commission Act, it is an unfair act or practice
within the meaning of section 5 of that Act for a creditor, directly or
indirectly, to levy or collect any deliquency charge on a payment, which
payment is otherwise a full payment for the applicable period and is
paid on its due date or within an applicable grace period, when the only
delinquency is attributable to late fee(s) or delinquency charge(s)
assessed on earlier installment(s).
(b) For purposes of this section, ''collecting a debt'' means any
activity other than the use of judicial process that is intended to
bring about or does bring about repayment of all or part of a consumer
debt.
16 CFR 444.5 State exemptions.
(a) If, upon application to the Federal Trade Commission by an
appropriate State agency, the Federal Trade Commission determines that:
(1) There is a State requirement or prohibition in effect that
applies to any transaction to which a provision of this rule applies;
and
(2) The State requirement or prohibition affords a level of
protection to consumers that is substantially equivalent to, or greater
than, the protection afforded by this rule;
Then that provision of the rule will not be in effect in that State
to the extent specified by the Federal Trade Commission in its
determination, for as long as the State administers and enforces the
State requirement or prohibition effectively.
16 CFR 444.5 PART 453 -- FUNERAL INDUSTRY PRACTICES
Sec.
453.1 Definitions.
453.2 Price disclosures.
453.3 Misrepresentations.
453.4 Required purchase of funeral goods or funeral services.
453.5 Services provided without prior approval.
453.6 Retention of documents.
453.7 Comprehension of disclosures.
453.8 Declaration of intent.
453.9 State exemptions.
453.10 Mandatory review.
Authority: Sec. 6(g) 38 Stat. 721 (15 U.S.C. 46(g); 80 Stat. 383,
as amended, 81 Stat. 54 (5 U.S.C. 552).
Source: 47 FR 42299, Sept. 24, 1982, unless otherwise noted.
16 CFR 453.1 Definitions.
(a) Accounting year. ''Accounting year'' refers to the particular
calendar year or other one year period used by a funeral provider in
keeping financial records for tax or accounting purposes.
(b) Alternative container. An ''alternative container'' is a
non-metal receptacle or enclosure, without ornamentation or a fixed
interior lining, which is designed for the encasement of human remains
and which is made of cardboard, pressed-wood, composition materials
(with or without an outside covering) or pouches of canvas or other
materials.
(c) Cash advance item. A ''cash advance item'' is any item of
service or merchandise described to a purchaser as a ''cash advance,''
''accommodation,'' ''cash disbursement,'' or similar term, A cash
advance item is also any item obtained from a third party and paid for
by the funeral provider on the purchaser's behalf. Cash advance items
may include, but are not limited to, the following items: Cemetery or
crematory services; pallbearers; public transportation; clergy
honoraria; flowers; musicians or singers; nurses; obituary notices;
gratuities and death certificates.
(d) Casket. A ''casket'' is a rigid container which is designed for
the encasement of human remains and which is usually constructed of
wood, metal, or like material, and ornamented and lined with fabric.
(e) Commission. ''Commission'' refers to the Federal Trade
Commission.
(f) Cremation. ''Cremation'' is a heating process which incinerates
human remains.
(g) Crematory. A ''crematory'' is any person, partnership or
corporation that performs cremation and sells funeral goods.
(h) Direct cremation. A ''direct cremation'' is a disposition of
human remains by cremation, without formal viewing, visitation, or
ceremony with the body present.
(i) Funeral goods. ''Funeral goods'' are the goods which are sold or
offered for sale directly to the public for use in connection with
funeral services.
(j) Funeral provider. A ''funeral provider'' is any person,
partnership or corporation that sells or offers to sell funeral goods
and funeral services to the public.
(k) Funeral services. ''Funeral services'' are any services which
may be used to care for and prepare deceased human bodies for burial,
cremation or other final disposition; and arrange, supervise or conduct
the funeral ceremony or the final disposition of deceased human bodies.
(l) Immediate burial. An ''immediate burial'' is a disposition of
human remains by burial, without formal viewing, visitation, or ceremony
with the body present, except for a graveside service.
(m) Outer burial container. An ''outer burial container'' is any
container which is designed for placement in the grave around the casket
including, but not limited to, containers commonly known as burial
vaults, grave boxes, and grave liners.
(n) Person. A ''person'' is any individual, partnership,
corporation, association, government or governmental subdivision or
agency, or other entity.
(o) Services of funeral director and staff. The ''services of
funeral director and staff'' are the services, not included in prices of
other categories in 453.2(b)(4) which may be furnished by a funeral
provider in arranging and supervising a funeral, such as conducting the
arrangements conference, planning the funeral, obtaining necessary
permits and placing obituary notices.
(p) Unfinished wood box. An ''unfinished wood box'' is an
unornamented casket made of wood which does not have a fixed interior
lining.
(49 FR 563, Jan. 5, 1984)
16 CFR 453.2 Price disclosures.
(a) Unfair or deceptive acts or practices. In selling or offering to
sell funeral goods or funeral services to the public, it is an unfair or
deceptive act or practice for a funeral provider to fail to furnish
price information disclosing the cost to the purchaser for each of the
specific funeral goods and funeral services used in connection with the
disposition of deceased human bodies, including at least the price of
embalming, transportation of remains, use of facilities, caskets, outer
burial containers, immediate burials, or direct cremations, to persons
inquiring about the purchase of funerals. Any funeral provider who
complies with the preventive requirements in paragraph (b) of this
section is not engaged in the unfair or deceptive acts or practices
defined here.
(b) Preventive requirements. To prevent these unfair or deceptive
acts or practices, as well as the unfair or deceptive acts or practices
defined in 453.4(b)(1), funeral providers must:
(1) Telephone price disclosures. (i) Tell persons who call the
funeral provider's place of business and ask about the terms,
conditions, or prices at which funeral goods or funeral services are
offered, that price information is available over the telephone.
(ii) Tell persons who ask by telephone about the funeral provider's
offerings or prices any accurate information from the price lists in
paragraphs (b)(2) through (4) of this section which reasonably answers
the question and any other information which reasonably answers the
question and which is readily available.
(2) Casket price list. (i) Give a printed or typewritten price list
to people who inquire in person about the offerings or prices of caskets
or alternative containers. The funeral provider must offer the list
upon beginning discussion of, but in any event before showing caskets.
The list must contain at least the retail prices of all caskets and
alternative containers offered which do not require special ordering,
enough information to identify each, and the effective date for the
price list. In lieu of a written list, other formats, such as
notebooks, brochures, or charts may be used if they contain the same
information as would the printed or typewritten list, and display it in
a clear and conspicuous manner. Provided however, That funeral
providers do not have to make a casket price list available if the
funeral providers place on the general price list, specified in
paragraph (b)(4) of this section, the information which is required by
this paragraph (b)(2)(i) of this section.
(ii) Place on the list, whether a printed or typewritten list or
other format is used, the name of the funeral provider's place of
business and a caption describing the list as a ''casket price list.''
(3) Outer burial container price list. (i) Give a printed or
typewritten price list to persons who inquire in person about outer
burial container offerings or prices. The funeral provider must offer
the list upon beginning discussion of, but in any event before showing
the containers. The list must contain at least the retail prices of all
outer burial containers offered which do not require special ordering,
enough information to identify each container, and the effective date
for the prices listed. In lieu of a written list, the funeral provider
may use other formats, such as notebooks, brochures, or charts, if they
contain the same information as the printed or typewritten list, and
display it in a clear and conspicuous manner. Provided however, That
funeral providers do not have to make an outer burial container price
list available if the funeral providers place on the general price list,
specified in paragraph (b)(4) of this section, the information which is
required by this paragraph (b)(3)(i) of this section.
(ii) Place on the list, whether a printed or typewritten list or
other format is used, the name of the funeral provider's place of
business and a caption describing the list as an ''outer burial
container price list.''
(4) General price list. (i) Give a printed or typewritten price list
for retention to persons who inquire in person about funeral
arrangements or the prices of funeral goods or funeral services. When
people inquire in person about funeral arrangements or the prices of
funeral goods or funeral services, the funeral provider must offer them
the list upon beginning discussion either of funeral arrangements or of
the selection of any funeral goods or funeral services. This list must
contain at least the following information:
(A) The name, address, and telephone number of the funeral provider's
place of business;
(B) A caption describing the list as a ''general price list'';
(C) The effective date for the price list; and
(D) In immediate conjunction with the price disclosures required by
paragraph (b)(4)(ii) of this section, the statement: ''This list does
not include prices for certain items that you may ask us to buy for you,
such as cemetery or crematory services, flowers, and newspaper notices.
The prices for those items will be shown on your bill or the statement
describing the funeral goods and services you selected.''
(ii) Include on the price list, in any order, the retail prices
(expressed either as the flat fee, or as the price per hour, mile or
other unit of computation) and the other information specified below for
at least each of the following items, if offered for sale:
(A) Forwarding of remains to another funeral home, together with a
list of the services provided for any quoted price;
(B) Receiving remains from another funeral home, together with a list
of the services provided for any quoted price;
(C) The price range for the direct cremations offered by the funeral
provider, together with: (1) A separate price for a direct cremation
where the purchaser provides the container; (2) separate prices for
each direct cremation offered including an unfinished wood box or
alternative container; and (3) a description of the services and
container (where applicable), included in each price;
(D) The price range for the immediate burials offered by the funeral
provider, together with: (1) A separate price for an immediate burial
where the purchaser provides the casket; (2) separate prices for each
immediate burial offered including a casket or alternative container;
and (3) a description of the services and container (where applicable)
included in that price;
(E) Transfer of remains to funeral home;
(F) Embalming;
(G) Other preparation of the body;
(H) Use of facilities for viewing;
(I) Use of facilities for funeral ceremony;
(J) Other use of facilities, together with a list of facilities
provided for any quoted price;
(K) Hearse;
(L) Limousine;
(M) Other automotive equipment, together with a description of the
automotive equipment provided for any quoted price; and
(N) Acknowledgment cards.
(iii) Include on the price list, in any order, the following
information:
(A) Either of the following:
(1) The price range for the caskets offered by the funeral provider,
together with the statement: ''A complete price list will be provided
at the funeral home.''; or
(2) The prices of individual caskets, disclosed in the manner
specified by paragraph (b)(2)(i) of this section; and
(B) Either of the following:
(1) The price range for the outer burial containers offered by the
funeral provider, together with the statement: ''A complete price list
will be provided at the funeral home.''; or
(2) The prices of individual outer burial containers, disclosed in
the manner specified by paragraph (b)(3)(i) of this section; and
(C) Either of the following:
(1) The price for the services of funeral director and staff,
together with a list of the principal services provided for any quoted
price and, if the charge cannot be declined by the purchaser, the
statement: ''This fee for our services will be added to the total cost
of the funeral arrangements you select. (This fee is already included
in our charges for direct cremations, immediate burials, and forwarding
or receiving remains.)''; or
(2) The following statement: ''Please note that a fee for the use of
our services is included in the price of our caskets. Our services
include (specify).'' The statement must be placed on the general price
list together with casket price range, required by paragraph
(b)(4)(iii)(A)(1) of this section, or together with the prices of
individual caskets, required by (b)(4)(iii)(A)(2) of this section.
(5) Statement of funeral goods and services selected. (i) Give an
itemized written statement for retention to each person who arranges a
funeral or other disposition of human remains, at the conclusion of the
discussion of arrangements. The statement must list at least the
following information:
(A) The funeral goods and funeral services selected by that person
and the prices to be paid for each of them;
(B) Specifically itemized cash advance items. (These prices must be
given to the extent then known or reasonably ascertainable. If the
prices are not known or reasonably ascertainable, a good faith estimate
shall be given and a written statement of the actual charges shall be
provided before the final bill is paid.); and
(C) The total cost of the goods and services selected.
(ii) The information required by this paragraph (b)(5) of this
section may be included on any contract, statement, or other document
which the funeral provider would otherwise provide at the conclusion of
discussion of arrangements.
(6) Other pricing methods. Funeral providers may give persons any
other price information, in any other format, in addition to that
required by paragraphs (b) (2), (3), and (4) of this section so long as
the statement required by paragraph (b)(5) of this section is given when
required by the rule.
16 CFR 453.3 Misrepresentations.
(a) Embalming Provisions -- (1) Deceptive acts or practices. In
selling or offering to sell funeral goods or funeral services to the
public, it is a deceptive act or practice for a funeral provider to:
(i) Represent that State or local law requires that a deceased person
be embalmed when such is not the case;
(ii) Fail to disclose that embalming is not required by law except in
certain special cases.
(2) Preventive requirements. To prevent these deceptive acts or
practices, as well as the unfair or deceptive acts or practices defined
in 453.4(b)(1) and 453.5(2), funeral providers must:
(i) Not represent that a deceased person is required to be embalmed
for direct cremation, immediate burial, a funeral using a sealed casket,
or if refrigeration is available and the funeral is without viewing or
visitation and with a closed casket when State or local law does not
require embalming; and
(ii) Place the following disclosure on the general price list,
required by 453.2(b)(4), in immediate conjunction with the price shown
for embalming: ''Except in certain special cases, embalming is not
required by law. Embalming may be necessary, however, if you select
certain funeral arrangements, such as a funeral with viewing. If you do
not want embalming, you usually have the right to choose an arrangement
which does not require you to pay for it, such as direct cremation or
immediate burial.''
(b) Casket for cremation provisions -- (1) Deceptive acts or
practices. In selling or offering to sell funeral goods or funeral
services to the public, it is a deceptive act or practice for a funeral
provider to:
(i) Represent that State or local law requires a casket for direct
cremations;
(ii) Represent that a casket (other than an unfinished wood box) is
required for direct cremations.
(2) Preventive requirements. To prevent these deceptive acts or
practices, as well as the unfair or deceptive acts or practices defined
in 453.4(a)(1), funeral providers must place the following disclosure
in immediate conjunction with the price range shown for direct
cremations: ''If you want to arrange a direct cremation, you can use an
unfinished wood box or an alternative container. Alternative containers
can be made of materials like heavy cardboard or composition materials
(with or without an outside covering), or pouches of canvas.'' This
disclosure only has to be placed on the general price list if the
funeral provider arranges direct cremations.
(c) Outer burial container provisions -- (1) Deceptive acts or
practices. In selling or offering to sell funeral goods and funeral
services to the public, it is a deceptive act or practice for a funeral
provider to:
(i) Represent that State or local laws or regulations, or particular
cemeteries, require outer burial containers when such is not the case;
(ii) Fail to disclose to persons arranging funerals that State law
does not require the purchase of an outer burial container.
(2) Preventive requirement. To prevent these deceptive acts or
practices, funeral providers must place the following disclosure on the
outer burial container price list, required by 453.2(b)(3)(ii), or, if
the prices of outer burial containers are listed on the general price
list, required by 453.2(b)(4), in immediate conjunction with those
prices: ''In most areas of the country, no State or local law makes you
buy a container to surround the casket in the grave. However, many
cemeteries ask that you have such a container so that the grave will not
sink in. Either a burial vault or a grave liner will satisfy these
requirements.''
(d) General provisions on legal and cemetery requirements -- (1)
Deceptive acts or practices. In selling or offering to sell funeral
goods or funeral services to the public, it is a deceptive act or
practice for funeral providers to represent that Federal, State, or
local laws, or particular cemeteries or crematories, require the
purchase of any funeral goods or funeral services when such is not the
case.
(2) Preventive requirements. To prevent these deceptive acts or
practices, as well as the deceptive acts or practices identified in
453.3(a)(1), 453.3(b)(1), and 453.3(c)(1), funeral providers must
identify and briefly describe in writing on the statement of funeral
goods and services selected (required by 453.2(b)(5)) any legal,
cemetery, or crematory requirement which the funeral provider represents
to persons as compelling the purchase of funeral goods or funeral
services for the funeral which that person is arranging.
(e) Provisions on preservative and protective value claims. In
selling or offering to sell funeral goods or funeral services to the
public, it is a deceptive act or practice for a funeral provider to:
(1) Represent that funeral goods or funeral services will delay the
natural decomposition of human remains for a long-term or indefinite
time;
(2) Represent that funeral goods have protective features or will
protect the body from gravesite substances, when such is not the case.
(f) Cash advance provisions -- (1) Deceptive acts or practices. In
selling or offering to sell funeral goods or funeral services to the
public, it is a deceptive act or practice for a funeral provider to:
(i) Represent that the price charged for a cash advance item is the
same as the cost to the funeral provider for the item when such is not
the case;
(ii) Fail to disclose to persons arranging funerals that the price
being charged for a cash advance item is not the same as the cost to the
funeral provider for the item when such is the case.
(2) Preventive requirements. To prevent these deceptive acts or
practices, funeral providers must place the following sentence in the
general price list, at the end of the cash advances disclosure, required
by 453.2(b)(4)(ii)(C): ''We charge you for our services in buying
these items,'' if the funeral provider makes a charge upon, or receives
and retains a rebate, commission or trade or volume discount upon a cash
advance item.
(49 FR 563, Jan. 5, 1984)
16 CFR 453.4 Required purchase of funeral goods or funeral services.
(a) Casket for cremation provisions -- (1) Unfair or deceptive acts
or practices. In selling or offering to sell funeral goods or funeral
services to the public, it is an unfair or deceptive act or practice for
a funeral provider, or a crematory, to require that a casket other than
an unfinished wood box be purchased for direct cremation.
(2) Preventive requirement. To prevent this unfair or deceptive act
or practice, funeral providers must make an unfinished wood box or
alternative container available for direct cremations, if they arrange
direct cremations.
(b) Other required purchases of funeral goods or funeral services --
(1) Unfair or deceptive acts or practices. In selling or offering to
sell funeral goods or funeral services, it is an unfair or deceptive act
or practice for a funeral provider to condition the furnishing of any
funeral good or funeral service to a person arranging a funeral upon the
purchase of any other funeral good or funeral service, except as
required by law or as otherwise permitted by this part.
(2) Preventive requirements. (i) To prevent this unfair or deceptive
act or practice, funeral providers must:
(A) Place the following disclosure in the general price list,
immediately above the prices required by 453.2(b)(4)(ii) and (iii):
''The goods and services shown below are those we can provide to our
customers. You may choose only the items you desire. If legal or other
requirements mean you must buy any items you did not specifically ask
for, we will explain the reason in writing on the statement we provide
describing the funeral goods and services you selected.''
Provided, however, That if the charge for ''services of funeral
director and staff'' cannot be declined by the purchaser, the statement
shall include the sentence: ''However, any funeral arrangements you
select will include a charge for our services'' between the second and
third sentences of the statement specified above herein; and
(B) Place the following disclosure on the statement of funeral goods
and services selected, required by 453.2(b)(5)(ii): ''Charges are only
for those items that are used. If we are required by law to use any
items, we will explain the reasons in writing below.''
(ii) A funeral provider shall not violate this section by failing to
comply with a request for a combination of goods or services which would
be impossible, impractical, or excessively burdensome to provide.
16 CFR 453.5 Services provided without prior approval.
(a) Unfair or Deceptive Acts or practices. In selling or offering to
sell funeral goods or funeral services to the public, it is an unfair or
deceptive act or practice for any provider to embalm a deceased human
body for a fee unless:
(1) State or local law or regulation requires embalming in the
particular circumstances regardless of any funeral choice which the
family might make; or
(2) Prior approval for embalming (expressly so described) has been
obtained from a family member or other authorized person; or
(3) The funeral provider is unable to contact a family member or
other authorized person after exercising due diligence, has no reason to
believe the family does not want embalming performed, and obtains
subsequent approval for embalming already performed (expressly so
described). In seeking approval, the funeral provider must disclose
that a fee will be charged if the family selects a funeral which
requires embalming, such as a funeral with viewing, and that no fee will
be charged if the family selects a service which does not require
embalming, such as direct cremation or immediate burial.
(b) Preventive requirement. To prevent these unfair or deceptive
acts or practices, funeral providers must include on the contract, final
bill, or other written evidence of the agreement or obligation given to
the customer, the statement: ''If you selected a funeral which requires
embalming, such as a funeral with viewing you may have to pay for
embalming. You do not have to pay for embalming you did not approve if
you selected arrangements such as a direct cremation or immediate
burial. If we charged for embalming, we will explain why below.''
16 CFR 453.6 Retention of documents.
To prevent the unfair or deceptive acts or practices specified in
453.2 and 453.3 of this rule, funeral providers must retain and make
available for inspection by Commission officials true and accurate
copies of the price lists specified in 453.2(b) (2) through (4), as
applicable, for at least one year after the date of their last
distribution to customers, and a copy of each statement of funeral goods
and services selected, as required by 453.2(b) (5) for at least one
year from the date on which the statement was signed.
16 CFR 453.7 Comprehension of disclosures.
To prevent the unfair or deceptive acts or practices specified in
453.2 through 453.5, funeral providers must make all disclosures
required by those sections in a clear and conspicuous manner.
16 CFR 453.8 Declaration of intent.
(a) Except as otherwise provided in 453.2(a), it is a violation of
this rule to engage in any unfair or deceptive acts or practices
specified in this rule, or to fail to comply with any of the preventive
requirements specified in this rule;
(b) The provisions of this rule are sparate and severable from one
another. If any provision is determined to be invalid, it is the
Commission's intention that the remaining provisions shall continue in
effect.
(c) This rule shall not apply to the business of insurance or to acts
in the conduct thereof.
(49 FR 564, Jan. 5, 1984)
16 CFR 453.9 State exemptions.
If, upon application to the Commission by an appropriate State
agency, the Commission determines that:
(a) There is a State requirement in effect which applies to any
transaction to which this rule applies; and
(b) That State requirement affords an overall level of protection to
consumers which is as great as, or greater than, the protection afforded
by this rule;
then the commission's rule will not be in effect in that State to the
extent specified by the Commission in its determination, for as long as
the State administers and enforces effectively the State requirement.
(49 FR 564, Jan. 5, 1984)
16 CFR 453.10 Mandatory review.
No later than four years after the effective date of this rule, the
Commission shall initiate a rulemaking amendment proceeding pursuant to
section 18 (d)(2)(b) of the FTC Act to determine whether the rule should
be amended or terminated.
(54 FR 19360, May 5, 1989)
16 CFR 453.10 PART 455 -- USED MOTOR VEHICLE TRADE REGULATION RULE
Sec.
455.1 General duties of a used vehicle dealer; definitions.
455.2 Consumer sales -- window form.
455.3 Window form.
455.4 Contrary statements.
455.5 Spanish language sales.
455.6 State exemptions.
455.7 Severability.
Authority: 88 Stat. 2189, 15 U.S.C. 2309; 38 Stat. 717, as
amended 15 U.S.C. 41 et seq.
Source: 49 FR 45725, Nov. 19, 1984, unless otherwise noted.
16 CFR 455.1 General duties of a used vehicle dealer; definitions.
(a) It is a deceptive act or practice for any used vehicle dealer,
when that dealer sells or offers for sale a used vehicle in or affecting
commerce as commerce is defined in the Federal Trade Commission Act:
(1) To misrepresent the mechanical condition of a used vehicle;
(2) To misrepresent the terms of any warranty offered in connection
with the sale of a used vehicle; and
(3) To represent that a used vehicle is sold with a warranty when the
vehicle is sold without any warranty.
(b) It is an unfair act or practice for any used vehicle dealer, when
that dealer sells or offers for sale a used vehicle in or affecting
commerce as commerce is defined in the Federal Trade Commission Act:
(1) To fail to disclose, prior to sale, that a used vehicle is sold
without any warranty; and
(2) To fail to make available, prior to sale, the terms of any
written warranty offered in connection with the sale of a used vehicle.
(c) The Commission has adopted this Rule in order to prevent the
unfair and deceptive acts or practices defined in paragraphs (a) and
(b). It is a violation of this Rule for any used vehicle dealer to fail
to comply with the requirements set forth in 455.2 through 455.5 of
this part. If a used vehicle dealer complies with the requirements of
455.2 through 455.5 of this part, the dealer does not violate this Rule.
(d) The following definitions shall apply for purposes of this part:
(1) Vehicle means any motorized vehicle, other than a motorcycle,
with a gross vehicle weight rating (GVWR) of less than 8500 lbs., a curb
weight of less than 6,000 lbs., and a frontal area of less than 46 sq.
ft.
(2) Used vehicle means any vehicle driven more than the limited use
necessary in moving or road testing a new vehicle prior to delivery to a
consumer, but does not include any vehicle sold only for scrap or parts
(title documents surrendered to the State and a salvage certificate
issued).
(3) Dealer means any person or business which sells or offers for
sale a used vehicle after selling or offering for sale five (5) or more
used vehicles in the previous twelve months, but does not include a bank
or financial institution, a business selling a used vehicle to an
employee of that business, or a lessor selling a leased vehicle by or to
that vehicle's lessee or to an employee of the lessee.
(4) Consumer means any person who is not a used vehicle dealer.
(5) Warranty means any undertaking in writing, in connection with the
sale by a dealer of a used vehicle, to refund, repair, replace, maintain
or take other action with respect to such used vehicle and provided at
no extra charge beyond the price of the used vehicle.
(6) Implied warranty means an implied warranty arising under State
law (as modified by the Magnuson-Moss Act) in connection with the sale
by a dealer of a used vehicle.
(7) Service contract means a contract in writing for any period of
time or any specific mileage to refund, repair, replace, or maintain a
used vehicle and provided at an extra charge beyond the price of the
used vehicle, provided that such contract is not regulated in your State
as the business of insurance.
(8) You means any dealer, or any agent or employee of a dealer,
except where the term appears on the window form required by 455.2(a).
16 CFR 455.2 Consumer sales -- window form.
(a) General duty. Before you offer a used vehicle for sale to a
consumer, you must prepare, fill in as applicable and display on that
vehicle a ''Buyers Guide'' as required by this Rule.
(1) Use a side window to display the form so both sides of the form
can be read, with the title ''Buyers Guide'' facing to the outside. You
may remove a form temporarily from the window during any test drive, but
you must return it as soon as the test drive is over.
(2) The capitalization, punctuation and wording of all items,
headings, and text on the form must be exactly as required by this Rule.
The entire form must be printed in 100% black ink on a white stock no
smaller than 11 inches high by 7 1/4 inches wide in the type styles,
sizes and format indicated.
Insert illus. 323
Insert illus. 324
When filling out the form, follow the directions in (b) through (e)
of this section and 455.4 of this part.
(b) Warranties -- (1) No Implied Warranty -- ''As Is''/No Warranty.
(i) If you offer the vehicle without any implied warranty, i.e., ''as
is,'' mark the box provided. If you offer the vehicle with implied
warranties only, substitute the disclosure specified below, and mark the
box provided. If you first offer the vehicle ''as is'' or with implied
warranties only but then sell it with a warranty, cross out the ''As Is
-- No Warranty'' or ''Implied Warranties Only'' disclosure, and fill in
the warranty terms in accordance with paragraph (b)(2) of this section.
(ii) If your State law limits or prohibits ''as is'' sales of
vehicles, that State law overrides this part and this rule does not give
you the right to sell ''as is.'' In such States, the heading ''As Is --
No Warranty'' and the paragraph immediately accompanying that phrase
must be deleted from the form, and the following heading and paragraph
must be substituted. If you sell vehicles in States that permit ''as
is'' sales, but you choose to offer implied warranties only, you must
also use the following disclosure instead of ''As Is -- No Warranty'':
1
1See 455.5 n. 4 for the Spanish version of this disclosure.
16 CFR 455.2 Implied Warranties Only
This means that the dealer does not make any specific promises to fix
things that need repair when you buy the vehicle or after the time of
sale. But, State law ''implied warranties'' may give you some rights to
have the dealer take care of serious problems that were not apparent
when you bought the vehicle.
(2) Full/Limited Warranty. If you offer the vehicle with a warranty,
briefly describe the warranty terms in the space provided. This
description must include the following warranty information:
(i) Whether the warranty offered is ''Full'' or ''Limited.''2 Mark
the box next to the appropriate designation.
(ii) Which of the specific systems are covered (for example,
''engine, transmission, diffential''). You cannot use shorthand, such
as ''drive train'' or ''power train'' for covered systems.
(iii) The duration (for example, ''30 days or 1,000 miles, whichever
occurs first'').
(iv) The percentage of the repair cost paid by you (for example,
''The dealer will pay 100% of the labor and 100% of the parts.''
(v) If the vehicle is still under the manufacturer's original
warranty, you may add the following paragraph below the ''Full/Limited
Warranty'' disclosure: MANUFACTURER'S WARRANTY STILL APPLIES. The
manufacturer's original warranty has not expired on the vehicle.
Consult the manufacturer's warranty booklet for details as to warranty
coverage, service location, etc.
If, following negotiations, you and the buyer agree to changes in the
warranty coverage, mark the changes on the form, as appropriate. If you
first offer the vehicle with a warranty, but then sell it without one,
cross out the offered warranty and mark either the ''As Is -- No
Warranty'' box or the ''Implied Warranties Only'' box, as appropriate.
(3) Service contracts. If you make a service contract (other than a
contract that is regulated in your State as the business of insurance)
available on the vehicle, you must add the following heading and
paragraph below the ''Full/Limited Warranty'' disclosure and mark the
box provided. 3
Service Contract
A service contract is available at an extra charge on this vehicle.
If you buy a service contract within 90 days of the time of sale, State
law ''implied warranties'' may give you additional rights.
(c) Name and Address. Put the name and address of your dealership in
the space provided. If you do not have a dealership, use the name and
address of your place of business (for example, your service station) or
your own name and home address.
(d) Make, Model, Model Year, VIN. Put the vehicle's name (for
example, ''Chevrolet''), model (for example, ''Vega''), model year, and
Vehicle Identification Number (VIN) in the spaces provided. You may
write the dealer stock number in the space provided or you may leave
this space blank.
(e) Complaints. In the space provided, put the name and telephone
number of the person who should be contacted if any complaints arise
after sale.
2A ''Full'' warranty is defined by the Federal Minimum Standards for
Warranty set forth in 104 of the Magnuson-Moss Warranty Act, 15 U.S.C.
2304 (1975). The Magnuson-Moss Warranty Act does not apply to vehicles
manufactured before July 4, 1975. Therefore, if you choose not to
designate ''Full'' or ''Limited'' for such cars, cross out both
designations, leaving only ''Warranty''.
3See 455.5 n. 4 for the Spanish version of this disclosure.
16 CFR 455.3 Window form.
(a) Form given to buyer. Give the buyer of a used vehicle sold by
you the window form displayed under 455.2 containing all of the
disclosures required by the Rule and reflecting the warranty coverage
agreed upon. If you prefer, you may give the buyer a copy of the
original, so long as that copy accurately reflects all of the
disclosures required by the Rule and the warranty coverage agreed upon.
(b) Incorporated into contract. The information on the final version
of the window form is incorporated into the contract of sale for each
used vehicle you sell to a consumer. Information on the window form
overrides any contrary provisions in the contract of sale. To inform
the consumer of these facts, include the following language
conspicuously in each consumer contract of sale:
The information you see on the window form for this vehicle is part
of this contract. Information on the window form overrides any contrary
provisions in the contract of sale.
16 CFR 455.4 Contrary statements.
You may not make any statements, oral or written, or take other
actions which alter or contradict the disclosures required by 455.2
and 455.3. You may negotiate over warranty coverage, as provided in
455.2(b) of this part, as long as the final warranty terms are
identified in the contract of sale and summarized on the copy of the
window form you give to the buyer.
16 CFR 455.5 Spanish language sales.
If you conduct a sale in Spanish, the window form required by 455.2
and the contract disclosures required by 455.3 must be in that
language. You may display on a vehicle both an English language window
form and a Spanish language translation of that form. Use the following
translation and layout for Spanish language sales: 4
insert illus. 332
insert illus. 333
4Use the following language for the ''Implied Warranties Only''
disclosure when required by 455.2(b)(1):
Garanti1as implici1tas solamente
Este te1rmino significa que el vendedor no hace promesas especi1ficas
de arreglar lo que requiera reparacio1n cuando usted compra el vehi1culo
o despue1s del momento de la venta. Pero, las ''garanti1as
impli1citas'' de la ley estatal pueden darle a usted algunos derechos y
hacer que el vendedor resuelva problemas graves que no fueron evidentes
cuando usted compro1 el vehi1culo.
Use the following language for the ''Service Contract'' disclosure
required by 455.2(b)(3):
CONTRATO DE SERVICIO. Este vehi1culo tiene disponible un contrato de
servicio a un precio adicional. Pida los detalles en cuanto a
cobertura, deducible, precio y exclusiones. Si adquiere usted un
contrato de servicio dentro de los 90 di1as del momento de la venta, las
''garanti1as impli1citas'' de acuerdo a la ley del estado pueden
concederle derechos adicionales.
16 CFR 455.6 State exemptions.
(a) If, upon application to the Commission by an appropriate State
agency, the Commission determines, that --
(1) There is a State requirement in effect which applies to any
transaction to which this rule applies; and
(2) That State requirement affords an overall level of protection to
consumers which is as great as, or greater than, the protection afforded
by this Rule; then the Commission's Rule will not be in effect in that
State to the extent specified by the Commission in its determination,
for as long as the State administers and enforces effectively the State
requirement.
(b) Applications for exemption under subsection (a) should be
directed to the Secretary of the Commission. When appropriate,
proceedings will be commenced in order to make a determination described
in paragraph (a) of this section, and will be conducted in accordance
with Subpart C of Part 1 of the Commission's Rules of Practice.
16 CFR 455.7 Severability.
The provisions of this part are separate and severable from one
another. If any provision is determined to be invalid, it is the
Commission's intention that the remaining provisions shall continue in
effect.
16 CFR 455.7 PART 456 -- OPHTHALMIC PRACTICE RULES
Sec.
456.1 Definitions.
456.2 Separation of examination and dispensing.
456.3 Federal or State employees.
456.4 State bans on commercial practice.
456.5 Declaration of Commission intent.
Authority: Section 18(a), 88 Stat. 2193, as amended 93 Stat. 95.
(15 U.S.C. 57a); 80 Stat. 383; 81 Stat. 54; 88 Stat. 1561-1564;
90 Stat. 1247 (5 U.S.C. 552).
Source: 54 FR 10304, Mar. 13, 1989, unless otherwise noted.
16 CFR 456.1 Definitions.
(a) A patient is any person who has had an eye examination.
(b) An eye examination is the process of determining the refractive
condition of a person's eyes or the presence of any visual anomaly by
the use of objective or subjective tests.
(c) Ophthalmic goods are eyeglasses, or any component of eyeglasses,
and contact lenses.
(d) Ophthalmic services are the measuring, fitting, and adjusting of
ophthalmic goods subsequent to an eye examination.
(e) An ophthalmologist is any Doctor of Medicine or Osteopathy who
performs eye examinations.
(f) An optometrist is any Doctor of Optometry.
(g) A person is any individual, partnership, corporation, association
or other entity.
(h) A prescription is the written specifications for lenses for
eyeglasses which are derived from an eye examination, including all of
the information specified by state law, if any, necessary to obtain
lenses for eyeglasses.
(i) Optometric services are any acts or practices which are included
within the definition of the practice of optometry under state law.
16 CFR 456.2 Separation of examination and dispensing.
It is an unfair act or practice for an ophthalmologist or optometrist
to:
(a) Fail to provide to the patient one copy of the patient's
prescription immediately after the eye examination is completed.
Provided: An ophthalmologist or optometrist may refuse to give the
patient a copy of the patient's prescription until the patient has paid
for the eye examination, but only if that ophthalmologist or optometrist
would have required immediate payment from that patient had the
examination revealed that no ophthalmic goods were required;
(b) Condition the availability of an eye examination to any person on
a requirement that the patient agree to purchase any ophthalmic goods
from the ophthalmologist or optometrist;
(c) Charge the patient any fee in addition to the ophthalmologist's
or optometrist's examination fee as a condition to releasing the
prescription to the patient. Provided: An ophthalmologist or
optometrist may charge an additional fee for verifying ophthalmic goods
dispensed by another seller when the additional fee is imposed at the
time the verification is performed; or
(d) Place on the prescription, or require the patient to sign, or
deliver to the patient a form or notice waiving or disclaiming the
liability or responsibility of the ophthalmologist or optometrist for
the accuracy of the eye examination or the accuracy of the ophthalmic
goods and services dispensed by another seller.
16 CFR 456.3 Federal or State employees.
This rule does not apply to ophthalmologists or optometrists employed
by any federal, state or local governmental entity.
16 CFR 456.4 State bans on commercial practice.
(a) It is an unfair act or practice for any state or local
governmental entity to:
(1) Prevent or restrict optometrists from entering into associations
with lay persons or corporations by:
(i) Prohibiting persons other than optometrists from employing
optometrists to provide optometric services to the public;
(ii) Prohibiting optometrists and persons other than optometrists
from entering into partnership agreements, joint-ownership or
equity-participation agreements, or profit-sharing agreements for the
purpose of forming entities to provide optometric services or ophthalmic
goods and services to the public;
(iii) Prohibiting optometrists and persons other than optometrists
from entering into franchise agreements (including those that provide
for the sharing of revenues) for the purpose of forming entities to
provide optometric services or ophthalmic goods and services to the
public;
(iv) Prohibiting optometrists from leasing space from persons other
than optometrists to provide optometric services to the public or
prohibiting optometrists from entering into leases for such space where
rental payments under such leases are based on a percentage of revenues;
or
(v) Prohibiting lay control over the business aspects of an
optometric practice or an entity formed to provide optometric services
or ophthalmic goods and services to the public;
(2) Limit the number of offices that may be owned or operated by
optometrists or by entities formed by any of the agreements covered by
456.4(a)(1) of the rule; or require that an owner of branch offices
remain in personal attendance at each branch office for a specific
percentage of time;
(3) Prohibit optometrists, or any entities formed by any of the
agreements covered by 456.4(a)(1) of the rule, from practicing in a
pharmacy, department store, shopping center, retail optical dispensary
or other mercantile location;
(4) Prohibit optometrists, or any entities formed by any of the
agreements covered by 456.4(a)(1) of the rule, from practicing or
holding themselves out to the public, by advertising or otherwise, under
any nondeceptive trade name, including a name other than the name shown
on their licenses or certificates of registration; or require the
disclosure in advertising of the names of all optometrists practicing at
a given advertised location or practicing under a trade name.
(b) If any state or local governmental entity or officer violates any
of the provisions of 456.4(a)(1)-(4), that person will not be subject
to civil penalty, redress, or other monetary liability under any section
of the Federal Trade Commission Act.
16 CFR 456.5 Declaration of Commission Intent.
(a) The provisions of 456.4(a)(1)-(4) are not intended to interfere
with the exercise of state or local governmental authority to protect
the health and welfare of the public. In exercising its authority to
safeguard the health and safety of eye care consumers or to protect the
public from unfair or deceptive practices or anticompetitive conduct, a
state or local government can enact regulation that has the incidental
effect of preventing an individual optometrist or optometric firm from
engaging in a specific agreement or activity covered by
456.4(a)(1)-(4), as long as such regulation does not distinguish between
optometrists or optometric firms that engage in any of the agreements or
activities enumerated in 456.4(a)(1)-(4) and optometrists or optometric
firms that do not engage in such agreements or activities. For example,
the rule does not prevent states or local governments from prohibiting
the location of an optometric practice in an area that could create a
public health or safety hazard, or from enforcing a general zoning
regulation, even though such prohibition or regulation had the
incidental effect of preventing an optometrist from locating in some
specific commercial location. While the rule affects state or local
regulation of the business aspects of the practice of optometry, it is
not intended to interfere with the authority of a state or local
government to:
(1) Prohibit improper lay interference in the ophthalmic care
provided a patient by an optometrist;
(2) Require that the optometric services provided at a branch office
be supplied by a person qualified to do so under state or local law;
(3) Require that the identity of an optometrist be disclosed to a
patient before, after, or at the time optometric services are performed;
(4) Prevent the deceptive use of trade names or prevent trade name
infringement; or
(5) Establish and maintain minimum quality standards for ophthalmic
goods or services.
(b) The Commission intends that this rule may be used as a defense to
any proceeding of any kind that may be brought against any optometrist,
or any entity formed by any agreement covered by 456.4(a)(1) of the
rule, for using a trade name, working for or affiliating with a person
who is not an optometrist, operating branch offices or practicing in a
mercantile location.
(c) In prohibiting the use of waivers and disclaimers of liability in
456.2(d), it is not the Commission's intent to impose liability on an
ophthalmologist or optometrist for the ophthalmic goods and services
dispensed by another seller pursuant to the ophthalmologist's or
optometrist's prescription.
(d) The rule, each subpart, and the Declaration of Commission Intent
and their application are separate and severable.
16 CFR 456.5 Separate Statement of Chairman Daniel Oliver, Ophthalmic
Practice Rule Statement of Basis and Purpose
When the Commission voted to promulgate the Ophthalmic Practice Rule,
I questioned the use of the Federal Trade Commission rulemaking
authority to strike down state laws that restrict competition in the eye
care market. Based on principles of federalism, I voted against the
proposed rule.
The restraints at issue are clearly anticompetitive and adversely
impact consumers. They illustrate what I have said a thousand times:
it is government that is the primary source of restraints on
competition.
Nevertheless, I continue to believe that this harmful effect on
consumers does not allow us to strike down anticompetitive state
activities that are protected by the ''state action'' doctrine. I
reiterate my conclusion that the Commission lacks the authority to
promulgate the Ophthalmic Practice Rule.
16 CFR 456.5 PART 460 -- LABELING AND ADVERTISING OF HOME INSULATION
Sec.
460.1 What this regulation does.
460.2 What is home insulation.
460.3 Who is covered.
460.4 When the rules apply.
460.5 R-value tests.
460.6 ''Representative thickness'' testing.
460.7 Which test version to use.
460.8 R-value tolerances.
460.9 What test records you must keep.
460.10 How statements must be made.
460.11 Rounding off R-values.
460.12 Labels.
460.13 Fact sheets.
460.14 How retailers must handle fact sheets.
460.15 How installers must handle fact sheets.
460.16 What new home sellers must tell new home buyers.
460.17 What installers must tell their customers.
460.18 Insulation ads.
460.19 Savings claims.
460.20 R-value per inch claims.
460.21 Government claims.
460.22 Tax claims.
460.23 Other laws, rules, and orders.
460.24 Stayed or invalid parts.
Appendix to Part 460 -- Enforcement Policy Statement for Foreign
Language Advertising
Authority: 38 Stat. 717, as amended, 15 U.S.C. 41 et seq.
Source: 44 FR 50242, Aug. 27, 1979, unless otherwise noted.
16 CFR 460.1 What this regulation does.
This regulation deals with home insulation labels, fact sheets, ads,
and other promotional materials in or affecting commerce, as
''commerce'' is defined in the Federal Trade Commission Act. If you are
covered by this regulation, breaking any of its rules is an unfair and
deceptive act or practice or an unfair method of competition under
section 5 of that Act. You can be fined heavily (up to $10,000) each
time you break a rule.
16 CFR 460.2 What is home insulation.
Insulation is any material mainly used to slow down heat flow. It
may be mineral or organic, fibrous, cellular, or reflective (aluminum
foil). It may be in rigid, semirigid, flexible, or loose-fill form.
Home insulation is for use in old or new homes, condominiums,
cooperatives, apartments, modular homes, or mobile homes. It does not
include pipe insulation. It does not include any kind of duct
insulation except for duct wrap.
16 CFR 460.3 Who is covered.
You are covered by this regulation if you are a member of the home
insulation industry. This includes individuals, firms, partnerships,
and corporations. It includes manufacturers, distributors, franchisors,
installers, retailers, utility companies, and trade associations.
Advertisers and advertising agencies are also covered. So are labs
doing tests for industry members. If you sell new homes to consumers,
you are covered.
16 CFR 460.4 When the rules apply.
You must follow these rules each time you import, manufacture,
distribute, sell, install, promote, or label home insulation. You must
follow them each time you prepare, approve, place, or pay for home
insulation labels, fact sheets, ads, or other promotional materials for
consumer use. You must also follow them each time you supply anyone
covered by this regulation with written information that is to be used
in labels, fact sheets, ads, or other promotional materials for consumer
use. Testing labs must follow the rules unless the industry members
tells them, in writing, that labels, fact sheets, ads, or other
promotional materials for home insulation will not be based on the test
results.
16 CFR 460.5 R-value tests.
R-value measures resistance to heat flow. R-values given in labels,
fact sheets, ads, or other promotional materials must be based on tests
done under the methods listed below. They were designed by the American
Society of Testing and Materials (ASTM). The test methods are:
(a) All types of insulation except aluminum foil must be tested with
ASTM C 177-85 (''Standard Test Method for Steady-State Heat Flux
Measurements and Thermal Transmission Properties by Means of the
Guarded-Hot-Plate Apparatus,'' approved October 22, 1985, published
December 1985), ASTM C 518-85 (''Standard Test Method for Steady-State
Heat Flux Measurements and Thermal Transmission Properties by Means of
the Heat Flow Meter Apparatus,'' approved October 22, 1985, published
December 1985), ASTM C 236-87 (''Standard Test Method for Steady-State
Thermal Performance of Building Assemblies by Means of a Guarded Hot
Box,'' approved July 31, 1987, published October 1987), or ASTM C 976-82
(''Standard Test Method for Thermal Performance of Building Assemblies
by Means of a Calibrated Hot Box,'' approved November 11, 1982,
published April 1983). The tests must be done at a mean temperature of
75 Fahrenheit. The tests must be done on the insulation material alone
(excluding any airspace). R-values (''thermal resistance'') based upon
heat flux measurements according to ASTM C 177-85 or ASTM C 518-85 must
be reported only in accordance with the requirements and restrictions of
ASTM C 1045-85 (''Standard Practice for Calculating Thermal Transmission
Properties from Steady-State Heat Flux Measurements,'' approved October
22, 1985, published December 1985). These incorporations by reference
were approved by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. Copies of the test procedures and
standard practice may be obtained from the American Society of Testing
and Materials, 1916 Race Street, Philadelphia, PA 19103. Copies may be
inspected at the Federal Trade Commission, Public Reference Room, Room
130, Sixth and Pennsylvania Ave., NW., Washington, DC or at the Office
of the Federal Register, 1100 L Street, NW., room 8301, Washington, DC.
(1) For polyurethane, polyisocyanurate, and extruded polystyrene, the
tests must be done on samples that fully reflect the effect of aging on
the product's R-value. To age the sample, follow the procedure in
paragraph 4.6.4 of GSA Specification HH-I-530A, or another reliable
procedure.
(2) For loose-fill cellulose, the tests must be done at the settled
density determined under paragraph 8 of ASTM C 739-88 (''Standard
Specification for Cellulosic Fiber (Wood-Base) Loose-Fill Thermal
Insulation,'' approved Oct. 25, 1988, published April 1989). This
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
of the test procedure may be obtained from the American Society of
Testing and Materials, 1916 Race Street, Philadelphia, PA 19103. Copies
may be inspected at the Federal Trade Commission, Public Reference Room,
room 130, Sixth and Pennsylvania Ave., NW., Washington, DC or at the
Office of the Federal Register, 1100 L Street, NW., room 8301,
Washington, DC.
(3) For loose-fill mineral wool, the tests must be done on samples
that fully reflect the effect of settling on the product's R-value.
When a settled density procedure becomes part of a final GSA
Specification for loose-fill mineral wool, the tests must be done at the
settled density determined under the GSA Specification.
(b) Aluminum foil systems with more than one sheet must be tested
with ASTM C 236-87 or ASTM C 976-82, which are incorporated by reference
in paragraph (a) of this section. The tests must be done at a mean
temperature of 75 Fahrenheit, with a temperature differential of 30
Fahrenheit.
(c) Single sheet systems of aluminum foil must be tested with ASTM
E408 or another test method that provides comparable results. This
tests the emissivity of the foil -- its power to radiate heat. To get
the R-value for a specific emissivity level, air space, and direction of
heat flow, use the tables in the most recent edition of the American
Society of Heating, Refrigerating, and Air-Conditioning Engineers'
(ASHRAE) Handbook. You must use the R-value shown for 50 Fahrenheit,
with a temperature differential of 30 Fahrenheit.
(d) For insulation materials with foil facings, you must test the
R-value of the material alone (excluding any air spaces) under the
methods listed in paragraph (a) of this section. You can also determine
the R-value of the material in conjunction with an air space. You can
use one of two methods to do this:
(1) You can test the system, with its air space, under ASTM C 236-87
or ASTM C 976-82, which are incorporated by reference in paragraph (a)
of this section. If you do this, you must follow the rules in paragraph
(a) of this section on temperature, aging and settled density.
(2) You can add up the tested R-value of the material and the R-value
of the air space. To get the R-value for the air space, you must follow
the rules in paragraph (c) of this section.
(44 FR 50242, Aug. 27, 1979, as amended at 55 FR 10055, Mar. 19,
1990; 55 FR 12110, Mar. 30, 1990)
16 CFR 460.6 ''Representative thickness'' testing.
All tests except aluminum foil tests must be done at a representative
thickness for every thickness shown in a label, fact sheet, ad, or other
promotional material. ''Representative thickness'' means a thickness at
which the R-value per unit will vary no more than plus or minus 2% with
increases in thickness. However, if the thickness shown in your label,
fact sheet, ad, or promotional material is less than the representative
thickness, then you can test the insulation at the thickness shown.
16 CFR 460.7 Which test version to use.
Use the version of the ASTM test method that was in effect when this
regulation was promulgated. If ASTM changes a test method, the new
version will automatically replace the old one in these rules 90 days
after ASTM first publishes the change. However, the Commission's staff
or a person affected by the change can petition the Commission during
the 90-day period not to adopt the change or to reopen the proceeding to
consider it further.
16 CFR 460.8 R-value tolerances.
If you are an industry member, the R-value of any insulation you sell
cannot be more than 10% below the R-value shown in a label, fact sheet,
ad, or other promotional material for that insulation. However, if you
are not a manufacturer, you can rely on the R-value data given to you by
the manufacturer, unless you know or should know that the data is false
or not based on the proper tests.
16 CFR 460.9 What test records you must keep.
Manufacturers and testing labs must keep records of each item of
information in the ''Report'' section of the ASTM test method that is
used for a test. They must also keep the following records:
(a) The name and address of the testing lab that did each test.
(b) The date of each test.
(c) For manufacturers, the date each test report was received from a
lab. For labs, the date each test report was sent to a manufacturer.
(d) For extruded polystyrene, polyurethane, and polyisocyanurate, the
age (in days) of the specimen that was tested.
(e) For aluminum foil, the emissivity level that was found in the
test.
Manufacturers who own their own testing labs need not keep records of
the information in paragraph (c) of this section.
Keep these records for at least three years. If the documents show
proof for your claims, the three years will begin again each time you
make the claim. Federal Trade Commission staff members can check these
records at any time, but they must give you reasonable notice first.
16 CFR 460.10 How statements must be made.
All statements called for by this regulation must be made clearly and
conspicuously. Among other things, you must follow the Commission's
Enforcement Policy Statement for Foreign Language Advertising (July 24,
1973) (Appendix). The above document is in the Appendix to this
regulation.
(51 FR 39651, Oct. 30, 1986)
16 CFR 460.11 Rounding off R-values.
R-values shown in labels, fact sheets, ads, or other promotional
materials must be rounded to the nearest tenth. However, R-values of 10
or more may be rounded to the nearest whole number.
16 CFR 460.12 Labels.
If you are a manufacturer, you must label all packages of your
insulation. The labels must contain:
(a) The type of insulation.
(b) A chart showing these items:
(1) For mineral fiber batts and blankets: the R-value, length,
width, thickness, and square feet of insulation in the package.
(2) For all loose-fill insulation except cellulose: The minimum
thickness, maximum net coverage area, and minimum weight per square foot
at R-values of 11, 19, and 22. You must also give this information for
any additional R-values you list on the chart. Labels for these
products must state the minimum net weight of the insulation in the
package.
(3) For loose-fill cellulose insulation: the minimum thickness,
maximum net coverage area, number of bags per 1,000 square feet, and
minimum weight per square foot at R-values of 13, 19, 24, 32, and 40.
You must also give this information for any additional R-values you list
on the chart. Labels for this product must state the minimum net weight
of the insulation in the package.
(4) For boardstock: the R-value, length, width, and thickness of the
boards in the package, and the square feet of insulation in the package.
(5) For aluminum foil: the number of foil sheets; the number and
thickness of the air spaces; and the R-value provided by that system
when the direction of heat flow is up, down, and horizontal. You can
show the R-value for only one direction of heat flow if you clearly and
conspicuously state that the foil can only be used in that application.
(6) For insulation materials with foil facings, you must follow the
rule that applies to the material itself. For example, if you
manufacture boardstock with a foil facing, follow paragraph (b)(4) of
this section. You can also show the R-value of the insulation when it
is installed in conjunction with an air space. This is its ''system
R-value.'' If you do this, you must clearly and conspicuously state the
conditions under which the system R-value can be attained.
(7) For air duct insulation: The R-value, length, width, thickness,
and square feet of insulation in the package.
(c) The following statement: ''R means resistance to heat flow. The
higher the R-value, the greater the insulating power.''
(d) If installation instructions are included on the label or with
the package, add this statement: ''To get the marked R-value, it is
essential that this insulation be installed properly. If you do it
yourself, follow the instructions carefully.''
(e) If no instructions are included, add this statement: ''To get
the marked R-value, it is essential that this insulation be installed
properly. If you do it yourself, get instructions and follow them
carefully. Instructions do not come with this package.''
16 CFR 460.13 Fact sheets.
If you are a manufacturer, you must give retailers and installers
fact sheets for the insulation products you sell to them. Each sheet
must contain what is listed here. You can add any disclosures that are
required by federal laws, regulations, rules, or orders. You can add
any disclosures that are required by State or local laws, rules, and
orders, unless they are inconsistent with the provisions of this
regulation. Do not add anything else.
Each fact sheet must contain these items:
(a) The name and address of the manufacturer. It can also include a
logo or other symbol that the manufacturer uses.
(b) A heading: ''This is -------- insulation.'' Fill in the blank
with the type and form of your insulation.
(c) The heading must be followed by a chart:
(1) If 460.12(b) requires a chart for your product's label, you must
use that chart. For foamed-in-place insulations, you must show the
R-value of your product at 3 1/2 inches. You can also show R-values at
other thicknesses.
(2) You can put the charts for similar products on the same fact
sheet. For example, if you sell insulation boards or batts in three
different thicknesses, you can put the label charts for all three
products on one fact sheet. If you sell loose-fill insulation in two
different bag sizes, you can put both coverage charts on one fact sheet,
as long as you state which coverage chart applies to each bag size.
(d) For urea-based foam insulation, the chart must be followed by
this paragraph:
''Foam insulation shrinks after it is installed. This shrinkage may
significantly reduce the R-value you get.''
However, you can lower your product's R-value to account for
shrinkage. To do this, you must have reliable scientific proof of the
extent of shrinkage for your product and of its effect on R-value. If
you lower your product's R-value, you need not make the above statement.
(e) For air duct insulation, the chart must be followed by this
statement:
''The R-value of this insulation varies depending on how much it is
compressed during installation.''
(f) After the chart and any statement dealing with the specific type
of insulation, ALL fact sheets must carry this statement, boxed, in
12-point type:
What You Should Know About R-values
The chart shows the R-value of this insulation. R means resistance
to heat flow. The higher the R-value, the greater the insulating power.
Compare insulation R-values before you buy.
There are other factors to consider. The amount of insulation you
need depends mainly on the climate you live in. Also, your fuel savings
from insulation will depend upon the climate, the type and size of your
house, the amount of insulation already in your house, and your fuel use
patterns and family size. If you buy too much insulation, it will cost
you more than what you'll save on fuel.
To get the marked R-value, it is essential that this insulation be
installed properly.
(44 FR 50242, Aug. 27, 1979, as amended at 45 FR 68928, Oct. 17,
1980)
16 CFR 460.14 How retailers must handle fact sheets.
If you sell insulation to do-it-yourself customers, you must have
fact sheets for the insulation products you sell. You must make the
fact sheets available to your customers. You can decide how to do this,
as long as your insulation customers are likely to notice them. For
example, you can put them in a display, and let customers take copies of
them. You can keep them in a binder at a counter or service desk, and
have a sign telling customers where the fact sheets are.
16 CFR 460.15 How installers must handle fact sheets.
If you are an installer, you must have fact sheets for the insulation
products you sell. Before customers agree to buy insulation from you,
you must show them the fact sheet(s) for the type(s) of insulation they
want. You can decide how to do this. For example, you can give each
customer a copy of the fact sheet(s). You can keep the fact sheets in a
binder, and show customers the binder before they agree to buy.
16 CFR 460.16 What new home sellers must tell new home buyers.
If you are a new home seller, you must put the following information
in every sales contract: The type, thickness, and R-value of the
insulation that will be installed in each part of the house. There is
an exception to this rule. If the buyer signs a sales contract before
you know what type of insulation will be put in the house, or if there
is a change in the contract, you can give the buyer a receipt stating
this information as soon as you find out.
16 CFR 460.17 What installers must tell their customers.
If you are an installer, you must give your customers a contract or
receipt for the insulation you install. For all insulation except
loose-fill and aluminum foil, the receipt must show the coverage area,
thickness, and R-value of the insulation you installed. For loose-fill,
the receipt must show those three items plus the number of bags used.
For aluminum foil, the receipt must show the number and thickness of the
air spaces, the direction of heat flow, and the R-value. The receipt
must be dated and signed by the installer. To figure out the R-value of
the insulation, use the data that the manufacturer gives you. Do not
multiply the R-value for one inch by the number of inches you installed.
If you put insulation in more than one part of the house, put the data
for each part on the receipt. You can do this on one receipt, as long
as you do not add up the coverage areas or R-values for different parts
of the house.
16 CFR 460.18 Insulation ads.
(a) If your ad gives an R-value, you must give the type of insulation
and the thickness needed to get that R-value. Also, add this statement
explaining R-values: ''The higher the R-value, the greater the
insulating power. Ask your seller for the fact sheet on R-values.''
(b) If your ad gives a price, you must give the type of insulation,
the R-value at a specific thickness, the statement explaining R-values
in paragraph (a) of this section, and the coverage area for that
thickness. If you give the price per square foot, you do not have to
give the coverage area.
(c) If your ad gives the thickness of your insulation, you must give
its R-value at that thickness and the statement explaining R-values in
paragraph (a) of this section.
(d) If your ad compares one type of insulation to another, the
comparison must be based on the same coverage areas. You must give the
R-value at a specific thickness for each insulation, and the statement
explaining R-values in paragraph (a) of this section. If you give the
price of each insulation, you must also give the coverage area for the
price and thickness shown. However, if you give the price per square
foot, you do not have to give the coverage area.
(e) If your ad gives the R-value of urea-based foam insulation, you
must add this statement: ''Foam insulation shrinks after it is
installed. This shrinkage may significantly reduce the R-value you
get.'' However, you can lower your product's R-value to account for
shrinkage. To do this, you must have reliable scientific proof of the
extent of shrinkage for your product and of its effect on R-value. If
you lower your product's R-value, you need not make the above statement.
(f) The affirmative disclosure requirements in 460.18 do not apply
to ads on television.
(44 FR 50242, Aug. 27, 1979, as amended at 51 FR 39651, Oct. 30,
1986)
16 CFR 460.19 Savings claims.
(a) If you say or imply in your ads, labels, or other promotional
materials that insulation can cut fuel bills or fuel use, you must have
a reasonable basis for the claim. For example, if you say that
insulation can ''slash'' or ''lower'' fuel bills, or that insulation
''saves money,'' you must have a reasonable basis for the claim. Also,
if you say that insulation can ''cut fuel use in half,'' or ''lower fuel
bills by 30%,'' you must have a reasonable basis for the claim.
(b) If you say or imply in your ads, labels, or other promotional
materials that insulation can cut fuel bills or fuel use, you must make
this statement about savings: ''Savings vary. Find out why in the
seller's fact sheet on R-values. Higher R-values mean greater
insulating power.''
(c) If you say or imply that a combination of products can cut fuel
bills or use, you must have a reasonable basis for the claim. You must
make the statement about savings in paragraph (b) of this section.
Also, you must list the combination of products used. They may be two
or more types of insulation; one or more types of insulation and one or
more other insulating products, like storm windows or siding; or
insulation for two or more parts of the house, like the attic and walls.
You must say how much of the savings came from each product or
location. If you cannot give exact or approximate figures, you must
give a ranking. For instance, if your ad says that insulation and storm
doors combined to cut fuel use by 50%, you must say which one saved
more.
(d) If your ad or other promotional material is covered by 460.18
(a), (b), (c), or (d), and also makes a savings claim, you must follow
the rules in 460.18 and 460.19. However, you need not make the
statement explaining R-value in 460.18(a).
(e) Manufacturers are liable if they do not have a reasonable basis
for their savings claims before the claim is made. If you are not a
manufacturer, you are liable only if you know or should know that the
manufacturer does not have a reasonable basis for the claim.
(f) Keep records of all data on savings claims for at least three
years. For the records showing proof for claims, the three years will
begin again each time you make the claim. Federal Trade Commission
staff members can check these records at any time, but they must give
you reasonable notice first.
(g) The affirmative disclosure requirements in 460.19 do not apply
to ads on television.
(44 FR 50242, Aug. 27, 1979, as amended at 51 FR 39651, Oct. 30,
1986)
16 CFR 460.20 R-value per inch claims.
In labels, fact sheets, ads, or other promotional materials, do not
give the R-value for one inch or the ''R-value per inch'' of your
product. There are two exceptions:
(a) You can do this if you suggest using your product at a one-inch
thickness.
(b) You can do this if actual test results prove that the R-values
per inch of your product does not drop as it gets thicker.
You can list a range of R-value per inch. If you do, you must say
exactly how much the R-value drops with greater thickness. You must
also add this statement: ''The R-value per inch of this insulation
varies with thickness. The thicker the insulation, the lower the
R-value per inch.''
16 CFR 460.21 Government claims.
Do not say or imply that a government agency uses, certifies,
recommends, or otherwise favors your product unless it is true. Do not
say or imply that your insulation complies with a governmental standard
or specification unless it is true.
16 CFR 460.22 Tax claims.
Do not say or imply that your product qualifies for a tax benefit
unless it is true.
16 CFR 460.23 Other laws, rules, and orders.
(a) If an outstanding FTC Cease and Desist Order applies to you but
differs from the rules given here, you can petition to amend to order.
(b) State and local laws and regulations that are inconsistent with,
or frustrate the purposes of, the provisions of this regulation are
preempted. However, a State or local government may petition the
Commission, for good cause, to permit the enforcement of any part of a
State or local law or regulation that would be preempted by this
section.
(c) The Commission's three-day cooling-off rule stays in force.
16 CFR 460.24 Stayed or invalid parts.
If any part of this regulation is stayed or held invalid, the rest of
it will stay in force.
16 CFR 460.24 Pt. 460, App.
16 CFR 460.24 Appendix to Part 460 -- Enforcement Policy Statement for
Foreign Language Advertising
14.9 Requirements concerning clear and conspicuous disclosures in
foreign language advertising and sales materials.
The Federal Trade Commission has noted that, with increasing
intensity, advertisers are making special efforts to reach foreign
language-speaking consumers. As part of this special effort,
advertisements, brochures and sales documents are being printed in
foreign languages. In recent years the Commission has issued various
cease-and-desist orders as well as rules, guides and other statements,
which require affirmative disclosures in connection with certain kinds
of representations and business activities. Generally, these
disclosures are required to be ''clear and conspicuous.'' Because
questions have arisen as to the meaning and application of the phrase
''clear and conspicuous'' with respect to foreign language
advertisements and sales materials, the Commission deems it appropriate
to set forth the following enforcement policy statement:
(a) Where cease-and-desist orders as well as rules, guides and other
statements require ''clear and conspicuous'' disclosure of certain
information, that disclosure must be in the same language as that
principally used in the advertisements and sales materials involved.
(b) Any respondent who fails to comply with this requirement may be
the subject of a civil penalty proceeding for violating the terms of a
Commission cease-and-desist order.
(Sec. 5, 38 Stat. 719, as amended; 15 U.S.C. 45)
(38 FR 21494, Aug. 9, 1973, as amended at 51 FR 39652, Oct. 30, 1986)
16 CFR 460.24 SUBCHAPTER E -- RULES, REGULATIONS, STATEMENT OF GENERAL POLICY OR INTERPRETATION AND EXEMPTIONS UNDER THE FAIR PACKAGING AND LABELING ACT
16 CFR 460.24 PART 500 -- REGULATIONS UNDER SECTION 4 OF THE FAIR
PACKAGING AND LABELING ACT
Sec.
500.1 Scope of the regulations in this part.
500.2 Terms defined.
500.3 Prohibited acts, coverage, general labeling requirements,
exemption procedure.
500.4 Statement of identity.
500.5 Name and place of business of manufacturer, packer, or
distributor.
500.6 Net quantity of contents declaration, location.
500.7 Net quantity of contents, method of expression.
500.8 Units of weight and measure.
500.9 Units of weight, how expressed.
500.10 Units of fluid measure, how expressed.
500.11 Measurement of commodity length, how expressed.
500.12 Measurement of commodities by length and width, how expressed.
500.13 Measurement of commodities by area measure only, how
expressed.
500.14 Statements of cubic measure and dry measure.
500.15 Units of count, more than one ply.
500.15a Measurement of container type commodities, how expressed.
500.16 Fractions.
500.17 Conspicuousness.
500.18 Type size in relationship to the area of the principal display
panel.
500.19 Abbreviations.
500.20 Supplemental statements.
500.21 Metric equivalent.
500.22 Net quantity, average quantity, permitted variations.
500.23 Representations of servings, uses, applications.
500.24 Multiunit packages.
500.25 Variety packages.
500.26 Combination packages.
Authority: Secs. 4, 6, 80 Stat. 1297, 1299, 1300; 15 U.S.C. 1453,
1454, 1455.
Source: 33 FR 4718, Mar. 19, 1968, unless otherwise noted.
16 CFR 460.24 Scope
16 CFR 500.1 Scope of the regulations in this part.
The regulations in this part establish requirements for labeling of
consumer commodities as hereinafter defined with respect to identity of
the commodity; the name and place of business of the manufacturer,
packer, or distributor; the net quantity of contents; and net quantity
of servings, uses, or applications represented to be present.
16 CFR 500.1 Definitions
16 CFR 500.2 Terms defined.
As used in this part, unless the context otherwise specifically
requires:
(a) The term Act means the Fair Packaging and Labeling Act (Pub. L.
89-755, approved Nov. 3, 1966; 80 Stat. 1296 et seq.; 15 U.S.C. 1451
et seq.).
(b) The term regulation or regulations means regulations promulgated
by the Commission pursuant to sections 4, 5, and 6 of the Act (15 U.S.C.
1453, 1454, 1455).
(c) The term consumer commodity or commodity means any 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. For purposes of
the regulations in this part the term consumer commodity does not
include any food, drug, device or cosmetic as defined by section 201 of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321); any meat or
meat product, poultry or poultry product, or tobacco or tobacco product,
any commodity subject to packaging or labeling requirements imposed by
the Secretary of Agriculture pursuant to the Federal Insecticide,
Fungicide, and Rodenticide Act, or the provisions of the eighth
paragraph under the heading ''Bureau of Animal Industry of the
Virus-Serum-Toxin Act (21 U.S.C. 151-157); 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.); any
commodity subject to the provisions of the Federal Seed Act (7 U.S.C.
1551-1610).
(d) The term package means any container or wrapping in which any
consumer commodity is enclosed for use in the delivery or display of
that commodity to retail purchasers. For purposes of the regulations in
this part the term package does not include 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 unless used in retail display;
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 containers subject to the provisions of the Act of August 3, 1912
(37 Stat. 250, as amended; 15 U.S.C. 231-233), the Act of March 4, 1915
(38 Stat. 1186, as amended; 15 U.S.C. 234-236), the Act of August 31,
1916 (39 Stat. 673, as amended; 15 U.S.C. 251-256), or the Act of May
21, 1928 (45 Stat. 685, as amended; 15 U.S.C. 257-257i); or
transparent wrappers or containers which do not bear written, printed,
or graphic matter obscuring any part of the label information required
by this part.
(e) The term label means any written, printed, or graphic matter
affixed to or appearing upon any consumer commodity or affixed to or
appearing upon a package containing any consumer commodity; except that
(1) an inspector's tag or other nonpromotional matter affixed to or
appearing upon a consumer commodity shall not be deemed to be a label
requiring the repetition of label information required by this part,
and, (2) for the purposes of the regulations in this part the term label
does not include written, printed, or graphic matter affixed to or
appearing upon commodities, or affixed to or appearing upon containers
or wrappers for commodities sold or distributed to industrial or
institutional users.
(f) The term person includes any firm, corporation or association.
(g) 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 legislature, but
shall not include exports to foreign countries.
(h) 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. The
principal display panel must be large enough to accommodate all the
mandatory label information required to be placed thereon by this part
without obscuring designs, vignettes, or crowding. This definition does
not preclude utilization of alternate principal display panels on the
label of a package, but alternate principal display panels must
duplicate the information required to be placed on the principal display
panel by this part. This definition does not preclude utilization of
the container closure as the surface bearing the principal display panel
if that label location is the one most likely to be displayed,
presented, shown, or examined under normal and customary conditions of
display for retail sale. The principal display panel of a label
appearing on a cylindrical surface is that 40 percent of the
circumference which is most likely to be displayed, presented, shown, or
examined under normal and customary conditions of display for retail
sale. The principal display panel of a consumer commodity marketed in a
decorative type container, or a container having a capacity of 1/4 ounce
or less, may be considered to be a tear-away tag or tape affixed to the
container and bearing the mandatory label information as required by
this part, but the type size of the net quantity of contents statement
shall be governed by the dimensions of the container itself. The
principal display panel of a consumer commodity marketed on a display
card to which the immediate container of the commodity is affixed may be
considered to be the display panel of the card, and the type size of the
net quantity of contents statement is governed by the dimensions of the
display card.
(i) The term random package means a package which is one of a lot,
shipment, or delivery of packages of the same consumer commodity with
varying weights, that is, packages with no fixed weight pattern.
(33 FR 4718, Mar. 19, 1968; 33 FR 4922, Mar. 23, 1968)
16 CFR 500.2 General Requirements
16 CFR 500.3 Prohibited acts, coverage, general labeling requirements,
exemption procedure.
(a) No person engaged in the packaging or labeling of any consumer
commodity for distribution in commerce, and no 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, shall distribute or 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 the Act and of the
regulations in this part.
(b) Persons engaged in business as wholesale or retail distributors
of consumer commodities shall be subject to the Act and the regulations
in this part to the extent that such persons are engaged in the
packaging or labeling of consumer commodities, or prescribe or specify
by any means the manner in which such consumer commodities are packaged
or labeled.
(c) Each packaged or labeled consumer commodity, unless it has been
exempted through proceedings under section 5(b) of the Act (15 U.S.C.
1454(b)), shall, upon being prepared for distribution in commerce or for
sale at retail, and before being distributed in commerce or offered for
sale at retail, be labeled in accordance with the requirements of the
Act and the regulations in this part.
(d) Each packaged or labeled consumer commodity, unless it has been
exempted through proceedings under section 5(b) of the Act, shall bear a
label specifying the identity of the commodity; the name and place of
business of the manufacturer, packer, or distributor; the net quantity
of contents; and the net quantity per serving, use, or application,
where there is a label representation as to the number of servings,
uses, or applications obtainable from the commodity.
(e) Regulations will be promulgated by the Commission exempting
particular consumer commodities from one or more of the requirements of
section 4 of the Act and the regulations thereunder to the extent and
under such conditions as are consistent with the declared policy of the
Act whenever the Commission finds that, because of the nature, form, or
quantity of the particular consumer commodity, or for other good and
sufficient reasons, full compliance with all the requirements otherwise
applicable is impracticable or is not necessary for the adequate
protection of consumers. Proceedings for the promulgation of such
exempting regulations may be commenced by the Commission upon its own
initiative or pursuant to petition filed with the Secretary by any
interested person or group stating reasonable grounds for the proposed
exemption, pursuant to 1.15 of this chapter of the Commission's general
procedures.
(33 FR 4718, Mar. 19, 1968, as amended at 34 FR 14730, Sept. 24,
1969)
16 CFR 500.3 Identity
16 CFR 500.4 Statement of identity.
(a) The principal display panel of a consumer commodity shall bear a
specification of the identity of the commodity.
(b) Such specification of identity shall comprise a principal feature
of the principal display panel, shall be in such type size and so
positioned as to render it easily read and understood by the consumer,
and shall be in lines generally parallel to the base on which the
package or commodity rests as it is designed to be displayed.
(c) Such specification of identity shall be in terms of:
(1) The name now or hereafter specified in or required by any
applicable Federal law or regulation; or in the absence thereof,
(2) The common or usual name of the commodity; or in the absence
thereof,
(3) The generic name or in other appropriately descriptive terms such
as a specification which includes a statement of function.
(d) The specification of identity shall not be false, misleading, or
deceptive in any respect. Ingredients or components which are not
present in the commodity in a substantial or significantly effective
amount may not be mentioned in the specification of identity; except
that a component present in a formulation in substantial and effective
amounts, but not present in the final product due to conversion or
transformation into a different entity (which different entity is
present in the final product), may be mentioned in the specification of
identity.
16 CFR 500.4 Name and Place of Business
16 CFR 500.5 Name and place of business of manufacturer, packer, or
distributor.
(a) The label of a consumer commodity shall specify conspicuously the
name and place of business of the manufacturer, packer, or distributor.
Where the consumer commodity is not manufactured by the person whose
name appears on the label, the name shall be qualified by a phrase that
reveals the connection such person has with such commodity; such as
''Manufactured for -------------------- ,'' ''Distributed by
-------------------- ,'' or any other wording that expresses the facts.
(b) The requirement for declaration of the manufacturer, packer, or
distributor shall in the case of a corporation be deemed to be satisfied
only by the actual corporate name, which may be preceded or followed by
the name of the particular division of the corporation. In the case of
an individual, partnership, or association, the name under which the
business is conducted shall be used.
(c) The statement of the place of business shall include the street
address, city, State, and Zip Code; however the street address may be
omitted if it is shown in a current city directory or telephone
directory.
(d) If a person manufactures, packs, or distributes a consumer
commodity at a place other than his principal place of business, the
label may state the principal place of business in lieu of the actual
place where such consumer commodity was manufactured or packed or is to
be distributed, unless such statement would be misleading.
(e) Standard abbreviations may be used in complying with the
requirements of this section.
16 CFR 500.5 Net Quantity of Contents
16 CFR 500.6 Net quantity of contents declaration, location.
(a) The label of a consumer commodity shall bear a declaration of the
net quantity of contents separately and accurately stated on the
principal display panel.
(b) The declaration of net quantity shall appear as a distinct item
on the principal display panel, shall be separated (by at least a space
equal to the height of the lettering used in the declaration) from other
printed label information appearing above or below the declaration and,
shall not include any term qualifying a unit of weight, measure, or
count such as ''jumbo quart,'' ''full gallon,'' ''when packed,''
''minimum,'' or words of similar import. The declaration of net
quantity shall be separated (by at least a space equal to twice the
width of the letter ''N'' of the style of type used in the net quantity
statement) from other printed label information appearing to the left or
right of the declaration. It shall be placed on the principal display
panel within the bottom 30 percent of the area of the label panel in
lines generally parallel to the base on which the package or commodity
rests as it is designed to be displayed: Provided, That:
(1) On consumer commodities having a principal display panel of 5
square inches or less, the requirement for placement within the bottom
30 percent of the area of the label panel shall not apply when the
declaration of net quantity of contents meets the other requirements of
this part, and
(2) The requirements as to separation, location, and type size,
specified in this part are waived with respect to variety and
combination packages as defined in this part.
(33 FR 4718, Mar. 19, 1968, as amended at 35 FR 13644, Aug. 27, 1970)
16 CFR 500.7 Net quantity of contents, method of expression.
The net quantity of contents shall be expressed in terms of weight,
measure, numerical count, or a combination of numerical count and
weight, size, or measure, so as to give accurate information regarding
the net quantity of contents thereof, and thereby facilitate value
comparisons by consumers. The net quantity of contents statement shall
be in terms of fluid measure if the commodity is liquid, or in terms of
weight if the commodity is solid, semisolid, or viscous, or a mixture of
solid and liquid. If there is a firmly established general consumer
usage and trade custom of declaring the contents of a liquid by weight,
or a solid, semisolid, or viscous product by fluid measure, numerical
count, and/or size, or (as in the case of lawn and plant care products)
by cubic measure, it may be used, when such declaration provides
sufficient information to facilitate value comparisons by consumers.
The declaration may appear in more than one line of print or type.
(33 FR 4718, Mar. 19, 1968, as amended at 35 FR 13643, Aug. 27, 1970)
16 CFR 500.8 Units of weight and measure.
(a) Statements of weight shall be in terms of avoirdupois pound and
ounce.
(b) Statements of fluid measure shall be in terms of the U.S. gallon
of 231 cubic inches and quart, pint, and fluid ounce subdivisions
thereof and shall (except in the case of petroleum products, for which
the declaration shall express the volume at 60 Fahrenheit (15.6
Centigrade)) express the volume at 68 Fahrenheit (20 Centigrade).
(c) Statements of linear measure shall be in terms of yards, feet,
and inches.
(d) Statements of measure of area shall be in terms of square yards,
square feet, and square inches.
(e) Statements of dry measure shall be in terms of the U.S. bushel of
2,150.42 cubic inches and peck, dry quart, and dry pint subdivisions
thereof.
(f) Statements of cubic measure shall be in terms of the cubic yard,
cubic foot, and cubic inch.
16 CFR 500.9 Units of weight, how expressed.
(a) The term ''net weight'' shall be used in stating the net quantity
of contents in terms of weight. With the exception of random packages,
if the statement of quantity is in terms of weight, it shall be
identified as such in each instance and expressed as follows:
(1) If less than 1 pound, in terms of ounces. (Example: ''Net
Weight 12 oz.'')
(2) If at least 1 pound but less than 4 pounds, in ounces followed in
parentheses by a declaration in whole pounds, with any remainder in
terms of ounces or common or decimal fractions of the pound. (Examples:
''Net Wt. 24 oz. (1 lb. 8 oz.)'' or ''Net Wt. 24 oz. (1 1/2 lb.)'' or
''Net Wt. 24 oz. (1.5 lb.)'')
(3) If 4 pounds or more, in terms of whole pounds, with any remainder
in terms of ounces or common or decimal fractions of the pound.
(Examples: ''Net Weight 5 pounds 4 ounces'' or ''Net Wt. 5 1/4 lbs.''
or ''Net Wt. 5.25 lbs.'')
(b) If the net quantity of contents declaration appears on a random
package, it may, when the net weight exceeds 1 pound, be expressed in
terms of pounds and decimal fractions of the pound carried out to not
more than two decimal places. When the net weight does not exceed 1
pound, the declaration on the random package may be in terms of decimal
fractions of the pound in lieu of ounces. (Examples: ''Net Wt. 0.75
lb.'' and ''Net Weight 1.05 pounds''.) Such decimal declaration shall be
exempt from the type size, dual declaration and placement requirements
of section 4(a) of the Act if the accurate statement of net weight is
presented prominently and conspicuously on the principal display panel
of the package.
(c) It is sufficient to distinguish avoirdupois ounce from fluid
ounce through association of terms. (Examples: ''Net Wt. 6 oz.'' vs.
''6 fl. oz.'' or ''Net Contents 6 fl. oz.'')
16 CFR 500.10 Units of fluid measure, how expressed.
(a) Use of the terms ''net'' or ''net contents'' is optional.
(b) Declaration of net quantity of contents in terms of fluid measure
shall be identified as such in each instance and expressed as follows:
(1) If less than 1 pint, in terms of fluid ounces. (Example: ''Net
Contents 8 fl. oz.'')
(2) If at least 1 pint but less than 1 gallon, in terms of fluid
ounces followed in parentheses by a declaration of 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. (Examples: ''Net 32 fl. oz. (1 qt.)'' or ''Net contents
56 fluid oz. (1 quart 1 1/2 pints)'' or as ''Net 56 fluid oz. (1 qt. 1
pt. 8 oz.)'', but not in terms of quart and ounce such as ''Net 56 fluid
oz. (1 quart 24 ounces)''.)
(3) If 1 gallon or more, in terms of the largest whole unit (gallons
followed by common or decimal fractions of a gallon or by the next
smaller whole unit or units viz, quarts and pints) with any remainder in
terms of fluid ounces or common or decimal fractions of the pint or
quart. (Examples: ''Net contents 2 1/2 gal.'', ''Contents 2.5 gal.'',
or ''Net contents 2 gallons 2 quarts'' but not as ''2 gallons 4
pints''.)
16 CFR 500.11 Measurement of commodity length, how expressed.
Declaration of net quantity in terms of commodity length shall be
expressed as follows:
(a) If less than 1 foot, in terms of inches and fractions thereof.
(b) If at least 1 foot but less than 4 feet, in terms of inches
followed in parentheses by a declaration in the largest whole unit (a
yard or foot) with any remainder in terms of inches or common or decimal
fractions of the foot or yard.
(c) If 4 feet or more, in terms of feet followed in parentheses by a
declaration of yards and common or decimal fractions of the yard, or in
terms of feet followed in parentheses by a declaration of yards with any
remainder in terms of feet and inches, except that it shall be optional
to express the length in the preceding manner followed by a statement in
parentheses of the length in terms of inches.
(36 FR 9625, May 27, 1971, as amended at 36 FR 10781, June 3, 1971)
16 CFR 500.12 Measurement of commodities by length and width, how
expressed.
For bidimensional commodities (including roll-type commodities)
measured in terms of commodity length and width, the declaration of net
quantity of contents shall be expressed in the following manner:
(a) The declaration of net quantity for bidimensional commodities
having a width of more than 4 inches shall:
(1) When the commodity has an area of less than 1 square foot be
expressed in terms of length and width in linear inches and fractions
thereof.
(2) When the commodity has an area of 1 square foot or more, but less
than 4 square feet, be expressed in terms of square inches, followed in
parentheses by the length and width in the largest whole unit (yard or
foot) with any remainder in inches or common or decimal fractions of the
yard or foot except that a dimension of less than 2 feet may be stated
in inches within the parenthetical. Commodities consisting of usable
individual units (e.g., paper napkins) while requiring a declaration of
unit area need not declare the total area of all such individual units.
(3) When the commodity has an area of 4 square feet or more, be
expressed in terms of square feet, followed in parentheses by the length
and width in the largest whole units (yards or feet) with any remainder
in terms of inches or common or decimal fractions of the foot or yard
except that a dimension of less than 2 feet may be stated in inches
within the parenthetical.
(4) For any commodity for which the quantity of contents is required
by paragraph (a) (2) or (3) of this section to include a declaration of
the linear dimensions, the quantity of contents, in addition to being
declared in the manner prescribed by the appropriate provision of this
regulation, may also include, after the statement of the linear
dimensions in the largest unit of measurement, a parenthetical
declaration of the linear dimensions of said commodity in terms of
inches. (Example: ''25 SQ. FT. (12 IN. x 8.33 YD.) (12 IN. x 300
IN.)''.)
(b) The declaration of net quantity for bidimensional commodities
having a width of 4 inches or less shall be expressed in terms of width
in inches followed by length in the largest whole unit (yard or foot)
with any remainder in terms of the common or decimal fractions of the
yard or foot, except that it shall be optional to express the length in
the largest whole unit followed by a statement in parentheses of length
in inches, or to express the length in inches followed by a statement in
parentheses of length in the largest whole unit. (Example: ''2 INCHES
x 10 YARDS'', ''2 INCHES x 10 YARDS (360 INCHES)'', or ''2 INCHES x 360
INCHES (10 YARDS)''.
(36 FR 9626, May 27, 1971)
16 CFR 500.13 Measurement of commodities by area measure only, how
expressed.
Declaration of net quantity for commodities measured in terms of area
measure only shall be expressed as follows:
(a) If less than 1 square foot, in terms of square inches and
fractions thereof.
(b) If at least 1 square foot but less than 4 square feet, in terms
of square inches followed in parentheses by a declaration in square feet
with any remainder in terms of square inches or common or decimal
fractions of the square foot.
(c) If 4 square feet or more, in terms of the largest appropriate
whole unit (square yards, square yards and square feet, or square feet)
with any remainder in terms of square inches or common or decimal
fractions of the square foot or square yard.
16 CFR 500.14 Statements of cubic measure and dry measure.
Statements of cubic measure and dry measure do not require a dual
declaration of net quantity of contents, but shall be expressed in terms
most appropriate to the providing of accurate information as to the net
quantity of contents, and to the facilitating of value comparisons by
consumers. When the content declaration on a commodity sold in
compressed form is stated in terms of cubic measure there may also be a
statement indicating the amount of material from which the final product
was compressed. Such statement shall not exceed the actual amount of
material that can be recovered.
16 CFR 500.15 Units of count, more than one play.
If the commodity is in distinct usable units made up of one or more
components or ply, the statement of net quantity of contents shall (in
addition to complying with the requirements of linear and area
measurement declaration for each unit as specified in 500.12 of this
part) include the number of ply and the total number of usable units.
(Examples: ''100 2-ply facial tissues, 8 1/2 inches x 10 inches''.) For
the purposes of this section, roll type commodities (e.g. paper towels),
irrespective of perforations, shall not be considered to be usable
units, and shall be labeled in terms of total area measurement and the
number of ply. Such area measurement, however, shall be supplemented by
a count statement and the dimensions of a single unit.
16 CFR 500.15a Measurement of container type commodities, how
expressed.
Notwithstanding other provisions of this Part 500 of the regulations
pertaining to the expression of net quantity of contents by measurement,
commodities designed and sold at retail to be used as containers for
other materials or objects, such as bags, cups, boxes, and pans, shall
be labeled in accordance with the following paragraphs:
(a) The declaration of net quantity for container commodities shall
be expressed as follows:
(1) For bag type commodities, in terms of count followed by linear
dimensions of the bag (whether packaged in a perforated roll or
otherwise):
(i) When the unit bag is characterized by two dimensions because of
the absence of a gusset, the width and length will be expressed in
inches, except that a dimension of 2 feet or more will be expressed in
feet with any remainder in terms of inches or common or decimal
fractions of the foot. (Example: ''25 bags, 17 in. x 20 in.'' or ''100
bags, 20 in. x 2 ft. 6 in.'', or ''50 bags, 20 in. x 2 1/2 ft.'')
(ii) When the unit bag is gussetted, the dimensions will be expressed
as width, depth and length, in terms of inches except that any dimension
of 2 feet or more will be expressed in feet with any remainder in terms
of inches or the common or decimal fractions of the foot. (Examples:
''25 bags, 17 in. x 4 in. x 20 in.'', or ''100 bags, 20 in. x 12 in. x 2
1/2 ft.'')
(2) For other square, oblong, rectangular or similarly shaped
containers, in terms of count followed by length, width, and depth
except depth need not be listed when less than 2 inches. (Example: ''2
cake pans, 8 in. x 8 in.'', or ''roasting pan, 12 in. x 8 in. x 3 in.'')
(3) For circular or other generally round shaped containers, except
cups, and the like, in terms of count followed by diameter and depth
except depth need not be listed when less than 2 inches. (Example: ''4
pie pans, 8 in. diameter'', or ''2 cake pans, 8 in. diameter x 4 in.'')
(b) When the functional use of the container is related by label
references in standard terms of measure to the capability of holding a
specific quantity of substance or class of substances such references
shall be a part of the net quantity statement and shall specify capacity
as follows:
(1) Liquid measure for containers which are intended to be used for
liquids, semi-solids, viscous materials or mixtures of solids and
liquids. The expressed capacity will be stated in terms of the largest
whole unit (gallon, quart, pint, ounce) with any remainder in terms of
the common or decimal fraction of that unit. (Example: Freezer Boxes:
''4 boxes, 1 qt. capacity, 6 in. x 6 in. x 4 in.'')
(2) Dry measure for containers which are intended to be used for
solids. The expressed capacity will be stated in terms of the largest
whole unit (bushel, peck) with any remainder in terms of the common or
decimal fraction of that unit. (Example: Leaf Bags: ''8 bags, 6
bushel capacity, 4 feet x 5 feet''.)
(3) Where containers are used as liners for other more permanent
containers, in the same terms as are normally used to express the
capacity of the more permanent container. (Example: Garbage Can
Liners: ''10 liners, 2 ft. 6 in. x 3 ft. 1 in., fits up to 30 gallon
cans''.)
(c) Notwithstanding the above requirements, the net quantity
statement for containers such as cups will be listed in terms of count
and liquid capacity per unit. (Example: ''24 cups, 6 fl. oz.
capacity''.)
(d) For purposes of this section, the use of the terms ''capacity,''
''diameter,'' and ''fluid'' is optional.
(34 FR 14731, Sept. 24, 1969; 34 FR 18160, Nov. 13, 1969)
16 CFR 500.16 Fractions.
A statement of net quantity of contents of any consumer commodity may
contain common or decimal fractions. A common fraction shall be in
terms of halves, quarters, eighths, sixteenths, or thirty-seconds;
except that (a) if there exists a firmly established general consumer
usage and trade custom of employing different common fractions in the
net quantity declaration of a particular commodity, they may be
employed, and (b) if linear measurements are required in terms of yards
or feet, common fractions may be in terms of thirds. A common fraction
shall be reduced to its lowest terms; a decimal fraction shall not be
carried out to more than two places. If a statement includes small
fractions, smaller variations in the actual size or weight of the
commodity will be permitted, as provided in 500.22 of this part, than
in cases where larger fractions or whole numbers are used.
(34 FR 14730, Sept. 24, 1969)
16 CFR 500.17 Conspicuousness.
The statement of net quantity of contents shall appear in conspicuous
and easily legible boldface type or print in distinct contrast (by
typography, layout, color, embossing, or molding) to other matter on the
package; except that a statement of net quantity blown, embossed, or
molded on a glass or plastic surface is permissible when all label
information is so formed on the surface.
16 CFR 500.18 Type size in relationship to the area of the principal
display panel.
(a) The statement of net quantity of contents shall be in letters and
numerals in a type size established in relationship to the area of the
principal display panel of the package or commodity and shall be uniform
for all packages or commodities of substantially the same size. For
this purpose, ''area of the principal display panel'' means the area of
the side or surface that bears the principal display panel, exclusive of
tops, bottoms, flanges at tops and bottoms of cans, and shoulders and
necks of bottles and jars. This area shall be:
(1) In the case of a rectangular package or commodity where one
entire side properly can be considered to be the principal display panel
side, the product of the height times the width of that side;
(2) In the case of a cylindrical or nearly cylindrical container or
commodity, 40 percent of the product of the height of the container or
commodity times the circumference; and
(3) In the case of any otherwise shaped container or commodity, 40
percent of the total surface of the container or commodity: Provided,
however, That where such container or commodity presents an obvious
''principal display panel'' such as the top of a triangular or oval
shaped container, the area shall consist of the entire top surface.
(b) With area of principal display panel defined as above, the type
size in relationship to area of that panel shall comply with the
following specifications:
(1) Not less than 1/16 inch in height on packages the principal
display panel of which has an area of 5 square inches or less.
(2) Not less than 1/8 inch in height on packages the principal
display panel of which has an area of more than 5 but not more than 25
square inches.
(3) Not less than 3/16 inch in height on packages the principal
display panel of which has an area of more than 25 but not more than 100
square inches.
(4) Not less than 1/4 inch in height on packages the principal
display panel of which has an area of more than 100 square inches,
except not less than 1/2 inch in height if the area is more than 400
square inches.
(c) Where the statement of net quantity of contents is blown,
embossed, or molded on a glass or plastic surface rather than by
printing, typing, or coloring, the lettering sizes specified in
paragraph (b) of this section shall be increased by 1/16 of an inch.
(d) Letter heights pertain to upper case or capital letters. When
upper and lower case or all lower case letters are used, it is the lower
case letter ''o'' or its equivalent that shall meet the minimum
standards.
(e) The ratio of height to width of a letter shall not exceed a
differential of 3 units to 1 unit (no more than 3 times as high as it is
wide).
(f) When fractions are used, each component shall meet one-half the
minimum height standards.
(33 FR 4718, Mar. 19, 1968; 33 FR 4922, Mar. 23, 1968, as amended at
34 FR 8200, May 27, 1969)
16 CFR 500.19 Abbreviations.
The following abbreviations and none other may be employed in the
required net quantity declaration:
Inch -- in.
Feet or foot -- ft.
Fluid -- fl.
Liquid -- liq.
Ounce -- oz.
Gallon -- gal.
Pint -- pt.
Pound -- lb.
Quart -- qt.
Square -- sq.
Weight -- wt.
Yard -- yd.
Avoirdupois -- avdp.
Cubic -- cu.
(Periods and plural forms shall be optional.)
16 CFR 500.20 Supplemental statements.
Nothing contained in the regulations in this part shall prohibit
supplemental statements, at locations other than the principal display
panel, 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, measure, or
count that tends to exaggerate the amount of commodity contained in the
package. (Examples of prohibited language are: ''Giant Quart,'' ''Full
Gallon,'' ''When Packed,'' ''Minimum,'' or words of similar import.)
Required dual declarations and combination declarations of net quantity
of contents (for example, a combination of net weight plus numerical
count, numerical count plus dimensions of the commodity, etc.) are not
regarded as supplemental net quantity statements and shall be located on
the principal display panel. Dilution directions or other similar
directions for use are not regarded as supplemental net quantity
statements and may be located on the principal display panel. Size
characterizations in compliance with standards promulgated under section
5(c)(1) of the Act may appear on the principal display panel.
16 CFR 500.21 Metric equivalent.
A separate statement of the net quantity of contents in terms of the
metric system is not regarded as a supplemental net quantity statement
and an accurate statement of the net quantity of contents in terms of
the metric system of weight or measure may also appear on the principal
display panel or on other panels. Standard metric abbreviations may be
used.
16 CFR 500.22 Net quantity, average quantity, permitted variations.
(a) The statement of net quantity of contents shall accurately reveal
the quantity of the commodity in the container exclusive of wrappers and
other material packed therewith: Provided, That in the case of a
commodity packed in a container designed to deliver the commodity under
pressure, the statement shall declare the net quantity of the contents
that will be expelled when the instructions for use are followed. The
propellant is included in the net quantity statement.
(b) Variations from the stated weight or measure shall be permitted
when caused by ordinary and customary exposure, after the commodity is
introduced into interstate commerce, to conditions which normally occur
in good distribution practice and which unavoidably result in change of
weight or measure.
(c) Variations from the stated weight, measure or numerical count
shall be permitted when caused by unavoidable deviations in weighing,
measuring, or counting the contents of individual packages which occur
in good packaging practice: Provided, That such variations shall not be
permitted to such extent that the average of the quantities in the
packages comprising a shipment or other delivery of the commodity is
below the quantity stated, and no unreasonable shortage in any package
will be permitted, even though overages in other packages in the same
shipment or delivery compensate for such shortage. Variations from
stated quantity of contents shall not be unreasonably large.
16 CFR 500.23 Representations of servings, uses, applications.
(a) The label of any packaged consumer commodity which bears a
representation as to the number of servings, uses, or applications of
such commodity contained in such package shall bear in immediate
conjunction therewith, and in letters the same size as those used for
such representation, a statement of the net quantity (in terms of
weight, measure, or numerical count) of each such serving, use, or
application: Provided, That such statement may be expressed in terms
that differ from terms used in the required statement of net contents
(e.g., cupsful, tablespoonful, etc.), when such differing terms describe
a constant quantity. Such statement may not be misleading in any
particular.
(b) Representations as to the total amount of object or objects to
which the commodity may be applied or upon which or in which the
commodity may be used, will not be considered to be representations as
to servings, uses, or applications, if such amount is expressed in terms
of standard units of weight, measure, size, or count.
(c) If there exists a voluntary product standard promulgated pursuant
to the procedures found in Part 10, Title 15, Code of Federal
Regulations, by the Department of Commerce, quantitatively defining the
meaning of the terms ''serving,'' ''use,'' or ''application'' with
respect to a particular consumer commodity, then any label
representation as to the number of servings, uses, or applications in
such packaged consumer commodity shall correspond with such quantitative
definition. (Copies of published standards will be available upon
request from the National Bureau of Standards, Department of Commerce,
Washington, DC 20234.)
16 CFR 500.24 Multiunit packages.
(a) A multiunit package is a package intended for retail sale,
containing two or more individual packaged or labeled units of an
identical commodity in the same quantity. The declaration of net
quantity of contents of a multiunit package shall be expressed as
follows:
(1) The number of individual packaged or labeled units;
(2) The quantity of each individual packaged or labeled unit
including dual declarations when applicable; and
(3) The total quantity of the multiunit package which may omit the
parenthetical quantity statement of a dual quantity representation.
Examples: Soap bars: ''6 Bars, Net Wt. 3.4 ozs. each, Total Net
Wt. 20.4 ozs.'' Facial Tissues: ''10 Packs, each 25 two-ply tissues,
9.7 in. x 8.2 in., Total 250 Tissues.''
(b) The individual packages or labeled units of a multiunit package,
when intended for individual sale separate from the multiunit package,
shall be labeled in compliance with the regulations under this Part 500
applicable to that package.
(c) A multiunit package containing unlabeled individual packages
which are not intended for retail sale separate from the multiunit
package may contain in lieu of the requirements of paragraph (a) of this
section, a declaration of quantity of contents expressing the total
quantity of the multiunit package without regard for inner packaging.
For such multiunit packages it shall be optional to include a statement
of the number of individual packages when such a statement is not
otherwise required by the regulations.
Examples: Deodorant Cakes: ''5 Cakes, Net Wt. 4 ozs. each, Total
Net Wt. 20 ozs.'' or ''5 Cakes, Total Net Wt. 20 ozs. (1 lb. 4
ozs.)'';
Soap Packets: ''10 Packets, Net Wt. 2 ozs. each, Total Net Wt. 20
ozs.'', or ''Net Wt. 20 ozs. (1 lb. 4 oz.)'' or ''10 Packets, Total
Net Wt. 20 ozs. (1 lb. 4 ozs.).''
(35 FR 13644, Aug. 27, 1970)
16 CFR 500.25 Variety packages.
(a) A variety package is a package intended for retail sale,
containing two or more individual packages or units of similar but not
identical commodities. Commodities which are generically the same but
which differ in weight, measure, volume, appearance or quality are
considered similar but not identical. The declaration of net quantity
for a variety package will be expressed as follows:
(1) The number of units for each identical commodity followed by the
weight, volume or measure of that commodity including dual declarations
when applicable; and
(2) The total quantity by weight, volume, measure, and count, as
appropriate, of the variety package. Dual declarations may be omitted
from the total quantity statement.
The statement of total quantity shall appear as the last item in the
declaration of net quantity and shall not be of greater prominence than
other terms used.
(b) When the individual units in a variety package are either
packaged or labeled and are intended for retail sale as individual
units, each unit shall be labeled in compliance with the applicable
regulations under this Part 500.
(35 FR 13644, Aug. 27, 1970)
16 CFR 500.26 Combination packages.
(a) A combination package is a package intended for retail sale,
containing two or more individual packages or units of dissimilar
commodities. The declaration of net quantity for a combination package
will contain an expression of weight, volume, measure or count or a
combination thereof, as appropriate for each individual package or unit;
provided, that the quantity statements for identical packages or units
shall be combined. Dual declarations will be included where applicable.
Examples:
(1) Lighter fluid and flints: ''2 cans -- each 8 fl. ozs.; 1
package -- 8 flints.''
(2) Sponges & Cleaner: ''2 sponges each 4 in. x 6 in. x 1 in.; 1
box cleaner -- Net Wt. 6 ozs.''
(3) Picnic Pack: ''20 spoons, 10 knives and 10 forks, 10 2-ply
napkins 10 ins. x 10 ins. 10 cups -- 6 fl. ozs.''
(b) When the individual units in a combination package are either
packaged or labeled and are intended for retail sale as individual
units, each unit shall be in compliance with the applicable regulations
under this Part 500.
(35 FR 13644, Aug. 27, 1970)
16 CFR 500.26 PART 501 -- EXEMPTIONS FROM REQUIREMENTS AND PROHIBITIONS
UNDER PART 500
Sec.
501.1 Camera film.
501.2 Christmas tree ornaments.
501.3 Replacement bags for vacuum cleaners.
501.4 Chamois.
501.5 Paper table covers, bedsheets, pillowcases.
501.6 Cellulose sponges, irregular dimensions.
501.7 Candles.
501.8 Solder.
Authority: Secs. 5, 6, 80 Stat. 1298, 1299, 1300; 15 U.S.C. 1454,
1455.
16 CFR 501.1 Camera film.
Camera film packaged and labeled for retail sale is exempt from the
net quantity statement requirements of Part 500 of this chapter which
specify how measurement of commodities should be expressed, provided:
(a) The net quantity of contents on packages of movie film and bulk
still film is expressed in terms of the number of lineal feet of usable
film contained therein.
(b) The net quantity of contents on packages of still film is
expressed in terms of the number of exposures the contents will provide.
The length and width measurements of the individual exposures,
expressed in millimeters or inches, are authorized as an optional
statement. (Example: ''36 exposures, 36 x 24 mm. or 12 exposures, 2
1/4 x 2 1/4 inches''.)
(35 FR 75, Jan. 3, 1970)
16 CFR 501.2 Christmas tree ornaments.
Christmas tree ornaments packaged and labeled for retail sale are
exempt from the net quantity statement requirements of Part 500 of this
chapter which specify how the net quantity statement should be
expressed, provided:
(a) The quantity of contents is expressed in terms of numerical count
of the ornaments, and
(b) The ornaments are so packaged that the ornaments are clearly
visible to the retail purchaser at the time of purchase.
(35 FR 9108, June 12, 1970)
16 CFR 501.3 Replacement bags for vacuum cleaners.
Replacement bags for vacuum cleaners, packaged and labeled for retail
sale are exempt from the requirements of 500.15a of this chapter which
specifies how measurement of container type commodities should be
expressed, provided:
(a) The quantity of contents is expressed in terms of numerical count
of the bags;
(b) A statement appears on the principal display panel of the package
accurately identifying the make and model of the vacuum cleaner or
cleaners in which the replacement bag is intended to effectively
function;
(c) The name and place of business of the manufacturer, packer, or
distributor of the replacement bags, in addition to the requirements of
500.5 of this chapter, appears on the principal display panel of the
package.
(35 FR 10510, June 27, 1970)
16 CFR 501.4 Chamois.
Chamois packaged or labeled for retail sale is exempt from the
requirements of 500.13 of this chapter which specifies how measurement
of commodities by area measure should be expressed: Provided:
(a) The quantity of contents for full skins is expressed in terms of
square feet with any remainder in terms of the common or decimal
fraction of the square foot.
(b) The quantity of contents for cut skins of any configuration is
expressed in terms of square inches and fractions thereof. Where the
area of a cut skin is at least one square foot or more, the statement of
square inches shall be followed in parentheses by a declaration in
square feet with any remainder in terms of square inches or common or
decimal fractions of the square foot.
(35 FR 19572, Dec. 24, 1970)
16 CFR 501.5 Paper table covers, bedsheets, pillowcases.
Table covers, bedsheets, and pillowcases, fabricated from paper, are
exempt from the requirements of 500.12 of this chapter which specifies
the expression of measurement of bidimensional commodities: Provided,
That such commodities shall clearly present their actual length and
width in terms of inches.
(35 FR 19077, Dec. 17, 1970)
16 CFR 501.6 Cellulose sponges, irregular dimensions.
Variety packages of cellulose sponges of irregular dimensions, are
exempted from the requirements of 500.25 of this chapter, provided:
(a) Such sponges are packaged in transparent packages which afford
visual inspection of the varied sizes, shapes, and irregular dimensions;
and
(b) The quantity of contents declaration is expressed as a
combination of count accompanied by the term ''irregular dimensions.''
Example: ''10 Assorted Sponges -- Irregular dimensions.''
(35 FR 18510, Dec. 5, 1970)
16 CFR 501.7 Candles.
Tapered candles and irregularly shaped decorative candles which are
either hand dipped or molded are exempt from the requirements of 500.7
of this chapter which specifies that the net quantity of contents shall
be expressed in terms of count and measure (e.g., length and diameter),
to the extent that diameter of such candles need not be expressed. The
requirements of 500.7 of this chapter for these candles will be met by
an expression of count and length or height in inches.
(36 FR 5690, Mar. 26, 1971)
16 CFR 501.8 Solder.
Solder and brazing alloys containing precious metals when packaged
and labeled for retail sale are exempt from the net quantity statement
requirements of Part 500 of this chapter which specify that all
statements of weight shall be in terms of avoirdupois pound and ounce
provided the net quantity declaration is stated in terms of the troy
pound and ounce and the term ''troy'' is used in each declaration.
(37 FR 4429, Mar. 3, 1972)
16 CFR 501.8 PART 502 -- REGULATIONS UNDER SECTION 5(C) OF THE FAIR
PACKAGING AND LABELING ACT
Sec.
502.1 Scope of the regulations in this part.
502.2 Terms defined.
502.3 Prohibited acts.
502.4 -- 502.99 (Reserved)
502.100 ''Cents-off'' representations.
502.101 Introductory offers.
502.102 ''Economy size''.
502.200 -- 502.299 (Reserved)
502.300 -- 502.399 (Reserved)
Authority: Secs. 5, 6, 80 Stat. 1299, 1300; 15 U.S.C. 1454, 1455.
Source: 36 FR 12286, June 30, 1971, unless otherwise noted.
16 CFR 501.8 Scope
16 CFR 502.1 Scope of the regulations in this part.
The regulations in this part establish requirements for labeling of
consumer commodities with respect to use of package size
characterizations, retail sale price representations, and common name
and ingredient listing. Additionally, the regulations in this part
establish criteria to prevent nonfunctional-slack-fill of packages
containing consumer commodities.
16 CFR 502.1 Definitions
16 CFR 502.2 Terms defined.
As used in this part, unless the context otherwise specifically
requires:
(a) The terms Act, regulation or regulations, consumer commodity,
package, label, person, commerce, principal display panel, and random
package have the same meaning as those terms are defined under Part 500
of this chapter.
(b) The term packager and labeler means any person engaged in the
packaging or labeling of any consumer commodity for distribution in
commerce or 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;
except persons engaged in business as wholesale or retail distributors
of consumer commodities are not included unless 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.
(c) The terms ordinary and customary and regular when used with the
term price means the price at which a consumer commodity has been openly
and actively sold in the most recent and regular course of business in a
particular market or trade area for a reasonably substantial period of
time, i.e., a 30-day period. For consumer commodities which fluctuate
in price, the ordinary and customary price shall be the lowest price at
which any substantial sales were made during the aforesaid 30-day
period.
16 CFR 502.2 General Requirements
16 CFR 502.3 Prohibited acts.
(a) No person engaged in the packaging or labeling of any consumer
commodity for distribution in commerce, and no 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, shall distribute or 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 the Act and of the
regulations in this part.
(b) Persons engaged in business as wholesale or retail distributors
of consumer commodities shall be subject to the Act and the regulations
in this part to the extent that such persons are engaged in the
packaging or labeling of consumer commodities, or prescribe or specify
by any means the manner in which such consumer commodities are packaged
or labeled.
16 CFR 502.3 Characterization of Package Size
502.4 -- 502.99 (Reserved)
16 CFR 502.3 Retail Sale Price Representations
16 CFR 502.100 ''Cents-off'' representations.
(a) The term ''cents-off representation'' means any printed matter
consisting of the words ''cents-off'' or words of similar import, placed
upon any packaging containing a consumer commodity or placed upon any
label affixed to such commodity, stating or representing by implication
that the commodity is being offered for sale at a price lower than the
ordinary and customary retail sale price.
(b) Except as set forth in 502.101 of this part, the package or
label of a consumer commodity shall not have imprinted thereon by a
packager or labeler a ''cents-off'' representation unless:
(1) The commodity has been sold by the packager or labeler at an
ordinary and customary price in the most recent and regular course of
business in the trade area in which the ''cents-off'' promotion is made,
either to the trade in the event such commodity is not sold at retail by
the packager or labeler, or to the public in the event such commodity is
sold at retail by the packager or labeler.
(2) The packager or labeler sells the commodity so labeled (either to
the trade in the event such commodity is not sold at retail by the
packager or labeler, or to the public in the event such commodity is
sold at retail by the packager or labeler) at a reduction from his
ordinary and customary price, which reduction is at least equal to the
amount of the ''cents-off'' representation imprinted on the commodity
package or label.
(3) Each ''cents-off'' representation imprinted on the package or
label is limited to a phrase which reflects that the price marked by the
retailer represents the savings in the amount of the ''cents-off'' the
retailer's regular price, e.g., ''Price Marked is ------ Off the
Regular Price''. ''Price Marked is ------ Cents-off the Regular Price
of This Package''; provided, the package or label may in addition bear
in the usual pricing spot a form reflecting a space for the regular
price, the represented ''cents-off'' and a space for the price to be
paid by the consumer.
(4) The packager or labeler who sells the commodity at retail
displays the regular price, designated as the ''regular price'', clearly
and conspicuously on the package or label of the commodity or on a sign,
placard, or shelf-marker placed in a position contiguous to the retail
display of the ''cents-off'' marked commodity, and the packager or
labeler who does not sell at retail provides the retailer with a sign,
placard, shelf-marker, or other device for the purpose of clearly and
conspicuously displaying the retailers regular price, designated as
''regular price'', in a position contiguous to the ''cents-off'' marked
commodity.
(5) The packager or labeler:
(i) Does not initiate more than three ''cents-off'' promotions of any
single size commodity in the same trade area within a 12-month period;
(ii) Allows at least 30 days to lapse between ''cents-off''
promotions of any particular size packaged or labeled commodity in a
specific trade area; and
(iii) Does not sell any single size commodity so labeled in a trade
area for a duration in excess of 6 months within any 12-month period.
(6) Sales by the packager or labeler of any single size commodity so
labeled in a trade area do not exceed in volume fifty percent (50%) of
the total volume of sales of such size commodity in the same trade area
during any 12-month period. The 12-month period used by the packager or
labeler may be the calendar, fiscal, or market year provided the
identical period is applied in this paragraph (b)(6) and paragraph
(b)(5) of this section. Volume limits may be calculated on the basis of
projections for the current year but shall not exceed 50 percent of the
sales for the preceding year in the event actual sales are less than the
projection for the current year.
(c) A packager or labeler will not make a ''cents-off'' promotion
available in any circumstances where he knows or should have reason to
know that it will be used as an instrumentality for deception or for
frustration of value comparison, e.g., where the retailer charges a
price which does not fully pass on to the consumers the represented
price reduction or where the retailer fails to display the regular price
in the display area of the ''cents-off'' marked product. Nothing in
this rule, however, should be construed to authorize or condone the
illegal setting or policing of retail prices by a packager or labeler in
situations where he does not sell to the public.
(d) A packager or labeler who sponsors a ''cents-off'' promotion
shall prepare and maintain invoices or other records showing compliance
with this section. The invoices or other records required by this
section shall be open to inspection by duly authorized representatives
of this Commission and shall be retained for a period of 1 year
subsequent to the end of the year (calendar, fiscal, or market) in which
the ''cents-off'' promotion occurs.
(36 FR 23057, Dec. 3, 1971)
16 CFR 502.101 Introductory offers.
(a) The term ''introductory offer'' means any printed matter
consisting of the words ''introductory offer'' or words of similar
import, placed upon a package containing any new commodity or upon any
label affixed to such new commodity, stating or representing by
implication that such new commodity is offered for retail sale at a
price lower than the anticipated ordinary and customary retail sale
price.
(b) The package or label of a consumer commodity may not have
imprinted thereon by a packager or labeler an introductory offer unless:
(1) The product contained in the package is new, has been changed in
a functionally significant and substantial respect, or is being
introduced into a trade area for the first time.
(2) The packager or labeler clearly and conspicuously qualifies each
offer on a package or label with the phrase ''Introductory Offer.''
(3) The packager or labeler does not sell any commodity so labeled in
a trade area for a duration in excess of 6 months.
(4) At the time of making the introductory offer promotion, the
packagers or labeler intends in good faith to offer the commodity,
alone, at the anticipated ordinary and customary price for a reasonably
substantial period of time following the duration of the introductory
offer promotion.
(c) The package or label of a consumer commodity shall not have
imprinted thereon by a packager or labeler an introductory offer in the
form of a ''cents-off'' representation unless, in addition to the
requirements in paragraph (b) of this section:
(1) The packager or labeler clearly and conspicuously and in
immediate conjunction with the phrase ''Introductory Offer'' imprints
the phrase '' ------ cents-off the after introductory offer price''.
(2) The packager or labeler sells the commodity so labeled (either to
the trade in the event such commodity is not sold at retail by the
packager or labeler, or to the public in the event such commodity is
sold at retail by the packager or labeler) at a reduction from his
anticipated ordinary customary price, which reduction is at least equal
to the amount of the reduction from the after introductory offer price
representation on the commodity package or label.
(d) A packager or labeler will not make an introductory offer with a
''cents-off'' representation available in any circumstance where he
knows or should have reason to know that it will be used as an
instrumentality for deception or for frustration of value comparison,
e.g., where the retailer charges a price which does not fully pass on to
consumers the represented price reduction. Nothing in this rule,
however, should be construed to authorize or condone the illegal setting
or policing of retail prices by a packager or labeler.
(e) A packager or labeler who sponsors an introductory offer shall
prepare and maintain invoices or other records showing compliance with
this section. The invoices or other records required by this section
shall be open to inspection by duly authorized representatives of this
Commission and shall be retained for a period of 1 year subsequent to
the period of the introductory offer.
16 CFR 502.102 ''Economy size.''
(a) The term ''economy size'' means any printed matter consisting of
the words ''economy size,'' ''economy pack,'' ''budget pack,'' ''bargain
size,'' ''value size,'' or words of similar import placed upon any
package containing any consumer commodity or placed upon any label
affixed to such commodity, stating or representing directly or by
implication that a retail sale price advantage is accorded the purchaser
thereof by reason of the size of that package or the quantity of its
contents.
(b) The package or label of a consumer commodity may not have
imprinted thereon an ''economy size'' representation unless:
(1) The packager or labeler at the same time offers the same brand of
that commodity in at least one other packaged size or labeled form.
(2) The packager or labeler offers only one packaged or labeled form
of that brand of commodity labeled with an ''economy size''
representation.
(3) The packager or labeler sells the commodity labeled with an
''economy size'' representation (either to the trade in the event such
commodity is not sold at retail by the packager or labeler, or to the
public in the event such commodity is sold at retail by the packager or
labeler), at a price per unit of weight, volume, measure, or count which
is substantially reduced (i.e., at least 5 percent) from the actual
price of all other packaged or labeled units of the same brand of that
commodity offered simultaneously.
(c) A packager or labeler will not make an ''economy size'' package
available in any circumstances where he knows that it will be used as an
instrumentality for deception, e.g., where the retailer charges a price
which does not pass on to the consumer the substantial reduction in cost
per unit initially granted by the packager or labeler. Nothing in this
rule, however, should be construed to authorize or condone the illegal
setting or policing of retail prices by a packager or labeler.
(d) A packager or labeler who sponsors an ''economy size'' package
shall prepare and maintain invoices or other records showing compliance
with paragraph (b) of this section. The invoices or other records
required by this section shall be open to inspection by duly authorized
representatives of this Commission and shall be retained for one year.
16 CFR 502.102 Common Name and Ingredient Listing
502.200 -- 502.299 (Reserved)
16 CFR 502.102 Nonfunctional-Slack-Fill
502.300 -- 502.399 (Reserved)
16 CFR 502.102 PART 503 -- STATEMENTS OF GENERAL POLICY OR
INTERPRETATION
Sec.
503.1 Interpretations.
503.2 Status of specific items under the Fair Packaging and Labeling
Act.
503.3 Name and place of business of manufacturer, packer, or
distributor.
503.4 Net quantity of contents, numerical count.
503.5 Interpretation of the definition of ''consumer commodity'' as
contained in section 10(a) of the Fair Packaging and Labeling Act.
503.6 Packagers' duty to withhold availability of packages imprinted
with retail sale price representations.
Authority: Secs. 4, 6, 10, 80 Stat. 1297, 1999, 1300, 1301; 15
U.S.C. 1453, 1455, 1456.
16 CFR 503.1 Interpretations.
The regulations in Parts 500, 501, and 502 of this chapter are
necessarily general in application and requests for formal rulings,
statements of policy or interpretations shall be addressed to the
Secretary of the Commission for consideration. Statements of policy or
interpretations binding on the Commission will be published in the
Federal Register. However, technical questions not involving policy
consideration may be answered by the staff.
(36 FR 23058, Dec. 3, 1971)
16 CFR 503.2 Status of specific items under the Fair Packaging and
Labeling Act.
Recent questions submitted to the Commission concerning whether
certain articles, products or commodities are included under the
definition of the term ''consumer commodity'', as contained in section
10(a) of the Fair Packaging and Labeling Act, have been considered in
the light of the Commission's interpretation of that term as set forth
in 503.5 of this part as follows:
(a) The Commission is of the opinion that the following commodities
or classes of commodities are not ''consumer commodities'' within the
meaning of the Act.
Antifreeze.
Artificial flowers and parts.
Automotive accessories.
Automotive chemical products.
Automotive replacement parts.
Bicycle tires and tubes.
Books.
Brushes (bristle, nylon, etc.).
Brooms and mops.
Cameras.
Chinaware.
Christmas light sets.
Cigarette lighters.
Clothespins (wooden, plastic).
Compacts and mirrors.
Diaries and calendars.
Flower seeds.
Footwear.
Garden tools.
Gift ties and tapes.
Glasses and glassware.
Gloves (work type).
Greeting cards.
Hand tools.
Handicraft and sewing thread.
Hardware.
Household cooking utensils.
Inks.
Jewelry.
Luggage.
Magnetic recording tape.
Metal pails.
Motor oil (automobile).
Mouse and rat traps.
Musical instruments.
Paintings and wall plaques.
Photo albums.
Pictures.
Plastic table cloths, plastic placement and plastic shelf paper.
Rubber gloves (household).
Safety flares.
Safety pins.
School supplies.
Sewing accessories.
Silverware, stainless steelware and pewterware.
Small arms ammunition.
Smoking pipes.
Souvenirs.
Sporting goods.
Toys.
Typewriter ribbons.
Woodenware.
(b) The Commission is of the opinion that the following commodities
or classes of commodities are ''consumer commodities'' within the
meaning of the Act:
Adhesives and sealants.
Aluminum foil cooking utensils.
Aluminum wrap.
Camera supplies.
Candles.
Christmas decorations.
Cordage.
Disposable diapers.
Dry cell batteries.
Light bulbs.
Liquified petroleum gas for other than heating and cooking.
Lubricants for home use.
Photographic chemicals.
Pressure sensitive tapes, excluding gift tapes.
Solder.
Solvents and cleaning fluids for home use.
Sponges and chamois.
Waxes for home use.
(35 FR 6185, Apr. 16, 1970)
16 CFR 503.3 Name and place of business of manufacturer, packer, or
distributor.
To clarify the identity of a manufacturer, packer, or distributor for
the purpose of 500.5 of this chapter, the following represents the
opinions of the Commission.
(a) A manufacturer of a bulk product who supplies the product to a
contract packager and permits his bulk product to be packaged by the
contract packager remains the manufacturer of the commodity, if the
contract packager does not perform any act other than package filling
and labeling.
(b)(1) A manufacturer of a bulk product who supplies the bulk to a
contract packager but permits the packager to modify the bulk commodity
by the addition of any substance which changes the identity of the bulk,
ceases to be the manufacturer of the consumer commodity. At that point,
if the manufacturer of the bulk elects to use his name on the label of
the consumer commodity, his name should be qualified to show
''Distributed by -------------------- '', or ''Manufactured for
-------------------------- ''.
(2) The identity of a bulk substance received by a contract packager
is changed if the packager, for example, adds a propellant as in the
case of an aerosol, or adds a solvent as in the case of a paint, or
blends two or more components, or changes the physical state as in the
case of a liquid being changed to a gel or a semisolid being changed to
a solid.
(c) A person or firm who supplies a formula and/or specifications to
a contract packager but who takes no part in the actual production of
the consumer commodity is not the manufacturer of the consumer commodity
for the purpose of 500.5(a) of this chapter. This is true whether the
person or firm who supplies the formula or specifications, or both, also
supplies the raw materials which are to be reacted, mixed, or otherwise
modified to produce the consumer commodity.
(d) A corporation which wholly owns a manufacturing subsidiary which
retains its separate corporate identity, is not the manufacturer of the
consumer commodities manufactured by the wholly owned subsidiary, but
must qualify its name if it elects to use its name on the label. Such
qualification may be ''Manufactured for -------------- '', ''Distributed
by -------------- '', or ''Manufactured by -------------- (XYZ, Inc.,
City, State, Zip Code, a subsidiary of ABC, Inc.)''.
(34 FR 4956, Mar. 7, 1969, as amended at 34 FR 11199, July 3, 1969)
16 CFR 503.4 Net quantity of contents, numerical count.
To clarify the requirement for declaration of net quantity in terms
of count for the purpose of 500.6 and 500.7 of this chapter, the
following interpretation is rendered.
(a) When a consumer commodity is properly measured in terms of count
only, or in terms of count and weight, volume, area, or dimension, the
regulations are interpreted not to require the declaration of the net
content as ''one'', provided the statement of identity clearly expresses
the fact that only one unit is contained in the package. Thus the unit
synthetic sponge, the unit light bulb, and the unit dry cell battery do
not require a net quantity statement of ''one sponge,'' ''one light
bulb,'' or ''one dry cell battery.'' However, there still exists the
necessity to provide a net quantity statement to specify weight, volume,
area, or dimensions when such are required. For example, the synthetic
sponge which is packaged, requires dimensions such as ''5 in. x 3 in.
x 1 in.'' A multicomponent package or a package containing two or more
units of the same commodity shall bear the net quantity statement in
terms of count, and weight, volume, area, or dimensions as required.
This interpretation does not preclude the option to enumerate a unit
count on a single packaged commodity if so desired.
(34 FR 18087, Nov. 8, 1969)
16 CFR 503.5 Interpretation of the definition of ''consumer commodity''
as contained in section 10(a) of the Fair Packaging and Labeling Act.
(a) Section 10(a) of the Fair Packaging and Labeling Act defines the
term ''consumer commodity'' in four classifications. These are:
(1) Any food, drug, device, or cosmetic;
(2) 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.
(i) For consumption by individuals and which usually is consumed or
expended in the course of such consumption.
(ii) For use by individuals for purposes of personal care and which
usually is consumed or expended in the course of such use.
(iii) For use by individuals in the performance of services
ordinarily rendered within the household and which usually is consumed
or expended in the course of such use.
(b) Section 10(a) then expressly excludes (1) meats, poultry, and
tobacco, (2) economic poisons and biologics for animals, (3)
prescription drugs, (4) alcoholic beverages, and (5) agricultural and
vegetable seeds.
(c) Pursuant to sections 5 and 7 of the Fair Packaging and Labeling
Act, the authority to promulgate regulations and to enforce the Act as
to any food, drug, device, or cosmetic has been delegated to the
Secretary of Health, Education, and Welfare and as to any other
''consumer commodity'' to the Federal Trade Commission.
(d) As to these articles, products, or commodities subject to
regulation by the Federal Trade Commission, the legislative history of
the Act demonstrates the intent of Congress, for the reasons stated
therein, to place the following categories outside the scope of the
definition of ''consumer commodity'':
(1) Durable articles or commodities;
(2) Textiles or items of apparel;
(3) Any household appliance, equipment, or furnishing, including
feather and down-filled products, synthetic-filled bed pillows, mattress
pads and patchwork quilts, comforters and decorative curtains;
(4) Bottled gas for heating or cooking purposes;
(5) Paints and kindred products;
(6) Flowers, fertilizer, and fertilizer materials, plants or shrubs,
garden and lawn supplies;
(7) Pet care supplies;
(8) Stationery and writing supplies, gift wraps, fountain pens,
mechanical pencils, and kindred products.
(e) The articles, products, or commodities that are within the terms
of section 10(a) of the Act and subject to regulation by the Federal
Trade Commission are either expendable commodities for consumption by
individuals, expendable commodities used for personal care, or
expendable commodities used for household services. The primary terms
in section 10(a) for defining these categories are:
(1) Consumption by individuals;
(2) Use by individuals;
(3) Personal care by individuals;
(4) Performances of services ordinarily rendered within the household
by individuals;
(5) Consumed or expended.
(f) These terms are defined as follows:
(1) Consumption by individuals. This term as it is used in section
10(a) means the using up of an article, product, or commodity by an
individual.
(2) Use by individuals. This term as it is used in section 10(a)
means the employment or application of an article, product, or commodity
by an individual.
(3) Personal care by individuals. This term as it is used in section
10(a) means that activity of an individual which is concerned with
protecting, enhancing, and providing for the general cleanliness,
health, or appearance of the individual.
(4) Performance of services ordinarily rendered within the household
by individuals. These terms as they are used in section 10(a) mean:
The term ''household'' refers to the interior and exterior of dwellings
or residences occupied by individuals, including the surrounding
premises. The term ''performance of services ordinarily rendered within
the household'' means the doing of any activity by an individual within
the above-described area which is normally done in connection with the
maintenance and occupation of the above-described area as a habitation
for individuals.
(5) Consumed or expended. These terms as they are used in section
10(a) mean (i) the immediate destruction or extinction of an article,
product, or commodity, or of the part used; or (ii) the substantial
diminution in the quantity, quality or utility of an article, product,
or commodity which results from usage upon one or several occasions over
a comparatively short period of time.
(g) The foregoing definition serves to amplify the definition of
''consumer commodity'' supplied by Congress in section 10(a) of the Act.
As questions arise as to whether specific articles, products, or
commodities are included in the above definition, the Commission will
consider, among other things, the Congressional policy declared in
section 2 of the Act, namely, that packages and labels should enable
consumers to obtain accurate information as to the quantity of contents
and should facilitate value comparisons. That is, in making its
determinations of inclusions and exclusions under this definition, the
Commission will consider the requirements of both the Act and the
pertinent regulations and in that connection will regard as one
criterion the extent to which the disclosures required on ''consumer
commodities'' are material to a consumer's selection of a particular
article, product, or commodity. Interpretative rulings in such
instances will be made public, and can be expected to further contribute
to the development of clearer delineation of the scope of the term
''consumer commodity''.
(h) With respect to articles, products, or commodities included
within the definition of ''consumer commodities'', the Commission will
consider requests for exemptions in accordance with section 5(b) of the
Act and 500.3(e) of this chapter, and will make public its rulings on
all such requests.
(34 FR 12945, Aug. 9, 1969)
16 CFR 503.6 Packagers' duty to withhold availability of packages
imprinted with retail sale price representations.
To clarify the requirements, under Part 502 of this chapter, that a
packager or labeler will not make packages marked with retail sale price
representations available in any circumstance where he knows or should
have reason to know that it will be used as an instrumentality for
deception or for frustration of value comparison, the following
represents the opinions of the Commission:
(a) Details of a plan to provide special packaging or special package
sizes bearing retail sale price representations should contain the
condition that customers will not be provided with such packages unless
they resell the package at a price which fully passes on to the
purchasers the represented savings or sale price advantage.
(b) A packager or labeler who, in good faith, takes reasonable and
prudent measures to verify the performance of his customers will be
deemed to have satisfied his obligation under the regulations. If the
packager has taken such steps, the fact that a particular customer has
failed to resell the packages at a price which fully passes on to the
purchaser the represented savings or sale price advantage shall not
alone place a seller in violation of the regulations.
(c) Any packager or labeler who determines that a customer does not
intend to fulfill or has not fulfilled the conditions of an offer should
immediately refrain from further sale under that offer to the customer.
In situations where proper fulfillment of the conditions of an offer are
in question, the Commission will resolve the issue after appropriate
investigation of the facts submitted.
(36 FR 23058, Dec. 3, 1971)
16 CFR 503.6 SUBCHAPTER F -- STATEMENTS OF GENERAL POLICY OR INTERPRETATIONS UNDER THE FAIR CREDIT REPORTING ACT
16 CFR 503.6 PART 600 -- STATEMENTS OF GENERAL POLICY OR
INTERPRETATIONS
Sec.
600.1 Authority and purpose.
600.2 Legal effect.
Appendix -- Commentary on the Fair Credit Reporting Act
Authority: 15 U.S.C. 1681s and 16 CFR 1.73.
Source: 55 FR 18808, May 4, 1990, unless otherwise noted.
16 CFR 600.1 Authority and purpose.
(a) Authority: This part is issued by the Commission pursuant to the
provisions of the Fair Credit Reporting Act. Pub. L. 91-508, approved
October 26, 1970. 84 Stat. 1127-36 (15 U.S.C. 1681 et seq).
(b) Purpose. The purpose of this part is to clarify and consolidate
statements of general policy or interpretations in a commentary in the
Appendix to this part. The Commentary will serve as guidance to
consumer reporting agencies, their customers, and consumer
representatives. The Fair Credit Reporting Act requires that the manner
in which consumer reporting agencies provide information be fair and
equitable to the consumer with regard to the confidentiality, accuracy,
and proper use of such information. The Commentary will enable
interested parties to resolve their questions more easily, present a
more comprehensive treatment of interpretations and facilitate
compliance with the Fair Credit Reporting Act in accordance with
Congressional intent.
16 CFR 600.2 Legal effect.
(a) The interpretations in the Commentary are not trade regulation
rules or regulations, and, as provided in 1.73 of the Commission's
rules, they do not have the force or effect of statutory provisions.
(b) The regulations of the Commission relating to the administration
of the Fair Credit Reporting Act are found in subpart H of 16 CFR part 1
(Sections 1.71-1.73).
16 CFR 600.2 Pt. 600, App.
16 CFR 600.2 Appendix -- Commentary on the Fair Credit Reporting Act
16 CFR 600.2 Introduction
1. Official status. This Commentary contains interpretations of the
Federal Trade Commission (Commission) of the Fair Credit Reporting Act
(FCRA). It is a guideline intended to clarify how the Commission will
construe the FCRA in light of Congressional intent as reflected in the
statute and its legislative history. The Commentary does not have the
force or effect of regulations or statutory provisions, and its contents
may be revised and updated as the Commission considers necessary or
appropriate.
2. Status of previous interpretations. The Commentary primarily
addresses issues discussed in the Commission's earlier formal
interpretations of the FCRA (16 CFR 600.1-600.8), which are hereby
superseded, in the staff's manual entitled ''Compliance With the Fair
Credit Reporting Act'' (the current edition of which was published in
May 1973, and revised in January 1977 and March 1979), and in informal
staff opinion letters responding to public requests for interpretations,
and it also reflects the results of the Commission's FCRA enforcement
program. It is intended to synthesize the Commission's views and give
clear advice on important issues. The Commentary sets forth some
interpretations that differ from those previously expressed by the
Commission or its staff, and is intended to supersede all prior formal
Commission interpretations, informal staff opinion letters, and the
staff manual cited above.
3. Statutory references. Reference to several different provisions
of the FCRA is frequently required in order to make a complete analysis
of an issue. For various sections and subsections of the FCRA, the
Commentary discusses the most important and common overlapping
references under the heading ''Relation to other (sub)sections.''
4. Issuance of staff interpretations. The Commission will revise and
update the Commentary as it deems necessary, based on the staff's
experience in responding to public inquiries about, and enforcing, the
FCRA. The Commission welcomes input from interested industry and
consumer groups and other public parties on the Commentary and on issues
discussed in it. Staff will continue to respond to requests for
informal staff interpretations. In proposing revisions of the
Commentary, staff will consider and, where appropriate, recommend that
the Commentary incorporate issues raised in correspondence and other
public contacts, as well as in connection with the Commission's
enforcement efforts. Therefore, a party may raise an issue for
inclusion in future editions of the Commentary without making any formal
submission or request to that effect. However, requests for formal
Commission interpretations of the FCRA may also still be made pursuant
to the procedures set forth in the Commission's Rules (16 CFR 1.73).
5. Commentary citations to FCRA. The Commentary should be used in
conjunction with the text of the statute. In some cases, the Commentary
includes an abbreviated description of the statute, rather than the full
text, as a preamble to discussion of issues pertaining to various
sections and subsections. These summary statements of the law should
not be used as a substitute for the statutory text.
16 CFR 600.2 Section 601 -- Short Title
''This title may be cited as the Fair Credit Reporting Act.''
The Fair Credit Reporting Act (FCRA) is title VI of the Consumer
Credit Protection Act, which also includes other Federal statutes
relating to consumer credit, such as the Truth in Lending Act (title I),
the Equal Credit Opportunity Act (Title VII), and the Fair Debt
Collection Practices Act (title VIII).
16 CFR 600.2 Section 602 -- Findings and Purpose
Section 602 recites the Congressional findings regarding the
significant role of consumer reporting agencies in the nation's
financial system, and states that the basic purpose of the FCRA is to
require consumer reporting agencies to adopt reasonable procedures for
providing information to credit grantors, insurers, employers and others
in a manner that is fair and equitable to the consumer with regard to
confidentiality, accuracy, and the proper use of such information.
16 CFR 600.2 Section 603 -- Definitions and Rules of Construction
Section 603(a) states that ''definitions and rules of construction
set forth in this section are applicable for the purposes of this
title.''
Section 603(b) defines ''person'' to mean ''any individual,
partnership, corporation, trust, estate, cooperative, association,
government or governmental subdivision or agency or other entity.''
16 CFR 600.2 1. Relation to Other Sections
Certain ''persons'' must comply with the Act. The term ''consumer
reporting agency'' is defined in section 603(f) to include certain
''persons.'' Section 619 subjects any ''person'' who knowingly and
willfully obtains information from a consumer reporting agency on a
consumer under false pretenses to criminal sanctions. Requirements
relating to report users apply to ''persons.'' Section 606 imposes
disclosure obligations on ''persons'' who obtain investigative reports
or cause them to be prepared. Section 615(c) uses the term ''person''
to denote those subject to disclosure obligations under sections 615(a)
and 615(b).
16 CFR 600.2 2. Examples
The term ''person'' includes universities, creditors, collection
agencies, insurance companies, private investigators, and employers.
Section 603(c) defines the term ''consumer'' to mean ''an
individual.''
16 CFR 600.2 1. Relation to Other Sections
The term ''consumer'' denotes an individual entitled to the Act's
protections. Consumer reports, as defined in section 603(d), are
reports about consumers. A ''consumer'' is entitled to obtain
disclosures under section 609 from consumer reporting agencies and to
take certain steps that require such agencies to follow procedures in
section 611, concerning disputes about the completeness or accuracy of
items of information in the consumer's file. Disclosures required under
section 606 by one procuring an investigative report must be made to the
''consumer'' on whom the report is sought. Notifications required by
section 615 must be provided to ''consumers.'' A ''consumer'' is the
party entitled to sue for willful noncompliance (section 616) or
negligent noncompliance (section 617) with the Act's requirements.
16 CFR 600.2 2. General
The definition includes only a natural person. It does not include
artificial entities (e.g., partnerships, corporations, trusts, estates,
cooperatives, associations) or entities created by statute (e.g.,
governments, governmental subdivisions or agencies).
Section 603(d) defines ''consumer report'' to mean ''any written,
oral, or other communication of any information by a consumer reporting
agency bearing on a consumer's credit worthiness, credit standing,
credit capacity, character, general reputation, personal
characteristics, or mode of living which is used or expected to be used
or collected in whole or in part for the purpose of serving as a factor
in establishing the consumer's eligibility for (1) credit or insurance
to be used primarily for personal, family, or household purposes, or (2)
employment purposes, or (3) other purposes authorized under Section
604'' (with three specific exclusions).
16 CFR 600.2 1. Relation to ''Consumer Reporting Agency''
To be a ''consumer report,'' the information must be furnished by a
''consumer reporting agency'' as that term is defined in section 603(f).
Conversely, the term ''consumer reporting agency'' is restricted to
persons that regularly engage in assembling or evaluating consumer
credit information or other information on consumers for the purpose of
furnishing ''consumer reports'' to third parties. In other words, the
terms ''consumer reporting agency'' in section 603(f) and ''consumer
report'' in section 603 (d)) are mutually dependent and must therefore
be construed together. For example, information is not a ''consumer
report'' if the person furnishing the information is clearly not a
''consumer reporting agency'' (e.g., if the person furnishing the
information does not regularly furnish such information for monetary
fees or on a cooperative nonprofit basis).
16 CFR 600.2 2. Relation to the Applicability of the Act
If a report is not a ''consumer report,'' then the Act does not
usually apply to it. /1/ For example, because a commercial credit
report is not a report on a consumer, it is not a ''consumer report''.
Therefore, the user need not notify the subject of the name and address
of the credit bureau when taking adverse action, and the provider need
not omit ''obsolete'' information, as would be required if the FCRA
applied.
/1/ However, a creditor denying a consumer's application based on a
report from a ''third party'' must give the disclosure required by
section 615(b).
16 CFR 600.2 3. Report Concerning a ''Consumer's'' Attributes and
History
A. General. A ''consumer report'' is a report on a ''consumer'' to be
used for certain purposes involving that ''consumer.''
B. Artificial entities. Reports about corporations, associations,
and other collective entities are not consumer reports, and the Act does
not apply to them.
C. Reports on businesses for business purposes. Reports used to
determine the eligibility of a business, rather than a consumer, for
certain purposes, are not consumer reports and the FCRA does not apply
to them, even if they contain information on individuals, because
Congress did not intend for the FCRA to apply to reports used for
commercial purposes (see 116 Cong. Rec. 36572 (1970) (Conf. Report on
H.R. 15073)).
16 CFR 600.2 4. ''(C)redit Worthiness, Credit Standing, Credit
Capacity, Character, General Reputation, Personal Characteristics, or
Mode of Living * * *''
A. General. To be a ''consumer report,'' the information must bear on
at least one of the seven characteristics listed in this definition.
B. Credit guides. Credit guides are listings, furnished by credit
bureaus to credit grantors, that rate how well consumers pay their
bills. Such guides are a series of ''consumer reports,'' because they
contain information which is used for the purpose of serving as a factor
in establishing the consumers' eligibility for credit. However, if they
are coded (by identification such as social security number, driver's
license number, or bank account number) so that the consumer's identity
is not disclosed, they are not ''consumer reports'' until decoded. (See
discussion of uncoded credit guides under section 604(3)(A), item 8
infra.)
C. Motor vehicle reports. Motor vehicle reports are distributed by
state motor vehicle departments, generally to insurance companies upon
request, and usually reveal a consumer's entire driving record,
including arrests for driving offenses. Such reports are consumer
reports when they are sold by a Department of Motor Vehicles for
insurance underwriting purposes and contain information bearing on the
consumer's ''personal characteristics,'' such as arrest information.
The Act's legislative history indicates Congress intended the Act to
cover mutually beneficial exchanges of information between commercial
enterprises rather than between governmental entities. Accordingly,
these reports are not consumer reports when provided to other
governmental authorities involved in licensing or law enforcement
activities. (See discussion titled ''State Departments of Motor
Vehicles,'' under section 603(f), item 10 infra.)
D. Consumer lists. A list of the names of creditworthy individuals,
or of individuals on whom credit bureaus have derogatory information, is
a series of ''consumer reports'' because the information bears on credit
worthiness.
E. Public record information. A report solely of public record
information is not a ''consumer report'' unless that information is
provided by a consumer reporting agency, is collected or used for the
purposes identified in section 603(d), and bears on at least one of the
seven characteristics listed in the definition. Public record
information relating to records of arrest, or the institution or
disposition of civil or criminal proceedings, bears on one or more of
these characteristics.
F. Name and address. A report limited solely to the consumer's name
and address alone, with no connotations as to credit worthiness or other
characteristics, does not constitute a ''consumer report,'' if it does
not bear on any of the seven factors.
G. Rental characteristics. Reports about rental characteristics
(e.g., consumers' evictions, rental payment histories, treatment of
premises) are consumer reports, because they relate to character,
general reputation, personal characteristics, or mode of living.
16 CFR 600.2 5. ''(U)sed or Expected to Be Used or Collected in Whole
or in Part for the Purpose of Serving as a Factor in Establishing the
Consumer's Eligibility * * *''
A. Law enforcement bulletins. Bulletins that are limited to a series
of descriptions, sometimes accompanied by photographs, of individuals
who are being sought by law enforcement authorities for alleged crimes
are not a series of ''consumer reports'' because they have not been
collected for use in evaluating consumers for credit, insurance,
employment or other consumer purposes, and it cannot reasonably be
anticipated they will be used for such purposes.
B. Directories. Telephone directories and city directories, to the
extent they only provide information regarding name, address and phone
number, marital status, home ownership, and number of children, are not
''consumer reports,'' because the information is not used or expected to
be used in evaluating consumers for credit, insurance, employment or
other purposes and does not reflect on credit standing, credit
worthiness, or any of the other factors. A list of names of individuals
with checking accounts is not a series of consumer reports because the
information does not bear on credit worthiness or any of the other
factors. A trade directory, such as a list of all insurance agents
licensed to do business in a state, is not a series of consumer reports
because it is commercial information that would be used for commercial
purposes.
C. Use of prior consumer report in preparation. A report that would
not otherwise be a consumer report may be a consumer report,
notwithstanding the purpose for which it is furnished, if it includes a
prior consumer report or information from consumer report files, because
it would contain some information ''collected in whole or in part'' for
consumer reporting purposes. For example, an insurance claims report
would be a consumer report if a consumer report (or information from a
consumer report) were used to prepare it. (See discussion, infra, in
item 6-C under this subsection.)
D. Use of reports for purposes not anticipated by the reporting
party. The question arises whether a report that is not otherwise a
consumer report is subject to the FCRA because the recipient
subsequently uses the report for a permissible purpose. If the
reporting party's procedures are such that it neither knows of nor
should reasonably anticipate such use, the report is not a consumer
report. If a reporting party has taken reasonable steps to insure that
the report is not used for such a purpose, and if it neither knows of,
nor can reasonably anticipate such use, the report should not be deemed
a consumer report by virtue of uses beyond the reporting party's
control. A reporting party might establish that it does not reasonably
anticipate such use of the report by requiring the recipient to certify
that the report will not be used for one of the purposes listed in
section 604. (Such procedure may be compared to the requirement in
section 607(a), discussed infra, that consumer reporting agencies
furnishing consumer reports require that prospective users certify the
purposes for which the information is sought and certify that the
information will be used for no other purpose.) For example, a claims
reporting service could use such a certification to avoid having its
insurance claims reports deemed ''consumer reports'' if the report
recipient/insurer were to use the report later for ''underwriting
purposes'' under section 604(3)(C), such as terminating insurance
coverage or raising the premium.
16 CFR 600.2 6. ''(E)stablishing the Consumer's Eligibility for (1)
Credit or Insurance to Be Used Primarily for Personal, Family or
Household Purposes, or (2) Employment Purposes, or (3) Other Purposes
Authorized Under Section 604''
A. Relation to section 604. Because section 603(d)(3) refers to
''purposes authorized under section 604'' (often described as
''permissible purposes'' of consumer reports), some of which overlap
purposes enumerated in section 603 (e.g., 603(d)(1) and 603(d)(2)),
sections 603 and 604 must be construed together, to determine what are
''consumer reports'' and ''permissible purposes'' under the two
sections. See discussion infra, under section 604.
B. Commercial credit or insurance. A report on a consumer for credit
or insurance in connection with a business operated by the consumer is
not a ''consumer report,'' and the Act does not apply to it.
C. Insurance claims reports. (It is assumed that information in
prior consumer reports is not used in claims reports. See discussion,
supra, in item 5-C under this subsection.) Reports provided to insurers
by claims investigation services solely to determine the validity of
insurance claims are not consumer reports, because section 604(3)(C)
specifically sets forth only underwriting (not claims) as an
insurance-related purpose, and section 603(d)(1) deals specifically with
eligibility for insurance and no other insurance-related purposes. To
construe section 604(3)(E) as including reports furnished in connection
with insurance claims would be to disregard the specific language of
sections 604(3)(C) and 603(d)(1).
D. Scope of employment purpose. A report that is used or is expected
to be used or collected in whole or in part in connection with
establishing an employee's eligibility for ''promotion, reassignment or
retention,'' as well as to evaluate a job applicant, is a consumer
report because sections 603(d)(2) and 604(3)(B) use the term
''employment purposes,'' which section 603(h) defines to include these
situations.
E. Bad check lists. A report indicating that an individual has
issued bad checks, provided by printed list or otherwise, to a business
for use in determining whether to accept consumers' checks tendered in
transactions primarily for personal, family or household purposes, is a
consumer report. The information furnished bears on consumers'
character, general reputation and personal characteristics, and it is
used or expected to be used in connection with business transactions
involving consumers.
F. Tenant screening reports. A report used to determine whether to
rent a residence to a consumer is a consumer report, because it is used
for a business transaction that the consumer wishes to enter into for
personal, family or household purposes.
16 CFR 600.2 7. Exclusions From the Definition of ''Consumer Report''
A. ''(Any) reports containing information solely as to transactions
or experiences between the consumer and the person making the report;''
-- (1) Examples of Sources. The exemption applies to reports limited to
transactions or experiences between the consumer and the entity making
the report (e.g., retail stores, hospitals, present or former employers,
banks, mortgage servicing companies, credit unions, or universities).
(2) Information beyond the reporting entity's own transactions or
experiences with the consumer.
The exemption does not apply to reports by these entities of
information beyond their own transactions or experiences with the
consumer. An example is a creditor's or an insurance company's report
of the reasons it cancelled credit or insurance, based on information
from an outside source.
16 CFR 600.2 (3) Opinions Concerning Transactions or Experiences
The exemption applies to reports that are not limited to the facts,
but also include opinions (e.g., use of the term ''slow pay'' to
describe a consumer's transactions with a creditor), as long as the
facts underlying the opinions involve only transactions or experiences
between the consumer and the reporting entity.
B. ''(A)ny authorization or approval of a specific extension of
credit directly or indirectly by the issuer of a credit card or similar
device;'' -- (1) General. The exemption applies to a credit or debit
card issuer's written, oral, or electronic communication of its decision
whether or not to authorize a charge, in response to a request from a
merchant or other party that the consumer has asked to honor the card.
C. ''(A)ny report in which a person who has been requested by a third
party to make a specific extension of credit directly or indirectly to
the consumer conveys his decision with respect to such request, if the
third party advises the consumer of the name and address of the person
to whom the request was made and such person makes the disclosures to
the consumer required under section 615.'' -- (1) General. The
exemption covers retailers' attempts to obtain credit for their
individual customers from an outside source (such as a bank or a finance
company). The communication by the financial institution of its
decision whether to extend credit is not a ''consumer report'' if the
retailer informs the customer of the name and address of the financial
institution to which the application or contract is offered and the
financial institution makes the disclosures required by section 615 of
the Act. Such disclosures must be made only when there is a denial of,
or increase in the charge for, credit or insurance. (See discussion of
section 615, item 10, infra.)
(2) Information included in the exemption.
The exemption is not limited to a simple ''yes'' or ''no'' response,
but includes the information constituting the basis for the credit
denial, because it applies to ''any report.''
(3) How third party creditors can insure that the exemption applies.
Creditors, who are requested by dealers or merchants to make such
specific extensions of credit, can assure that communication of their
decision to the dealer or merchant will be exempt under this section
from the term ''consumer report,'' by having written agreements that
require such parties to inform the consumer of the creditor's name and
address and by complying with any applicable provisions of section 615.
Section 603(e) defines ''investigative consumer report'' as ''a
consumer report or portion thereof in which information on a consumer's
character, general reputation, personal characteristics, or mode of
living is obtained through personal interviews with neighbors, friends,
or associates of the consumer reported on or with others with whom he is
acquainted or who may have knowledge concerning any such items of
information. However, such information shall not include specific
factual information on a consumer's credit record obtained directly from
a creditor of the consumer or from a consumer reporting agency when such
information was obtained directly from a creditor of the consumer or
from the consumer.''
16 CFR 600.2 1. Relation to Other Sections
The term ''investigative consumer report'' denotes a subset of
''consumer report'' for which the Act imposes additional requirements on
recipients and consumer reporting agencies. Persons procuring
''investigative consumer reports'' must make certain disclosures to the
consumers who are the subjects of the reports, as required by section
606. Consumer reporting agencies must comply with section 614, when
furnishing ''investigative consumer reports'' containing adverse
information that is not a matter of public record. Consumer reporting
agencies making disclosure to consumers pursuant to section 609 are not
required to disclose ''sources of information acquired solely for use in
preparing an investigative consumer report and actually used for no
other purpose.''
16 CFR 600.2 2. General
An ''investigative consumer report'' is a type of ''consumer report''
that contains information that is both related to a consumer's
character, general reputation, personal characteristics or mode of
living and obtained by personal interviews with the consumer's
neighbors, friends, associates or others.
16 CFR 600.2 3. Types of Sources Interviewed
A report consisting of information from any third party concerning
the subject's character (reputation, etc.) may be an investigative
consumer report because the phrase ''obtained through personal
interviews * * * with others'' includes any source that is a third party
interviewee. A report containing interview information obtained solely
from the subject is not an ''investigative consumer report.''
16 CFR 600.2 4. Telephone Interviews
A consumer report that contains information on a consumer's
''character, general reputation, personal characteristics or mode of
living'' obtained through telephone interviews with third parties is an
''investigative consumer report,'' because ''personal interviews''
includes interviews conducted by telephone as well as in person.
16 CFR 600.2 5. Identity of Interviewer
A consumer report is an ''investigative consumer report'' if personal
interviews are used to obtain information reported on a consumer's
''character, general reputation, personal characteristics or mode of
living,'' regardless of who conducted the interview.
16 CFR 600.2 6. Noninvestigative Information in ''Investigative
Consumer Reports''
An ''investigative consumer report'' may also contain
noninvestigative information, because the definition includes reports, a
''portion'' of which are investigative reports.
16 CFR 600.2 7. Exclusions From ''Investigative Consumer Reports''
A report that consists solely of information gathered from
observation by one who drives by the consumer's residence is not an
''investigative consumer report,'' because it contains no information
from ''personal interviews.''
Section 603(f) defines ''consumer reporting agency'' as ''any person
which, for monetary fees, dues, or on a cooperative nonprofit basis,
regularly engages in whole or in part in the practice of assembling or
evaluating consumer credit information or other information on consumers
for the purpose of furnishing consumer reports to third parties, and
which uses any means or facility of interstate commerce for the purpose
of preparing or furnishing consumer reports.''
16 CFR 600.2 1. Relation to Other Sections
A. Duties imposed on ''consumer reporting agencies.'' The Act imposes
a number of duties on ''consumer reporting agencies.'' They must have
permissible purposes to furnish consumer reports (section 604), avoid
furnishing obsolete adverse information in certain consumer reports
(sections 605, 607(a)), adopt reasonable procedures to assure privacy
(section 604, 607(a)), and accuracy (section 607(b)) of consumer
reports, provide only limited disclosures to governmental agencies
(section 608), provide consumers certain disclosures upon request
(sections 609 and 610) at no cost or for a reasonable charge (section
612), follow certain procedures if a consumer disputes the completeness
or accuracy of any item of information contained in his file (section
611), and follow certain procedures in reporting public record
information for employment purposes or when reporting adverse
information other than public record information in investigative
consumer reports (sections 613, 614).
B. Relation to ''consumer reports.'' The term ''consumer reporting
agency,'' as defined in section 603(f), includes certain persons who
assemble or evaluate information on individuals for the purpose of
furnishing ''consumer reports'' to third parties. Conversely, section
603(d) defines the term ''consumer report'' to mean the communication of
certain information by a ''consumer reporting agency.'' In other words,
the terms ''consumer report'' in section 603(d) and ''consumer reporting
agency'' as defined in section 603(f) are defined in a mutually
dependent manner and must therefore be construed together. For example,
a party is not a ''consumer reporting agency'' if it provides only
information that is excepted from the definition of ''consumer report''
under section 603(d), such as reports limited to the party's own
transactions or experiences with a consumer, or credit information on
organizations.
16 CFR 600.2 2. Isolated Reports
Parties that do not ''regularly'' engage in assembling or evaluating
information for the purpose of furnishing consumer reports to third
parties are not consumer reporting agencies. For example, a creditor
that furnished information on a consumer to a governmental entity in
connection with one of its investigations, would not ''regularly'' be
making such disclosure for a fee or on a cooperative nonprofit basis,
and therefore would not become a consumer reporting agency, even if the
information exceeded the creditor's transactions or experiences with the
consumer.
16 CFR 600.2 3. Provision of Credit Report to Report Subject
A consumer report user does not become a consumer reporting agency by
regularly giving a copy of the report, or otherwise disclosing it, to
the consumer who is the subject of the report, because it is not
disclosing the information to a ''third party.''
16 CFR 600.2 4. Employment Agency
An employment agency that routinely obtains information on job
applicants from their former employers and furnishes the information to
prospective employers is a consumer reporting agency.
16 CFR 600.2 5. Information Compiled for Insurance Underwriting
A business that compiles claim payment histories on individuals from
insurers and furnishes them to insurance companies for use in
underwriting decisions concerning those individuals is a consumer
reporting agency.
16 CFR 600.2 6. Private Investigators and Detective Agencies
Private investigators and detective agencies that regularly obtain
consumer reports and furnish them to clients may thereby become consumer
reporting agencies.
16 CFR 600.2 7. Collection Agencies and Creditors
Collection agencies and creditors become consumer reporting agencies
if they regularly furnish information beyond their transactions or
experiences with consumers to third parties for use in connection with
consumers' transactions.
16 CFR 600.2 8. Joint Users of Consumer Reports
Entities that share consumer reports with others that are jointly
involved in decisions for which there are permissible purposes to obtain
the reports may be ''joint users'' rather than consumer reporting
agencies. For example, if a lender forwards consumer reports to
governmental agencies administering loan guarantee programs (or to other
prospective loan insurers or guarantors), or to other parties whose
approval is needed before it grants credit, or to another creditor for
use in considering a consumer's loan application at the consumer's
request, the lender does not become a consumer reporting agency by
virtue of such action. An agent or employee that obtains consumer
reports does not become a consumer reporting agency by sharing such
reports with its principal or employer in connection with the purposes
for which the reports were initially obtained.
16 CFR 600.2 9. Loan Exchanges
Loan exchanges, which are generally owned and operated on a
cooperative basis by consumer finance companies, constitute a mechanism
whereby each member furnishes the exchange information concerning the
full identity and loan amount of each of its borrowers, and receives
information from the exchange concerning the number and types of
outstanding loans for each of its applicants. A loan exchange or any
other exchange that regularly collects information bearing on decisions
to grant consumers credit or insurance for personal, family or household
purposes, or employment, is a ''consumer reporting agency.''
16 CFR 600.2 10. State Departments of Motor Vehicles
State motor vehicle departments are ''consumer reporting agencies''
if they regularly furnish motor vehicle reports containing information
bearing on the consumer's ''personal characteristics,'' such as arrest
information, to insurance companies for insurance underwriting purposes.
(See discussion of motor vehicle reports under section 603(d), item 4c
supra.)
16 CFR 600.2 11. Federal Agencies
The Office of Personnel Management collects and files data concerning
current and potential employees of the Federal Government and transmits
that information to other government agencies for employment purposes.
Because Congress did not intend that the FCRA apply to the Office of
Personnel Management and similar federal agencies (see 116 Cong. Rec.
36576 (1970) (remarks of Rep. Brown)), no such agency is a ''consumer
reporting agency.''
16 CFR 600.2 12. Credit Application Information
A creditor that provides information from a consumer's application to
a credit bureau, for verification as part of the creditor's evaluation
process that includes obtaining a report on the consumer from that
credit bureau, does not thereby become a ''consumer reporting agency,''
because the creditor does not provide the information for ''fees, dues,
or on a cooperative nonprofit basis,'' but rather pays the bureau to
verify the information when it provides a consumer report on the
applicant.
Section 603(g) defines ''file,'' when used in connection with
information on any consumer, to mean ''all of the information on that
consumer recorded and retained by a consumer reporting agency regardless
of how the information is stored.''
16 CFR 600.2 1. Relation to Other Sections
Consumer reporting agencies are required to make disclosures of all
information in their ''files'' to consumers upon request (section 609)
and to follow reinvestigation procedures if the consumer disputes the
completeness or accuracy of any item of information contained in his
''file'' (section 611).
16 CFR 600.2 2. General
The term ''file'' denotes all information on the consumer that is
recorded and retained by a consumer reporting agency that might be
furnished, or has been furnished, in a consumer report on that consumer.
16 CFR 600.2 3. Audit Trail
The term ''file'' does not include an ''audit trail'' (a list of
changes made by a consumer reporting agency to a consumer's credit
history record, maintained to detect fraudulent changes to that record),
because such information is not furnished in consumer reports or used as
a basis for preparing them.
16 CFR 600.2 4. Other Information
The term ''file'' does not include information in billing records or
in the consumer relations folder that a consumer reporting agency opens
on a consumer who obtains disclosures or files a dispute, if the
information has not been used in a consumer report and would not be used
in preparing one.
Section 603(h) defines ''employment purposes'' to mean ''a report
used for the purpose of evaluating a consumer for employment, promotion,
reassignment or retention as an employee.''
16 CFR 600.2 1. Relation to Other Sections
The term ''employment purposes'' is used as part of the definition of
''consumer reports'' (section 603(d)(2)) and as a permissible purpose
for the furnishing of consumer reports (section 604(3)(B)). Where an
investigative consumer report is to be used for ''employment purposes''
for which a consumer has not specifically applied, section 606(a)(2)
provides that the notice otherwise required by section 606(a)(1) need
not be sent. When a consumer reporting agency furnishes public record
information in reports ''for employment purposes,'' it must follow the
procedure set out in section 613.
16 CFR 600.2 2. Security Clearances
A report in connection with security clearances of a government
contractor's employees would be for ''employment purposes'' under this
section.
Section 603(i) defines ''medical information'' to mean ''information
or records obtained, with the consent of the individual to whom it
relates, from licensed physicians or medical practitioners, hospitals,
clinics, or other medical or medically related facilities.''
16 CFR 600.2 1. Relation to Other Sections
Under section 609(a)(1), a consumer reporting agency must, upon the
consumer's request and proper identification, disclose the nature and
substance of all information in its files on the consumer, except
''medical information.''
16 CFR 600.2 2. Information From Non-medical Sources
Information from non-medical sources such as employers, is not
''medical information.''
16 CFR 600.2 Section 604 -- Permissible Purposes of Reports
''A consumer reporting agency may furnish a consumer report under the
following circumstances and no other: * * *''
16 CFR 600.2 1. Relation to Section 603
Sections 603(d)(3) and 604 must be construed together to determine
what are ''permissible purposes,'' because section 603(d)(3) refers to
''purposes authorized under section 604'' (often described as
''permissible purposes'' of consumer reports), and some purposes are
enumerated in section 603 (e.g., sections 603(d)(1) and 603(d)(2)).
Subsections of sections 603 and 604 that specifically set forth
''permissible purposes'' relating to credit, insurance and employment,
are the only subsections that cover ''permissible purposes'' relating to
those three areas. Section 604(3)(E), a general subsection, is limited
to purposes not otherwise addressed in section 604(3) (A)-(D).
A. Credit. Sections 603(d)(1) -- which defines ''consumer report'' to
include certain reports for the purpose of serving as a factor in
establishing the consumer's eligibility for credit or insurance
primarily for personal, family, or household purposes -- and 604(3)(A)
must be read together as fully describing permissible purposes involving
credit for obtaining consumer reports. Accordingly, section 604(3)(A)
permits the furnishing of a consumer report for use in connection with a
credit transaction involving the consumer, primarily for personal,
family or household purposes, and involving the extension of credit to,
or review or collection of an account of, the consumer.
B. Insurance. Sections 603(d)(1) and 604(3)(C) must be read together
as describing the only permissible insurance purposes for obtaining
consumer reports. Accordingly, section 604(3)(C) permits the furnishing
of a consumer report, provided it is for use in connection with the
underwriting of insurance involving the consumer, primarily for
personal, family, or household purposes.
C. Employment. Employment is covered exclusively by sections
603(d)(2) and 604(3)(B), and by section 603(h) (which defines
''employment purposes''). Therefore, ''permissible purposes'' relating
to employment include reports used for evaluating a consumer ''for
employment, promotion, reassignment or retention as an employee.''
D. Other purposes. ''Other purposes'' are referred to in section
603(d)(3) and covered by section 604(3)(E), as well as sections 604(1),
604(2) and 604(3)(D) (which contain specific purposes not involving
credit, insurance, employment). Permissible purposes relating to
section 604(3)(E) are limited to transactions that consumers enter into
primarily for personal, family or household purposes (excluding credit,
insurance or employment, which are specifically covered by other
subsections discussed above). The FCRA does not cover reports furnished
for transactions that consumers enter into primarily in connection with
businesses they operate (e.g., a consumer's rental of equipment for use
in his retail store).
16 CFR 600.2 2. Relation to Other Sections
A. Section 607(a). Section 607(a) requires consumer reporting
agencies to keep information confidential by furnishing consumer reports
only for purposes listed under section 604, and to follow specified,
reasonable procedures to achieve this end. Section 619 provides
criminal sanctions against any person who knowingly and willfully
obtains information on a consumer from a consumer reporting agency under
false pretenses.
B. Section 608. Section 608 allows ''consumer reporting agencies''
to furnish governmental agencies specified identifying information
concerning consumers, notwithstanding the limitations of section 604.
Section 604(1) -- A consumer reporting agency may furnish a consumer
report ''in response to the order of a court having jurisdiction to
issue such an order.''
16 CFR 600.2 1. Subpoena
A subpoena, including a grand jury subpoena, is not an ''order of a
court'' unless signed by a judge.
16 CFR 600.2 2. Internal Revenue Service Summons
An I.R.S. summons is an exception to the requirement that an order be
signed by a judge before it constitutes an ''order of a court'' under
this section, because a 1976 revision to Federal statutes (26 U.S.C.
7609) specifically requires a consumer reporting agency to furnish a
consumer report in response to an I.R.S. summons upon receipt of the
designated I.R.S. certificate that the consumer has not filed a timely
motion to quash the summons.
Section 604(2) -- A consumer reporting agency may furnish a consumer
report ''in accordance with the written instructions of the consumer to
whom it relates.''
16 CFR 600.2 1. No Other Permissible Purpose Needed
If the report subject furnishes written authorization for a report,
that creates a permissible purpose for furnishing the report.
16 CFR 600.2 2. Refusal to Furnish Report
The consumer reporting agency may refuse to furnish the report
because the statute is permissive, not mandatory. (Requirements that
consumer reporting agencies make disclosure to consumers (as contrasted
with furnishing reports to users) are discussed under sections 609 and
610, infra.)
Section 604(3)(A) -- A consumer reporting agency may issue a consumer
report to ''a person which it has reason to believe * * * intends to use
the information in connection with a credit transaction involving the
consumer on whom the information is to be furnished and involving the
extension of credit to, or review or collection of an account of, the
consumer;''
16 CFR 600.2 1. Reports Sought in Connection with the ''Review or
Collection of an Account''
A. Reports for collection. A collection agency has a permissible
purpose under this section to receive a consumer report on a consumer
for use in attempting to collect that consumer's debt, regardless of
whether that debt is assigned or referred for collection. Similarly, a
detective agency or private investigator, attempting to collect a debt
owed by a consumer, would have a permissible purpose to obtain a
consumer report on that individual for use in collecting that debt. An
attorney may obtain a consumer report under this section on a consumer
for use in connection with a decision whether to sue that individual to
collect a credit account.
B. Unsolicited reports. A consumer reporting agency may not send an
unsolicited consumer report to the recipient of a previous report on the
same consumer, because the recipient will not necessarily have a
permissible purpose to receive the unsolicited report. /2/ For example,
the recipient may have rejected the consumer's application or ceased to
do business with the consumer. (See also discussion in section 607,
item 2G, infra.)
/2/ Of course a consumer reporting agency must furnish notifications
required by section 611(d), upon the consumer's requests, to prior
recipients of reports containing disputed information that is deleted or
that is the subject of a dispute statement under section 611(b).
16 CFR 600.2 2. Judgment Creditors
A judgment creditor has a permissible purpose to receive a consumer
report on the judgment debtor for use in connection with collection of
the judgment debt, because it is in the same position as any creditor
attempting to collect a debt from a consumer who is the subject of a
consumer report.
16 CFR 600.2 3. Child Support Debts
A district attorney's office or other child support agency may obtain
a consumer report in connection with enforcement of the report subject's
child support obligation, established by court (or quasi-judicial
administrative) orders, since the agency is acting as or on behalf of
the judgment creditor, and is, in effect, collecting a debt. However, a
consumer reporting agency may not furnish consumer reports to child
support agencies seeking to establish paternity or the duty to pay child
support.
16 CFR 600.2 4. Tax Obligations
A tax collection agency has no general permissible purpose to obtain
a consumer report to collect delinquent tax accounts, because this
subsection applies only to collection of ''credit'' accounts. However,
if a tax collection agency acquired a tax lien having the same effect as
a judgment or obtained a judgment, it would be a judgment creditor and
would have a permissible purpose for obtaining a consumer report on the
consumer who owed the tax. Similarly, if a consumer taxpayer entered an
agreement with a tax collection agency to pay taxes according to some
timetable, that agreement would create a debtor-creditor relationship,
thereby giving the agency a permissible purpose to obtain a consumer
report on that consumer.
16 CFR 600.2 5. Information on an Applicant's Spouse
A. Permissible purpose. A creditor may request any information
concerning an applicant's spouse if that spouse will be permitted to use
the account or will be contractually liable upon the account, or the
applicant is relying on the spouse's income as a basis for repayment of
the credit requested. A creditor may request any information concerning
an applicant's spouse if (1) the state law doctrine of necessaries
applies to the transaction, or (2) the applicant resides in a community
property state, or (3) the property upon which the applicant is relying
as a basis for repayment of the credit requested is located in such a
state, or (4) the applicant is acting as the agent of the nonapplicant
spouse.
B. Lack of permissible purpose. If the creditor receives information
clearly indicating that the applicant is not acting as the agent of the
nonapplicant spouse, and that the applicant is relying only on separate
property to repay the credit extended, and that the state law doctrine
of necessaries does not apply to the transaction and that the applicant
does not reside in a community property state, the creditor does not
have a permissible purpose for obtaining a report on a nonapplicant
spouse. A permissible purpose for making a consumer report on a
nonapplicant spouse can never exist under the FCRA, where Regulation B,
issued under the Equal Credit Opportunity Act (12 CFR 202), prohibits
the creditor from requesting information on such spouse. There is no
permissible purpose to obtain a consumer report on a nonapplicant former
spouse or on a nonapplicant spouse who has legally separated or
otherwise indicated an intent to legally disassociate with the marriage.
(This does not preclude reporting a prior joint credit account of
former spouses for which the spouse that is the subject of the report is
still contractually liable. See discussion in section 607, item 3-D
infra.)
16 CFR 600.2 6. Prescreening
''Prescreening'' means the process whereby a consumer reporting
agency compiles or edits a list of consumers who meet specific criteria
and provides this list to the client or a third party (such as a mailing
service) on behalf of the client for use in soliciting these consumers
for the client's products or services. The process may also include
demographic or other analysis of the consumers on the list (e.g., use of
census tract data reflecting real estate values) by the consumer
reporting agency or by a third party employed for that purpose (by
either the agency or its client) before the list is provided to the
consumer reporting agency's client. In such situations, the client's
creditworthiness criteria may be provided only to the consumer reporting
agency and not to the third party performing the demographic analysis.
The consumer reporting agency that performs a ''prescreening'' service
may furnish a client with several different lists of consumers who meet
different sets of creditworthiness criteria supplied by the client, who
intends to make different credit offers (e.g., various credit limits) to
consumers who meet the different criteria.
A prescreened list constitutes a series of consumer reports, because
the list conveys the information that each consumer named meets certain
criteria for creditworthiness. Prescreening is permissible under the
FCRA if the client agrees in advance that each consumer whose name is on
the list after prescreening will receive an offer of credit. In these
circumstances, a permissible purpose for the prescreening service exists
under this section, because of the client's present intent to grant
credit to all consumers on the final list, with the result that the
information is used ''in connection with a credit transaction involving
the consumer on whom the information is to be furnished and involving
the extension of credit to * * * the consumer.''
16 CFR 600.2 7. Seller of Property Extending Credit
A seller of property has a permissible purpose under this subsection
to obtain a consumer report on a prospective purchaser to whom he is
planning to extend credit.
16 CFR 600.2 8. Uncoded Credit Guides
A consumer reporting agency may not furnish an uncoded credit guide,
because the recipient does not have a permissible purpose to obtain a
consumer report on each consumer listed. (As discussed under section
603(d), item 4 supra, credit guides are listings that credit bureaus
furnish to credit grantors, rating how consumers pay their bills. Such
guides are a series of ''consumer reports'' on the ''consumers'' listed
therein, unless coded so that the consumer's identity is not disclosed.)
16 CFR 600.2 9. Liability for Bad Checks
A party attempting to recover the amount due on a bad check is
attempting to collect a debt and, therefore, has a permissible purpose
to obtain a consumer report on the consumer who wrote it, and on any
other consumer who is liable for the amount of that check under
applicable state law.
Section 604(3)(B) -- A consumer reporting agency may issue a consumer
report to ''a person which it has reason to believe * * * intends to use
the information for employment purposes;''
16 CFR 600.2 1. Current Employees
An employer may obtain a consumer report on a current employee in
connection with an investigation of the disappearance of money from
employment premises, because ''retention as an employee'' is included in
the definition of ''employment purposes'' (section 603(h)).
16 CFR 600.2 2. Consumer Reports on Applicants and Non-applicants
An employer may obtain a consumer report for use in evaluating the
subject's application for employment but may not obtain a consumer
report to evaluate the application of a consumer who is not the subject
of the report.
16 CFR 600.2 3. Grand Jurors
The fact that grand jurors are usually paid a stipend for their
service does not provide a district attorney's office a permissible
purpose for obtaining consumer reports on them, because such service is
a duty, not ''employment.''
Section 604(3)(C) -- A consumer reporting agency may issue a consumer
report to ''a person which it has reason to believe * * * intends to use
the information in connection with the underwriting of insurance
involving the consumer;''
16 CFR 600.2 1. Underwriting
An insurer may obtain a consumer report to decide whether or not to
issue a policy to the consumer, the amount and terms of coverage, the
duration of the policy, the rates or fees charged, or whether or not to
renew or cancel a policy, because these are all ''underwriting''
decisions.
16 CFR 600.2 2. Claims
An insurer may not obtain a consumer report for the purpose of
evaluating a claim (to ascertain its validity or otherwise determine
what action should be taken), because permissible purposes relating to
insurance are limited by this section to ''underwriting'' purposes.
Section 604(3)(D) -- A consumer reporting agency may issue a consumer
report to ''a person which it has reason to believe * * * intends to use
the information in connection with a determination of the consumer's
eligibility for a license or other benefit granted by a governmental
instrumentality required by law to consider an applicant's financial
responsibility or status * * *''
16 CFR 600.2 1. Appropriate recipient
Any party charged by law (including a rule or regulation having the
force of law) with responsibility for assessing the consumer's
eligibility for the benefit (not only the agency directly responsible
for administering the benefit) has a permissible purpose to receive a
consumer report. For example, a district attorney's office or social
services bureau, required by law to consider a consumer's financial
status in determining whether that consumer qualifies for welfare
benefits, has a permissible purpose to obtain a report on the consumer
for that purpose. Similarly, consumer reporting agencies may furnish
consumer reports to townships on consumers whose financial status the
townships are required by law to consider in determining the consumers'
eligibility for assistance, or to professional boards (e.g., bar
examiners) required by law to consider such information on applicants
for admission to practice.
16 CFR 600.2 2. Inappropriate Recipient
Parties not charged with the responsibility of determining a
consumer's eligibility for a license or other benefit, for example, a
party competing for an FCC radio station construction permit, would not
have a permissible purpose to obtain a consumer report on that consumer.
16 CFR 600.2 3. Initial or Continuing Benefit
The permissible purpose includes the determination of a consumer's
continuing eligibility for a benefit, as well as the evaluation of a
consumer's initial application for a benefit. If the governmental body
has reason to believe a particular consumer's eligibility is in doubt,
or wishes to conduct random checks to confirm eligibility, it has a
permissible purpose to receive a consumer report.
Section 604(3)(E) -- A consumer reporting agency may issue a consumer
report to ''a person which it has reason to believe * * * otherwise has
a legitimate business need for the information in connection with a
business transaction involving the consumer.''
16 CFR 600.2 1. Relation to Other Subsections of Section 604(3)
The issue of whether credit, employment, or insurance provides a
permissible purpose is determined exclusively by reference to subsection
(A), (B), or (C), respectively.
16 CFR 600.2 2. Commercial Transactions
The term ''business transaction'' in this section means a business
transaction with a consumer primarily for personal, family, or household
purposes. Business transactions that involve purely commercial purposes
are not covered by the FCRA.
16 CFR 600.2 3. ''Legitimate Business Need''
Under this subsection, a party has a permissible purpose to obtain a
consumer report on a consumer for use in connection with some action the
consumer takes from which he or she might expect to receive a benefit
that is not more specifically covered by subsections (A), (B), or (C).
For example, a consumer report may be obtained on a consumer who applies
to rent an apartment, offers to pay for goods with a check, applies for
a checking account or similar service, seeks to be included in a
computer dating service, or who has sought and received over-payments of
government benefits that he has refused to return.
16 CFR 600.2 4. Litigation
The possibility that a party may be involved in litigation involving
a consumer does not provide a permissible purpose for that party to
receive a consumer report on such consumer under this subsection,
because litigation is not a ''business transaction'' involving the
consumer. Therefore, potential plaintiffs may not always obtain reports
on potential defendants to determine whether they are worth suing. The
transaction that gives rise to the litigation may or may not provide a
permissible purpose. A party seeking to sue on a credit account would
have a permissible purpose under section 604(3)(A). (That section also
permits judgment creditors and lien creditors to obtain consumer reports
on judgment debtors or individuals whose property is subject to the lien
creditor's lien.) If that transaction is a business transaction
involving the consumer, there is a permissible purpose. If the
litigation arises from a tort, there is no permissible purpose.
Similarly, a consumer report may not be obtained solely for use in
discrediting a witness at trial or for locating a witness. This section
does not permit consumer reporting agencies to furnish consumer reports
for the purpose of locating a person suspected of committing a crime.
(As stated in the discussion of section 608 infra (item 2), section 608
permits the furnishing of specified, limited identifying information to
governmental agencies, notwithstanding the provisions of section 604.)
16 CFR 600.2 5. Impermissible Purposes
A consumer reporting agency may not furnish a consumer report to
satisfy a requester's curiosity, or for use by a news reporter in
preparing a newspaper or magazine article.
16 CFR 600.2 6. Agents
A. General. An agent /3/ of a party with a ''permissible purpose''
may obtain a consumer report on behalf of his principal, where he is
involved in the decision that gives rise to the permissible purpose.
Such involvement may include the agent's making a decision (or taking
action) for the principal, or assisting the principal in making the
decision (e.g., by evaluating information). In these circumstances, the
agent is acting on behalf of the principal. In some cases, the agent
and principal are referred to as ''joint users.'' See discussion in
section 603(f), supra (item 8).
B. Real estate agent. A real estate agent may obtain a consumer
report on behalf of a seller, to evaluate the eligibility as a
prospective purchaser of a subject who has expressed an interest in
purchasing property from the seller.
C. Private detective agency. A private detective agency may obtain a
consumer report as agent for its client while investigating a report
subject that is a client's prospective employee, or in connection with
advising a client concerning a business transaction with the report
subject or in attempting to collect a debt owed its client by the
subject of the report. In these circumstances, the detective agency is
acting on behalf of its client.
D. Rental clearance agency. A rental clearance agency that obtains
consumer reports to assist owners of residential properties in screening
consumers as tenants, has a permissible purpose to obtain the reports,
if it uses them in applying the landlord's criteria to approve or
disapprove the subjects as tenant applicants. Similarly, an apartment
manager investigating applicants for apartment rentals by a landlord may
obtain consumer reports on these applicants.
E. Attorney. An attorney collecting a debt for a creditor client,
including a party suing on a debt or collecting on behalf of a judgment
creditor or lien creditor, has a permissible purpose to obtain a
consumer report on the debtor to the same extent as the client.
/3/ Of course agents and principals are bound by the Act.
16 CFR 600.2 Section 604 -- General
16 CFR 600.2 1. Furnishing of Consumer Reports to Other Consumer
Reporting Agencies
A consumer reporting agency may furnish a consumer report to another
consumer reporting agency for it to furnish pursuant to a subscriber's
request. In these circumstances, one consumer reporting agency is
acting on behalf of another.
16 CFR 600.2 2. Consumer's Permission not Needed
When permissible purposes exist, parties may obtain, and consumer
reporting agencies may furnish, consumer reports without the consumers'
permission or over their objection. Similarly, parties may furnish
information concerning their transactions with consumers to consumer
reporting agencies and others, and consumer reporting agencies may
gather information, without consumers' permission.
16 CFR 600.2 3. User's Disclosure of Report to Subject Consumer
The FCRA does not prohibit a consumer report user from giving a copy
of the report, or othervise disclosing it, to the consumer who is the
subject of the report.
16 CFR 600.2 Section 605 -- Obsolete Information
''(a) Except as authorized under subsection (b), no consumer
reporting agency may make any consumer report containing any of the
following items of information * * *:
(b) The provisions of subsection (a) are not applicable in the case
of any consumer credit report to be used in connection with --
(1) a credit transaction involving, or which may reasonably be
expected to involve, a principal amount of $50,000 or more;
(2) the underwriting of life insurance involving, or which may
reasonably be expected to involve, a face amount of $50,000 or more; or
(3) the employment of any individual at an annual salary which
eguals, or which may reasonably be expected to egual $20,000, or more.''
16 CFR 600.2 1. General
Section 605(a) provides that most adverse information more than seven
years old may not be reported, except in certain circumstances set out
in section 605(b). With respect to delinquent accounts, accounts placed
for collection, and accounts charged to profit and loss, there are many
dates that could be deemed to commence seven year reporting periods.
The discussion in subsections (a)(2), (a)(4), and (a)(6) is intended to
set forth a clear, workable rule that effectuates Congressional intent.
16 CFR 600.2 2. Favorable Information
The Act imposes no time restriction on reporting of information that
is not adverse.
16 CFR 600.2 3. Retention of Information in Files
Consumer reporting agencies may retain obsolete adverse information
and furnish it in reports for purposes that are exempt under subsection
(b) (e.g., credit for a principal amount of $50,000 or more).
16 CFR 600.2 4. Use of Shorter Periods
The section does not require consumer reporting agencies to report
adverse information for the time periods set forth, but only prohibits
them from reporting adverse items beyond those time periods.
16 CFR 600.2 5. Inapplicability to Users
The section does not limit creditors or others from using adverse
information that would be ''obsolete'' under its terms, because it
applies only to reporting by consumer reporting agencies. Similarly,
this section does not bar a creditor's reporting such adverse obsolete
information concerning its transactions or experiences with a consumer,
because the report would not constitute a consumer report.
16 CFR 600.2 6. Indicating the Existence of Nonspecified, Obsolete
Information
A consumer reporting agency may not furnish a consumer report
indicating the existence of obsolete adverse information, even if no
specific item is reported. For example, a consumer reporting agency may
not communicate the existence of a debt older than seven years by
reporting that a credit grantor cannot locate a debtor whose debt was
charged off ten years ago.
16 CFR 600.2 7. Operative Dates
The times or dates set forth in this section, which relate to the
occurrence of events involving adverse information, determine whether
the item is obsolete. The date that the consumer reporting agency
acquired the adverse information is irrelevant to how long that
information may be reported.
Section 605(a)(1) -- ''Cases under title 11 of the United States Code
or under the Bankruptcy Act that, from the date of entry of the order
for relief or the date of adjudication, as the case may be, antedate the
report by more than 10 years.''
16 CFR 600.2 1. Relation to Other Subsections
The reporting of suits and judgments is governed by subsection
(a)(2), the reporting of accounts placed for collection or charged to
profit and loss is governed by subsection (a)(4), and the reporting of
other delinquent accounts is governed by subsection (a)(6). Any such
item, even if discharged in bankruptcy, may be reported separately for
the applicable seven year period, while the existence of the bankruptcy
filing may be reported for ten years.
16 CFR 600.2 2. Wage Earner Plans
Wage earner plans may be reported for ten years, because they are
covered by Title 11 of the United States Code.
16 CFR 600.2 3. Date for Filing
A voluntary bankruptcy petition may be reported for ten years from
the date that it is filed, because the filing of the petition
constitutes the entry of an ''order for relief'' under this subsection,
just like a filing under the Bankruptcy Act (11 U.S.C. 301).
Section 605(a)(2) -- ''Suits and judgments which, from date of entry,
antedate the report by more than seven years or until the governing
statute of limitations has expired, whichever is the longer period.''
16 CFR 600.2 1. Operative Date
For a suit, the term ''date of entry'' means the date the suit was
initiated. A protracted suit may be reported for more than seven years
from the date it was entered, if the governing statute of limitations
has not expired. For a judgment, the term ''date of entry'' means the
date the judgment was rendered.
16 CFR 600.2 2. Paid Judgments
Paid judgments cannot be reported for more than seven years after the
judgment was entered, because payment of the judgment eliminates any
''governing statute of limitations'' under this subsection that might
otherwise lengthen the period.
Section 605(a)(3) -- ''Paid tax liens which, from date of payment,
antedate the report by more than seven years.''
16 CFR 600.2 1. Unpaid Liens
If a tax lien (or other lien) remains unsatisfied, it may be reported
as long as it remains filed against the consumer, without limitation,
because this subsection addresses only paid tax liens.
Section 605(a)(4) -- ''Accounts placed for collection or charged to
profit and loss which antedate the report by more than seven years.''
16 CFR 600.2 1. Placement for Collection
The term ''placed for collection'' means internal collection activity
by the creditor, as well as placement with an outside collector,
whichever occurs first. Sending of the initial past due notices does
not constitute placement for collection. Placement for collection
occurs when dunning notices or other collection efforts are initiated.
The reporting period is not extended by assignment to another entity for
further collection, or by a partial or full payment of the account.
However, where a borrower brings his delinquent account to date and
returns to his regular payment schedule, and later defaults again, a
consumer reporting agency may disregard any collection activity with
respect to the first delinquency and measure the reporting period from
the date the account was placed for collection as a result of the
borrower's ultimate default. A consumer's repayment agreement with a
collection agency can be treated as a new account that has its own seven
year period.
16 CFR 600.2 2. Charge to Profit and Loss
The term ''charged to profit and loss'' means action taken by the
creditor to write off the account, and the applicable time period is
measured from that event. If an account that was charged off is later
paid in part or paid in full by the consumer, the reporting period of
seven years from the charge-off is not extended by this subsequent
payment.
16 CFR 600.2 3. Reporting of a Delinquent Account That is Later Placed
for Collection or Charged to Profit and Loss
The fact that an account has been placed for collection or charged to
profit and loss may be reported for seven years from the date that
either of those events occurs, regardless of the date the account became
delinquent. The fact of delinquency may also be reported for seven
years from the date the account became delinquent.
Section 605(a)(5) -- ''Records of arrest, indictment, or conviction
of crime which, from date of disposition, release, or parole, antedate
the report by more than seven years.''
16 CFR 600.2 1. Records
The term ''records'' means any information a consumer reporting
agency has in its files relating to arrest, indictment or conviction of
a crime.
16 CFR 600.2 2. Computation of Time Period
The seven year reporting period runs from the date of disposition,
release or parole, as applicable. For example, if charges are dismissed
at or before trial, or the consumer is acquitted, the date of such
dismissal or acquittal is the date of disposition. If the consumer is
convicted of a crime and sentenced to confinement, the date of release
or placement on parole controls. (Confinement, whether continuing or
resulting from revocation of parole, may be reported until seven years
after the confinement is terminated.) The sentencing date controls for a
convicted consumer whose sentence does not include confinement. The
fact that information concerning the arrest, indictment, or conviction
of crime is obtained by the reporting agency at a later date from a more
recent source (such as a newspaper or interview) does not serve to
extend this reporting period.
Section 605(a)(6) -- ''Any other adverse item of information which
antedates the report by more than seven years.''
16 CFR 600.2 1. Relation to Other Subsections
This section applies to all adverse information that is not covered
by section 605(a) (1)-(5). For example, a delinquent account that has
neither been placed for collection, nor charged to profit and loss, may
be reported for seven years from the date of the last regularly
scheduled payment. (Accounts placed for collection or charged to profit
and loss may be reported for the time periods stated in section
605(a)(4).)
16 CFR 600.2 2. Non Tax Liens
Liens (other than paid tax liens) may be reported as long as they
remain filed against the consumer or the consumer's property, and remain
effective (under any applicable statute of limitations). (See
discussion under section 605(a)(3), supra.)
16 CFR 600.2 Section 606 -- Disclosure of Investigative Consumer
Reports
''(a) A person may not procure or cause to be prepared an
investigative consumer report on any consumer unless --
(1) it is clearly and accurately disclosed to the consumer that an
investigative consumer report including information as to his character,
general reputation, personal characteristics, and mode of living,
whichever are applicable, may be made, and such disclosure (A) is made
in a writing mailed, or otherwise delivered, to the consumer, not later
than three days after the date on which the report was first requested,
and (B) includes a statement informing the consumer of his right to
request the additional disclosures provided for under subsection (b) of
this section; or
(2) the report is to be used for employment purposes for which the
consumer has not specifically applied.
(b) Any person who procures or causes to be prepared an investigative
consumer report on any consumer shall, upon written request made by the
consumer within a reasonable period of time after receipt by him of the
disclosure required by subsection (a)(1), make a complete and accurate
disclosure of the nature and scope of the investigation requested. This
disclosure shall be made in a writing mailed, or otherwise delivered, to
the consumer not later than five days after the date on which the
request for such disclosure was received from the consumer or such
report was first requested, whichever is the later.
(c) No person may be held liable for any violation of subsection (a)
or (b) of this section if he shows by a preponderance of the evidence
that at the time of the violation he maintained reasonable procedures to
assure compliance with subsection (a) or (b).''
16 CFR 600.2 1. Relation to Other Sections
The term ''investigative consumer report'' is defined at section
603(e) to mean a consumer report, all or a portion of which contains
information obtained through personal interviews (in person or by
telephone) with persons other than the subject, which information
relates to the subject's character, general reputation, personal
characteristics or mode of living.
16 CFR 600.2 2. Inapplicability to Consumer Reporting Agencies
The section applies only to report users, not consumer reporting
agencies. The FCRA does not require consumer reporting agencies to
inform consumers that information will be gathered or that reports will
be furnished concerning them.
16 CFR 600.2 3. Inapplicability to Noninvestigative Consumer Reports
The section does not apply to noninvestigative reports.
16 CFR 600.2 4. Exemptions
An employer who orders investigative consumer reports on a current
employee who has not applied for a job change need not notify the
employee, because the term ''employment purposes'' is defined to include
''promotion, reassignment or retention'' and subsection (b) provides
that the disclosure requirements do not apply to ''employment purposes
for which the consumer has not specifically applied.''
16 CFR 600.2 5. Form and Delivery of Notice
The notice must be in writing and delivered to the consumer. The
user may include the disclosure in an application for employment,
insurance, or credit, if it is clear and conspicuous and not obscured by
other language. A user may send the required notice via first class
mail. The notice must be mailed or otherwise delivered to the consumer
not later than three days after the report was first requested.
16 CFR 600.2 6. Content of Notice of Right to Disclosure
The notice must clearly and accurately disclose that an
''investigative consumer report'' including information as to the
consumer's character, general reputation, personal characteristics and
mode of living (whichever are applicable), may be made. The disclosure
must also state that an investigative consumer report involves personal
interviews with sources such as neighbors, friends, or associates. The
notice may include any additional, accurate information about the
report, such as the types of interviews that will be conducted. The
notice must include a statement informing the consumer of the right to
request complete and accurate disclosure of the nature and scope of the
investigation.
16 CFR 600.2 7. Content of Disclosure of Report
When the consumer requests disclosure of the ''nature and scope'' of
the investigation, such disclosure must include a complete and accurate
description of the types of questions asked, the number and types of
persons interviewed, and the name and address of the investigating
agency. The user need not disclose the names of sources of information,
nor must it provide the consumer with a copy of the report. A report
user that provides the consumer with a blank copy of the standardized
form used to transmit the report from the agency to the user complies
with the requirement that it disclose the ''nature'' of the
investigation.
16 CFR 600.2 Section 607 -- Compliance Procedures
''(a) Every consumer reporting agency shall maintain reasonable
procedures designed to avoid violations of section 605 and to limit the
furnishing of consumer reports to the purposes listed under section 604.
These procedures shall require that prospective users of the
information identify themselves, certify the purposes for which the
information is sought, and certify that the information will be used for
no other purpose. Every consumer reporting agency shall make a
reasonable effort to verify the identity of a new prospective user and
the uses certified by such prospective user prior to furnishing such
user a consumer report. No consumer reporting agency may furnish a
consumer report to any person if it has reasonable grounds for believing
that the consumer report will not be used for a purpose listed in
Section 604.
(b) Whenever a consumer reporting agency prepares a consumer report
it shall follow reasonable procedures to assure maximum possible
accuracy of the information concerning the individual about whom the
report relates.''
16 CFR 600.2 1. Procedures to Avoid Reporting Obsolete Information
A. General. A consumer reporting agency should establish procedures
with its sources of adverse information that will avoid the risk of
reporting obsolete information. For example, the agency should either
require a creditor to supply the date an account was placed for
collection or charged off, or the agency should use a conservative date
for such placement or charge off (such as the date of the last regularly
scheduled payment), to be sure of complying with the statute.
B. Retention of obsolete information for reporting in excepted
circumstances. If a consumer reporting agency retains adverse
information in its files that is ''obsolete'' under section 605(a)
(e.g., information about a satisfied judgment that is more than seven
years old), so that it may be reported for use in transactions described
by section 605(b) (i.e., applications for credit or life insurance for
$50,000 or more, or employment at an annual salary of $20,000 or more),
it must have procedural safeguards to avoid reporting the information
except in those situations. The procedure should require that such
obsolete information be released only after an internal decision that
its release will not violate section 605.
16 CFR 600.2 2. Procedures to Avoid Reporting for Impermissible
Purposes
A. Verification. A consumer reporting agency should have a system to
verify that it is dealing with a legitimate business having a
''permissible purpose'' for the information reported. What constitutes
adequate verification will vary with the circumstances. If the consumer
reporting agency is not familiar with the user, appropriate procedures
might require an on-site visit to the user's place of business, or a
check of the user's references.
B. Required certification by user. A consumer reporting agency
should adopt procedures that require prospective report users to
identify themselves, certify the purpose for which the information is
sought, and certify that the information will be used for no other
purpose. A consumer reporting agency should determine initially that
users have permissible purposes and ascertain what those purposes are.
It should obtain a specific, written certification that the recipient
will obtain reports for those purposes and no others. The user's
certification that the report will be used for no other purposes should
expressly prohibit the user from sharing the report or providing it to
anyone else, other than the subject of the report or to a joint user
having the same purpose. A consumer reporting agency should refuse to
provide reports to those refusing to provide such certification.
C. Blanket or individual certification. Once the consumer reporting
agency obtains a certification from a user (e.g., a creditor) that
typically has a permissible purpose for receiving a consumer report,
stating that it will use those reports only for specified permissible
purposes (e.g., for credit or employment purposes), a certification of
purpose need not be furnished for each individual report obtained,
provided there is no reason to believe the user may be violating its
certification. However, in furnishing reports to users that typically
could have both permissible and impermissible purposes for ordering
consumer reports (e.g., attorneys and detective agencies), the consumer
reporting agency must require the user to provide a separate
certification each time it requests a consumer report.
D. Procedures to avoid recipients' abuse of certification. When
doubt arises concerning any user's compliance with its contractual
certification, a consumer reporting agency must take steps to insure
compliance, such as requiring a separate, advance certification for each
report it furnishes that user, or auditing that user to verify that it
is obtaining reports only for permissible purposes. A consumer
reporting agency must cease furnishing consumer reports to users who
repeatedly request consumer reports for impermissible purposes.
E. Unauthorized access. A consumer reporting agency should take
several other steps when doubt arises concerning whether a user is
obtaining reports for a permissible purpose from a computerized system.
If it appears that a third party, not a subscriber, has obtained
unauthorized access to the system, the consumer reporting agency should
take appropriate steps such as altering authorized users' means of
access, such as codes and passwords, and making random checks to ensure
that future reports are obtained only for permissible purposes. If a
subscriber has inadvertently sought reports for impermissible purposes
or its employee has obtained reports without a permissible purpose, it
would be appropriate for the consumer reporting agency to alter the
subscriber's means of access, and require an individual written
certification of the permissible purpose for each report requested or
randomly verify such purposes. A consumer reporting agency should
refuse to furnish any further reports to a user that repeatedly violates
certifications.
F. Use of computerized systems. A consumer reporting agency may
furnish consumer reports to users via terminals, provided the consumer
reporting agency has taken the necessary steps to ensure that the users
have a permissible purpose to receive the reports. (The agency would
have to record the identity of consumer report recipients for each
consumer, to be able to make any disclosures required under section
609(a)(3) or section 611(d)).
G. Activity reports. If a consumer reporting agency provides
''activity reports'' on all customers who have open-end accounts with a
credit grantor, it must make certain that the credit grantor always
notifies the agency when accounts are closed and paid in full, to avoid
furnishing reports on former customers or other customers for whom the
credit grantor lacks a permissible purpose. (See also discussion in
section 604(3)(A), item 1, supra.)
16 CFR 600.2 3. Reasonable Procedures to Assure Maximum Possible
Accuracy
A. General. The section does not require error free consumer reports.
If a consumer reporting agency accurately transcribes, stores and
communicates consumer information received from a source that it
reasonably believes to be reputable, and which is credible on its face,
the agency does not violate this section simply by reporting an item of
information that turns out to be inaccurate. However, when a consumer
reporting agency learns or should reasonably be aware of errors in its
reports that may indicate systematic problems (by virtue of information
from consumers, report users, from periodic review of its reporting
system, or otherwise) it must review its procedures for assuring
accuracy. Examples of errors that would require such review are the
issuance of a consumer report pertaining entirely to a consumer other
than the one on whom a report was requested, and the issuance of a
consumer report containing information on two or more consumers (e.g.,
information that was mixed in the file) in response to a request for a
report on only one of those consumers.
B. Required steps to improve accuracy. If the agency's review of its
procedures reveals, or the agency should reasonably be aware of, steps
it can take to improve the accuracy of its reports at a reasonable cost,
it must take any such steps. It should correct inaccuracies that come
to its attention. A consumer reporting agency must also adopt
reasonable procedures to eliminate systematic errors that it knows
about, or should reasonably be aware of, resulting from procedures
followed by its sources of information. For example, if a particular
credit grantor has often furnished a significant amount of erroneous
consumer account information, the agency must require the creditor to
revise its procedures to correct whatever problems cause the errors or
stop reporting information from that creditor.
C. Use of automatic data processing equipment. Consumer reporting
agencies that use automatic data processing equipment (particularly for
long distance transmission of information) should have reasonable
procedures to assure that the data is accurately converted into a
machine-readable format and not distorted by machine malfunction or
transmission failure. Reasonable security procedures must be adopted to
minimize the possibility that computerized consumer information will be
stolen or altered by either authorized or unauthorized users of the
information system.
D. Reliability of sources. Whether a consumer reporting agency may
rely on the accuracy of information from a source depends on the
circumstances. This section does not hold a consumer reporting agency
responsible where an item of information that it receives from a source
that it reasonably believes to be reputable appears credible on its
face, and is transcribed, stored and communicated as provided by that
source. Requirements are more stringent where the information furnished
appears implausible or inconsistent, or where procedures for furnishing
it seem likely to result in inaccuracies, or where the consumer
reporting agency has had numerous problems regarding information from a
particular source.
E. Undesignated information in credit transactions. ''Undesignated
information'' means all credit history information in a married (or
formerly married) consumer's file, which was not reported to the
consumer reporting agency with a designation indicating that the
information relates to either the consumer's joint or individual credit
experience. The question arises what is meant by reasonable procedures
under this section for treatment of credit history in the file of only
one (present or former) spouse (usually the husband) that has not been
designated by the procedure in Regulation B, 12 CFR 202.10, which
implements the Equal Credit Opportunity Act. (This situation exists
only for certain credit history file information compiled before June 1,
1977, and certain accounts opened before that date.) A consumer
reporting agency may report information solely in the file of spouse A,
when spouse B applies for a separate extension of credit, only if such
information relates to accounts for which spouse B was either a user or
was contractually liable, or the report recipient has a permissible
purpose for a report on spouse A. A consumer reporting agency may not
supply all undesignated information from the file of a consumer's spouse
in response to a request for a report on the consumer, because some or
all of that information may not relate to both spouses. Consumer
reporting agencies must honor without charge the request of a married or
formerly married individual that undesignated information (that appears
only in the files of the individual's present or former spouse) be
segregated -- i.e., placed in a separate file that is accessible under
that individual's name. This procedure insures greater accuracy and
protection of the privacy of spouses than does the automatic reporting
of undesignated information.
F. Reporting of credit obligation -- (1) Past due accounts. A
consumer reporting agency must employ reasonable procedures to keep its
file current on past due accounts (e.g., by requiring its creditors to
notify the credit bureau when a previously past due account has been
paid or discharged in bankruptcy), but its failure to show such activity
in particular instances, despite the maintenance of reasonable
procedures to keep files current, does not violate this section. For
example, a consumer reporting agency that reports accurately in 1985
that as of 1983 the consumer owed a retail store money, without
mentioning that the consumer eventually paid the debt, does not violate
this section if it was not informed by the store or the consumer of the
later payment.
(2) Significant, verified information. A consumer reporting agency
must report significant, verified information it possesses about an
item. For instance, a consumer reporting agency may continue to report
a paid account that was previously delinquent, but should also report
that the account has been paid. Similarly, a consumer reporting agency
may include delinquencies on debts discharged in bankruptcy in consumer
reports, but must accurately note the status of the debt (e.g.,
discharged, voluntarily repaid). Finally, if a reported bankruptcy has
been dismissed, that fact should be reported.
(3) Guarantor obligations. Personal guarantees for obligations
incurred by others (including a corporation) may be included in a
consumer report on the individual who is the guarantor. The report
should accurately reflect the individual's involvement (e.g., as
guarantor of the corporate debt).
16 CFR 600.2 4. Effect of Criminal Sanctions
Notwithstanding the fact that section 619 provides criminal sanctions
against persons who knowingly and willfully obtain information on a
consumer from a consumer reporting agency under false pretenses, a
consumer reporting agency must follow reasonable procedures to limit the
furnishing of reports to those with permissible purposes.
16 CFR 600.2 5. Disclosure of Credit Denial
When reporting that a consumer was denied a benefit (such as credit),
a consumer reporting agency need not report the reasons for the denial.
16 CFR 600.2 6. Content of Report
A consumer report need not be tailored to the user's needs. It may
contain any information that is complete, accurate, and not obsolete on
the consumer who is the subject of the report. A consumer report may
include an account that was discharged in bankruptcy (as well as the
bankruptcy itself), as long as it reports a zero balance due to reflect
the fact that the consumer is no longer liable for the discharged debt.
A consumer report may include a list of recipients of reports on the
consumer who is the subject of the report.
16 CFR 600.2 7. Completeness of Reports
Consumer reporting agencies are not required to include all existing
derogatory or favorable information about a consumer in their reports.
(See, however, discussion in section 611, item 14, infra, concerning
conveying consumer dispute statements.) However, a consumer reporting
agency may not mislead its subscribers as to the completeness of its
reports by deleting nonderogatory information and not disclosing its
policy of making such deletions.
16 CFR 600.2 8. User Notice of Adverse Action Based on a Consumer
Report
A consumer reporting agency need not require users of its consumer
reports to provide any notice to consumers against whom adverse action
is taken based on a consumer report. The FCRA imposes such notice
requirements directly on users, under the circumstances set out in
section 615.
16 CFR 600.2 Section 608 -- Disclosures to Governmental Agencies
''Notwithstanding the provisions of section 604, a consumer reporting
agency may furnish identifying information respecting any consumer
limited to his name, address, former addresses, places of employment, or
former places of employment, to a governmental agency.''
16 CFR 600.2 1. Permissible Purpose Necessary for Additional
Information
A consumer reporting agency may furnish limited identifying
information concerning a consumer to a governmental agency (e.g., an
agency seeking a fugitive from justice) even if that agency does not
have a ''permissible purpose'' under section 604 to receive a consumer
report. However, a governmental agency must have a permissible purpose
in order to obtain information beyond what is authorized by this
section.
16 CFR 600.2 2. Entities Covered by Section
The term ''governmental agency'' includes federal, state, county and
municipal agencies, and grand juries. Only governmental agencies may
obtain disclosures of identifying information under this section.
16 CFR 600.2 Section 609 -- Disclosures to Consumers
''(a) Every consumer reporting agency shall, upon request and proper
identification of any consumer, clearly and accurately disclose to the
consumer:
(1) The nature and substance of all information (except medical
information) in its files on the consumer at the time of the request.
(2) The sources of the information; except that the sources of
information acquired solely for use in preparing an investigative
consumer report and actually used for no other purpose need not be
disclosed: Provided, That in the event an action is brought under this
title, such sources shall be available to the plaintiff under
appropriate discovery procedures in the court in which the action is
brought.
(3) The recipients of any consumer report on the consumer which it
has furnished
(A) for employment purposes within the two-year period preceding the
request, and
(B) for any other purpose within the six-month period preceding the
request.
(b) The requirements of subsection (a) respecting the disclosure of
sources of information and the recipients of consumer reports do not
apply to information received or consumer reports furnished prior to the
effective date of this title except to the extent that the matter
involved is contained in the files of the consumer reporting agency on
that date.''
16 CFR 600.2 1. Relation to Other Sections
This section states what consumer reporting agencies must disclose to
consumers, upon request and proper identification. Section 610 sets
forth the conditions under which those disclosures must be made, and
section 612 sets forth the circumstances under which consumer reporting
agencies may charge for making such disclosures. The term ''file'' as
used in section 609(a)(1) is defined in section 603(g). The term
''investigative consumer report,'' which is used in section 609(a)(2),
is defined in section 603(e). The term ''medical information,'' which
is used in section 609(a)(1), is defined in section 603(i).
16 CFR 600.2 2. Proper Identification
A consumer reporting agency must take reasonable steps to verify the
identity of an individual seeking disclosure under this section.
16 CFR 600.2 3. Manner of ''Proper Identification''
If a consumer provides sufficient identifying information, the
consumer reporting agency cannot insist that the consumer execute a
''request for interview'' form, or provide the items listed on it, as a
prerequisite to disclosure. However, the agency may use a form to
identify consumers requesting disclosure if it does not use the form to
inhibit disclosure, or to obtain any waiver of the consumers' rights. A
consumer reporting agency may provide disclosure by telephone without a
written request, if the consumer is properly identified, but may insist
on a written request before providing such disclosure.
16 CFR 600.2 4. Power of Attorney
A consumer reporting agency may disclose a consumer's file to a third
party authorized by the consumer's written power of attorney to obtain
the disclosure, if the third party presents adequate identification and
fulfills other applicable conditions of disclosure. However, the agency
may also disclose the information directly to the consumer.
16 CFR 600.2 5. Nature of Disclosure Required
A consumer reporting agency must disclose the nature and substance of
all items in the consumer's file, no matter how or where they are stored
(e.g., in other offices of the consumer reporting agency). The consumer
reporting agency must have personnel trained to explain to the consumer
any information furnished in accordance with the Act. Particularly when
the file includes coded information that would be meaningless to the
consumer, the agency's personnel must assist the consumer to understand
the disclosures. Any summary must not mischaracterize the nature of any
item of information in the file. The consumer reporting agency is not
required to provide a copy of the file, or any other written disclosure,
or to read the file verbatim to the consumer or to permit the consumer
to examine any information in its files. A consumer reporting agency
may choose to usually comply with the FCRA in writing, by providing a
copy of the file to the consumer or otherwise.
16 CFR 600.2 6. Medical Information
Medical information includes information obtained with the consumer's
consent from physicians and medical facilities, but does not include
comments on a consumer's health by non-medical personnel. A consumer
reporting agency is not required to disclose medical information in its
files to consumers, but may do so. Alternatively, a consumer reporting
agency may inform consumers that there is medical information in the
files concerning them and supply the name of the doctor or other source
of the information. Consumer reporting agencies may also disclose such
information to a physician of the consumer's choice, upon the consumer's
written instructions pursuant to section 604(2).
16 CFR 600.2 7. Ancillary Information
A consumer reporting agency is not required to disclose information
consisting of an audit trail of changes it makes in the consumer's file,
billing records, or the contents of a consumer relations folder, if the
information is not from consumer reports and will not be used in
preparing future consumer reports. Such data is not included in the
term ''information in its files'' which must be disclosed to the
consumer pursuant to this section. Similarly, a point score that is
provided to evaluate the report for its recipient (and/or the scoring
system used to calculate the score) need not be disclosed, because the
score is not used in preparing future reports. A consumer reporting
agency must disclose claims report information only if it has appeared
in consumer reports.
16 CFR 600.2 8. Information on Other Consumers
The consumer has no right to information in the consumer reporting
agency's files on other individuals, because the disclosure must be
limited to information ''on the consumer.'' However, all information in
the files of the consumer making the request must be disclosed,
including information about another individual that relates to the
consumer (e.g., concerning that individual's dealings with the subject
of the consumer report).
16 CFR 600.2 9. Disclosure of Sources of Information
Consumer reporting agencies must disclose the sources of information,
except for sources of information acquired solely for use in preparing
an investigative consumer report and actually used for no other purpose.
When it has used information from another consumer reporting agency,
the other agency should be reported as a source.
16 CFR 600.2 10. Disclosure of Recipients of Consumer Reports
Consumer reporting agencies must maintain records of recipients of
prior consumer reports sufficient to enable them to meet the FCRA's
requirements that they disclose the identity of recipients of prior
consumer reports. A consumer reporting agency that furnishes a consumer
report directly to a report user at the request of another consumer
reporting agency must disclose the identity of the user that was the
ultimate recipient of the report, not the other agency that acted as an
intermediary in procuring the report.
16 CFR 600.2 11. Disclosure of Recipients of Prescreened Lists
A consumer reporting agency must furnish to a consumer requesting
file disclosure the identity of recipients of any prescreened lists that
contained the consumer's name when submitted to creditors (or other
users) by the consumer reporting agency.
16 CFR 600.2 Section 610 -- Conditions of Disclosure
''(a) A consumer reporting agency shall make the disclosures required
under section 609 during normal business hours and on reasonable notice.
(b) The disclosures required under section 609 shall be made to the
consumer --
(1) in person if he appears in person and furnishes proper
identification; or
(2) by telephone if he has made a written request, with proper
identification, for telephone disclosure and the toll charge, if any,
for the telephone call is prepaid by or charged directly to the
consumer.
(c) Any consumer reporting agency shall provide trained personnel to
explain to the consumer any information furnished to him pursuant to
section 609.
(d) The consumer shall be permitted to be accompanied by one other
person of his choosing, who shall furnish reasonable identification. A
consumer reporting agency may require the consumer to furnish a written
statement granting permission to the consumer reporting agency to
discuss the consumer's file in such person's presence.
(e) Except as provided in section 616 and 617, no consumer may bring
any action or proceeding in the nature of defamation, invasion of
privacy, or negligence with respect to the reporting of information
against any consumer reporting agency, any user of information or any
person who furnishes information to a consumer reporting agency, based
on information disclosed pursuant to section 609, 610, or 615, except as
to false information furnished with malice or willful intent to injure
such consumers.''
16 CFR 600.2 1. Time of Disclosure
A consumer reporting agency must make disclosures during normal
business hours, upon reasonable notice. However, the consumer reporting
agency may waive reasonable notice, and the consumer may agree to
disclosure outside of normal business hours. A consumer reporting
agency may make in-person disclosure to consumers who have made
appointments ahead of other consumers, because the disclosures are only
required to be made ''on reasonable notice.''
16 CFR 600.2 2. Extra Conditions Prohibited
A consumer reporting agency may not add conditions not set out in the
FCRA as a prerequisite to the required disclosure.
16 CFR 600.2 3. Manner of Disclosure
A consumer reporting agency may, with the consumer's actual or
implied consent, meet its disclosure obligations by mail, in lieu of the
in-person or telephone disclosures specified in the statute.
16 CFR 600.2 4. Disclosure in the Presence of Third Parties
When the consumer requests disclosure in a third party's presence,
the consumer reporting agency may require that a consumer sign an
authorization before such disclosure is made. The consumer may choose
the third party to accompany him or her for the disclosure.
16 CFR 600.2 5. Expense of Telephone Calls
A consumer reporting agency is not required to pay the telephone
charge for a telephone interview with a consumer obtaining disclosure.
16 CFR 600.2 6. Qualified Defamation Privilege
The privilege extended by subsection 610(e) does not apply to an
action brought by a consumer if the action is based on information not
disclosed pursuant to sections 609, 610 or 615. A disclosure to a
consumer's representative (e.g., based on the consumer's power of
attorney) constitutes ''information disclosed pursuant to section 609''
and is thus covered by this privilege.
16 CFR 600.2 Section 611 -- Procedure in Case of Disputed Accuracy
''(a) If the completeness or accuracy of any item of information
contained in his file is disputed by a consumer, and such dispute is
directly conveyed to the consumer reporting agency by the consumer, the
consumer reporting agency shall within a reasonable period of time
reinvestigate and record the current status of that information unless
it has reasonable grounds to believe that the dispute by the consumer is
frivolous or irrelevant. If after such reinvestigation such information
is found to be inaccurate or can no longer be verified, the consumer
reporting agency shall promptly delete such information. The presence
of contradictory information in the consumer's file does not in and of
itself constitute reasonable grounds for believing the dispute is
frivolous or irrelevant.
(b) If the reinvestigation does not resolve the dispute, the consumer
may file a brief statement setting forth the nature of the dispute. The
consumer reporting agency may limit such statements to not more than one
hundred words if it provides the consumer with assistance in writing a
clear summary of the dispute.
(c) Whenever a statement of a dispute is filed, unless there is
reasonable grounds to believe that it is frivolous or irrelevant, the
consumer reporting agency shall, in any subsequent consumer report
containing the information in question, clearly note that it is disputed
by the consumer and provide either the consumer's statement or a clear
and accurate codification or summary thereof.
(d) Following any deletion of information which is found to be
inaccurate or whose accuracy can no longer be verified or any notation
as to disputed information, the consumer reporting agency shall, at the
request of the consumer, furnish notification that the item has been
deleted or the statement, codification or summary pursuant to subsection
(b) or (c) to any person specifically designated by the consumer who has
within two years prior thereto received a consumer report for employment
purposes, or within six months prior thereto received a consumer report
for any other purpose, which contained the deleted or disputed
information. The consumer reporting agency shall clearly and
conspicuously disclose to the consumer his rights to make such a
request. Such disclosure shall be made at or prior to the time the
information is deleted or the consumer's statement regarding the
disputed information is received.''
16 CFR 600.2 1. Relation to Other Sections
This section sets forth procedures consumer reporting agencies must
follow if a consumer conveys a dispute of the completeness or accuracy
of any item of information in the consumer's file to the consumer
reporting agency. Section 609 provides for disclosures by consumer
reporting agencies to consumers, and section 610 sets forth conditions
of disclosure. Section 612 permits a consumer reporting agency to
impose charges for certain disclosures, including the furnishing of
certain information to recipients of prior reports, as provided by
section 611(d).
16 CFR 600.2 2. Proper Reinvestigation
A consumer reporting agency conducting a reinvestigation must make a
good faith effort to determine the accuracy of the disputed item or
items. At a minimum, it must check with the original sources or other
reliable sources of the disputed information and inform them of the
nature of the consumer's dispute. In reinvestigating and attempting to
verify a disputed credit transaction, a consumer reporting agency may
rely on the accuracy of a creditor's ledger sheets and need not require
the creditor to produce documentation such as the actual signed sales
slips. Depending on the nature of the dispute, reinvestigation and
verification may require more than asking the original source of the
disputed information the same question and receiving the same answer.
If the original source is contacted for reinvestigation, the consumer
reporting agency should at least explain to the source that the original
statement has been disputed, state the consumer's position, and then ask
whether the source would confirm the information, qualify it, or accept
the consumer's explanation.
16 CFR 600.2 3. Complaint of Insufficient File, or Lack of File
The FCRA does not require a consumer reporting agency to add new
items of information to its file. A consumer reporting agency is not
required to create new files on consumers for whom it has no file, nor
is it required to add new lines of information about new accounts not
reflected in an existing file, because the section permits the consumer
to dispute only the completeness or accuracy of particular items of
information in the file. If a consumer reporting agency chooses to add
lines of information at the consumer's request, it may charge a fee for
doing so.
16 CFR 600.2 4. Explanation of Extenuating Circumstances
A consumer reporting agency has no duty to reinvestigate, or take any
other action under this section, if a consumer merely provides a reason
for a failure to pay a debt (e.g., sudden illness or layoff), and does
not challenge the accuracy or completeness of the item of information in
the file relating to a debt. Most creditors are aware that a variety of
circumstances may render consumers unable to repay credit obligations.
Although a consumer reporting agency is not required to accept a
consumer dispute statement that does not challenge the accuracy or
completeness of an item in the consumer's file, it may accept such a
statement and may charge a fee for doing so.
16 CFR 600.2 5. Reinvestigation of a Debt
A consumer reporting agency must reinvestigate if a consumer conveys
to it a dispute concerning the validity or status of a debt, such as
whether the debt was owed by the consumer, or whether the debt had
subsequently been paid. For example, if a consumer alleges that a
judgment reflected in the file as unpaid has been satisfied, or notifies
a consumer reporting agency that a past due obligation reflected in the
file as unpaid was subsequently paid, the consumer reporting agency must
reinvestigate the matter. If a file reflects a debt discharged in
bankruptcy without reflecting subsequent reaffirmation and payment of
that debt, a consumer may require that the item be reinvestigated.
16 CFR 600.2 6. Status of a Debt
The consumer reporting agency must, upon reinvestigation, ''record
the current status'' of the disputed item. This requires inclusion of
any information relating to a change in status of an ongoing matter
(e.g., that a credit account had been closed, that a debt shown as past
due had subsequently been paid or discharged in bankruptcy, or that a
debt shown as discharged in bankruptcy was later reaffirmed and/or
paid).
16 CFR 600.2 7. Dispute Conveyed to Party Other Than the Consumer
Reporting Agency
A consumer reporting agency is required to take action under this
section only if the consumer directly communicates a dispute to it. It
is not required to respond to a dispute of information that the consumer
merely conveys to others (e.g., to a source of information). (But see,
however, discussion in section 607, item 3A, of consumer reporting
agencies' duties to correct errors that come to their attention.)
16 CFR 600.2 8. Dispute Conveyed to the Consumer Reporting Agency by a
Party Other Than the Consumer
A consumer reporting agency need not reinvestigate a dispute about a
consumer's file raised by any third party, because the obligation under
the section arises only where an ''item of information in his file is
disputed by the consumer.''
16 CFR 600.2 9. Consumer Disclosures and Adverse Action Not
Prerequisites to Reinvestigation Duty
A consumer reporting agency's obligation to reinvestigate disputed
items is not contingent upon the consumer's having been denied a benefit
or having asserted any rights under the FCRA other than disputing items
of information.
16 CFR 600.2 10. Reasonable Period of Time
A consumer reporting agency is required to reinvestigate and record
the current status of disputed information within a reasonable period of
time after the consumer conveys the dispute to it. Although consumer
reporting agencies are able to reinvestigate most disputes within 30
days, a ''reasonable time'' for a particular reinvestigation may be
shorter or longer depending on the circumstances of the dispute. For
example, where the consumer provides documentary evidence (e.g., a
certified copy of a court record to show that a judgment has been paid)
when submitting the dispute, the creditor may require a shorter time to
reinvestigate. On the other hand, where the dispute is more complicated
than normal (e.g., the consumer alleges in good faith that a creditor
has falsified its report of the consumer's account history because of a
personal grudge), the ''reasonable time'' needed to conduct the
reinvestigation may be longer.
16 CFR 600.2 11. Frivolous or Irrelevant
The mere presence of contradictory information in the file does not
provide the consumer reporting agency ''reasonable grounds to believe
that the dispute by the consumer is frivolous or irrelevant.'' A
consumer reporting agency must assume a consumer's dispute is bona fide,
unless there is evidence to the contrary. Such evidence may constitute
receipt of letters from consumers disputing all information in their
files without providing any allegations concerning the specific items in
the files, or of several letters in similar format that indicate that a
particular third party (e.g., a ''credit repair'' operator) is
counselling consumers to dispute all items in their files, regardless of
whether the information is known to be accurate. The agency is not
required to repeat a reinvestigation that it has previously conducted
simply because the consumer reiterates a dispute about the same item of
information, unless the consumer provides additional evidence that the
item is inaccurate or incomplete, or alleges changed circumstances.
16 CFR 600.2 12. Deletion of Accurate Information That has not Been
Disputed
The consumer reporting agency is not required to delete accurate
information that could not be verified upon reinvestigation, if it has
not been ''disputed by a consumer.'' For example, if a creditor deletes
adverse information from its files with the result that information
could not be reverified if disputed, it is still permissible for a
consumer reporting agency to report it (subject to the obsolescence
provisions of section 605) until it is disputed.
16 CFR 600.2 13. Consumer Dispute Statements on Multiple Items
A consumer who disputes multiple items of information in his file may
submit a one hundred word statement as to each disputed item.
16 CFR 600.2 14. Conveying Dispute Statements to Recipients of
Subsequent Reports.
A consumer reporting agency may not merely tell the recipient of a
subsequent report containing disputed information that the consumer's
statement is on file but will be provided only if requested, because
subsection (c) requires the agency to provide either the statement or
''a clear and accurate codification or summary thereof.''
16 CFR 600.2 Section 612 -- Charges for Certain Disclosures
''A consumer reporting agency shall make all disclosures pursuant to
section 609 and furnish all consumer reports pursuant to section 611(d)
without charge to the consumer if, within thirty days after receipt by
such consumer of a notification pursuant to section 615 or notification
from a debt collection agency affiliated with such consumer reporting
agency stating that the consumer's credit rating may be or has been
adversely affected, the consumer makes a request under section 609 or
611(d). Otherwise, the consumer reporting agency may impose a
reasonable charge on the consumer for making disclosure to such consumer
pursuant to section 609, the charge for which shall be indicated to the
consumer prior to making disclosure; and for furnishing notifications,
statements, summaries, or codifications to persons designated by the
consumer pursuant to section 611(d), the charge for which shall be
indicated to the consumer prior to furnishing such information and shall
not exceed the charge that the consumer reporting agency would impose on
each designated recipient for a consumer report except that no charge
may be made for notifying such persons of the deletion of information
which is found to be inaccurate or which can no longer be verified.''
16 CFR 600.2 1. Irrelevance of Subsequent Grant of Credit or Reason
For Denial
A consumer denied credit because of a consumer report from a consumer
reporting agency has the right to a free disclosure from that agency
within 30 days of receipt of the section 615(a) notice, even if credit
was subsequently granted or the basis of the denial was that the
references supplied by the consumer are too few or too new to appear in
the credit file.
16 CFR 600.2 2. Charge for Reinvestigation Prohibited
This section does not permit consumer reporting agencies to charge
for making the reinvestigation or following other procedures required by
section 611 (a)-(c).
16 CFR 600.2 3. Permissible Charges for Services Requested by
Consumers
A consumer reporting agency may charge fees for creating files on
consumers at their request, or for other services not required by the
FCRA that are requested by consumers.
16 CFR 600.2 Section 613 -- Public Record Information for Employment
Purposes
''A consumer reporting agency which furnishes a consumer report for
employment purposes and which for that purpose compiles and reports
items of information on consumers which are matters of public record and
are likely to have an adverse effect upon a consumer's ability to obtain
employment shall --
(1) at the time such public record information is reported to the
user of such consumer report, notify the consumer of the fact that
public record information is being reported by the consumer reporting
agency, together with the name and address of the person to whom such
information is being reported; or
(2) maintain strict procedures designed to insure that whenever
public record information which is likely to have an adverse effect on a
consumer's ability to obtain employment is reported it is complete and
up to date. For purposes of this paragraph, items of public record
relating to arrests, indictments, convictions, suits, tax liens, and
outstanding judgments shall be considered up to date if the current
public record status of the item at the time of the report is
reported.''
16 CFR 600.2 1. Relation to Other Sections
A consumer reporting agency that complies with section 613(1) must
also follow reasonable procedures to assure maximum possible accuracy,
as required by section 607(b).
16 CFR 600.2 2. Alternate Methods of Compliance
A consumer reporting agency that furnishes public record information
for employment purposes must comply with either subsection (1) or (2),
but need not comply with both.
16 CFR 600.2 3. Information From Another Consumer Reporting Agency
If a consumer reporting agency uses information or reports from other
consumer reporting agencies in a report for employment purposes, it must
comply with this section.
16 CFR 600.2 4. Method of Providing Notice
A consumer reporting agency may use first class mail to provide the
notice required by subsection (1).
16 CFR 600.2 5. Waiver
The procedures required by this section cannot be waived by the
consumer to whom the report relates.
16 CFR 600.2 Section 614 -- Restrictions on Investigative Consumer
Reports
''Whenever a consumer reporting agency prepares an investigative
consumer report, no adverse information in the consumer report (other
than information which is a matter of public record) may be included in
a subsequent consumer report unless such adverse information has been
verified in the process of making such subsequent consumer report, or
the adverse information was received within the three-month period
preceding the date the subsequent report is furnished.''
16 CFR 600.2 Section 615 -- Requirements on Users of Consumer Reports
(a) Whenever credit or insurance for personal, family, or household
purposes, or employment involving a consumer is denied or the charge for
such credit or insurance is increased either wholly or partly because of
information contained in a consumer report from a consumer reporting
agency, the user of the consumer report shall so advise the consumer
against whom such adverse action has been taken and supply the name and
address of the consumer reporting agency making the report.
(b) Whenever credit for personal, family, or household purposes
involving a consumer is denied or the charge for such credit is
increased either wholly or partly because of information obtained from a
person other than a consumer reporting agency bearing upon the
consumer's credit worthiness, credit standing, credit capacity,
character, general reputation, personal characteristics, or mode of
living, the user of such information shall, within a reasonable period
of time, upon the consumer's written request for the reasons for such
adverse action received within 60 days after learning of such adverse
action, disclose the nature of the information to the consumer. The
user of such information shall clearly and accurately disclose to the
consumer his right to make such written request at the time such adverse
action is communicated to the consumer.
(c) No person shall be held liable for any violation of this section
if he shows by a preponderance of the evidence that at the time of the
alleged violation he maintained reasonable procedures to assure
compliance with the provisions of subsections (a) and (b).''
16 CFR 600.2 1. Relation to Other Sections and Regulation B
Sections 606 and 615 are the only two sections that require users of
reports to make disclosures to consumers. Section 606 applies only to
users of ''investigative consumer reports.'' Creditors should not
confuse compliance with section 615(a), which only requires disclosure
of the name and address of the consumer reporting agency, and compliance
with the Equal Credit Opportunity Act, 15 U.S.C. 1691 et seq. and
Regulation B, 12 C.F.R. 202, which require disclosure of the reasons for
adverse action. Compliance with section 615(a), therefore, does not
constitute compliance with Regulation B.
16 CFR 600.2 2. Limited Scope of Requirements
The section does not require that creditors disclose their credit
criteria or standards or that employees furnish copies of personnel
files to former employees. The section does not require that the user
provide any kind of advance notification to consumers before a consumer
report is obtained. (See section 606 regarding notice of investigative
consumer reports.)
16 CFR 600.2 3. Method of Disclosure
The disclosures required by this section need not be made in writing.
However, users will have evidence that they have taken reasonable steps
to comply with this section if they provide written disclosures and
retain copies for at least two years, the applicable statute of
limitations for most civil liability actions under the FCRA.
16 CFR 600.2 4. Adverse Action Based on Direct Information
This section does not require that a user send any notice to a
consumer concerning adverse action regarding that consumer that is based
neither on information from a consumer reporting agency nor on
information from a third party. For example, no disclosures are
required concerning adverse action based on information provided by the
consumer in an application or based on past experience in direct
transactions with the consumer.
16 CFR 600.2 5. Creditors Using ''Prescreened'' Mailing Lists
A creditor is not required to provide notices regarding consumer
reporting agencies that prepare mailing lists by ''prescreening''
because they do not involve consumer requests for credit and credit has
not been denied to consumers whose names are deleted from a list
furnished to the agency for use in this procedure. See discussion of
''prescreening,'' under section 604(3) (A), item 6, supra.
16 CFR 600.2 6. Applicability to Users of Motor Vehicle Reports
An insurer that refuses to issue a policy, or charges a higher than
normal premium, based on a motor vehicle report is required to comply
with subsection(a).
16 CFR 600.2 7. Securities and Insurance Transactions
A consumer report user that denies credit to a consumer in connection
with a securities transaction must provide the required notice, because
the denial is of ''credit * * * for personal purposes,'' unless the
consumer engages in such transactions as a business.
16 CFR 600.2 8. Denial of Employment
An employer must provide the notice required by subsection (a) to an
individual who has applied for employment and has been rejected based on
a consumer report. However, an employer is not required to send a
notice when it decides not to offer a position to an individual who has
not applied for it, because in this case employment is not ''denied.''
(See discussion in section 606, item 4, supra.)
16 CFR 600.2 9. Adverse Action Involving Credit
A creditor must provide the required notice when it denies the
consumer's request for credit (including a rejection based on a scoring
system, where a credit report received less than the maximum number of
points possible and caused the application to receive an insufficient
score), denies the consumer's request for increased credit, grants
credit in an amount less than the consumer requested, or raises the
charge for credit.
16 CFR 600.2 10. Adverse Action Not Involving Credit, Insurance or
Employment
The Act does not require that a report user provide any notice to
consumers when taking adverse action not relating to credit, insurance
or employment. For example, a landlord who refuses to rent an apartment
to a consumer based on credit or other information in a consumer report
need not provide the notice. Similarly, a party that uses credit or
other information in a consumer report as a basis for refusing to accept
payment by check need not comply with this section. Checks have
historically been treated as cash items, and thus such refusal does not
involve a denial of credit, insurance or employment.
16 CFR 600.2 11. Adverse Action Based on Non-derogatory Adverse
Information
A party taking adverse action concerning credit or insurance or
denying employment, ''wholly or partly because of information contained
in a consumer report,'' must provide the required notice, even if the
information is not derogatory. For example, the user must give the
notice if the denial is based wholly or partly on the absence of a file
or on the fact that the file contained insufficient references.
16 CFR 600.2 12. Name and Address of the Consumer Reporting Agency
The ''section 615(a)'' notice must include the consumer reporting
agency's street address, not just a post office box address.
16 CFR 600.2 13. Agency To Be Identified
The consumer report user should provide the name and address of the
consumer reporting agency from which it obtained the consumer report,
even if that agency obtained all or part of the report from another
agency.
16 CFR 600.2 14. Denial Based Partly on a Consumer Report
A ''section 615(a)'' notice must be sent even if the adverse action
is based only partly on a consumer report.
16 CFR 600.2 15. Denial of Credit Based on Information From ''Third
Parties''
Subsection (b) imposes requirements on a creditor when it denies (or
increases the charge for) credit for personal, family or household
purposes involving a consumer, based on information from a ''third
party'' source, which means a source other than the consumer reporting
agency, the creditor's own files, or the consumer's application (e.g.,
creditor, employer, landlord, or the public record). Where a creditor
denies a consumer's application based on information obtained directly
from another lender, even if the lender's name was furnished to the
creditor by a consumer reporting agency, the creditor must give a
''third party'' disclosure.
16 CFR 600.2 16. Substance of Required ''Third Party'' Disclosures
When the adverse action is communicated to the consumer, the creditor
must clearly and accurately disclose to the consumer his or her right to
make a written request for the disclosure of the nature of the third
party information that led to the adverse action. Upon timely receipt
of such a request, however, the creditor need disclose only the nature
of the information that led to the adverse action (e.g., history of late
rent payments or bad checks); it need not identify the source that
provided the information or the criteria that led to the adverse action.
A creditor may comply with subsection (b) by providing a statement of
the nature of the third party information that led to the denial when it
notifies the consumer of the denial. A statement of principal, specific
reasons for adverse action based on third party information that is
sufficient to comply with the requirements of the Equal Credit
Opportunity Act (e.g., ''unable to verify employment'') is sufficient to
constitute disclosure of the ''nature of the information'' under
subsection (b).
16 CFR 600.2 Section 616 -- Civil Liability for Willful Noncompliance
Section 616 permits consumers who sue and prove willful noncompliance
with the Act to recover actual damages, punitive damages, and the costs
of the action, together with reasonable attorney's fees.
16 CFR 600.2 Section 617 -- Civil Liability for Negligent Noncompliance
Section 617 permits consumers who sue and prove negligent
noncompliance with the Act to recover actual damages and the costs of
the action, together with reasonable attorney's fees.
16 CFR 600.2 Section 618 -- Jurisdiction of Courts; Limitation of
Actions
Section 618 provides that any action brought under section 616 or
section 617 may be brought in any United States district court or other
court of competent jurisdiction. Such suit must be brought within two
years from the date on which liability arises, unless a defendant has
materially and willfully misrepresented information the Act requires to
be disclosed, and the information misrepresented is material to
establishment of the defendant's liability. In that event, the action
must be brought within two years after the individual discovers the
misrepresentation.
16 CFR 600.2 Section 619 -- Obtaining Information Under False Pretense
Section 619 provides criminal sanctions against any person who
knowingly and willfully obtains information on a consumer from a
consumer reporting agency under false pretenses.
16 CFR 600.2 1. Relation to Other Sections
The presence of this provision does not excuse a consumer reporting
agency's failure to follow reasonable procedures, as required by section
607(a), to limit the furnishing of consumer reports to the purposes
listed under section 604.
16 CFR 600.2 Section 620 -- Unauthorized Disclosures by Officers or
Employees
Section 620 provides criminal sanctions against any officer or
employee of a consumer reporting agency who knowingly and willfully
provides information concerning an individual from the agency's file to
a person not authorized to receive it.
16 CFR 600.2 Section 621 -- Administrative Enforcement
This section gives the Federal Trade Commission authority to enforce
the Act with respect to consumer reporting agencies, users of reports,
and all others, except to the extent that it gives enforcement
jurisdiction specifically to some other agency. Those excepted from the
Commission's enforcement jurisdiction include certain financial
institutions regulated by Federal agencies or boards, Federal credit
unions, common carriers subject to acts to regulate commerce, air
carriers, and parties subject to the Packers and Stockyards Act, 1921.
16 CFR 600.2 1. General
The Commission can use its cease-and-desist power and other
procedural, investigative and enforcement powers which it has under the
FTC Act to secure compliance, irrespective of commerce or any other
jurisdictional tests in the FTC Act.
16 CFR 600.2 2. Geographic Coverage
The Commission's authority encompasses the United States, the
District of Columbia, the Commonwealth of Puerto Rico, and all United
States territories but does not extend to activities outside those
areas.
16 CFR 600.2 3. Status of Commission Commentary and Staff
Interpretations
The FCRA does not give any Federal agency authority to promulgate
rules having the force and effect, of statutory provisions. The
Commission has issued this Commentary, superseding the eight formal
Interpretations of the Act (16 CFR 600.1-600.8), previously issued
pursuant to 1.73 of the Commission's Rules, 16 CFR 1.73. The Commentary
does not constitute substantive rules and does not have the force or
effect of statutory provisions. It constitutes guidelines to clarify
the Act that are advisory in nature and represent the Commission's views
as to what particular provisions of the Act mean. Staff opinion letters
constitute staff interpretations of the Act's provisions, but do not
have the force or effect of statutory provisions and, as provided in
1.72 of the Commission's Rules, 16 CFR 1.72, do not bind the Commission.
16 CFR 600.2 Section 622 -- Relation to State Laws
''This title does not annul, alter, affect, or exempt any person
subject to the provisions of this title from complying with the laws of
any State with respect to the collection, distribution, or use of any
information on consumers, except to the extent that those laws are
inconsistent with any provision of this title, and then only to the
extent of the inconsistency.''
16 CFR 600.2 1. Basic Rule
State law is pre-empted by the FCRA only when compliance with
inconsistent state law would result in violation of the FCRA.
16 CFR 600.2 2. Examples of Statutes that are not Pre-empted
A state law requirement that an employer provide notice to a consumer
before ordering a consumer report, or that a consumer reporting agency
must provide the consumer with a written copy of his file, would not be
pre-empted, because a party that complies with such provisions would not
violate the FCRA.
16 CFR 600.2 3. Examples of Statutes that are Pre-empted
A state law authorizing grand juries to compel consumer reporting
agencies to provide consumer reports, by means of subpoenas signed by a
court clerk, is pre-empted by the FCRA's requirement that such reports
be furnished only pursuant to an ''order of the court'' signed by a
judge (section 604(1)), or furnished for other purposes not applicable
to grand jury subpoenas (section 604 (2)-(3)), and by section 607(a). A
state statute requiring automatic disclosure of a deletion or dispute
statement to every person who has previously received a consumer report
containing the disputed information, regardless of whether the consumer
designates such persons to receive this disclosure, is pre-empted by
section 604 of the FCRA, which permits disclosure only for specified,
permissible purposes and by section 607(a), which requires consumer
reporting agencies to limit the furnishing of consumer reports to
purposes listed under section 604. Absent a specific designation by the
consumer, the consumer reporting agency has no reason to believe all
past recipients would have a present, permissible purpose to receive the
reports.
16 CFR 600.2 4. Statute Providing Access for Enforcement Purposes
A state ''little FCRA'' that permits state officials access to a
consumer reporting agency's files for the purpose of enforcing that
statute just as Federal agencies are permitted access to such files
under the FCRA, is not pre-empted by the FCRA.
(Information collection requirements in this appendix were approved
by the Office of Management and Budget under control number 3084-0091)
16 CFR 600.2 SUBCHAPTER G -- RULES, REGULATIONS, STATEMENTS AND INTERPRETATIONS UNDER THE MAGNUSON-MOSS WARRANTY ACT
16 CFR 600.2 PART 700 -- INTERPRETATIONS OF MAGNUSON-MOSS WARRANTY ACT
Sec.
700.1 Products covered.
700.2 Date of manufacture.
700.3 Written warranty.
700.4 Parties ''actually making'' a written warranty.
700.5 Expressions of general policy.
700.6 Designation of warranties.
700.7 Use of warranty registration cards.
700.8 Warrantor's decision as final.
700.9 Duty to install under a full warranty.
700.10 Section 102(c).
700.11 Written warranty, service contract, and insurance
distinguished for purposes of compliance under the Act.
700.12 Effective date of 16 CFR Parts 701 and 702.
Authority: Magnuson-Moss Warranty Act, Pub. L. 93-637, 15 U.S.C.
2301.
Source: 42 FR 36114, July 13, 1977, unless otherwise noted.
16 CFR 700.1 Products covered.
(a) The Act applies to written warranties on tangible personal
property which is normally used for personal, family, or household
purposes. This definition includes property which is intended to be
attached to or installed in any real property without regard to whether
it is so attached or installed. This means that a product is a
''consumer product'' if the use of that type of product is not uncommon.
The percentage of sales or the use to which a product is put by any
individual buyer is not determinative. For example, products such as
automobiles and typewriters which are used for both personal and
commercial purposes come within the definition of consumer product.
Where it is unclear whether a particular product is covered under the
definition of consumer product, any ambiguity will be resolved in favor
of coverage.
(b) Agricultural products such as farm machinery, structures and
implements used in the business or occupation of farming are not covered
by the Act where their personal, family, or household use is uncommon.
However, those agricultural products normally used for personal or
household gardening (for example, to produce goods for personal
consumption, and not for resale) are consumer products under the Act.
(c) The definition of ''Consumer product'' limits the applicability
of the Act to personal property, ''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.'' This provision brings under
the Act separate items of equipment attached to real property, such as
air conditioners, furnaces, and water heaters.
(d) The coverage of separate items of equipment attached to real
property includes, but is not limited to, appliances and other thermal,
mechanical, and electrical equipment. (It does not extend to the
wiring, plumbing, ducts, and other items which are integral component
parts of the structure.) State law would classify many such products as
fixtures to, and therefore a part of, realty. The statutory definition
is designed to bring such products under the Act regardless of whether
they may be considered fixtures under state law.
(e) The coverage of building materials which are not separate items
of equipment is based on the nature of the purchase transaction. An
analysis of the transaction will determine whether the goods are real or
personal property. The numerous products which go into the construction
of a consumer dwelling are all consumer products when sold ''over the
counter,'' as by hardware and building supply retailers. This is also
true where a consumer contracts for the purchase of such materials in
connection with the improvement, repair, or modification of a home (for
example, paneling, dropped ceilings, siding, roofing, storm windows,
remodeling). However, where such products are at the time of sale
integrated into the structure of a dwelling they are not consumer
products as they cannot be practically distinguished from realty. Thus,
for example, the beams, wallboard, wiring, plumbing, windows, roofing,
and other structural components of a dwelling are not consumer products
when they are sold as part of real estate covered by a written warranty.
(f) In the case where a consumer contracts with a builder to
construct a home, a substantial addition to a home, or other realty
(such as a garage or an in-ground swimming pool) the building materials
to be used are not consumer products. Although the materials are
separately identifiable at the time the contract is made, it is the
intention of the parties to contract for the construction of realty
which will integrate the component materials. Of course, as noted
above, any separate items of equipment to be attached to such realty are
consumer products under the Act.
(g) Certain provisions of the Act apply only to products actually
costing the consumer more than a specified amount. Section 103 applies
to consumer products actually costing the consumer more than $10,
excluding tax. The $10 minimum will be interpreted to include
multiple-packaged items which may individually sell for less than $10,
but which have been packaged in a manner that does not permit breaking
the package to purchase an item or items at a price less than $10.
Thus, a written warranty on a dozen items packaged and priced for sale
at $12 must be designated, even though identical items may be offered in
smaller quantities at under $10. This interpretation applies in the
same manner to the minimum dollar limits in section 102 and rules
promulgated under that section.
(h) Warranties on replacement parts and components used to repair
consumer products are covered; warranties on services are not covered.
Therefore, warranties which apply solely to a repairer's workmanship in
performing repairs are not subject to the Act. Where a written
agreement warrants both the parts provided to effect a repair and the
workmanship in making that repair, the warranty must comply with the Act
and the rules thereunder.
(i) The Act covers written warranties on consumer products
''distributed in commerce'' as that term is defined in section 101(3).
Thus, by its terms the Act arguably applies to products exported to
foreign jurisdictions. However, the public interest would not be served
by the use of Commission resources to enforce the Act with respect to
such products. Moreover, the legislative intent to apply the
requirements of the Act to such products is not sufficiently clear to
justify such an extraordinary result. The Commission does not
contemplate the enforcement of the Act with respect to consumer products
exported to foreign jurisdictions. Products exported for sale at
military post exchanges remain subject to the same enforcement standards
as products sold within the United States, its territories and
possessions.
16 CFR 700.2 Date of manufacture.
Section 112 of the Act provides that the Act shall apply only to
those consumer products manufactured after July 4, 1975. When a
consumer purchases repair of a consumer product the date of manufacture
of any replacement parts used is the measuring date for determining
coverage under the Act. The date of manufacture of the consumer product
being repaired is in this instance not relevant. Where a consumer
purchases or obtains on an exchange basis a rebuilt consumer product,
the date that the rebuilding process is completed determines the Act's
applicability.
(42 FR 36114, July 13, 1977; 42 FR 38341, July 28, 1977)
16 CFR 700.3 Written warranty.
(a) The Act imposes specific duties and liabilities on suppliers who
offer written warranties on consumer products. Certain representations,
such as energy efficiency ratings for electrical appliances, care
labeling of wearing apparel, and other product information disclosures
may be express warranties under the Uniform Commercial Code. However,
these disclosures alone are not written warranties under this Act.
Section 101(6) provides that a written affirmation of fact or a written
promise of a specified level of performance must relate to a specified
period of time in order to be considered a ''written warranty.''1 A
product information disclosure without a specified time period to which
the disclosure relates is therefore not a written warranty. In
addition, section 111(d) exempts from the Act (except section 102(c))
any written warranty the making or content of which is required by
federal law. The Commission encourages the disclosure of product
information which is not deceptive and which may benefit consumers, and
will not construe the Act to impede information disclosure in product
advertising or labeling.
(b) Certain terms, or conditions, of sale of a consumer product may
not be ''written warranties'' as that term is defined in section 101(6),
and should not be offered or described in a manner that may deceive
consumers as to their enforceability under the Act. For example, a
seller of consumer products may give consumers an unconditional right to
revoke acceptance of goods within a certain number of days after
delivery without regard to defects or failure to meet a specified level
of performance. Or a seller may permit consumers to return products for
any reason for credit toward purchase of another item. Such terms of
sale taken alone are not written warranties under the Act. Therefore,
suppliers should avoid any characterization of such terms of sale as
warranties. The use of such terms as ''free trial period'' and
''trade-in credit policy'' in this regard would be appropriate.
Furthermore, such terms of sale should be stated separately from any
written warranty. Of course, the offering and performance of such terms
of sale remain subject to section 5 of the Federal Trade Commission Act,
15 U.S.C. 45.
(c) The Magnuson-Moss Warranty Act generally applies to written
warranties covering consumer products. Many consumer products are
covered by warranties which are neither intended for, nor enforceable
by, consumers. A common example is a warranty given by a component
supplier to a manufacturer of consumer products. (The manufacturer may,
in turn, warrant these components to consumers.) The component
supplier's warranty is generally given solely to the product
manufacturer, and is neither intended to be conveyed to the consumer nor
brought to the consumer's attention in connection with the sale. Such
warranties are not subject to the Act, since a written warranty under
section 101(6) of the Act must become ''part of the basis of the bargain
between a supplier and a buyer for purposes other than resale.''
However, the Act applies to a component supplier's warranty in writing
which is given to the consumer. An example is a supplier's written
warranty to the consumer covering a refrigerator that is sold installed
in a boat or recreational vehicle. The supplier of the refrigerator
relies on the boat or vehicle assembler to convey the written agreement
to the consumer. In this case, the supplier's written warranty is to a
consumer, and is covered by the Act.
1A ''written warranty'' is also created by a written affirmation of
fact or a written promise that the product is defect free, or by a
written undertaking of remedial action within the meaning of section
101(6)(B).
16 CFR 700.4 Parties ''actually making'' a written warranty.
Section 110(f) of the Act provides that only the supplier ''actually
making'' a written warranty is liable for purposes of FTC and private
enforcement of the Act. A supplier who does no more than distribute or
sell a consumer product covered by a written warranty offered by another
person or business and which identifies that person or business as the
warrantor is not liable for failure of the written warranty to comply
with the Act or rules thereunder. However, other actions and written
and oral representations of such a supplier in connection with the offer
or sale of a warranted product may obligate that supplier under the Act.
If under State law the supplier is deemed to have ''adopted'' the
written affirmation of fact, promise, or undertaking, the supplier is
also obligated under the Act. Suppliers are advised to consult State
law to determine those actions and representations which may make them
co-warrantors, and therefore obligated under the warranty of the other
person or business.
16 CFR 700.5 Expressions of general policy.
(a) Under section 103(b), statements or representations of general
policy concerning customer satisfaction which are not subject to any
specific limitation need not be designated as full or limited
warranties, and are exempt from the requirements of sections 102, 103,
and 104 of the Act and rules thereunder. However, such statements
remain subject to the enforcement provisions of section 110 of the Act,
and to section 5 of the Federal Trade Commission Act, 15 U.S.C. 45.
(b) The section 103(b) exemption applies only to general policies,
not to those which are limited to specific consumer products
manufactured or sold by the supplier offering such a policy. In
addition, to qualify for an exemption under section 103(b) such policies
may not be subject to any specific limitations. For example, policies
which have an express limitation of duration or a limitation of the
amount to be refunded are not exempted. This does not preclude the
imposition of reasonable limitations based on the circumstances in each
instance a consumer seeks to invoke such an agreement. For instance, a
warrantor may refuse to honor such an expression of policy where a
consumer has used a product for 10 years without previously expressing
any dissatisfaction with the product. Such a refusal would not be a
specific limitation under this provision.
16 CFR 700.6 Designation of warranties.
(a) Section 103 of the Act provides that written warranties on
consumer products manufactured after July 4, 1975, and actually costing
the consumer more than $10, excluding tax, must be designated either
''Full (statement of duration) Warranty'' or ''Limited Warranty''.
Warrantors may include a statement of duration in a limited warranty
designation. The designation or designations should appear clearly and
conspicuously as a caption, or prominent title, clearly separated from
the text of the warranty. The full (statement of duration) warranty and
limited warranty are the exclusive designations permitted under the Act,
unless a specific exception is created by rule.
(b) Section 104(b)(4) states that ''the duties under subsection (a)
(of section 104) extend from the warrantor to each person who is a
consumer with respect to the consumer product.'' Section 101(3) defines
a consumer as ''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. * * *.'' Therefore, a full warranty may not
expressly restrict the warranty rights of a transferee during its stated
duration. However, where the duration of a full warranty is defined
solely in terms of first purchaser ownership there can be no violation
of section 104(b)(4), since the duration of the warranty expires, by
definition, at the time of transfer. No rights of a subsequent
transferee are cut off as there is no transfer of ownership ''during the
duration of (any) warranty.'' Thus, these provisions do not preclude the
offering of a full warranty with its duration determined exclusively by
the period during which the first purchaser owns the product, or uses it
in conjunction with another product. For example, an automotive battery
or muffler warranty may be designated as ''full warranty for as long as
you own your car.'' Because this type of warranty leads the consumer to
believe that proof of purchase is not needed so long as he or she owns
the product a duty to furnish documentary proof may not be reasonably
imposed on the consumer under this type of warranty. The burden is on
the warrantor to prove that a particular claimant under this type of
warranty is not the original purchaser or owner of the product.
Warrantors or their designated agents may, however, ask consumers to
state or affirm that they are the first purchaser of the product.
16 CFR 700.7 Use of warranty registration cards.
(a) Under section 104(b)(1) of the Act a warrantor offering a full
warranty may not impose on consumers any duty other than notification of
a defect as a condition of securing remedy of the defect or malfunction,
unless such additional duty can be demonstrated by the warrantor to be
reasonable. Warrantors have in the past stipulated the return of a
''warranty registration'' or similar card. By ''warranty registration
card'' the Commission means a card which must be returned by the
consumer shortly after purchase of the product and which is stipulated
or implied in the warranty to be a condition precedent to warranty
coverage and performance.
(b) A requirement that the consumer return a warranty registration
card or a similar notice as a condition of performance under a full
warranty is an unreasonable duty. Thus, a provision such as, ''This
warranty is void unless the warranty registration card is returned to
the warrantor'' is not permissible in a full warranty, nor is it
permissible to imply such a condition in a full warranty.
(c) This does not prohibit the use of such registration cards where a
warrantor suggests use of the card as one possible means of proof of the
date the product was purchased. For example, it is permissible to
provide in a full warranty that a consumer may fill out and return a
card to place on file proof of the date the product was purchased. Any
such suggestion to the consumer must include notice that failure to
return the card will not affect rights under the warranty, so long as
the consumer can show in a reasonable manner the date the product was
purchased. Nor does this interpretation prohibit a seller from
obtaining from purchasers at the time of sale information requested by
the warrantor.
16 CFR 700.8 Warrantor's decision as final.
A warrantor shall not indicate in any written warranty or service
contract either directly or indirectly that the decision of the
warrantor, service contractor, or any designated third party is final or
binding in any dispute concerning the warranty or service contract. Nor
shall a warrantor or service contractor state that it alone shall
determine what is a defect under the agreement. Such statements are
deceptive since section 110(d) of the Act gives state and federal courts
jurisdiction over suits for breach of warranty and service contract.
16 CFR 700.9 Duty to install under a full warranty.
Under section 104(a)(1) of the Act, the remedy under a full warranty
must be provided to the consumer without charge. If the warranted
product has utility only when installed, a full warranty must provide
such installation without charge regardless of whether or not the
consumer originally paid for installation by the warrantor or his agent.
However, this does not preclude the warrantor from imposing on the
consumer a duty to remove, return, or reinstall where such duty can be
demonstrated by the warrantor to meet the standard of reasonableness
under section 104(b)(1).
16 CFR 700.10 Section 102(c).
(a) Section 102(c) prohibits tying arrangements that condition
coverage under a written warranty on the consumer's use of an article or
service identified by brand, trade, or corporate name unless that
article or service is provided without charge to the consumer.
(b) Under a limited warranty that provides only for replacement of
defective parts and no portion of labor charges, section 102(c)
prohibits a condition that the consumer use only service (labor)
identified by the warrantor to install the replacement parts. A
warrantor or his designated representative may not provide parts under
the warranty in a manner which impedes or precludes the choice by the
consumer of the person or business to perform necessary labor to install
such parts.
(c) No warrantor may condition the continued validity of a warranty
on the use of only authorized repair service and/or authorized
replacement parts for non-warranty service and maintenance. For
example, provisions such as, ''This warranty is void if service is
performed by anyone other than an authorized 'ABC' dealer and all
replacement parts must be genuine 'ABC' parts,'' and the like, are
prohibited where the service or parts are not covered by the warranty.
These provisions violate the Act in two ways. First, they violate the
section 102 (c) ban against tying arrangements. Second, such provisions
are deceptive under section 110 of the Act, because a warrantor cannot,
as a matter of law, avoid liability under a written warranty where a
defect is unrelated to the use by a consumer of ''unauthorized''
articles or service. This does not preclude a warrantor from expressly
excluding liability for defects or damage caused by such
''unauthorized'' articles or service; nor does it preclude the
warrantor from denying liability where the warrantor can demonstrate
that the defect or damage was so caused.
16 CFR 700.11 Written warranty, service contract, and insurance
distinguished for purposes of compliance under the Act.
(a) The Act recognizes two types of agreements which may provide
similar coverage of consumer products, the written warranty, and the
service contract. In addition, other agreements may meet the statutory
definitions of either ''written warranty'' or ''service contract,'' but
are sold and regulated under state law as contracts of insurance. One
example is the automobile breakdown insurance policies sold in many
jurisdictions and regulated by the state as a form of casualty
insurance. The McCarran-Ferguson Act, 15 U.S.C. 1011 et seq., precludes
jurisdiction under federal law over ''the business of insurance'' to the
extent an agreement is regulated by state law as insurance. Thus, such
agreements are subject to the Magnuson-Moss Warranty Act only to the
extent they are not regulated in a particular state as the business of
insurance.
(b) ''Written warranty'' and ''service contract'' are defined in
sections 101(6) and 101(8) of the Act, respectively. A written warranty
must be ''part of the basis of the bargain.'' This means that it must be
conveyed at the time of sale of the consumer product and the consumer
must not give any consideration beyond the purchase price of the
consumer product in order to benefit from the agreement. It is not a
requirement of the Act that an agreement obligate a supplier of the
consumer product to a written warranty, but merely that it be part of
the basis of the bargain between a supplier and a consumer. This
contemplates written warranties by third-party non-suppliers.
(c) A service contract under the Act must meet the definitions of
section 101(8). An agreement which would meet the definition of written
warranty in section 101(6) (A) or (B) but for its failure to satisfy the
basis of the bargain test is a service contract. For example, an
agreement which calls for some consideration in addition to the purchase
price of the consumer product, or which is entered into at some date
after the purchase of the consumer product to which it applies, is a
service contract. An agreement which relates only to the performance of
maintenance and/or inspection services and which is not an undertaking,
promise, or affirmation with respect to a specified level of
performance, or that the product is free of defects in materials or
workmanship, is a service contract. An agreement to perform periodic
cleaning and inspection of a product over a specified period of time,
even when offered at the time of sale and without charge to the
consumer, is an example of such a service contract.
16 CFR 700.12 Effective date of 16 CFR Parts 701 and 702.
The Statement of Basis and Purpose of the final rules promulgated on
December 31, 1975, provides that Parts 701 and 702 of this chapter will
become effective one year after the date of promulgation, December 31,
1976. The Commission intends this to mean that these rules apply only
to written warranties on products manufactured after December 31, 1976.
16 CFR 700.12 PART 701 -- DISCLOSURE OF WRITTEN CONSUMER PRODUCT
WARRANTY TERMS AND CONDITIONS
Sec.
701.1 Definitions.
701.2 Scope.
701.3 Written warranty terms.
701.4 Owner registration cards.
Authority: 15 U.S.C. 2302 and 2309.
Source: 40 FR 60188, Dec. 31, 1975, unless otherwise noted.
16 CFR 701.1 Definitions.
(a) The Act means the Magnuson-Moss Warranty Federal Trade Commission
Improvement Act, 15 U.S.C. 2301, et seq.
(b) 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. Products which are purchased solely for
commercial or industrial use are excluded solely for purposes of this
part.
(c) Written warranty means:
(1) 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 a specified level of performance over a specified period of time,
or
(2) 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.
(d) Implied warranty means an implied warranty arising under State
law (as modified by sections 104(a) and 108 of the Act) in connection
with the sale by a supplier of a consumer product.
(e) Remedy means whichever of the following actions the warrantor
elects:
(1) Repair,
(2) Replacement, or
(3) 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.
(f) Supplier means any person engaged in the business of making a
consumer product directly or indirectly available to consumers.
(g) Warrantor means any supplier or other person who gives or offers
to give a written warranty.
(h) Consumer means a buyer (other than for purposes of resale or use
in the ordinary course of the buyer's business) of any consumer product,
any person to whom such product is transferred during the duration of an
implied or written warranty applicable to the product, and any other
such person who is entitled by the terms of such warranty or under
applicable State law to enforce against the warrantor the obligations of
the warranty.
(i) On the face of the warranty means:
(1) Where the warranty is a single sheet with printing on both sides
of the sheet or where the warranty is comprised of more than one sheet,
the page on which the warranty text begins;
(2) Where the warranty is included as part of a larger document, such
as a use and care manual, the page in such document on which the
warranty text begins.
16 CFR 701.2 Scope.
The regulations in this part establish requirements for warrantors
for disclosing the terms and conditions of written warranties on
consumer products actually costing the consumer more than $15.00.
16 CFR 701.3 Written warranty terms.
(a) Any warrantor warranting to a consumer by means of a written
warranty a consumer product actually costing the consumer more than
$15.00 shall clearly and conspicuously disclose in a single document in
simple and readily understood language, the following items of
information:
(1) The identity of the party or parties to whom the written warranty
is extended, if the enforceability of the written warranty is limited to
the original consumer purchaser or is otherwise limited to persons other
than every consumer owner during the term of the warranty;
(2) A clear description and identification of products, or parts, or
characteristics, or components or properties covered by and where
necessary for clarification, excluded from the warranty;
(3) A statement of what the warrantor will do in the event of a
defect, malfunction or failure to conform with the written warranty,
including the items or services the warrantor will pay for or provide,
and, where necessary for clarification, those which the warrantor will
not pay for or provide;
(4) The point in time or event on which the warranty term commences,
if different from the purchase date, and the time period or other
measurement of warranty duration;
(5) A step-by-step explanation of the procedure which the consumer
should follow in order to obtain performance of any warranty obligation,
including the persons or class of persons authorized to perform warranty
obligations. This includes the name(s) of the warrantor(s), together
with: The mailing address(es) of the warrantor(s), and/or the name or
title and the address of any employee or department of the warrantor
responsible for the performance of warranty obligations, and/or a
telephone number which consumers may use without charge to obtain
information on warranty performance;
(6) Information respecting the availability of any informal dispute
settlement mechanism elected by the warrantor in compliance with Part
703 of this subchapter;
(7) Any limitations on the duration of implied warranties, disclosed
on the face of the warranty as provided in section 108 of the Act,
accompanied by the following statement:
Some States do not allow limitations on how long an implied warranty
lasts, so the above limitation may not apply to you.
(8) Any exclusions of or limitations on relief such as incidental or
consequential damages, accompanied by the following statement, which may
be combined with the statement required in paragraph (a) (7) of this
section:
Some States do not allow the exclusion or limitation of incidental or
consequential damages, so the above limitation or exclusion may not
apply to you.
(9) A statement in the following language:
This warranty gives you specific legal rights, and you may also have
other rights which vary from State to State.
(b) Paragraphs (a) (1) through (9) of this section shall not be
applicable with respect to statements of general policy on emblems,
seals or insignias issued by third parties promising replacement or
refund if a consumer product is defective, which statements contain no
representation or assurance of the quality or performance
characteristics of the product; Provided That: (1) The disclosures
required by paragraphs (a) (1) through (9) of this section are published
by such third parties in each issue of a publication with a general
circulation, and (2) such disclosures are provided free of charge to any
consumer upon written request.
16 CFR 701.4 Owner registration cards.
When a warrantor employs any card such as an owner's registration
card, a warranty registration card, or the like, and the return of such
card is a condition precedent to warranty coverage and performance, the
warrantor shall disclose this fact in the warranty. If the return of
such card reasonably appears to be a condition precedent to warranty
coverage and performance, but is not such a condition, that fact shall
be disclosed in the warranty.
16 CFR 701.4 PART 702 -- PRE-SALE AVAILABILITY OF WRITTEN WARRANTY
TERMS
Sec.
702.1 Definitions.
702.2 Scope.
702.3 Pre-sale availability of written warranty terms.
Authority: 15 U.S.C. 2302 and 2309.
Source: 40 FR 60189, Dec. 31, 1975, unless otherwise noted.
16 CFR 702.1 Definitions.
(a) The Act means the Magnuson-Moss Warranty Federal Trade Commission
Improvement Act, 15 U.S.C. 2301, et seq.
(b) 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). Products which are purchased solely
for commercial or industrial use are excluded solely for purposes of
this part.
(c) Written warranty means --
(1) 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 a specified level of performance over a specified period of time,
or
(2) 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.
(d) Warrantor means any supplier or other person who gives or offers
to give a written warranty.
(e) Seller means any person who sells or offers for sale for purposes
other than resale or use in the ordinary course of the buyer's business
any consumer product.
(f) Supplier means any person engaged in the business of making a
consumer product directly or indirectly available to consumers.
(40 FR 60189, Dec. 31, 1975, as amended at 52 FR 7574, Mar. 12, 1987)
16 CFR 702.2 Scope.
The regulations in this part establish requirements for sellers and
warrantors for making the terms of any written warranty on a consumer
product available to the consumer prior to sale.
16 CFR 702.3 Pre-sale availability of written warranty terms.
The following requirements apply to consumer products actually
costing the consumer more than $15.00:
(a) Duties of seller. Except as provided in paragraphs (c) through
(d) of this section, the seller of a consumer product with a written
warranty shall make a text of the warranty readily available for
examination by the prospective buyer by:
(1) Displaying it in close proximity to the warranted product, or
(2) Furnishing it upon request prior to sale and placing signs
reasonably calculated to elicit the prospective buyer's attention in
prominent locations in the store or department advising such prospective
buyers of the availability of warranties upon request.
(b) Duties of the warrantor. (1) A warrantor who gives a written
warranty warranting to a consumer a consumer product actually costing
the consumer more than $15.00 shall:
(i) Provide sellers with warranty materials necessary for such
sellers to comply with the requirements set forth in paragraph (a) of
this section, by the use of one or more by the following means:
(A) Providing a copy of the written warranty with every warranted
consumer product; and/or
(B) Providing a tag, sign, sticker, label, decal or other attachment
to the product, which contains the full text of the written warranty;
and/or
(C) Printing on or otherwise attaching the text of the written
warranty to the package, carton, or other container if that package,
carton or other container is normally used for display purposes. If the
warrantor elects this option a copy of the written warranty must also
accompany the warranted product; and/or
(D) Providing a notice, sign, or poster disclosing the text of a
consumer product warranty. If the warrantor elects this option, a copy
of the written warranty must also accompany each warranted product.
(ii) Provide catalog, mail order, and door-to-door sellers with
copies of written warranties necessary for such sellers to comply with
the requirements set forth in paragraphs (c) and (d) of this section.
(2) Paragraph (a)(1) of this section shall not be applicable with
respect to statements of general policy on emblems, seals or insignias
issued by third parties promising replacement or refund if a consumer
product is defective, which statements contain no representation or
assurance of the quality or performance characteristics of the product;
provided that
(i) The disclosures required by 701.3(a) (1) through (9) of this
part are published by such third parties in each issue of a publication
with a general circulation, and
(ii) Such disclosures are provided free of charge to any consumer
upon written request.
(c) Catalog and mail order sales. (1) For purposes of this
paragraph:
(i) ''Catalog or mail order sales'', means any offer for sale, or any
solicitation for an order for a consumer product with a written
warranty, which includes instructions for ordering the product which do
not require a personal visit to the seller's establishment.
(ii) ''Close conjunction'' means on the page containing the
description of the warranted product, or on the page facing that page.
(2) Any seller who offers for sale to consumers consumer products
with written warranties by means of a catalog or mail order solicitation
shall:
(i) Clearly and conspicuously disclose in such catalog or
solicitation in close conjunction to the description of warranted
product, or in an information section of the catalog or solicitation
clearly referenced, including a page number, in close conjunction to the
description of the warranted product, either:
(A) The full text of the written warranty; or
(B) That the written warranty can be obtained free upon specific
written request, and the address where such warranty can be obtained.
If this option is elected, such seller shall promptly provide a copy of
any written warranty requested by the consumer.
(d) Door-to-door sales. (1) For purposes of this paragraph:
(i) ''Door-to-door sale'' means a sale of consumer products in which
the seller or his representative personally solicits the sale, including
those in response to or following an invitation by a buyer, and the
buyer's agreement to offer to purchase is made at a place other than the
place of business of the seller.
(ii) ''Prospective buyer'' means an individual solicited by a
door-to-door seller to buy a consumer product who indicates sufficient
interest in that consumer product or maintains sufficient contact with
the seller for the seller reasonably to conclude that the person
solicited is considering purchasing the product.
(2) Any seller who offers for sale to consumers consumer products
with written warranties by means of door-to-door sales shall, prior to
the consummation of the sale, disclose the fact that the sales
representative has copies of the warranties for the warranted products
being offered for sale, which may be inspected by the prospective buyer
at any time during the sales presentation. Such disclosure shall be
made orally and shall be included in any written materials shown to
prospective buyers.
(40 FR 60189, Dec. 31, 1975, as amended at 52 FR 7574, Mar. 12, 1987)
16 CFR 702.3 PART 703 -- INFORMAL DISPUTE SETTLEMENT PROCEDURES
Sec.
703.1 Definitions.
703.2 Duties of warrantor.
703.3 Mechanism organization.
703.4 Qualification of members.
703.5 Operation of the Mechanism.
703.6 Recordkeeping.
703.7 Audits.
703.8 Openness of records and proceedings.
Authority: 15 U.S.C. 2309 and 2310.
Source: 40 FR 60215, Dec. 31, 1975, unless otherwise noted.
16 CFR 703.1 Definitions.
(a) The Act means the Magnuson-Moss Warranty -- Federal Trade
Commission Improvement Act, 15 U.S.C. 2301, et seq.
(b) 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).
(c) Written warranty means:
(1) 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 a specified level of performance over a specified period of time,
or
(2) 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.
(d) Warrantor means any person who gives or offers to give a written
warranty which incorporates an informal dispute settlement mechanism.
(e) Mechanism means an informal dispute settlement procedure which is
incorporated into the terms of a written warranty to which any provision
of Title I of the Act applies, as provided in section 110 of the Act.
(f) Members means the person or persons within a Mechanism actually
deciding disputes.
(g) 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 a written warranty applicable to the product, and any
other person who is entitled by the terms of such warranty or under
applicable state law to enforce against the warrantor the obligations of
the warranty.
(h) On the face of the warranty means:
(1) If the warranty is a single sheet with printing on both sides of
the sheet, or if the warranty is comprised of more than one sheet, the
page on which the warranty text begins;
(2) If the warranty is included as part of a longer document, such as
a use and care manual, the page in such document on which the warranty
text begins.
16 CFR 703.2 Duties of warrantor.
(a) The warrantor shall not incorporate into the terms of a written
warranty a Mechanism that fails to comply with the requirements
contained in 703.3 through 703.8 of this part. This paragraph shall
not prohibit a warrantor from incorporating into the terms of a written
warranty the step-by-step procedure which the consumer should take in
order to obtain performance of any obligation under the warranty as
described in section 102(a) (7) of the Act and required by Part 701 of
this subchapter.
(b) The warrantor shall disclose clearly and conspicuously at least
the following information on the face of the written warranty:
(1) A statement of the availability of the informal dispute
settlement mechanism;
(2) The name and address of the Mechanism, or the name and a
telephone number of the Mechanism which consumers may use without
charge;
(3) A statement of any requirement that the consumer resort to the
Mechanism before exercising rights or seeking remedies created by Title
I of the Act; together with the disclosure that if a consumer chooses
to seek redress by pursuing rights and remedies not created by Title I
of the Act, resort to the Mechanism would not be required by any
provision of the Act; and
(4) A statement, if applicable, indicating where further information
on the Mechanism can be found in materials accompanying the product, as
provided in 703.2(c) of this section.
(c) The warrantor shall include in the written warranty or in a
separate section of materials accompanying the product, the following
information:
(1) Either (i) a form addressed to the Mechanism containing spaces
requesting the information which the Mechanism may require for prompt
resolution of warranty disputes; or (ii) a telephone number of the
Mechanism which consumers may use without charge;
(2) The name and address of the Mechanism;
(3) A brief description of Mechanism procedures;
(4) The time limits adhered to by the Mechanism; and
(5) The types of information which the Mechanism may require for
prompt resolution of warranty disputes.
(d) The warrantor shall take steps reasonably calculated to make
consumers aware of the Mechanism's existence at the time consumers
experience warranty disputes. Nothing contained in paragraphs (b), (c),
or (d) of this section shall limit the warrantor's option to encourage
consumers to seek redress directly from the warrantor as long as the
warrantor does not expressly require consumers to seek redress directly
from the warrantor. The warrantor shall proceed fairly and
expeditiously to attempt to resolve all disputes submitted directly to
the warrantor.
(e) Whenever a dispute is submitted directly to the warrantor, the
warrantor shall, within a reasonable time, decide whether, and to what
extent, it will satisfy the consumer, and inform the consumer of its
decision. In its notification to the consumer of its decision, the
warrantor shall include the information required in 703.2 (b) and (c)
of this section.
(f) The warrantor shall: (1) Respond fully and promptly to
reasonable requests by the Mechanism for information relating to
disputes;
(2) Upon notification of any decision of the Mechanism that would
require action on the part of the warrantor, immediately notify the
Mechanism whether, and to what extent, warrantor will abide by the
decision; and
(3) Perform any obligations it has agreed to.
(g) The warrantor shall act in good faith in determining whether, and
to what extent, it will abide by a Mechanism decision.
(h) The warrantor shall comply with any reasonable requirements
imposed by the Mechanism to fairly and expeditiously resolve warranty
disputes.
16 CFR 703.2 Minimum Requirements of the Mechanism
16 CFR 703.3 Mechanism organization.
(a) The Mechanism shall be funded and competently staffed at a level
sufficient to ensure fair and expeditious resolution of all disputes,
and shall not charge consumers any fee for use of the Mechanism.
(b) The warrantor and the sponsor of the Mechanism (if other than the
warrantor) shall take all steps necessary to ensure that the Mechanism,
and its members and staff, are sufficiently insulated from the warrantor
and the sponsor, so that the decisions of the members and the
performance of the staff are not influenced by either the warrantor or
the sponsor. Necessary steps shall include, at a minimum, committing
funds in advance, basing personnel decisions solely on merit, and not
assigning conflicting warrantor or sponsor duties to Mechanism staff
persons.
(c) The Mechanism shall impose any other reasonable requirements
necessary to ensure that the members and staff act fairly and
expeditiously in each dispute.
16 CFR 703.4 Qualification of members.
(a) No member deciding a dispute shall be: (1) A party to the
dispute, or an employee or agent of a party other than for purposes of
deciding disputes; or
(2) A person who is or may become a party in any legal action,
including but not limited to class actions, relating to the product or
complaint in dispute, or an employee or agent of such person other than
for purposes of deciding disputes. For purposes of this paragraph (a) a
person shall not be considered a ''party'' solely because he or she
acquires or owns an interest in a party solely for investment, and the
acquisition or ownership of an interest which is offered to the general
public shall be prima facie evidence of its acquisition or ownership
solely for investment.
(b) When one or two members are deciding a dispute, all shall be
persons having no direct involvement in the manufacture, distribution,
sale or service of any product. When three or more members are deciding
a dispute, at least two-thirds shall be persons having no direct
involvement in the manufacture, distribution, sale or service of any
product. ''Direct involvement'' shall not include acquiring or owning
an interest solely for investment, and the acquisition or ownership of
an interest which is offered to the general public shall be prima facie
evidence of its acquisition or ownership solely for investment. Nothing
contained in this section shall prevent the members from consulting with
any persons knowledgeable in the technical, commercial or other areas
relating to the product which is the subject of the dispute.
(c) Members shall be persons interested in the fair and expeditious
settlement of consumer disputes.
16 CFR 703.5 Operation of the Mechanism.
(a) The Mechanism shall establish written operating procedures which
shall include at least those items specified in paragraphs (b) through
(j) of this section. Copies of the written procedures shall be made
available to any person upon request.
(b) Upon notification of a dispute, the Mechanism shall immediately
inform both the warrantor and the consumer of receipt of the dispute.
(c) The Mechanism shall investigate, gather and organize all
information necessary for a fair and expeditious decision in each
dispute. When any evidence gathered by or submitted to the Mechanism
raises issues relating to the number of repair attempts, the length of
repair periods, the possibility of unreasonable use of the product, or
any other issues relevant in light of Title I of the Act (or rules
thereunder), including issues relating to consequential damages, or any
other remedy under the Act (or rules thereunder), the Mechanism shall
investigate these issues. When information which will or may be used in
the decision, submitted by one party, or a consultant under 703.4(b) of
this part, or any other source tends to contradict facts submitted by
the other party, the Mechanism shall clearly, accurately, and completely
disclose to both parties the contradictory information (and its source)
and shall provide both parties an opportunity to explain or rebut the
information and to submit additional materials. The Mechanism shall not
require any information not reasonably necessary to decide the dispute.
(d) If the dispute has not been settled, the Mechanism shall, as
expeditiously as possible but at least within 40 days of notification of
the dispute, except as provided in paragraph (e) of this section:
(1) Render a fair decision based on the information gathered as
described in paragraph (c) of this section, and on any information
submitted at an oral presentation which conforms to the requirements of
paragraph (f) of this section (A decision shall include any remedies
appropriate under the circumstances, including repair, replacement,
refund, reimbursement for expenses, compensation for damages, and any
other remedies available under the written warranty or the Act (or rules
thereunder); and a decision shall state a specified reasonable time for
performance);
(2) Disclose to the warrantor its decision and the reasons therefor;
(3) If the decision would require action on the part of the
warrantor, determine whether, and to what extent, warrantor will abide
by its decision; and
(4) Disclose to the consumer its decision, the reasons therefor,
warrantor's intended actions (if the decision would require action on
the part of the warrantor), and the information described in paragraph
(g) of this section. For purposes of paragraph (d) of this section a
dispute shall be deemed settled when the Mechanism has ascertained from
the consumer that:
(i) The dispute has been settled to the consumer's satisfaction; and
(ii) the settlement contains a specified reasonable time for
performance.
(e) The Mechanism may delay the performance of its duties under
paragraph (d) of this section beyond the 40 day time limit:
(1) Where the period of delay is due solely to failure of a consumer
to provide promptly his or her name and address, brand name and model
number of the product involved, and a statement as to the nature of the
defect or other complaint; or
(2) For a 7 day period in those cases where the consumer has made no
attempt to seek redress directly from the warrantor.
(f) The Mechanism may allow an oral presentation by a party to a
dispute (or a party's representative) only if: (1) Both warrantor and
consumer expressly agree to the presentation;
(2) Prior to agreement the Mechanism fully discloses to the consumer
the following information:
(i) That the presentation by either party will take place only if
both parties so agree, but that if they agree, and one party fails to
appear at the agreed upon time and place, the presentation by the other
party may still be allowed;
(ii) That the members will decide the dispute whether or not an oral
presentation is made;
(iii) The proposed date, time and place for the presentation; and
(iv) A brief description of what will occur at the presentation
including, if applicable, parties' rights to bring witnesses and/or
counsel; and
(3) Each party has the right to be present during the other party's
oral presentation. Nothing contained in this paragraph (b) of this
section shall preclude the Mechanism from allowing an oral presentation
by one party, if the other party fails to appear at the agreed upon time
and place, as long as all of the requirements of this paragraph have
been satisfied.
(g) The Mechanism shall inform the consumer, at the time of
disclosure required in paragraph (d) of this section that:
(1) If he or she is dissatisfied with its decision or warrantor's
intended actions, or eventual performance, legal remedies, including use
of small claims court, may be pursued;
(2) The Mechanism's decision is admissible in evidence as provided in
section 110(a) (3) of the Act; and
(3) The consumer may obtain, at reasonable cost, copies of all
Mechanism records relating to the consumer's dispute.
(h) If the warrantor has agreed to perform any obligations, either as
part of a settlement agreed to after notification to the Mechanism of
the dispute or as a result of a decision under paragraph (d) of this
section, the Mechanism shall ascertain from the consumer within 10
working days of the date for performance whether performance has
occurred.
(i) A requirement that a consumer resort to the Mechanism prior to
commencement of an action under section 110(d) of the Act shall be
satisfied 40 days after notification to the Mechanism of the dispute or
when the Mechanism completes all of its duties under paragraph (d) of
this section, whichever occurs sooner. Except that, if the Mechanism
delays performance of its paragraph (d) of this section duties as
allowed by paragraph (e) of this section, the requirement that the
consumer initially resort to the Mechanism shall not be satisfied until
the period of delay allowed by paragraph (e) of this section has ended.
(j) Decisions of the Mechanism shall not be legally binding on any
person. However, the warrantor shall act in good faith, as provided in
703.2(g) of this part. In any civil action arising out of a warranty
obligation and relating to a matter considered by the Mechanism, any
decision of the Mechanism shall be admissible in evidence, as provided
in section 110(a) (3) of the Act.
16 CFR 703.6 Recordkeeping.
(a) The Mechanism shall maintain records on each dispute referred to
it which shall include:
(1) Name, address and telephone number of the consumer;
(2) Name, address, telephone number and contact person of the
warrantor;
(3) Brand name and model number of the product involved;
(4) The date of receipt of the dispute and the date of disclosure to
the consumer of the decision;
(5) All letters or other written documents submitted by either party;
(6) All other evidence collected by the Mechanism relating to the
dispute, including summaries of relevant and material portions of
telephone calls and meetings between the Mechanism and any other person
(including consultants described in 703.4(b) of this part);
(7) A summary of any relevant and material information presented by
either party at an oral presentation;
(8) The decision of the members including information as to date,
time and place of meeting, and the identity of members voting; or
information on any other resolution;
(9) A copy of the disclosure to the parties of the decision;
(10) A statement of the warrantor's intended action(s);
(11) Copies of follow-up letters (or summaries of relevant and
material portions of follow-up telephone calls) to the consumer, and
responses thereto; and
(12) Any other documents and communications (or summaries of relevant
and material portions of oral communications) relating to the dispute.
(b) The Mechanism shall maintain an index of each warrantor's
disputes grouped under brand name and sub-grouped under product model.
(c) The Mechanism shall maintain an index for each warrantor as will
show:
(1) All disputes in which the warrantor has promised some performance
(either by settlement or in response to a Mechanism decision) and has
failed to comply; and
(2) All disputes in which the warrantor has refused to abide by a
Mechanism decision.
(d) The Mechanism shall maintain an index as will show all disputes
delayed beyond 40 days.
(e) The Mechanism shall compile semi-annually and maintain statistics
which show the number and percent of disputes in each of the following
categories:
(1) Resolved by staff of the Mechanism and warrantor has complied;
(2) Resolved by staff of the Mechanism, time for compliance has
occurred, and warrantor has not complied;
(3) Resolved by staff of the Mechanism and time for compliance has
not yet occurred;
(4) Decided by members and warrantor has complied;
(5) Decided by members, time for compliance has occurred, and
warrantor has not complied;
(6) Decided by members and time for compliance has not yet occurred;
(7) Decided by members adverse to the consumer;
(8) No jurisdiction;
(9) Decision delayed beyond 40 days under 703.5(e)(1) of this part;
(10) Decision delayed beyond 40 days under 703.5(e)(2) of this part;
(11) Decision delayed beyond 40 days for any other reason; and
(12) Pending decision.
(f) The Mechanism shall retain all records specified in paragraphs
(a) through (e) of this section for at least 4 years after final
disposition of the dispute.
16 CFR 703.7 Audits.
(a) The Mechanism shall have an audit conducted at least annually, to
determine whether the Mechanism and its implementation are in compliance
with this part. All records of the Mechanism required to be kept under
703.6 of this part shall be available for audit.
(b) Each audit provided for in paragraph (a) of this section shall
include at a minimum the following:
(1) Evaluation of warrantors' efforts to make consumers aware of the
Mechanism's existence as required in 703.2(d) of this part;
(2) Review of the indexes maintained pursuant to 703.6 (b), (c), and
(d) of this part; and
(3) Analysis of a random sample of disputes handled by the Mechanism
to determine the following:
(i) Adequacy of the Mechanism's complaint and other forms,
investigation, mediation and follow-up efforts, and other aspects of
complaint handling; and
(ii) Accuracy of the Mechanism's statistical compilations under
703.6(e) of this part. (For purposes of this subparagraph ''analysis''
shall include oral or written contact with the consumers involved in
each of the disputes in the random sample.)
(c) A report of each audit under this section shall be submitted to
the Federal Trade Commission, and shall be made available to any person
at reasonable cost. The Mechanism may direct its auditor to delete
names of parties to disputes, and identity of products involved, from
the audit report.
(d) Auditors shall be selected by the Mechanism. No auditor may be
involved with the Mechanism as a warrantor, sponsor or member, or
employee or agent thereof, other than for purposes of the audit.
16 CFR 703.8 Openness of records and proceedings.
(a) The statistical summaries specified in 703.6(e) of this part
shall be available to any person for inspection and copying.
(b) Except as provided under paragraphs (a) and (e) of this section,
and paragraph (c) of 703.7 of this part, all records of the Mechanism
may be kept confidential, or made available only on such terms and
conditions, or in such form, as the Mechanism shall permit.
(c) The policy of the Mechanism with respect to records made
available at the Mechanism's option shall be set out in the procedures
under 703.5(a) of this part; the policy shall be applied uniformly to
all requests for access to or copies of such records.
(d) Meetings of the members to hear and decide disputes shall be open
to observers on reasonable and nondiscriminatory terms. The identity of
the parties and products involved in disputes need not be disclosed at
meetings.
(e) Upon request the Mechanism shall provide to either party to a
dispute:
(1) Access to all records relating to the dispute; and
(2) Copies of any records relating to the dispute, at reasonable
cost.
(f) The Mechanism shall make available to any person upon request,
information relating to the qualifications of Mechanism staff and
members.
16 CFR 703.8 SUBCHAPTER H -- RULES, REGULATIONS, STATEMENTS AND INTERPRETATIONS UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976
16 CFR 703.8 PART 800 -- TRANSITIONAL RULE
16 CFR 800.1 Transitional rule.
(a) This rule is promulgated under the authority of subsection
(d)(2)(C) of section 201 of the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, Pub. L. 94-435, 15 U.S.C. sec. 18A, hereinafter referred
to as ''this section.'' References to specific subsections refer to
subsections thereof.
(b) An acquisition shall be exempt from all requirements of this
section if made on or after February 27, 1977, and before the effective
date of the notification and report form and rules promulgated by the
Federal Trade Commission under the authority of this section
(hereinafter referred to as the ''form'' and ''rules'' respectively).
Such date shall be identified in the Federal Register at least 30 days
in advance.
(c)(1) An acquisition made on or after the effective date of the form
and rules shall be exempt from the waiting period required by paragraph
(a) of this section, except as provided by paragraph (c)(2) of this
section, if:
(i) All persons required by this section and the rules to file
notification with respect to such acquisition (or in the case of an
acquisition described by 801.30(a) of the rules, the acquiring person)
file notification with both the Federal Trade Commission and the
Assistant Attorney General, in the manner prescribed by the rules, on
the effective date of the form and rules. Notification received by the
Federal Trade Commission and Assistant Attorney General prior to the
effective date of the rules shall be deemed to be filed on the effective
date of the form and rules;
(ii) Neither the Federal Trade Commission nor the Assistant Attorney
General requests additional information or documentary material,
pursuant to subsection (e) and the rules, from any person filing
notification with respect to such acquisition, prior to the consummation
of the acquisition, and
(iii) The acquisition is consummated no later than 30 (or, in the
case of cash tender offers, as defined in the rules, 15) calendar days
after the effective date of the form and rules.
(2) In the event of a request for additional information or
documentary material, the waiting period normally deriving from such a
request, pursuant to paragraph (e) of this section and the rules, shall
take effect at the time of such request, and shall expire, or be
terminated, or terminated, or extended thereafter in accordance with
this section and the rules.
(d) All acquisitions otherwise subject to the requirements of this
section, and not falling within paragraphs (b) or (c) of this section,
shall be subject to the requirements of this section and the rules.
(e) In the case of an acquisition described by 801.30 of this
chapter and falling within paragraph (c) of this section, persons other
than the acquiring person shall file such notification as is required by
this section and the rules.
(Sec. 201(d)(2)(C), Pub. L. 94-435; 15 U.S.C. sec. 18A)
(43 FR 27517, June 26, 1978)
16 CFR 800.1 PART 801 -- COVERAGE RULES
Sec.
801.1 Definitions.
801.2 Acquiring and acquired persons.
801.3 Activities in or affecting commerce.
801.4 Secondary acquisitions.
801.10 Value of voting securities and assets to be acquired.
801.11 Annual net sales and total assets.
801.12 Calculating percentage of voting securities or assets.
801.13 Voting securities or assets to be held as a result of
acquisition.
801.14 Aggregate total amount of voting securities and assets.
801.15 Aggregation of voting securities and assets the acquisition of
which was exempt.
801.20 Acquisitions subsequent to exceeding threshold.
801.21 Securities and cash not considered assets when acquired.
801.30 Tender offers and acquisitions of voting securities from third
parties.
801.31 Acquisitions of voting securities by offerees in tender
offers.
801.32 Conversion and acquisition.
801.33 Consummation of an acquisition by acceptance of tendered
shares of payment.
801.40 Formation of joint venture or other corporations.
801.90 Transactions or devices for avoidance.
Authority: Sec. 7A(d), Clayton Act, 15 U.S.C. 18A(d), as added by
sec. 201, Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub.
L. 94-435, 90 Stat. 1390.
Source: 43 FR 33537, July 31, 1978, unless otherwise noted.
16 CFR 801.1 Definitions.
When used in the act and these rules --
(a)(1) Person. Except as provided in paragraphs (a) and (b) of
801.12, the term ''person'' means an ultimate parent entity and all
entities which it controls directly or indirectly.
Examples: 1. In the case of corporations, ''person'' encompasses the
entire corporate structure, including all parent corporations,
subsidiaries and divisions (whether consolidated or unconsolidated, and
whether incorporated or unincorporated), and all related corporations
under common control with any of the foregoing.
2. Corporations A and B are each directly controlled by the same
foreign state. They are not included within the same ''person,''
although the corporations are under common control, because the foreign
state which controls them is not an ''entity'' (see 801.1(a)(2)).
Corporations A and B*are the ultimate parent entities within persons
''A'', and ''B'' which include any entities each may control.
3. Since a natural person is an entity (see 801.1(a)(2)), a natural
person and a corporation which he or she controls are part of the same
''person.'' If that natural person controls two otherwise separate
corporations, both corporations and the natural person are all part of
the same ''person.''
4. See the example to 801.2(a).
(2) Entity. The term ''entity'' means any natural person,
corporation, company, partnership, joint venture, association,
joint-stock company, trust, estate of a deceased natural person,
foundation, fund, institution, society, union, or club, whether
incorporated or not, wherever located and of whatever citizenship, or
any receiver, trustee in bankruptcy or similar official or any
liquidating agent for any of the foregoing, in his or her capacity as
such; or any joint venture or other corporation which has not been
formed but the acquisition of the voting securities or other interest in
which, if already formed, would require notification under the act and
these rules: Provided, however, That the term ''entity'' shall not
include any foreign state, foreign government, or agency thereof (other
than a corporation engaged in commerce), nor the United States, any of
the States thereof, or any political subdivision or agency of either
(other than a corporation engaged in commerce).
(3) Ultimate parent entity. The term ''ultimate parent entity''
means an entity which is not controlled by any other entity.
Examples: 1. If corporation A holds 100 percent of the stock of
subsidiary B, and B holds 75 percent of the stock of its subsidiary C,
corporation A is the ultimate parent entity, since it controls
subsidiary B directly and subsidiary C indirectly, and since it is the
entity within the person which is not controlled by any other entity.
2. If corporation A is controlled by natural person D, natural person
D is the ultimate parent entity.
3. P and Q are the ultimate parent entities within persons ''P'' and
''Q.'' If P and Q each own 50 percent of the voting securities of R,
then P and Q are both ultimate parents of R, and R is part of both
persons ''P'' and ''Q.''
(b) Control. The term ''control'' (as used in the terms
''control(s),'' ''controlling,'' ''controlled by'' and ''under common
control with'') means:
(1) Either. (i) Holding 50 percent or more of the outstanding voting
securities of an issuer or
(ii) In the case of an entity that has no outstanding voting
securities, having the right to 50 percent or more of the profits of the
entity, or having the right in the event of dissolution to 50 percent or
more of the assets of the entity; or
(2) Having the contractual power presently to designate 50 percent or
more of the directors of a corporation, or in the case of unincorporated
entities, of individuals exercising similar functions.
Examples: 1. Corporation A holds 100 percent of the stock of
corporation B, 75 percent of the stock of corporation C, 50 percent of
the stock of corporation D, and 30 percent of the stock of corporation
E. Corporation A controls corporations B, C and D, but not corporation
E. Corporation A is the ultimate parent entity of a person comprised of
corporations A, B, C and D, and each of these corporations (but not
corporation E) is ''included within the person.''
2. A statutory limited partnership agreement provides as follows:
The general partner ''A'' is entitled to 50 percent of the partnership
profits, ''B'' is entitled to 40 percent of the profits and ''C'' is
entitled to 10 percent of the profits. Upon dissolution, ''B'' is
entitled to 75 percent of the partnership assets and ''C'' is entitled
to 25 percent of those assets. All limited and general partners are
entitled to vote on the following matters: the dissolution of the
partnership, the transfer of assets not in the ordinary course of
business, any change in the nature of the business, and the removal of
the general partner. The interest of each partner is evidenced by an
ownership certificate that is transferable under the terms of the
partnership agreement and is subject to the Securities Act of 1933. For
purposes of these rules, control of this partnership is determined by
subparagraph (1)(ii) of this paragraph. Although partnership interests
may be securities and have some voting rights attached to them, they do
not entitle the owner of that interest to vote for a corporate
''director'' or ''an individual exercising similar functions'' as
required by 801.1(f)(1) below. Thus control of a partnership is not
determined on the basis of either subparagraph (1)(i) or (2) of this
paragraph. Consequently, ''A'' is deemed to control the partnership
because of its right to 50 percent of the partnership's profits. ''B''
is also deemed to control the partnership because it is entitled to 75
percent of the partnership's assets upon dissolution.
3. ''A'' is a nonprofit charitable foundation that has formed a
partnership joint venture with ''B,'' a nonprofit university, to
establish C, a nonprofit hospital corporation that does not issue voting
securities. Pursuant to its charter all surplus revenue from the
hospital in excess of expenses and necessary capital investments is to
be disbursed evenly to ''A'' and ''B.'' In the event of dissolution of
the hospital corporation, the assets of the hospital are to be
contributed to a local charitable medical facility then in need of
financial assistance. Notwithstanding the hospital's designation of its
disbursement funds as surplus rather than profits to maintain its
charitable image, ''A'' and ''B'' would each be deemed to control C,
pursuant to 801.1(b)(1)(ii), because each is entitled to 50 percent of
the excess of the hospital's revenues over expenditures.
4. ''A'' is entitled to 50 percent of the profits of partnership B
and 50 percent of the profits of partnership C. B and C form a
partnership E with ''D'' in which each entity has a right to one-third
of the profits. When E acquires company X, ''A'' must report the
transaction (assuming it is otherwise reportable). Pursuant to
801.1(b)(1)(ii), E is deemed to be controlled by ''A,'' even though
''A'' ultimately will receive only one-third of the profits of E.
Because B and C are considered as part of ''A,'' the rules attribute all
profits to which B and C are entitled (two-thirds of the profits of E in
this example) to ''A.'
(c) Hold. (1) Subject to the provisions of paragraphs (c)(2) through
(8) of this section, the term ''hold'' (as used in the terms
''hold(s),'' ''holding,'' ''holder'' and ''held'') means beneficial
ownership, whether direct, or indirect through fiduciaries, agents,
controlled entities or other means.
Example: If a stockbroker has stock in ''street name'' for the
account of a natural person, only the natural person (who has beneficial
ownership) and not the stockbroker (which may have record title)
''holds'' that stock.
(2) The holdings of spouses and their minor children shall be
holdings of each of them.
(3) Except for a common trust fund or collective investment fund
within the meaning of 12 CFR 9.18(a) (both of which are hereafter
referred to in this paragraph as ''collective investment funds''), and
any revocable trust or an irrevocable trust in which the settlor retains
a reversionary interest in the corpus, a trust, including a pension
trust, shall hold all assets and voting securities constituting the
corpus of the trust.
Example: Under this paragraph the trust -- and not the trustee --
''holds'' the voting securities and assets constituting the corpus of
any irrevocable trust (in which the settlor retains no reversionary
interest, and which is not a collective investment fund). Therefore,
the trustee need not aggregate its holdings of any other assets or
voting securities with the holdings of the trust for purposes of
determining whether the requirements of the act apply to an acquisition
by the trust. Similarly, the trustee, if making an acquisition for its
own account, need not aggregate its holdings with those of any trusts
for which it serves as trustee. (However, the trustee must aggregate
any collective investment funds which it administers; see paragraph
(c)(6) of this section.)
(4) The assets and voting securities constituting the corpus of a
revocable trust or the corpus of an irrevocable trust in which the
settlor(s) retain(s) a reversionary interest in the corpus shall be
holdings of the settlor(s) of such trust.
(5) Except as provided in paragraph (c)(4) of this section,
beneficiaries of a trust, including a pension trust or a collective
investment fund, shall not hold any assets or voting securities
constituting the corpus of such trust.
(6) A bank or trust company which administers one or more collective
investment funds shall hold all assets and voting securities
constituting the corpus of each such fund.
Example: Suppose A, a bank or trust company, administers collective
investment funds W, X, Y and Z. Whenever person ''A'' is to make an
acquisition, whether of not on behalf of one or more of the funds, it
must aggregate the holdings of W, X, Y and Z in determining whether the
requirements of the act apply to the acquisition.
(7) An insurance company shall hold all assets and voting securities
held for the benefit of any general account of, or any separate account
administered by, such company.
(8) A person holds all assets and voting securities held by the
entities included within it; in addition to its own holding, an entity
holds all assets and voting securities held by the entities which it
controls directly or indirectly.
(d) Affiliate. An entity is an affiliate of a person if it is
controlled, directly or indirectly, by the ultimate parent entity of
such person.
(e)(1)(i) United States person. The term ''United States person''
means a person the ultimate parent entity of which --
(A) Is incorporated in the United States, is organized under the laws
of the United States or has its principal offices within the United
States; or
(B) If a natural person, either is a citizen of the United States or
resides in the United States.
(ii) United States issuer. The term ''United States issuer'' means
an issuer which is incorporated in the United States, is organized under
the laws of the United States or has its principal offices within the
United States.
(2)(i) Foreign person. The term ''foreign person'' means a person
the ultimate parent entity of which --
(A) Is not incorporated in the United States, is not organized under
the laws of the United States and does not have its principal offices
within the United States; or
(B) If a natural person, neither is a citizen of the United States
nor resides in the United States.
(ii) Foreign issuer. The term ''foreign issuer'' means an issuer
which is not incorporated in the United States, is not organized under
the laws of the United States and does not have its principal offices
within the United States.
(f)(1) Voting securities. The term ''voting securities'' means any
securities which at present or upon conversion entitle the owner or
holder thereof to vote for the election of directors of the issuer, or
of an entity included within the same person as the issuer, or, with
respect to unincorporated entities, individuals exercising similar
functions.
(2) Convertible voting security. The term ''convertible voting
security'' means a voting security which presently does not entitle its
owner or holder to vote for directors of any entity.
(3) Conversion. The term ''conversion'' means the exercise of a
right inherent in the ownership or holding of particular voting
securities to exchange such securities for securities which presently
entitle the owner or holder to vote for directors of the issuer or of
any entity included within the same person as the issuer.
Examples: 1. The acquisition of convertible debentures which are
convertible into common stock is an acquisition of ''voting
securities.'' However, 802.31 exempts the acquisition of such
securities from the requirements of the act, provided that they have no
present voting rights.
2. Options and warrants are also ''voting securities'' for purposes
of the act, because they can be exchanged for securities with present
voting rights. Section 802.31 exempts the acquisition of options and
warrants as well, since they do not themselves have present voting
rights and hence are convertible voting securities. Notification may be
required prior to exercising options and warrants, however.
3. Assume that X has issued preferred shares which presently entitle
the holder to vote for directors of X, and that these shares are
convertible into common shares of X. Because the preferred shares
confer a present right to vote for dirctors of X, they are ''voting
securities.'' (See 801.1(f)(1).) They are not ''convertible voting
securities,'' however, because the definition of that term excludes
securities which confer a present right to vote for directors of any
entity. (See 801.1(f)(2).) Thus, an acquisition of these preferred
shares issued by X would not be exempt as an acquisition of
''convertible voting securities.'' (See 802.31.) If the criteria in
section 7A(a) are met, an acquisition of X's preferred shares would be
subject to the reporting and waiting period requirements of the Act.
Moreover, the conversion of these preferred shares into common shares of
X would also be potentially reportable, since the holder would be
exercising a right to exchange particular voting securities for
different voting securities having a present right to vote for directors
of the issuer. Because this exchange would be a ''conversion,'' 801.30
would apply. (See 801.30(a)(6).)
(g)(1) Tender offer. The term ''tender offer'' means any offer to
purchase voting securities which is a tender offer within the meaning of
section 14 of the Securities Exchange Act of 1934, 15 U.S.C. 78n.
(2) Cash tender offer. The term ''cash tender offer'' means a tender
offer in which cash is the only consideration offered to the holders of
the voting securities to be acquired.
(3) Non-cash tender offer. The term ''non-cash tender offer'' means
any tender offer which is not a cash tender offer.
(h) Notification threshold. The term ''notification threshold''
means:
(1) Fifteen percent of the outstanding voting securities of an
issuer, or an aggregate total amount of voting securities and assets of
the acquired person valued in excess of $15 million;
(2) Fifteen percent of the outstanding voting securities of an
issuer, if valued in excess of $15 million;
(3) Twenty-five percent of the outstanding voting securities of an
issuer; or
(4) Fifty percent of the outstanding voting securities of an issuer.
(i)(1) Solely for the purpose of investment. Voting securities are
held or acquired ''solely for the purpose of investment'' if the person
holding or acquiring such voting securities has no intention of
participating in the formulation, determination, or direction of the
basic business decisions of the issuer.
Example: If a person holds stock ''solely for the purpose of
investment'' and thereafter decides to influence or participate in
management of the issuer of that stock, the stock in no longer held
''solely for the purpose of investment.''
(2) Investment assets. The term ''investment assets'' means cash,
deposits in financial institutions, other money market instruments, and
instruments evidencing government obligations.
(j) Engaged in manufacturing. A person is ''engaged in
manufacturing'' if it produces and derives annual sales or revenues in
excess of $1 million from products within industries 2000-3999 as coded
in the Standard Industrial Classification Manual (1972 edition)
published by the Executive Office of the President, Office of Management
and Budget.
(k) United States. The term ''United States'' shall include the
several States, the territories, possessions, and commonwealths of the
United States, and the District of Columbia.
(l) Commerce. The term ''commerce'' shall have the meaning ascribed
to that term in section 1 of the Clayton Act, 15 U.S.C. 12, or section 4
of the Federal Trade Commission Act, 15 U.S.C. 44.
(m) The act. References to ''the act'' refer to section 7A of the
Clayton Act, 15 U.S.C. 18A, as added by section 201 of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. 94-435,
90 Stat. 1390. References to '' section 7A()'' refer to subsections
thereof. References to ''this section'' refer to the section of these
rules in which the term appears.
(43 FR 33537, July 31, 1978, as amended at 48 FR 34429, July 29,
1983; 52 FR 20063, May 29, 1987)
*Throughout the examples to the rules, persons are designated (''A'',
''B,'' etc.) with quotation marks, and entities are designated (A, B,
etc.) without quotation marks.
16 CFR 801.2 Acquiring and acquired persons.
(a) Any person which, as a result of an acquisition, will hold voting
securities or assets, either directly or indirectly, or through
fiduciaries, agents, or other entities acting on behalf of such person,
is an acquiring person.
Example: Assume that corporations A and B, which are each ultimate
parent entitles of their respective ''persons,'' created a joint
venture, corporation V, and that each holds half of V's shares.
Therefore, A and B each control V (see 801.1(b)), and V is included
within two persons, ''A'' and ''B.'' Under this section, if V is to
acquire corporation X, both ''A'' and ''B'' are acquiring persons.
(b) Except as provided in paragraphs (a) and (b) of 801.12, the
person(s) within which the entity whose assets or voting securities are
being acquired is included, is an acquired person.
Examples: 1. Assume that person ''Q'' will acquire voting securities
of corporation X held by ''P'' and that X is not included within person
''P.'' Under this section, the acquired person is the person within
which X is included, and is not ''P.''
2. In the example to paragraph (a) of this section, if V were to be
acquired by X, then both ''A'' and ''B'' would be acquired persons.
(c) For purposes of the act and these rules, a person may be an
acquiring person and an acquired person with respect to separate
acquisitions which comprise a single transaction.
(d)(1)(i) Mergers and consolidations are transactions subject to the
act and shall be treated as acquisitions of voting securities.
(ii) In a merger, the person which, after consummation, will include
the corporation in existence prior to consummation which is designated
as the surviving corporation in the plan, agreement, or certificate of
merger required to be filed with State authorities to effectuate the
transaction shall be deemed to have made an acquisition of voting
securities.
(2)(i) Any person party to a merger or consolidation is an acquiring
person if, as a result of the transaction, such person will hold any
assets or voting securities which it did not hold prior to the
transaction.
(ii) Any person party to a merger or consolidation is an acquired
person if, as a result of the transaction, the assets or voting
securities of any entity included within such person will be held by any
other person.
(iii) All persons party to a transaction as a result of which all
parties will lose their separate pre-acquisition identities shall be
both acquiring and acquired persons.
Examples: 1. Corporation A (the ultimate parent entity included
within person ''A'') proposes to acquire Y, a wholly-owned subsidiary of
B (the ultimate parent entity included within person ''B''). The
transaction is to be carried out by merging Y into X, a wholly-owned
subsidiary of A, with X surviving, and by distributing the assets of X
to B, the only shareholder of Y. The assets of X consist solely of cash
and the voting securities of C, an entity unrelated to ''A'' or ''B''.
Since X is designated the surviving corporation in the plan or agreement
of merger or consolidation and since X will be included in ''A'' after
consummation of the transaction, ''A'' will be deemed to have made an
acquisition of voting securities. In this acquisition, ''A'' is an
acquiring person because it will hold assets or voting securities it did
not hold prior to the transaction, and ''B'' is an acquired person
because the assets or the voting securities of an entity previously
included within it will be held by A as a result of the acquisition. B
will hold the cash and voting securities of C as a result of the
transaction, but since 801.21 applies, this acquisition is not
reportable. ''A'' is therefore an acquiring person only, and ''B'' is
an acquired person only. ''B'' may, however, have a separate reporting
obligation as an acquiring person in a separate transaction involving
the voting securities of C.
2. In the above example, suppose the consideration for Y consists of
$8 million worth of the voting securities of A, constituting less than
15% of A's outstanding voting securities. With regard to the transfer
of this consideration, ''B'' is an acquiring person because it will hold
voting securities it did not previously hold, and ''A'' is an acquired
person because its voting securities will be held by B. Since these
voting securities are worth less than $15 million and constitute less
than 15% of the outstanding voting securities of A, however, the
acquisition of these securities is not reportable. ''A'' will therefore
report as an acquiring person only and ''B'' as an acquired person only.
3. In the above example, suppose the consideration for Y is 50% of
the voting securities of Z, a wholly-owned subsidiary of A which,
together with all entities it controls, has annual net sales and total
assets of less then $25 million. Suppose also that the value of these
securities is less than $15 million. Since the acquisition of the
voting securities of Z is exempt under the minimum dollar value
exemption in 802.20, ''A'' will report in this transaction as an
acquiring person only and ''B'' as an acquired person only.
4. In the above example, suppose that, as consideration for Y, A
transfers to B a manufacturing plant valued at $16 million. ''B'' is
thus an acquiring person and ''A'' an acquired person in a reportable
acquisition of assets.''A'' and ''B'' will each report as both an
acquiring and an acquired person in this transaction because each
occupies each role in a reportable acquisition.
5. Corporations A (the ultimate parent entity in person ''A'') and B
(the ultimate parent entity in person ''B'') propose to consolidate into
C, a newly formed corporation. All shareholders of A and B will receive
shares of C, and both A and B will lose their separate pre-acquisition
identities. ''A'' and ''B'' are both acquiring and acquired persons
because they are parties to a transaction in which all parties lose
their separate pre-acquisition identities.
(e) Whenever voting securities or assets are to be acquired from an
acquiring person in connection with an acquisition, the acquisition of
voting securities or assets shall be separately subject to the act.
(43 FR 33537, July 31, 1978, as amended at 48 FR 34431, July 29,
1983)
16 CFR 801.3 Activities in or affecting commerce.
Section 7A(a)(1) is satisfied if any entity included within the
acquiring person, or any entity included within the acquired person, is
engaged in commerce or in any activity affecting commerce.
Examples: 1. A foreign subsidiary of a U.S. corporation seeks to
acquire a foreign business. The acquiring person includes the U.S.
parent corporation. If the U.S. corporation, or the foreign subsidiary,
or any entity controlled by either one of them, is engaged in commerce
or in any activity affecting commerce, section 7A(a)(1) is satisfied.
Note, however, that 802.50-802.52 may exempt certain acquisitions of
foreign businesses or assets.
2. Even if none of the entities within the acquiring person is
engaged in commerce or in any activity affecting commerce, the
acquisition nevertheless satisfies section 7A(a)(1) if any entity
included within the acquired person is so engaged.
(43 FR 33537, July 31, 1978; 43 FR 36054, Aug. 15, 1978)
16 CFR 801.4 Secondary acquisitions.
(a) Whenever as a result of an acquisition (the ''primary
acquisition'') an acquiring person will obtain control of an issuer
which holds voting securities of another issuer which it does not
control, then the acquisition of the other issuer's voting securities is
a secondary acquisition and is separately subject to the act and these
rules.
(b) Exemptions. (1) No secondary acquisition shall be exempt from
the requirements of the act solely because the related primary
acquisition is exempt from the requirements of the act.
(2) A secondary acquisition may itself be exempt from the
requirements of the act under section 7A(c) or these rules.
Examples: 1. Assume that acquiring person ''A'' proposes to acquire
all the voting securities of corporation B. This section provides that
the acquisition of voting securities of issuers held but not controlled
by B or by any entity which B controls are secondary acquisitions by
''A.'' Thus, if B holds more than $15 million of the voting securities
of corporation X (but does not control X), and ''A'' and ''X'' satisfy
sections 7A (a)(1) and (a)(2), ''A'' must file notification separately
with respect to its secondary acquisition of voting securities of X.
''X'' must file notification within fifteen days (or in the case of a
cash tender offer, 10 days) after ''A'' files, pursuant to 801.30.
2. If in the previous example ''A'' acquires only 50 percent of the
voting securities of B, the result would remain the same. Since ''A''
would be acquiring control of B, all of B's holdings in X would be
attributable to ''A.''
3. In the previous examples, if ''A's'' acquisition of the voting
securities of B is exempt, ''A'' may still be required to file
notification with respect to its secondary acquisition of the voting
securities of X, unless that acquisition is itself exempt.
4. In the previous examples, assume A's acquisition of B is
accomplished by merging B into A's subsidiary, S, and S is designated
the surviving corporation. B's voting securities are cancelled, and B's
shareholders are to receive cash in return. Since S is designated the
surviving corporation and A will control S and also hold assets or
voting securities it did not hold previously, ''A'' is an acquiring
person in an acquisition of voting securities by virtue of 801.2
(d)(1)(ii) and (d)(2)(i). A will be deemed to have acquired control of
B, and A's resulting acquisition of the voting securities of X is a
secondary acquisition. Since cash, the only consideration paid for the
voting securities of B, is not considered an asset of the person from
which it is acquired, by virtue of 801.2(d)(2) ''A'' is an acquiring
person only. The acquisition of the minority holding of B in X is
therefore a secondary acquisition by ''A,'' but since ''B'' is an
acquired person only, ''B'' is not deemed to make any secondary
acquisition in this transaction.
5. In example 4 above, suppose the consideration paid by A for the
acquisition of B is $20 million worth of the voting securities of A. By
virtue of 801.2(d)(2), ''A'' and ''B'' are each both acquiring and
acquired persons. A will still be deemed to have acquired control of B,
and therefore the resulting acquisition of the voting securities of X is
a secondary acquisition. Although ''B'' is now also an acquiring
person, unless B gains control of A in the transaction, B still makes no
secondary acquisitions of stock held by A. If the consideration paid by
A is the voting securities of one of A's subsidiaries and B thereby
gains control of that subsidiary, B will make secondary acquisitions of
any minority holdings of that subsidiary.
6. Assume that A and B propose through consolidation to create a new
corporation, C, and that both A and B will lose their corporate
identities as a result. Since no participating corporation in existence
prior to consummation is the designated surviving corporation, ''A'' and
''B'' are each both acquiring and acquired persons by virtue of
801.2(d)(2)(iii). The acquisition of the minority holdings of entities
within each are therefore potential secondary acquisitions by the other.
(c) Where the primary acquisition is --
(1) A cash tender offer, the waiting period procedures established
for cash tender offers pursuant to sections 7A(a) and 7A(e) of the act
shall be applicable to both the primary acquisition and the secondary
acquisition; (2) a non-cash tender offer, the waiting period procedures
established for tender offers pursuant to section 7A(e)(2) of the act
shall be applicable to both the primary acquisition and the secondary
acquisition.
(43 FR 33537, July 31, 1978, as amended at 48 FR 34432, July 29,
1983; 52 FR 7080, Mar. 6, 1987)
16 CFR 801.10 Value of voting securities and assets to be acquired.
Except as provided in 801.13, the value of voting securities and
assets to be acquired shall be determined as follows:
(a) Voting securities. (1) If the security is traded on a national
securities exchange or is authorized to be quoted in an interdealer
quotation system of a national securities association registered with
the U.S. Securities and Exchange Commission --
(i) And the acquisition price has been determined, the value shall be
the market price or the acquisition price, whichever is greater; or if
(ii) The acquisition price has not been determined, the value shall
be the market price.
(2) If paragraph (a)(1) of this section is inapplicable --
(i) But the acquisition price has been determined, the value shall be
the acquisition price; or if
(ii) The acquisition price has not been determined, the value shall
be the fair market value.
(b) Assets. The value of assets to be acquired shall be the fair
market value of the assets, or, if determined and greater than the fair
market value, the acquisition price.
(c) For purposes of this section and 801.13(a)(2):
(1) Market price. (i) For acquisitions subject to 801.30, the
market price shall be the lowest closing quotation, or, in an
interdealer quotation system, the lowest closing bid price, within the
45 calendar days prior to the receipt of the notice required by
803.5(a) or prior to the consummation of the acquisition.
(ii) For acquisitions not subject to 801.30, the market price shall
be the lowest closing quotation, or, in an interdealer quotation system,
the lowest closing bid price, within the 45 or fewer calendar days which
are prior to the consummation of the acquisition but not earlier than
the day prior to the execution of the contract, agreement in principle
or letter of intent to merge or acquire.
(iii) When the security was not traded within the period specified by
this paragraph, the last closing quotation or closing bid price
preceding such period shall be used. If such closing quotations are
available in more than one market, the person filing notification may
select any such quotation.
(2) Acquisition price. The acquisition price shall include the value
of all consideration for such voting securities or assets to be
acquired.
(3) Fair market value. The fair market value shall be determinded in
good faith by the board of directors of the ultimate parent entity
included within the acquiring person, or, if unincorporated, by
officials exercising similar functions; or by an entity delegated that
function by such board or officials. Such determination must be made as
of any day within 60 calendar days prior to the filing of the
notification required by the act, or, if such notification has not been
filed, within 60 calendar days prior to the consummation of the
acquisition.
Example: Corporation A, the ultimate parent entity in person ''A,''
contracts to acquire assets of corporation B, and the contract provides
that the acquisition price is not to be determined until after the
acquisition is effected. Under paragraph (b) of this section, for
purposes of the act the value of the assets is to be the fair market
value of the assets. Under paragraph (c)(3), the board of directors of
corporation A must in good faith determine the fair market value. That
determination will control for 60 days whether ''A'' and ''B'' must
observe the requirements of the act; that is, ''A'' and ''B'' must
either file notification or consummate the acquisition within that time.
If ''A'' and ''B'' neither file nor consummate within 60 days, the
parties would no longer be entitled to rely on the determination of fair
market value, and, if in doubt about whether required to observe the
requirements of the act, would have to make a second determination of
fair market value. Note that since item 2(d)(i) of the Notification and
Report Form only requests the approximate dollar value of assets, a
second formal determination of the fair market value would not be
necessary for that purpose.
16 CFR 801.11 Annual net sales and total assets.
(a) The annual net sales and total assets of a person shall include
all net sales and all assets held, whether foreign or domestic, except
as provided in paragraphs (d) and (e) of this section.
(b) Except for the total assets of a joint venture or other
corporation at the time of its formation which shall be determined
pursuant to 801.40(c), the annual net sales and total assets of a
person shall be as stated on the financial statements specified in
paragraph (c) of this section: Provided:
(1) That the annual net sales and total assets of each entity
included within such person are consolidated therein. If the annual net
sales and total assets of any entity included within the person are not
consolidated in such statements, the annual net sales and total assets
of the person filing notification shall be recomputed to include the
nonduplicative annual net sales and nonduplicative total assets of each
such entity; and
(2) That such statements, and any restatements pursuant to paragraph
(b)(1) of this section (insofar as possible), have been prepared in
accordance with the accounting principles normally used by such person,
and are of a date not more than 15 months prior to the date of filing of
the notification required by the act, or the date of consummation of the
acquisition.
Example: Person ''A'' is composed of entity A, subsidiaries B1 and
B2 which A controls, subsidiaries C1 and C2 which B1 controls, and
subsidiary C3 which B2 controls. Suppose that A's most recent financial
statement consolidates the annual net sales and total assets of B1, C1,
and C2, but not B2 or C3. In order to determine whether person ''A''
meets the criteria of section 7A(a)(2), as either an acquiring or an
acquired person, A must recompute its annual net sales and total assets
to reflect consolidation of the nonduplicative annual net sales and
nonduplicative total assets of B2 and C3.
(c) Subject to the provisions of paragraph (b) of this section:
(1) The annual net sales of a person shall be as stated on the last
regularly prepared annual statement of income and expense of that
person; and
(2) The total assets of a person shall be as stated on the last
regularly prepared balance sheet of that person.
Example: Suppose ''A'' sells assets to ''B'' on January 1. ''A's''
next regularly prepared balance sheet, dated February 1, reflects that
sale. On March 1, ''A'' proposes to sell more assets to ''B.'' ''A's''
total assets on March 1 are ''A's'' total assets as stated on its
February 1 balance sheet.
(d) No assets of any natural person or of any estate of a deceased
natural person, other than investment assets, voting securities and
other income-producing property, shall be included in determining the
total assets of a person.
(e) Subject to the limitations of paragraph (d) of this section, the
total assets of:
(1) An acquiring person that does not have the regularly prepared
balance sheet described in paragraph (c)(2) of this section shall be,
for acquisitions of each acquired person:
(i) All assets held by the acquiring person at the time of the
acquisition,
(ii) Less all cash that will be used by the acquiring person as
consideration in an acquisition of assets from, or in an acquisition of
voting securities issued by, that acquired person (or an entity within
that acquired person) and less all cash that will be used for expenses
incidental to the acquisition, and less all securities of the acquired
person (or an entity within that acquired person); and
(2) An acquired person that does not have the regularly prepared
balance sheet described in paragraph (c)(2) of this section shall be
either
(i) All assets held by the acquired person at the time of the
acquisition, or
(ii) Where applicable, its assets as determined in accordance with
801.40(c).
Examples: For examples 1 -- 4, assume that A is a newly-formed
company which is not controlled by any other entity. Assume also that A
has no sales and does not have the balance sheet described in paragraph
(c)(2) of this section.
1. A will borrow $105 million in cash and will purchase assets from B
for $100 million. In order to establish whether A's acquisition of B's
assets is reportable, A's total assets are determined by subtracting the
$100 million that it will use to acquire B's assets from the $105
million that A will have at the time of the acquisition. Therefore, A
has total assets of $5 million and does not meet the size-of-person test
of section 7A(a)(2).
2. Assume that A will acquire assets from B and that, at the time it
acquires B's assets, A will have $85 million in cash and a factory
valued at $20 million. A will exchange the factory and $80 million cash
for B's assets. To determine A's total assets, A should subtract from
the $85 million cash the $80 million that will be used to acquire assets
from B and add the remainder to the value of the factory. Thus, A has
total assets of $25 million. Even though A will use the factory as part
of the consideration for the acquisition, the value of the factory must
still be included in A's total assets.
Note that A and B may also have to report the acquisition by B of A's
non-cash assets (i.e., the factory). For that acquisition, the value of
the cash A will use to buy B's assets is not excluded from A's total
assets. Thus, in the acquisition by B, A's total assets are $105
million.
3. Assume that company A will make a $200 million acquisition and
that it must pay a loan origination fee of $5 million. A borrows $211
million. A does not meet the size-of-person test in section 7A(a)(2)
because its total assets are less than $10 million. $200 million is
excluded because it will be consideration for the acquisition and $5
million is excluded because it is an expense incidental to the
acquisition. Therefore, A is only a $6 million person.
4. Assume that A borrows $150 million to acquire $100 million of
assets from person B and $45 million of voting securities of person C.
To determine its size for purposes of its acquisition from person B, A
subtracts the $100 million that it will use for that acquisition.
Therefore, A has total assets of $50 million for purposes of its
acquisition from B. To determine its size with respect to its
acquisition from person C, A subtracts the $45 million that will be paid
for C's voting securities. Thus, for purposes of its acquisition from
C, A has total assets of $105 million. In the first acquisition A meets
the $10 million size-of-person test and in the second acquisition A
meets the $100 million size-of-person test of section 7A(a)(2).
(43 FR 33537, July 31, 1978, as amended at 48 FR 34429, July 29,
1983; 52 FR 7080, Mar. 6, 1987)
16 CFR 801.12 Calculating percentage of voting securities or assets.
(a) Voting securities. Whenever the act or these rules require
calculation of the percentage of voting securities to be held or
acquired, the issuer whose voting securities are being acquired shall be
deemed the ''acquired persons.''
Example: Person ''A'' is composed of corporation A1 and subsidiary
A2; person ''B'' is composed of corporation B1 and subsidiary B2.
Assume that A2 proposes to sell assets to B1 in exchange for common
stock of B2. Under this paragraph, for purposes of calculating the
percentage of voting securities to be held, the ''acquired person'' is
B2. For all other purposes, the acquired person is ''B.'' (For all
purposes, the ''acquiring persons'' are ''A'' and ''B.'')
(b) Percentage of voting securities. (1) Whenever the act or these
rules require calculation of the percentage of voting securities of an
issuer to be held or acquired, the percentage shall be the sum of the
separate ratios for each class of voting securities, expressed as a
percentage. The ratio for each class of voting securities equals:
(i)(A) The number of votes for directors of the issuer which the
holder of a class of voting securities is presently entitled to cast,
and as a result of the acquisition, will become entitled to cast,
divided by,
(B) The total number of votes for directors of the issuer which
presently may be cast by that class, and which will be entitled to be
cast by that class after the acquisition, multiplied by,
(ii)(A) The number of directors that class is entitled to elect,
divided by (B) the total number of directors.
Examples: In each of the following examples company X has two
classes of voting securities, class A, consisting of 1000 shares with
each share having one vote, and class B, consisting of 100 shares with
each share having one vote. The class A shares elect four of the ten
directors and the class B shares elect six of the ten directors.
In this situation, 801.12(b) requires calculations of the percentage
of voting securities held to be made according to the following formula:
Number of votes of class A held divided by Total votes of class A
times Directors elected by class A stock divided by Total number of
directors
Plus
Number of votes of class B held divided by Total votes of class B
times Directors elected by class B stock divided by Total number of
directors
1. Assume that company Y holds all 100 shares of class B stock and no
shares of class A stock. By virtue of its class B holdings, Y has all
100 of the votes which may be cast by class B stock and can elect six of
company X's ten directors. Applying the formula which results from the
rule, Y calculates that it holds 100/100 x 6/10 or 60 percent of the
voting securities of company X because of its holdings of class B stock
and no additional percentage derived from holdings of class A stock.
Consequently, Y holds a total of 60 percent of the voting securities of
company X.
2. Assume that company Y holds 500 shares of class A stock and no
shares of class B stock. By virtue of its class A holdings, Y has 500
of the 1000 votes which may be cast by class A to elect four of company
X's ten directors. Applying the formula, Y calculates that it holds
500/1000 x 4/10 or 20 percent of the voting securities of company X from
its holdings of class A stock and no additional percentage derived from
holdings of class B stock. Consequently, Y holds a total of 20 percent
of the voting securities of company X.
3. Assume that company Y holds 500 shares of class A stock and 60
shares of class B stock. Y calculates that it holds 20 percent of the
voting securities of company X because of its holdings of class A stock
(see example 2). Additionally, as a result of its class B holdings Y
has 60 of the 100 votes which may be cast by class B stock to elect six
of company X's ten directors. Applying the formula, Y calculates that
it holds 60/100 x 6/10 or 36 percent of the voting securities of company
X because of its holdings of class B stock. Since the formula requires
that a person that holds different classes of voting securities of the
same issuer add together the separate percentages calculated for each
class, Y holds a total of 56 percent (20 percent plus 36 percent) of the
voting securities of company X.
(2) Authorized but unissued voting securities and treasury voting
securities shall not be considered securities presently entitled to vote
for directors of the issuer.
(3) For purposes of determining the number of outstanding voting
securities of an issuer, a person may rely upon the most recent
information set forth in filings with the U.S. Securities and Exchange
Commission, unless such person knows or has reason to believe that the
information contained therein is inaccurate.
Examples: 1. In the example to paragraph (a), to determine the
percentage of B2's voting securities which will be held by ''A'' after
the transaction, all voting securities of B2 held by ''A,'' the
''acquiring person'' (including A2 and all other entities included in
person ''A''), must be aggregated. If ''A'' holds convertible
securities of B2 which meet the definition of voting securities in
801.1(f), these securities are to be disregarded in calculating the
percentage of voting securities held by ''A.''
2. Under this formula, any votes obtained by means of proxies from
other persons are also disregarded in calculating the percentage of
voting securities to be held or acquired.
(c) Assets. Any person whose assets are being acquired shall be
deemed an ''acquired person'' in calculating the percentage of assets to
be held or acquired for purposes of section 7A(a)(3)(A).
Example: In the example to paragraph (a), for purposes of
calculating the percentage of assets to be held, the ''acquired person''
is ''A.''
(d) Percentage of assets. Whenever the act or these rules require
calculation of the percentage of assets of a person to be held or
acquired, the percentage shall be the ratio, expressed as a percentage,
which --
(1) The book value (on the books of the acquired person) of the
assets to be acquired (see 801.13(b)(1)), bears to
(2) The total assets of the acquired person, determined in accordance
with 801.11.
Example: In the example to paragraph (a), the percentage of assets
to be acquired by ''B'' is determined by dividing the book value of A2's
assets being acquired, by the total assets of ''A,'' determined in
accordance with 801.11.
(43 FR 33537, July 31, 1978; 43 FR 36054, Aug. 15, 1978, as amended
at 52 FR 7081, Mar. 6, 1987)
16 CFR 801.13 Voting securities or assets to be held as a result of
acquisition.
(a) Voting securities. (1) Subject to the provisions of 801.15, and
paragraph (a)(3) of this section, all voting securities of the issuer
which will be held by the acquiring person after the consummation of an
acquisition shall be deemed voting securities held as a result of the
acquisition. The value of such voting securities shall be the sum of
the value of the voting securities to be acquired, determined in
accordance with 801.10(a), and the value of the voting securities held
by the acquiring person prior to the acquisition, determined in
accordance with paragraph (a)(2) of this section.
(2) The value of voting securities of an issuer held prior to an
acquisition shall be --
(i) If the security is traded on a national securities exchange or is
authorized to be quoted in an interdealer quotation system of a national
securities association registered with the United States Securities and
Exchange Commission, the market price calculated in accordance with
801.10(c)(1); or
(ii) If paragraph (a)(2)(i) of this section is not applicable, the
fair market value determined in accordance with 801.10(c)(3).
Examples: 1. Assume that acquiring person ''A'' holds $19 million of
the voting securities of X, and is to acquire another $1 million of the
same voting securities. Since under paragraph (a) of this rule all
voting securities ''A'' will hold after the acquisition are held ''as a
result of'' the acquisition, ''A'' will hold $20 million of the voting
securities of X as a result of the acquisition. ''A'' must therefore
observe the requirements of the act before making the acquisition,
unless the present acquisition is exempt under section 7A(c), 802.21 or
any other rule.
2. See 801.15 and the examples to that rule.
3. See 801.20 and the examples to that rule.
4. On January 1, Company A acquired $30 million of voting securities
of Company B. ''A'' and ''B'' filed notification and observed the
waiting period for that acquisition.
Company A plans to acquire $1 million of assets from company B on May
1 of the same year. Under 801.13(a)(3), ''A'' and ''B'' do not
aggregate the value of the earlier acquired voting securities to
determine whether the acquisition is subject to the act. Therefore, the
value of the acquisition is $1 million and it is not reportable.
(3) Voting securities held by the acquiring person prior to an
acquisition shall not be deemed voting securities held as a result of
that subsequent acquisition if:
(i) The acquiring person is, in the subsequent acquisition, acquiring
only assets; and
(ii) The acquisition of the previously acquired voting securities was
subject to the filing and waiting requirements of the act (and such
requirements were observed) or was exempt pursuant to 802.21.
(b) Assets. (1) All assets to be acquired from the acquired person
shall be assets held as a result of the acquisition. The value of such
assets shall be determined in accordance with 801.10(b).
(2)(i) If the acquiring person has signed a letter of intent or
entered into a contract or agreement in principle to acquire assets from
the acquired person, and
(ii) Subject to the provisions of 801.15, if the acquiring person
has acquired from the acquired person within the 180 calendar days
preceding the signing of such agreement any assets which are presently
held by the acquiring person, and the acquisition of which was not
previously subject to the requirements of the act or the acquisition of
which was subject to the requirements of the act but they were not
observed, then only for purposes of section 7A(a)(3)(B) and
801.1(h)(1), both the acquiring and the acquired persons shall treat
such assets as though they had not previously been acquired and are
being acquired as part of the present acquisition. The value of any
assets previously acquired which are subject to this paragraph shall be
determined in accordance with 801.10(b) as of the time of their prior
acquisition.
Example: Acquiring person ''A'' proposes to make two acquisitions of
assets from acquired person ''B,'' 90 days apart, and wishes to
determine whether notification is necessary prior to the second
acquisition. For purposes of the percentage test of section
7A(a)(3)(A), ''A'' would hold only the assets it acquired in the second
acquisition. For purposes of the $15 million test of section
7A(a)(3)(B), however, ''A'' must aggregate both of its acquisitions and
must value each as of the time of its occurrence.
(43 FR 33537, July 31, 1978, as amended at 52 FR 7081, Mar. 6, 1987)
16 CFR 801.14 Aggregate total amount of voting securities and assets.
For purposes of section 7A(a)(3)(B) and 801.1(h)(1), the aggregate
total amount of voting securities and assets shall be the sum of:
(a) The value of all voting securities of the acquired person which
the acquiring person would hold as a result of the acquisition,
determined in accordance with 801.13(a); and
(b) The value of all assets of the acquired person which the
acquiring person would hold as a result of the acquisition, determined
in accordance with 801.13(b).
Examples: 1. Acquiring person ''A'' previously acquired $6 million
of the voting securities (not convertible voting securities) of
corporation X. ''A'' now intends to acquire $8 million of X's assets.
Under paragraph (a) of this section, ''A'' looks to 801.13(a) and
determines that the voting securities are to be held ''as a reult of''
the acquisition. Section 801.13(a) also provides that ''A'' must
determine the present value of the previously acquired securities.
Under paragraph (b) of this section, ''A'' looks to 801.13(b)(1) and
determines that the assets to be acquired will be held ''as a result
of'' the acquisition, and are valued under 801.10(b) at $8 million.
Therefore, if the voting securities have a present value of more than $7
million, the asset acquisition is subject to the requirements of the act
since, as a result of it, ''A'' would hold an aggregate total amount of
the voting securities and assets of ''X'' in excess of $15 million.
2. In the previous example, assume that the assets acquisition
occurred first, and that the acquisition of the voting securities is to
occur within 180 days of the first acquisition. ''A'' now looks to
801.13(b)(2) and determines that because the second acquisition is of
voting securities and not assets, the asset and voting securities
acquisitions are not treated as one transaction. Therefore, the second
acquisition would not be subject to the requirements of the act by
reason of section 7A(a)(3)(B) since the value of the securities to be
acquired does not equal or exceed $15 million.
16 CFR 801.15 Aggregation of voting securities and assets the
acquisition of which was exempt.
Notwithstanding 801.13, for purposes of section 7A(a)(3) and
801.1(h), none of the following will be held as a result of an
acquisition:
(a) Assets or voting securities the acquisition of which was exempt
at the time of acquisition (or would have been exempt, had the act and
these rules been in effect), or the present acquisition of which is
exempt, under --
(1) Sections 7A(c) (1), (5), (6), (7), (8), and (11)(B);
(2) Sections 802.6(b)(1), 802.8, 802.31, 802.35, 802.50(a)(1),
802.51(a), 802.52, 802.53, 802.63, and 802.70;
(b) Assets or voting securities the acquisition of which was exempt
at the time of acquistion (or would have been exempt, had the act and
these rules been in effect), or the present acquisition of which is
exempt, under section 7A(c)(9) and 802.50(a)(2), 802.50(b), 802.51(b)
and 802.64 unless the limitations contained in section 7A(c)(9) or those
sections do not apply or as a result of the acquisiton would be
exceeded, in which case the assets or voting securities so acquired will
be held; and
(c) Voting securities the acquistion of which was exempt at the time
of acquisiton (or would have been exempt, had the act and these rules
been in effect), or the present acquisition of which is exempt, under
section 7A(c)(11)(A) unless additional voting securities of the same
issuer have been or are being acquired.
Examples: 1. Assume that acquiring person ''A'' is simultaneously to
acquire $50 million of the convertible voting securities of X and $12
million (which is less than 15 percent) of the voting common stock of X.
Although the acquistion of the convertible voting securities is exempt
under 802.31, since the overall value of the securities to be acquired
is greater than $15 million, ''A'' must determine whether it is obliged
to file notification and observe a waiting period before acquiring the
common stock. Because 802.31 is one of the exemptions listed in
paragraph (a)(2) of this rule, ''A'' would not hold the convertible
voting securities as a result of the acquisition. Therefore, since as a
result of the acquisition ''A'' would hold only the common stock, the
test of section 7A(a)(3) would not be satisfied, and ''A'' need not
observe the requirements of the act before acquiring the common stock.
(Note, however, that the $50 million of convertible voting securities
would be reflected in ''A's'' next regularly prepared balance sheet, for
purposes of 801.11.)
2. In the previous example, the rule was applied to voting securities
the present acquisition of which is exempt. Assume instead that ''A''
had acquired the convertible voting securities prior to its acquisition
of the common stock. ''A'' still would not hold the convertible voting
securities as a result of the acquisition of the common stock, because
the rule states that voting securities the previous acquisition of which
was exempt also fall within the rule. Thus, the test of section
7A(a)(3) would again not be satisfied, and ''A'' need not observe the
requirements of the act before acquiring the common stock.
3. In example 2, assume instead that ''A'' acquired the convertible
voting securities in 1975, before the act and rules went into effect.
Since the rule applies to voting securities the acquisition of which
would have been exempt had the act and rules been in effect, the result
again would be identical. If the rules had been in effect in 1975, the
acquisition of the convertible voting securities would have been exempt
under 802.31.
4. Assume that acquiring person ''B,'' a United States person,
acquired from corporation X two mines located abroad, and assume that
the acquisition price was $40 million. In the most recent year, sales
in the United States attributable to the mines were $15 million, and
thus the acquisition was exempt under 802.50(a)(2). Within 180 days of
that acquisition, ''B'' seeks to acquire a third mine from X, to which
United States sales of $12 million were attributable in the most recent
year. Since under 801.13(b)(2), as a result of the acquisition, ''B''
would hold all three mines of X, and the $25 million limitation in
802.50(a)(2) would be exceeded, under paragraph (b) of this rule, ''B''
would hold the previously acquired assets for purposes of the second
acquisition. Therefore, as a result of the second acquisition, ''B''
would hold assets of X exceeding $15 million, would not qualify for the
exemption in 802.50(a)(2), and must observe the requirements of the act
before consummating the acquisition.
(43 FR 33537, July 31, 1978, as amended at 52 FR 7081, Mar. 6, 1987)
16 CFR 801.20 Acquisitions subsequent to exceeding threshold.
Acquisitions meeting the criteria of section 7A(a), and not otherwise
exempted by section 7A(c) or 802.21 or any other of these rules, are
subject to the requirements of the act even though:
(a) Earlier acquisitions of assets or voting securities may have been
subject to the requirements of the act;
(b) The acquiring person's holdings initially may have met or
exceeded a notification threshold before the effective date of these
rules; or
(c) The acquiring person's holdings initially may have met or
exceeded a notification threshold by reason of increases in market
values or events other than acquisitions.
Examples: 1. Person ''A'' acquires $10 million of the voting
securities of person ''B'' before the effective date of these rules. If
''A'' wishes to acquire an additional $6 million of the voting
securities of ''B'' after the effective date of the rules, notification
will be required by reason of section 7A(a)(3)(B).
2. In example 1, assume that the value of the voting securities of
''B'' originally acquired by ''A'' has reached a present value exceeding
$15 million. If ''A'' wishes to acquireaT3 any additional voting
securities or assets of ''B,'' notification will be required. See
801.13(a).
16 CFR 801.21 Securities and cash not considered assets when acquired.
For purposes of section 7A(a)(3) and 801.1(h)(1), 801.12(d)(1) and
801.13(b):
(a) Cash shall not be considered an asset of the person from which it
is acquired; and
(b) Neither voting or nonvoting securities nor obligations referred
to in section 7A(c)(2) shall be considered assets of another person from
which they are acquired.
Examples: 1. Assume that acquiring person ''A'' acquires voting
securities of issuer X from ''B,'' a person unrelated to X. Under this
paragraph, the acquisition is treated only as one of voting securities,
requiring ''A'' and ''X'' to comply with the requirements of the act,
rather than one in which ''A'' acquires the assets of ''B,'' requiring
''A'' and ''B'' to comply. See also example 2 to 801.30. Note that for
purposes of section 7A(a)(2) -- that is, for the next regularly prepared
balance sheet of ''A'' referred to in 801.11 -- the voting securities
of X must be reflected after their acquisition; see 801.11(c)(2).
2. In the previous example, if ''A'' acquires nonvoting securities of
X from ''B,'' then under this section the acquisition would be treated
only as one of nonvoting securities of X (and would be exempt under
section 7A(c)(2)), rather than one in which ''A'' acquires assets of
''B,'' requiring ''A'' and ''B'' to comply. Again, the nonvoting
securities of X would have to be reflected in ''A's'' next regularly
prepared balance sheet for purposes of section 7A(a)(2).
3. In example 1, assume that ''B'' receives only cash from ''A'' in
exchange for the voting securities of X. Under this section, ''B's''
acquisition of cash is not an acquisition of the ''assets'' of ''A,''
and ''B'' is not required to file notification as an acquiring person.
16 CFR 801.30 Tender offers and acquisitions of voting securities from
third parties.
(a) This section applies to:
(1) Acquisitions on a national securities exchange or through an
interdealer quotation system registered with the United States
Securities and Exchange Commission;
(2) Acquisitions described by 801.31;
(3) Tender offers;
(4) Secondary acquisitions;
(5) All acquisitions (other than mergers and consolidations) in which
voting securities are to be acquired from a holder or holders other than
the issuer or an entity included within the same person as the issuer;
(6) Conversions; and
(7) Acquisitions of voting securities resulting from the exercise of
options or warrants which are --
(i) Issued by the issuer whose voting securities are to be acquired
(or by any entity included within the same person as the issuer); and
(ii) The subject of a currently effective registration statement
filed with the United States Securities and Exchange Commission under
the Securities Act of 1933.
(b) For acquisitions described by paragraph (a) of this section:
(1) The waiting period required under the act shall commence upon the
filing of notification by the acquiring person as provided in
803.10(a); and
(2) The acquired person shall file the notification required by the
act, in accordance with these rules, no later than 5 p.m. eastern time
on the 15th (or, in the case of cash tender offers, the 10th) calendar
day following the date of receipt, as defined by 803.10(a), by the
Federal Trade Commission and Assistant Attorney General of the
notification filed by the acquiring person. Should the 15th (or, in the
case of cash tender offers, the 10th) calendar day fall on a weekend day
or federal holiday, the notification shall be filed no later than 10
a.m. eastern time on the next following business day.
Examples: 1. Acquiring person ''A'' proposes to acquire from
corporation B the voting securities of B's wholly owned subsidiary,
corporation S. Since ''A'' is acquiring the shares of S from its
parent, this section does not apply, and the waiting period does not
begin until both ''A'' and ''B'' file notification.
2. Acquiring person ''A'' proposes to acquire $20 million of the
voting securities of corporation X on a securities exchange. The
waiting period begins when ''A'' files notification. ''X'' must file
notification within 15 calendar days thereafter. The seller of the X
shares is not subject to any obligations under the act.
3. Suppose that acquiring person ''A'' proposes to acquire 50 percent
of the voting securities of corporation B which in turn owns 30 percent
of the voting securities of corporation C. Thus ''A's'' acquisition of
C's voting securities is a secondary acquisition (see 801.4) to which
this section applies because ''A'' is acquiring C's voting securities
from a third party (B). Therefore, the waiting period with respect to
''A's'' acquisition of C's voting securities begins when ''A'' files its
separate Notification and Report Form with respect to C, and ''C'' must
file within 15 days (or in the case of a cash tender offer, 10 days)
thereafter. ''A's'' primary and secondary acquisitions of the voting
securities of B and C are subject to separate waiting periods; see
801.4.
(43 FR 33537, July 31, 1978; 43 FR 36054, Aug. 15, 1978, as amended
at 52 FR 7082, Mar. 6, 1987)
16 CFR 801.31 Acquisitions of voting securities by offerees in tender
offers.
Whenever an offeree in a noncash tender offer is required to, and
does, file notification with respect to an acquisition described in
801.2(e):
(a) The waiting period with respect to such acquisition shall begin
upon filing of notification by the offeree, pursuant to 801.30 and
803.10(a)(1);
(b) The person within which the issuer of the shares to be acquired
by the offeree is included shall file notification as required by
801.30(b);
(c) Any request for additional information or documentary material
pursuant to section 7A(e) and 803.20 shall extend the waiting period in
accordance with 803.20(c); and
(d) The voting securities to be acquired by the offeree may be placed
into escrow, for the benefit of the offeree, pending expiration or
termination of the waiting period with respect to the acquisition of
such securities; Provided however, That no person may vote any voting
securities placed into escrow pursuant to this paragraph.
Example: Assume that ''A,'' which has annual net sales exceeding
$100 million, makes a tender offer for voting securities of corporation
X. The consideration for the tender offer is to be voting securities of
A. ''S,'' a shareholder of X with total assets exceeding $10 million,
wishes to tender its holdings of X and in exchange would receive shares
of A valued at $16 million. Under this section, ''S's'' acquisition of
the shares of A would be an acquisition separately subject to the
requirements of the act. Before ''S'' may acquire the voting securities
of A, ''S'' must first file notification and observe a waiting period --
which is separate from any waiting period that may apply with respect to
''A'' and ''X.'' Since 801.30 applies, the waiting period applicable to
''A'' and ''S'' begins upon filing by ''S,'' and ''A'' must file with
respect to ''S's'' acquisition within 15 days pursuant to 801.30(b).
Should the waiting period with respect to ''A'' and ''X'' expire or be
terminated prior to the waiting period with respect to ''S'' and ''A,''
''S'' may wish to tender its X-shares and place the A-shares into a
nonvoting escrow until the expiration or termination of the latter
waiting period.
16 CFR 801.32 Conversion an acquisition.
A conversion is an acquisition within the meaning of the act.
Example: Assume that acquiring person ''A'' wishes to convert
convertible voting securities of issuer X, and is to receive common
stock of X valued at $20 million. If ''A'' and ''X'' satisfy the
criteria of section 7A(a)(1) and section 7A(a)(2), then ''A'' and ''X''
must file notification and observe the waiting period before ''A''
completes the acquisition of the X common stock, unless exempted by
section 7A(c) or these rules. Since 801.30 applies, the waiting period
begins upon notification by ''A,'' and ''X'' must file notification
within 15 days.
16 CFR 801.33 Consummation of an acquisition by acceptance of tendered
shares of payment.
The acceptance for payment of any shares tendered in a tender offer
is the consummation of an acquisition of those shares within the meaning
of the act.
(48 FR 34433, July 29, 1983)
16 CFR 801.40 Formation of joint venture or other corporations.
(a) In the formation of a joint venture or other corporation (other
than in connection with a merger or consolidation), even though the
persons contributing to the formation of a joint venture or other
corporation and the joint venture or other corporation itself may, in
the formation transaction, be both acquiring and acquired persons within
the meaning of 801.2, the contributors shall be deemed acquiring
persons only, and the joint venture or other corporation shall be deemed
the acquired person only.
(b) Unless exempted by the act or any of these rules, upon the
formation of a joint venture or other corporation, in a transaction
meeting the criteria of section 7A (a) (1) and (3) (other than in
connection with a merger or consolidation), an acquiring person shall be
subject to the requirements of the act if:
(1)(i) The acquiring person has annual net sales or total assets of
$100 million or more;
(ii) The joint venture or other corporation will have total assets of
$10 million or more; and
(iii) At least one other acquiring person has annual net sales or
total assets of $10 million or more; or
(2)(i) The acquiring person has annual net sales or total assets of
$10 million or more;
(ii) The joint venture or other corporation will have total assets of
$100 million or more; and
(iii) At least one other acquiring person has annual net sales or
total assets of $10 million or more.
(c) For purposes of paragraph (b) of this section and determining
whether any exemptions provided by the act and these rules apply to its
formation, the assets of the joint venture or other corporation shall
include:
(1) All assets which any person contributing to the formation of the
joint venture or other corporation has agreed to transfer or for which
agreements have been secured for the joint venture or other corporation
to obtain at any time, whether or not such person is subject to the
requirements of the act; and
(2) Any amount of credit or any obligations of the joint venture or
other corporation which any person contributing to the formation has
agreed to extend or guarantee, at any time.
(d) The commerce criterion of section 7A(a)(1) is satisfied if either
the activities of any acquiring person are in or affect commerce, or the
person filing notification should reasonably believe that the activities
of the joint venture or other corporation will be in or will affect
commerce.
Example: Persons ''A,'' ''B,'' and ''C'' agree to create new
corporation N, a joint venture. ''A,'' ''B,'' and ''C'' will each hold
one third of the shares of N. ''A'' has more than $100 million in
annual net sales. ''B'' has more than $10 million in total assets but
less than $100 million in annual net sales and total assets. Both
''C'''s total assets and its annual net sales are less than $10 million.
''A,'' ''B,'' and ''C'' are each engaged in commerce. ''A,'' ''B,''
and ''C'' have agreed to make an aggregate initial contribution to the
new entity of $6 million in assets and each to make additional
contributions of $6 million in each of the next three years. Under
paragraph (c), the assets of the new corporation are $60 million. Under
paragraph (b), only ''A'' must file notification. Note that ''A'' also
meets the criterion of section 7A(a)(3) since it will be acquiring one
third of the voting securities of the new entity for $20 million. N
need not file notification; see 802.41.
(43 FR 33537, July 31, 1978, as amended at 48 FR 34434, July 29,
1983; 52 FR 7082, Mar. 6, 1987)
16 CFR 801.90 Transactions or devices for avoidance.
Any transaction(s) or other device(s) entered into or employed for
the purpose of avoiding the obligation to comply with the requirements
of the act shall be disregarded, and the obligation to comply shall be
determined by applying the act and these rules to the substance of the
transaction.
Examples: 1. Suppose corporations A and B wish to form a joint
venture. A and B contemplate a total investment of $30 million in the
joint venture; persons ''A'' and ''B'' each have total assets in excess
of $100 million. Instead of filing notification pursuant to 801.40, A
creates a new subsidiary, A1, which issues half of its authorized shares
to A. Assume that A1 has total assets of $1,000. ''A'' then sells 50
percent of its A1 stock to ''B'' for $500. Thereafter, ''A'' and ''B''
each contribute $15 million to A1 in exchange for the remaining
authorized A1 stock (one-fourth each to ''A'' and ''B''). A's creation
of A1 was exempt under 802.30; its sale of A1 stock to ''B'' was
exempt under 802.20; and the second acquisition of stock in A1 by
''A'' and ''B'' was exempt under 802.30 and sections 7A(c) (3) and
(10). Since this scheme appears to be for the purpose of avoiding the
requirements of the act, the sequence of transactions will be
disregarded. The transactions will be viewed as the formation of a
joint venture corporation by ''A'' and ''B'' having over $10 million in
assets. Such a transaction would be covered by 801.40 and ''A'' and
''B'' must file notification and observe the waiting period.
2. Suppose ''A'' wholly owns and operates a chain of twenty retail
hardware stores, each of which is separately incorporated and has assets
of less than $10 million. The aggregate fair market value of the assets
of the twenty store corporations is $60 million. ''A'' proposes to sell
the stores to ''B'' for $60 million. For various reasons it is decided
that ''B'' will buy the stock of each of the store corporations from
''A''. Instead of filing notification and observing the waiting period
as contemplated by the act, ''A'' and ''B'' enter into a series of five
stock purchase-sale agreements for $12 million each. Under the terms of
each contract the stock of four stores will pass from ''A'' to ''B''.
The five agreements are to be consummated on five successive days.
Because, after each of these transactions, the store corporations are no
longer part of the acquired person ( 801.13(a) does not apply because
control has passed, see 801.2), and because 802.20(b) exempts the
acquisition of control of each of the store corporations, none of the
contemplated acquisitions would be subject to the requirements of the
act. However, if the stock of all of the store corporations were to be
purchased in one transaction, no exemption would be applicable, and the
act's requirements would have to be met. Because it appears that the
purpose of making five separate contracts is to avoid the requirements
of the act, this section would ignore the form of the separate
transactions and consider the substance to be one transaction requiring
compliance with the act.
16 CFR 801.90 PART 802 -- EXEMPTION RULES
Sec.
802.1 Acquisitions of goods or realty in the ordinary course of
business.
802.6 Federal agency approval.
802.8 Certain supervisory acquisitions.
802.9 Acquisitions solely for the purpose of investment.
802.10 Stock dividends and splits.
802.20 Minimum dollar value.
802.21 Acquisitions of voting securities not meeting or exceeding
greater notification threshold.
802.23 Amended or renewed tender offers.
802.30 Intraperson transactions.
802.31 Acquisitions of convertible voting securities.
802.35 Acquisitions by employee trusts.
802.40 Exempt formation of joint venture or other corporations.
802.41 Joint venture or other corporations at time of formation.
802.42 Partial exemption for acquisitions in connection with the
formation of certain joint ventures or other corporations.
802.50 Acquisitions of foreign assets or of voting securities of a
foreign issuer by United States persons.
802.51 Acquisitions by foreign persons.
802.52 Acquisitions by or from foreign governmental corporations.
802.53 Certain foreign banking transactions.
802.60 Acquisitions by securities underwriters.
802.63 Certain acquisitions by creditors and insurers.
802.64 Acquisitions of voting securities by certain institutional
investors.
802.70 Acquisitions subject to order.
802.71 Acquisitions by gift, intestate succession or devise, or by
irrevocable trust.
Authority: Sec. 7A(d), Clayton Act, 15 U.S.C. 18A(d), as added by
sec. 201, Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub.
L. 94-435, 90 Stat. 1390.
Source: 43 FR 33544, July 31, 1978, unless otherwise noted.
16 CFR 802.1 Acquisitions of goods or realty in the ordinary course of
business.
(a) Acquisitions of voting securities of entities holding only
realty. For purposes of section 7A(c)(1), an acquisition of the voting
securities of an entity whose assets consist or will consist solely of
real property and assets incidental to the ownership of real property
(such as cash, prepaid taxes or insurance, rentals receivable and the
like) shall be deemed an acquisition of realty.
(b) Certain acquisitions of assets. No acquisition of the goods or
realty of an entity (except for entities described in paragraph (a) of
this section) shall be made ''in the ordinary course of business''
within the meaning of section 7A(c)(1), if, as a result thereof, the
acquiring person will hold all or substantially all of the assets of
that entity or an operating division thereof.
16 CFR 802.6 Federal agency approval.
(a) For the purposes of section 7A (c)(6) and (c)(8), the term
''information and documentary material'' includes one copy of all
documents, application forms, and all written submissions of any type
whatsoever. In lieu of providing all such information and documentary
material, or any portion thereof, one copy of an index describing such
information and documentary material may be provided, together with a
certification that any such information or documentary material not
provided will be provided within 10 calendar days upon request by the
Federal Trade Commission or Assistant Attorney General, or a delegated
official of either. Any material submitted pursuant to this section
shall be submitted to the offices specified in 803.10(c).
(b)(1) Except as provided in 802.6(b)(2), any transaction which
requires approval by the Civil Aeronautics Board prior to consummation,
pursuant to section 408 of the Federal Aviation Act, 49 U.S.C. 1378,
shall be exempt from the requirements of the act if copies of all
information and documentary material filed with the Civil Aeronautics
Board are contemporaneously filed with the Federal Trade Commission and
the Assistant Attorney General.
(2) The following will be considered assets held as a result of an
acquisition requiring approval by the Civil Aeronautics Board pursuant
to section 408 of the Federal Aviation Act, and such assets will not be
exempt under 802.6(b)(1):
(i) If the transaction is an acquisition of assets, the assets which
are engaged in a business or businesses other than aeronautics or air
transportation as defined in section 101 of the Federal Aviation Act, 49
U.S.C. 1301;
(ii) If the transaction is an acquisition of voting securities, or is
treated under the rules as an acquisition of voting securities, and the
acquiring person will, as a result of the acquisition, hold voting
securities of the acquired person valued in excess of $15 million, the
business or businesses of the acquired issuer (and all entities which it
controls) which are not engaged in aeronautics or air transportation as
defined in section 101 of the Federal Aviation Act, 49 U.S.C. 1301.
Example: Assume that A (an entity included within person ''A'')
proposes to acquire voting securities of B (an entity included within
person ''B'') for $100 million. A and B are both air carriers who meet
the size-of-person test, but B also owns a commercial data processing
business located in the United States with a value of $30 million.
Assume that this transaction requires CAB approval under 49 U.S.C. 1378.
Since the acquired person has a business other than aeronautics or air
transportation, the parties must report under 802.6(b)(2) because the
parties meet the size-of-person test, no other exemption applies to the
acquisition of the data processing business, and the acquisition of the
non-aeronautic business is deemed to be an acquisition of assets valued
at $30 million.
(43 FR 33544, July 31, 1978, as amended at 48 FR 34435, July 29,
1983)
16 CFR 802.8 Certain supervisory acquisitions.
(a) A merger, consolidation, purchase of assets, or acquisition
requiring agency approval under sections 403 or 408(e) of the National
Housing Act, 12 U.S.C. 1726, 1730a(e), or under section 5 of the Home
Owners' Loan Act of 1933, 12 U.S.C. 1464 shall be exempt from the
requirements of the Act, including specifically the filing requirement
of section 7A(c)(8), it the agency whose approval is required finds that
approval of such merger, consolidation, purchase of assets, or
acquisition is necessary to prevent the probable failure of one of the
institutions involved.
(b)(1) A merger, consolidation, purchase of assets, or acquisition
which requires agency approval under 12 U.S.C. 1817(j) or 12 U.S.C.
1730(q) shall be exempt from the requirements of the act if copies of
all information and documentary materials filed with any such agency are
contemporaneously filed with the Federal Trade Commission and the
Assistant Attorney General at least 30 days prior to consummation of the
proposed acquisition.
(2) A transaction described in paragraph (b)(1) of this section shall
be exempt from the requirements of the act, including specifically the
filing requirement, if the agency whose approval is required finds that
approval of such transaction is necessary to prevent the probable
failure of one of the institutions involved.
(43 FR 33544, July 31, 1978, as amended at 48 FR 34436, July 29,
1983)
16 CFR 802.9 Acquisition solely for the purpose of investment.
An acquisition of voting securities shall be exempt from the
requirements of the act pursuant to section 7A(c)(9) if made solely for
the purpose of investment and if, as a result of the acquisition, the
acquiring person would hold ten percent or less of the outstanding
voting securities of the issuer, regardless of the dollar value of
voting securities so acquired or held.
Examples: 1. Suppose that acquiring person ''A'' acquires 6 percent
of the voting securities of issuer X, valued at $30 million. If the
acquisition is solely for the purpose of investment, it is exempt under
section 7A(c)(9).
2. After the acquisition in example 1, ''A'' decides to acquire an
additional 7 percent of the voting securities of X. Regardless of
''A'''s intentions, the acquisition is not exempt under section
7A(c)(9).
3. After the acquisition in example 1, acquiring person ''A'' decides
to participate in the management of issuer X. Any subsequent
acquisitions of X stock by''A'' would not be exempt under section
7A(c)(9).
16 CFR 802.10 Stock dividends and splits.
The acquisition of voting securities, pursuant to a stock split or
pro rata stock dividend, shall be exempt from the requirements of the
act under section 7A(c)(10).
16 CFR 802.20 Minimum dollar value.
An acquisition which would be subject to the requirements of the act
and which satisfies section 7A(a)(3)(A), but which does not satisfy
section 7A(a)(3)(B), shall be exempt from the requirements of the act if
as a result of the acquisition the acquiring person would not hold:
(a) Assets of the acquired person valued at more than $15 million;
or
(b) Voting securities which confer control of an issuer which,
together with all entities which it controls, has annual net sales or
total assets of $25 million or more.
Examples: 1. Acquiring person ''A'' intends to acquire 66 percent of
the voting securities of corporation X from X's ultimate parent entity,
W, and ''A'' holds no other assets or voting securities of acquired
persons ''W''. X has no subsidiaries and does not have annual net sales
or total assets of $10 million. If the postacquisition value of ''A'''s
holdings of voting securities of X would be $15 million or less, the
acquisition would be exempt under this section.
2. Assume that acquiring person ''B'' holds voting securities of
corporation Q valued at $9 million. ''B'' now intends to acquire assets
of Q valued at $7 million. Since the aggregate total amount of voting
securities and assets of ''Q'' to be held by ''B'' would exceed $15
million, section 7A(a)(3)(B) would be satisfied, and the acquisition
would not be exempt under this section.
3. Assume that acquiring person ''C'' holds $5 million of the voting
securities of corporation R, an entity included within person ''T.''
''C'' now proposes to acquire $8 million of the assets of corporation S,
also an entity included within person ''T,'' representing 20 percent of
''T's'' total assets. Section 7A(a)(3)(B) is not satisfied because the
aggregate total amount of ''C's'' holdings in acquired person ''T'' will
be less than $15 million. Although section 7A(a)(3)(A) would be
satisfied by the asset acquisition, it will nevertheless be exempt under
paragraph (a) of this section.
(43 FR 33544, July 31, 1978, as amended at 44 FR 66782, Nov. 21,
1979)
16 CFR 802.21 Acquisitions of voting securities not meeting or
exceeding greater notification threshold.
An acquisition of voting securities shall be exempt from the
requirements of the act if:
(a) The acquiring person and all other persons required by the act
and these rules to file notification filed notification with respect to
an earlier acquisition of voting securities of the same issuer;
(b) The waiting period with respect to the earlier acquisition has
expired, or been terminated pursuant to 803.11, and the acquisition
will be consummated within 5 years of such expiration or termination;
and
(c) The acquisition will not increase the holdings of the acquiring
person to meet or exceed a notification threshold greater than the
greatest notification threshold met or exceeded in the earlier
acquisition.
Examples: 1. Corporation A acquires 15 percent of the voting
securities of corporation B and both ''A'' and ''B'' file notification
as required. Within five years of the expiration of the original
waiting period, ''A'' acquires additional voting securities of B but not
in an amount sufficient to meet or exceed 25 percent of the voting
securities of B. No additional notification is required.
2. In example 1, ''A'' continues to acquire B's securities. Before
''A's'' holdings meet or exceed 25 percent of B's outstanding voting
securities, ''A'' and ''B'' must file notification and wait the
prescribed period, regardless of whether the acquisition occur within
five years after the expiration of the earlier waiting period.
3. In example 2, suppose that ''A'' and ''B'' file notification at
the 25 percent level and that, within 5 years after expiration of the
waiting period, ''A'' continues to acquire voting securities of B. No
further notification is required until ''A'' plans to make the
acquisition that will give it 50 percent ownership of B. (Once ''A''
holds 50 percent, further acquisitions of voting securities are exempt
under section 7A(c)(3).
4. Assume that ''C'' is an institutional investor whose prior
acquisitions of corporation D's voting securities were exempt under
802.64. ''C'' now proposes to purchase additional voting securities of D
which will result in holdings exceeding 15 percent and $25 million.
''C'' and ''D'' therefore file notification and observe the waiting
period. Under this section within the 5 years following the expiration
of the waiting period ''C'' may further increase its holdings in D to
any amount below 25 percent (regardless of dollar value) without again
filing notification. Section 802.64 exempted ''C'' from filing
notification at the thresholds defined in subparagraphs (1) or (2) of
801.1(h); thereafter, since ''C'' filed notification with respect to an
acquisition which resulted in its holding more than 15 percent of D's
voting securities valued at more than $25 million, the next notification
threshold ''greater than the greatest notification threshold met or
exceeded in the earlier acquisition'' is 25 percent of D's voting
securities. (See paragraph (c) of this section and 801.1(h)(3).)
5. This section also allows a person to recross any of the threshold
notification levels -- 15 percent/$15 million, 15 percent if greater
than $15 million, 25 and 50 percent -- any number of times within 5
years of the expiration of the waiting period following notification for
that level. Thus, if in example 1, ''A'' had disposed of some voting
securities so that it held less than 15 percent of the voting securities
of B, and thereafter had increased its holdings to more than 15 percent
but less than 25 percent of B, notification would not be required if the
increase occurred within 5 years of the expiration of the original
waiting period. Similarly, in examples 2 and 3, ''A'' could decrease
its holdings below, and then increase its holdings above, 25 percent and
50 percent, respectively without filing notification, if done within 5
years of the expiration of those respective waiting periods.
16 CFR 802.23 Amended or renewed tender offers.
Whenever a tender offer is amended or renewed after notification has
been filed by the offeror, no new notification shall be required, and
the running of the waiting period shall be unaffected, except as
follows:
(a) If the number of voting securities to be acquired pursuant to the
offer is increased such that a greater notification threshold would be
met or exceeded, only the acquiring person need again file notification,
but a new waiting period must be observed;
(b) If a noncash tender offer is amended to become a cash tender
offer, (1) one copy of the amended tender offer shall be filed in the
manner prescribed by 803.10(c) with the Federal Trade Commission and
Assistant Attorney General, and (2) subject to the provisions of
803.10(b)(1), the waiting period shall expire on the 15th day after the
date of receipt (determined in accordance with 803.10(c)) of the
amended tender offer, or on the 30th day after filing notification,
whichever is earlier; or
(c) If a cash tender offer is amended to become a noncash tender
offer, (1) one copy of the amended tender offer shall be filed in the
manner prescribed by 803.10(c) with the Federal Trade Commission and
Assistant Attorney General, and (2) subject to the provisions of
803.10(b)(1), the waiting period shall expire on the 15th day after the
date of receipt (as determined in accordance with 803.10(c)) of the
amended tender offer, or on the 30th day after filing notification,
whichever is later.
Examples: 1. Assume that corporation A makes a tender offer for 20
percent of the voting securities of corporation B and that ''A'' files
notification. Under this section, if A subsequently amends its tender
offer only as to the amount of consideration offered, the waiting period
so commenced is not affected, and no new notification need be filed.
2. In the previous example, assume that A makes an amended tender
offer for 27 percent of the voting securities of B. Since a new
notification threshold will be crossed, this section requires that ''A''
must again file notification and observe a new waiting period.
Paragraph (a) of this section, however, provides that ''B'' need not
file notification again.
3. Assume that ''A'' makes a tender offer for shares of corporation
B. ''A'' includes its voting securities as part of the consideration.
''A'' files notification. Five days later, ''A'' changes its tender
offer to a cash tender offer, and on the same day files copies of its
amended tender offer with the offices designated in 803.10(c). Under
paragraph (b) of this section, the waiting period expires (unless
extended or terminated) 15 days after the receipt of the amended offer
(on the 20th day after filing notification), since that occurs earlier
than the expiration of the original waiting period (which would occur on
the 30th day after filing).
4. Assume that ''A'' makes a cash tender offer for shares of
corporation B and files notification. Six days later, ''A'' amends the
tender offer and adds voting securities as consideration, and on the
same day files copies of the amended tender offer with the offices
designated in 803.10(c). Under paragraph (c) of this section, the
waiting period expires (unless extended or terminated) on the 30th day
following the date of filing of notification (determined under
803.10(c)), since that occurs later than the 15th day after receipt of
the amended tender offer (which would occur on the 21st day).
(43 FR 33544, July 31, 1978; 43 FR 36054, Aug. 15, 1978)
16 CFR 802.30 Intraperson transactions.
An acquisition (other than the formation of a joint venture or other
corporation the voting securities of which will be held by two or more
persons) in which, by reason of holdings of voting securities, the
acquiring and acquired persons are (or as a result of formation of a
wholly owned entity will be) the same person, shall be exempt from the
requirements of the act.
Examples: 1. Corporation A merges its two wholly owned subsidiaries
S1 and S2. The transaction is exempt under this section.
2. Corporation B creates a new wholly owned subsidiary. The
transaction is exempt under this section.
3. Corporation A, which controls corporation B by a contract giving A
the power to name a majority of B's directors, but which holds no voting
securities of B, proposes to acquire 15 percent of B's voting
securities. The transaction is not exempt under this section, since
''A'' and ''B'' are not the same person ''by reason of holdings of
voting securities.''
4. Corporation A repurchases a portion of its voting securities in a
series of transactions involving numerous sellers. All of these
acquisitions are exempt under this section. The redemption or
retirement of securities would likewise be exempt under this section.
5. Corporations A and B (which are not included within the same
person) form a new corporation, C. A and B will each hold C's voting
securities upon formation. This section is inapplicable, and the
acquisitions of C's voting securities by A and B are not exempt.
16 CFR 802.31 Acquisitions of convertible voting securities.
Acquisitions of convertible voting securities shall be exempt from
the requirements of the act.
Example: This section applies regardless of the dollar value of the
convertible voting securities held or to be acquired and even though
they may be converted into 15 percent or more of the issuer's voting
securities. Note, however, that subsequent conversions of convertible
voting securities may be subject to the requirements of the act. See
801.32.
16 CFR 802.35 Acquisitions by employee trusts.
An acquisition of voting securities shall be exempt from the
notification requirements of the act if:
(a) The securities are acquired by a trust that meets the
qualifications of section 401 of the Internal Revenue Code;
(b) The trust is controlled by a person that employs the
beneficiaries and,
(c) The voting securities acquired are those of that person or an
entity within that person.
Examples: 1. Company A establishes a trust for its employees that
meets the qualifications of section 401 of the Internal Revenue Code.
Company A has the power to designate the trustee of the trust. That
trust then acquires 30% of the voting securities of Company A for $30
million. Later, the trust acquires 20% of the stock of Company B, a
wholly-owned subsidiary of Company A, for $20 million. Neither
acquisition is reportable.
2. Assume that in the example above, ''A'' has total assets of $100
million. ''C'' also has total assets of $100 million and is not
controlled by Company A. The trust controlled by Company A plans to
acquire 40 percent of the voting securities of Company C for $40
million. Since Company C is not included within ''A,'' ''A'' must
observe the requirements of the act before the trust makes the
acquisition of Company C's shares.
(52 FR 7082, Mar. 6, 1987)
16 CFR 802.40 Exempt formation of joint venture or other corporations.
Acquisitions of the voting securities of a joint venture or other
corporation at the time of formation under 801.40 shall be exempt from
the requirements of the act if the joint venture or other corporation
will be not for profit within the meaning of sections 501(c)(1)-(4),
(6)-(15), (17)-(20) or (d) of the Internal Revenue Code.
16 CFR 802.41 Joint venture or other corporations at time of formation.
Whenever any person(s) contributing to the formation of a joint
venture or other corporation are subject to the requirements of the act
by reason of 801.40, the joint venture or other corporation need not
file the notification required by the act and 803.1.
Examples: 1. Corporations A and B, each having sales of $100
million, each propose to contribute $20 million in cash in exchange for
50 percent of the voting securities of a new corporation, N. Under this
section, the new corporation need not file notification, although both
''A'' and ''B'' must do so and observe the waiting period prior to
receiving any voting securities of N.
2. In addition to the facts in example 1 above, A and B have agreed
that upon creation N will purchase 100 percent of the voting securities
of corporation C for $15 million. Because N's purchase of C is not a
transaction in connection with N's formation, and because in any event C
is not a contributor to the formation of N, ''A,'' ''B'' and ''C'' must
file with respect to the proposed acquisition of C and must observe the
waiting period.
(43 FR 33544, July 31, 1978, as amended at 52 FR 7082, Mar. 6, 1987)
16 CFR 802.42 Partial exemption for acquisitions in connection with the
formation of certain joint ventures or other corporations.
(a) Whenever one or more of the contributors in the formation of a
joint venture or other corporation which otherwise would be subject to
the requirements of the act by reason of 801.40 are exempt from these
requirements under section 7A(c)(8), any other contributor in the
formation which is subject to the act and not exempt under section
7A(c)(8) need not file a Notification and Report Form, provided that no
less than 30 days prior to the date of consummation any such contributor
claiming this exemption has submitted an affidavit to the Federal Trade
Commission and to the Assistant Attorney General stating its good faith
intention to make the proposed acquisition and asserting the
applicability of this exemption.
(b) Persons relieved of the requirement to file a Notification and
Report Form pursuant to paragraph (a) of this section remain subject to
all other provisions of the act and these rules.
(48 FR 34436, July 29, 1983)
16 CFR 802.50 Acquisitions of foreign assets or of voting securities of
a foreign issuer by United States persons.
(a) Assets. In a transaction in which assets located outside the
United States are being acquired by a U.S. person:
(1) The acquisition of assets located outside the United States, to
which no sales in or into the United States are attributable, shall be
exempt from the requirements of the act; and
(2) The acquisition of assets located outside the United States, to
which sales in or into the United States are attributable, shall be
exempt from the requirements of the act unless as a result of the
acquisition the acquiring person would hold assets of the acquired
person to which such sales aggregating $25 million or more during the
acquired person's most recent fiscal year were attributable.
Examples: 1. Assume that ''A'' and ''B'' are both U.S. persons.
''A'' proposes selling to ''B'' a manufacturing plant located abroad.
Sales in or into the United States attributable to the plant totaled $8
million in the most recent fiscal year. The transaction is exempt under
this paragraph.
2. Sixty days after the transaction in example 1, ''A'' proposes to
sell to ''B'' a second manufacturing plant located abroad; sales in or
into the United States attributable to this plant totaled $20 million in
the most recent fiscal year. Since ''B'' would be acquiring the second
plant within 180 days of the first plant, both plants would be
considered assets of ''A'' now held by ''B''. See 801.13(b)(2). Since
the total annual sales in or into the United States exceed $215 million,
the acquisition of the second plant would not be exempt under this
paragraph.
(b) Voting securities. An acquisition of voting securities of a
foreign issuer by a U.S. person shall be exempt from the requirements of
the act unless the issuer (including all entities controlled by the
issuer) either:
(1) Holds assets located in the United States (other than investment
assets, voting or nonvoting securities of another person, and assets
included pursuant to 801.40(c)(2)) having an aggregate book value of
$15 million or more; or
(2) Made aggregate sales in or into the United States of $25 million
or more in its most recent fiscal year.
Example: ''A,'' a U.S. person, is to acquire the voting securities
of C, a foreign issuer. C has no assets in the United States, but made
aggregate sales into the United States of $27 million in the most recent
fiscal year. The transaction is not exempt under this section.
(43 FR 33544, July 31, 1978, as amended at 48 FR 34437, July 29,
1983)
16 CFR 802.51 Acquisitions by foreign persons.
An acquisition by a foreign person shall be exempt from the
requirements of the act if:
(a) The acquisition is of assets located outside the United States;
(b) The acquisition is of voting securities of a foreign issuer, and
will not confer control of:
(1) An issuer which holds assets located in the United States (other
than investment assets, voting or nonvoting securities of another
person, and assets included pursuant to 801.40(c)(2)) having an
aggregate book value of $15 million or more, or
(2) A U.S. issuer with annual net sales or total assets of $25
million or more;
(c) The acquisition is of less than $15 million of assets located in
the United States (other than investment assests); or
(d) The acquired person is also a foreign person, the aggregate
annual sales of the acquiring and acquired persons in or into the United
States are less than $110 million, and the aggregate total assets of the
acquiring and acquired persons located in the United States (other than
investment assets, voting or nonvoting securities of another person, and
assets included pursuant to 801.40(c)(2)) are less than $110 million.
Examples: 1. Assume that ''A'' and ''B'' are foreign persons with
aggregate annual sales in or into the United States of $200 million. If
''A'' acquires the assets of ''B,'' and if no assets in the United
States or voting securities of U.S. issuers will be acquired, the
transaction is exempt under paragraphs (a) and (c).
2. In example 1, assume that ''A'' is acquiring ''B's'' stock and
that included within ''B'' is issuer C, a U.S. issuer whose total assets
are valued at $27 million. Since C's voting securities will be acquired
indirectly, and since ''A'' thus will be acquiring control of a U.S.
issuer with total assets of more than $25 million, the acquisition
cannot be exempt under this section.
3. In the previous examples, assume that ''A'' is a U.S. person.
This section does not apply, since the acquiring person must be a
foreign person.
(43 FR 33544, July 31, 1978, as amended at 48 FR 34437, July 29,
1983)
16 CFR 802.52 Acquisitions by or from foreign governmental
corporations.
An acquisition shall be exempt from the requirements of the act if:
(a) The ultimate parent entity of either the acquiring person or the
acquired person is controlled by a foreign state, foreign government, or
agency thereof; and
(b) The acquisition is of assets located within that foreign state or
of voting securities of an issuer organized under the laws of that
state.
Example: The government of foreign country X has decided to sell
assets of its wholly owned corporation, B, all of which are located in
foreign country X. The buyer is ''A,'' a U.S. person. Regardless of the
aggregate annual sales in or into the United States attributable to the
assets of B, the transaction is exempt under this section. (If such
aggregate annual sales were less than $10 million, the transaction would
also be exempt under 802.50.)
16 CFR 802.53 Certain foreign banking transactions.
An acquisition which requires the consent or approval of the Board of
Governors of the Federal Reserve System under section 25 or section
25(a) of the Federal Reserve Act, 12 U.S.C. 601, 615, shall be exempt
from the requirements of the act if copies of all information and
documentary material filed with the Board of Governors are
contemporaneously filed with the Federal Trade Commission and Assistant
Attorney General at least 30 days prior to consummation of the
acquisition. In lieu of such information and documentary material or
any portion thereof, an index describing such material may be provided
in the manner authorized by 802.6(a).
(43 FR 33544, July 31, 1978, as amended at 48 FR 34435, July 29,
1983)
16 CFR 802.60 Acquisitions by securities underwriters.
An acquisition of voting securities by a person acting as a
securities underwriter, in the ordinary course of business, and in the
process of underwriting, shall be exempt from the requirements of the
act.
16 CFR 802.63 Certain acquisitions by creditors and insurers.
(a) Creditors. An acquisition of collateral or receivables, or an
acquisition in foreclosure, or upon default, or in connection with the
establishment of a lease financing, or in connection with a bona fide
debt work-out shall be exempt from the requirements of the act if made
by a creditor in a bona fide credit transaction entered into in the
ordinary course of the creditor's business.
(b) Insurers. An acquisition pursuant to a condition in a contract
of insurance relating to fidelity, surety, or casualty obligations shall
be exempt from the requirements of the act if made by an insurer in the
ordinary course of business.
Examples: 1. A bank makes a loan and takes actual or constructive
possession of collateral in any form. Since the bank is not the
beneficial owner of the collateral, the bank's receipt of it is not an
acquisition which is subject to the requirements of the act. However,
if upon default the bank becomes the beneficial owner of the collateral,
that acquisition is exempt under this section.
2. This section exempts only the acquisition by the creditor or
insurer, and not the subsequent disposition of the assets or voting
securities. If a creditor or insurer sells voting securities or assets
that have come into its possession in a transaction which is exempt
under this section, the requirements of the act may apply to that
disposition.
16 CFR 802.64 Acquisitions of voting securities by certain
institutional investors.
(a) Institutional investor. For purposes of this section, the term
''institutional investor'' means any entity of the following type:
(1) A bank within the meaning of 15 U.S.C. 80b-2(a)(2);
(2) Savings bank;
(3) Savings and loan or building and loan company or association;
(4) Trust company;
(5) Insurance company;
(6) Investment company registered with the U.S. Securities and
Exchange Commission under the Investment Company Act of 1940 (15 U.S.C.
80a-1 et seq.);
(7) Finance company;
(8) Broker-dealer within the meaning of 15 U.S.C. 78c(a)(4) or
(a)(5);
(9) Small Business Investment Company or Minority Enterprise Small
Business Investment Company regulated by the U.S. Small Business
Administration pursuant to 15 U.S.C. 662;
(10) A stock bonus, pension, or profit-sharing trust qualified under
section 401 of the Internal Revenue Code;
(11) Bank holding company within the meaning of 12 U.S.C. 1841;
(12) An entity which is controlled directly or indirectly by an
institutional investor and the activities of which are in the ordinary
course of business of the institutional investor;
(13) An entity which may supply incidental services to entities which
it controls directly or indirectly but which performs no operating
functions, and which is otherwise engaged only in holding controlling
interests in institutional investors; or
(14) A nonprofit entity within the meaning of sections 501(c) (1)
through (4), (6) through (15), (17) through (20), or (d) of the Internal
Revenue Code.
(b) Exemption. An acquisition of voting securities shall be exempt
from the requirements of the act, except as provided in paragraph (c) of
this section, if:
(1) Made directly by an institutional investor;
(2) Made in the ordinary course of business;
(3) Made solely for the purpose of investment;
(4) As a result of the acquisition the acquiring person would not
control the issuer; and
(5) As a result of the acquisition the acquiring person would hold
either:
(i) Fifteen percent or less of the outstanding voting securities of
the issurer; or
(ii) Voting securities of the issuer valued at $25 million or less.
(c) Exception to exemption. Notwithstanding paragraph (b) of this
section:
(1) No acquisition of voting securities of an institutional investor
of the same type as any entity included within the acquiring person
shall be exempt under this section; and
(2) No acquisition by an institutional investor shall be exempt under
this section if any entity included within the acquiring person which is
not an institutional investor holds any voting securities of the issuer
whose voting securities are to be acquired.
Examples: 1. Assume that A and its subsidiary, B, are both
institutional investors as defined in paragraph (a) of this section,
that X is not, and that the conditions set forth in subparagraphs (2),
(3) and (4) of paragraph (b) of this section are satisfied. Either A or
B may acquire voting securities of X worth in excess of $25 million as
long as the aggregate amount held by person ''A'' as a result of the
acquisition does not equal or exceed 15 percent of X's outstanding
voting securities. If the aggregate holdings would equal or exceed 15
percent, ''A'' may acquire no more than $25 million worth of voting
securities without being subject to the requirements of the act.
2. In example 1, assume that B plans to make the acquisition, but
that corporation B's parent, corporation A, is not an institutional
investor and is engaged in manufacturing. Subparagraph (c)(2) provides
that acquisitions by B can never be exempt under this section if A owns
any amount of X's voting securities.
3. In example 1, the exemption does not apply if X is also an
institutional investor of the same type as either A or B.
4. Assume that H is a holding company which controls a life insurance
company, a casualty insurer and a finance company. The life insurance
company controls a data processing company which performs services for
the two insurers. Any acquisition by any of these entities could
qualify for exemption under this section.
5. In example 4, if H also controls a manufacturing entity, H is not
an institutional investor, and only the acquisitions made by the two
insurance companies, the finance company and the data processing company
can qualify for the exemption under this section.
16 CFR 802.70 Acquisitions subject to order.
An acquisition shall be exempt from the requirements of the act if
the voting securities or assets are to be acquired from an entity
ordered to divest such voting securities or assets by order of the
Federal Trade Commission or of any Federal court in an action brought by
the Federal Trade Commission or the Department of Justice.
(52 FR 7082, Mar. 6, 1987)
16 CFR 802.71 Acquisitions by gift, intestate succession or devise, or
by irrevocable trust.
Acquisitions resulting from a gift, intestate succession,
testamentary disposition or transfer by a settlor to an irrevocable
trust shall be exempt from the requirements of the act.
16 CFR 802.71 PART 803 -- TRANSMITTAL RULES
Sec.
803.1 Notification and Report Form.
803.2 Instructions applicable to Notification and Report Form.
803.3 Statement of reasons for noncompliance.
803.4 Foreign persons refusing to file notification.
803.5 Affidavits required.
803.6 Certification.
803.7 Expiration of notification.
803.8 Foreign language documents.
803.10 Running of time.
803.11 Termination of waiting period.
803.20 Requests for additional information or documentary material.
803.21 Additional information shall be supplied within reasonable
time.
803.30 Formal and informal interpretations of requirements under the
Act and the rules.
803.90 Separability.
Appendix -- Antitrust Improvements Act Notification and Report Form
for Certain Mergers and Acquisitions
Authority: Sec. 7A(d), Clayton Act, 15 U.S.C. 18A(d), as added by
sec. 201, Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub.
L. 94-435, 90 Stat. 1390.
Source: 43 FR 33548, July 31, 1978, unless otherwise noted.
16 CFR 803.1 Notification and Report Form.
(a) The notification required by the act shall be the Notification
and Report Form set forth in the appendix to this Part (803), as amended
from time to time. All acquiring and acquired persons required to file
notification by the act and these rules shall do so by completing and
filing the Notification and Report Form, or a photostatic or other
equivalent reproduction thereof, in accordance with the instructions
thereon and these rules. Copies of the Notification and Report Form may
be obtained in person from the Public Reference Branch, Room 130,
Federal Trade Commission, Sixth Street and Pennsylvania Avenue NW.,
Washington, D.C., or by writing to the Premerger Notification Office,
Room 303, Federal Trade Commission, Washington, DC 20580.
(b) Any person filing notification may, in addition to the
submissions required by this section, submit any other information or
documentary material which such person believes will be helpful to the
Federal Trade Commission and Assistant Attorney General in assessing the
impact of the acquisition upon competition.
16 CFR 803.2 Instructions applicable to Notification and Report Form.
(a) The notification required by the act shall be filed by the
preacquisition ultimate parent entity, or by any entity included within
the person authorized by such preacquisition ultimate parent entity to
file notification on its behalf. In the case of a natural person
required by the act to file notification, such notification may be filed
by his or her legal representative: Provided however, That
notwithstanding 801.1(c)(2) and 801.2, only one notification shall be
filed by or on behalf of a natural person, spouse and minor children
with respect to an acquisition as a result of which more than one such
natural person will hold voting securities of the same issuer.
Example: Jane Doe, her husband and minor child collectively hold
more than 50 percent of the shares of family corporation F. Therefore,
Jane Doe (or her husband or minor child) is the ''ultimate parent
entity'' of a ''person'' composed to herself (or her husband or minor
child) and F; see paragraphs (a)(3), (b) and (c)(2) of 801.1. If
corporation F is to acquire corporation X, under this paragraph only one
notification is to be filed by Jane Doe, her husband and minor child
collectively.
(b)(1) Except as provided in paragraph (b)(2) of this section and
paragraph (c) of this section, items 5-9 and the appendix to the
Notification and Report Form must be completed --
(i) By acquiring persons, with respect to all entities included
within the acquiring person;
(ii) By acquired persons, in the case of an acquisition of assets,
only with respect to the assets to be acquired;
(iii) By acquired persons, in the case of an acquisition of voting
securities, with respect to only the issuer whose voting securities are
being acquired, and all entities controlled by such issuer; and
(iv) By persons which are both acquiring and acquired persons,
separately in the manner that would be required of acquiring and
acquired persons under this paragraph, if different.
(2) For purposes of items 7-9 of the Notification and Report Form,
the acquiring person shall regard the acquired person in the manner
described in paragraphs (b)(1) (ii) and (iii) of this section.
Example: Person ''A'' is comprised of entities separately engaged in
grocery retailing, auto rental, and coal mining. Person ''B'' is
comprised of entities separately engaged in wholesale magazine
distribution, auto rental and book publishing. ''A'' proposes to
purchase 100 percent of the voting securities of ''B'''s book publishing
subsidiary. For purposes of item 5, under clause (b)(1)(i), ''A''
reports, the activities of all its entities; under clause (b)(1)(iii),
''B'' reports only the operations of its book publishing subsidiary.
For purposes of items 7-9, under subparagraph (2) of this paragraph
''A'' must regard ''B'' as consisting only of its book publishing
subsidiary, and must disregard the fact that ''A'' and ''B'' are both
engaged in the auto rental business.
(c) In response to items 5, 7, 8, and 9 and the appendix to the
Notification and Report Form --
(1) Information shall be supplied only with respect to operations
conducted within the United States; and
(2) Information need not be supplied with respect to assets or voting
securities to be acquired, the acquisition of which is exempt from the
requirements of the act.
(d) The term ''dollar revenues,'' as used in the Notification and
Report Form, means value of shipments for manufacturing operations, and
sales, receipts, revenues, or other appropriate dollar value measure for
operations other than manufacturing, f.o.b. the plant or establishment
less returns, after discounts and allowances and excluding freight
charges and excise taxes. Dollar revenues including delivery may be
supplied if delivery is an integral part of the sales price. Dollar
revenues include interplant transfers.
(e) A person filing notification may incorporate by reference only
documentary materials required to be filed in response to item 4(a) of
the Notification and Report Form and annual reports required to be filed
in response to item 4(b), which were previously submitted with a filing
by the same person and which are the most recent versions available;
except that when the same parties file for a higher notification
threshold no more than 90 days after having made filings with respect to
a lower threshold, each party may incorporate by reference in the
subsequent filing any documents or information in its earlier filing
provided that the documents and information are the most recent
available.
(43 FR 33548, July 31, 1978, as amended at 48 FR 34438, July 29,
1983)
16 CFR 803.3 Statement of reasons for noncompliance.
A complete response shall be supplied to each item on the
Notification and Report Form and to any request for additional
information pursuant to section 7A(e) and 803.20. Whenever the person
filing notification is unable to supply a complete response, that person
shall provide, for each item for which less than a complete response has
been supplied, a statement of reasons for noncompliance. The statement
of reasons for noncompliance shall contain all information upon which a
person relies in explanation of its noncompliance and shall include at
least the following:
(a) Why the person is unable to supply a complete response;
(b) What information, and what specific documents or categories of
documents, would have been required for a complete response;
(c) Who, if anyone, has the required information, and specific
documents or categories of documents; and a description of all efforts
made to obtain such information and documents, including the names of
persons who searched for required information and documents, and where
the search was conducted. If no such efforts were made, provide an
explanation of the reasons why, and a description of all efforts
necessary to obtain required information and documents;
(d) Where noncompliance is based on a claim of privilege, a statement
of the claim of privilege and all facts relied on in support thereof,
including the identity of each document, its author, addressee, date,
subject matter, all recipients of the original and of any copies, its
present location, and who has control of it.
(48 FR 34439, July 29, 1983)
16 CFR 803.4 Foreign persons refusing to file notification.
(a) In an acquisition to which 801.30 does not apply, and in which
no assets (other than investment assets) located in the United States
and no voting securities of a United States issuer will be acquired
directly or indirectly, if a foreign acquired person refuses to file
notification, then any other person which is a party to the acquisition
may file notification on behalf of the foreign person. Such
notification shall constitute the notification required of the foreign
person by the act and these rules.
(b) Any person filing on behalf of the foreign person pursuant to
this section must state in the affidavit required by 803.5(b) that such
foreign person has refused to file notification and must explain all
efforts made by the person filing on behalf of the foreign person to
obtain compliance with the act and these rules by such foreign person.
(c) Any notification filed on behalf of a foreign person pursuant to
this section must contain all information and documentary material
reasonably available to the person filing on behalf of the foreign
person which such foreign person would be required to provide. Whenever
information or documentary material is not reasonably available, the
person filing on behalf of the foreign person shall so indicate on the
Notification and Report Form, and need not supply the statement of
reasons for noncompliance required by 803.3.
(d) Any foreign person on whose behalf notification has been filed by
another person pursuant to this section shall be a ''person filing
notification'' for purposes of the act and these rules. Nothing in this
section shall exempt a foreign person from the requirements of the act
or these rules with respect to a request for additional information or
an extension of the waiting period pursuant to section 7A(e) and these
rules.
16 CFR 803.5 Affidavits required.
(a)(1) Section 801.30 acquisitions. For acquisitions to which 801.30
applies, the notification required by the act from each acquiring person
shall contain an affidavit, attached to the front of the notification,
attesting that the issuer whose voting securities are to be acquired has
received notice in writing by certified or registered mail, by wire or
by hand delivery, at its principal executive offices, of:
(i) The identity of the acquiring person;
(ii) The fact that the acquiring person intends to acquire voting
securities of the issuer;
(iii) The specific classes of voting securities of the issuer sought
to be acquired; and if known, the number of securities of each such
class that would be held by the acquiring person as a result of the
acquisition or, if the number is not known, the specific notification
threshold that the acquiring person intends to meet or exceed; and, if
designated by the acquiring person, a higher threshold for additional
voting securities it may hold in the year following the expiration of
the waiting period;
(iv) The fact that the acquisition may be subject to the act, and
that the acquiring person will file notification under the act with the
Federal Trade Commission and Assistant Attorney General;
(v) The anticipated date of receipt of such notification under
803.10(c); and
(vi) The fact that the person within which the issuer is included may
be required to file notification under the act.
(2) The affidavit required by this paragraph must also state the good
faith intention of the person filing notification to make the
acquisition, and, in the case of a tender offer, that the intention to
make the tender offer has been publicly announced.
Example: 1. This paragraph permits the tender offeror to file
notification at any time after the intention to make the tender offer
has been publicly announced.
In examples 2-5 assume that one percent of B's shares are valued at
$15 million.
2. ''A'' holds 100,000 shares of the voting securities of Company B.
''A'' has a good faith intention to acquire an additional 900,000 shares
of Company B's voting securities. ''A'' states in its notice to B,
inter alia, that as a result of the acquisition it will hold 1,000,000
shares. If 1,000,000 shares of Company B represents 20 percent of
Company B's outstanding voting securities, the statement will be deemed
by the enforcement agencies a notification for the 15 percent threshold.
3. Company A intends to acquire voting securities of Company B.
''A'' does not know exactly how many shares it will acquire, but it
knows it will definitely acquire 15 percent and may acquire 50 percent
of Company B's shares. ''A'''s notice to the acquired person would meet
the requirements of 803.5(a)(1)(iii) if it states, inter alia, either:
''Company A has a present good faith intention to acquire 15 percent of
the outstanding voting securities of Company B, and depending on market
conditions, may acquire more of the voting securities of Company B and
thus designates the 50 percent threshold'' or ''Company A has a present
good faith intention to acquire 15 percent of the outstanding voting
securities of Company B, and depending on market conditions may acquire
50 percent or more of the voting securities of Company B.'' The
Commission would deem either of these statements as intending to give
notice for the 50 percent threshold.
4. ''A'' states, inter alia, that, ''depending on market conditions,
it may acquire 100 percent of the shares of B.'' ''A'''s notice does not
comply with 803.5 because it does not state an intent to meet or exceed
any notification threshold. ''A'''s filing will be considered deficient
within the meaning of 803.10(c)(2).
5. ''A'' states, inter alia, that it has commenced a tender offer for
''up to 55 percent of the outstanding voting securities of Company B.''
''A'''s notice does not comply with 803.5 because use of the term ''up
to'' does not state an intent to meet or exceed any notification
threshold. The filing will therefore be considered deficient within the
meaning of 803.10 (c)(2).
(3) The affidavit required by this paragraph must have attached to it
a copy of the written notice received by the acquired person pursuant to
paragraph (a)(1) of this section.
(b) Non-section 801.30 acquisitions. For acquisitions to which
801.30 does not apply, the notification required by the act shall
contain an affidavit, attached to the front of the notification,
attesting that a contract, agreement in principle or letter of intent to
merge or acquire has been executed, and further attesting to the good
faith intention of the person filing notification to complete the
transaction.
(43 FR 33548, July 31, 1978, as amended at 48 FR 34439, July 29,
1983; 52 FR 7082, Mar. 6, 1987)
16 CFR 803.6 Certification.
(a) The notification required by the act shall be certified:
(1) In the case of a partnership, by any general partner thereof;
(2) In the case of a corporation, by any officer or director thereof;
(3) In the case of a person lacking officers, directors, or partners,
by any individual exercising similar functions;
(4) In the case of a natural person, by such natural person or his or
her legal representative.
(5) In the case of the estate of a deceased natural person, by any
duly authorized legal representative of such estate.
(b) Additional information or documentary material submitted in
response to a request pursuant to section 7A(e) and 803.20 shall be
accompanied by a certification in the format appearing at the end of the
Notification and Report Form, completed in accordance with paragraph (a)
of this section by the person or individual to whom it was directed.
(c) In all cases, the certifying individual must possess actual
authority to make the certification on behalf of the person filing
notification.
(43 FR 33548, July 31, 1978, as amended at 48 FR 34429, July 29,
1983)
16 CFR 803.7 Expiration of notification.
Notification with respect to an acquisition shall expire 1 year
following the expiration of the waiting period. If the acquiring
person's holdings do not, within such time period, meet or exceed the
notification threshold with respect to which the notification was filed,
the requirements of the act must thereafter be observed with respect to
any notification threshold not met or exceeded.
Example: A files notification that 26 percent of the voting
securities of corporation B are to be acquired. One year after the
expiration of the waiting period, A has acquired only 22 percent of B's
voting securities. Although 802.21 will permit ''A'' to purchase any
amount of B's voting securities short of 25 percent within 5 years from
the expiration of the waiting period, A's holdings may not meet or
exceed the 25 percent notification threshold without ''A'' and ''B''
again filing notification and observing a waiting period.
16 CFR 803.8 Foreign language documents.
(a) Whenever at the time of filing a Notification and Report Form
there is an English language outline, summary, extract or verbatim
translation of any information or of all or portions of any documentary
materials in a foreign language required to be submitted by the act or
these rules, all such English language versions shall be filed along
with the foreign language information or materials.
(b) Documentary materials or information in a foreign language
required to be submitted in responses to a request for additional
information or documentary material shall be submitted with verbatim
English language translations, or all existing English language
versions, or both, as specified in such request.
(48 FR 34440, July 29, 1983)
16 CFR 803.10 Running of time.
(a) Beginning of waiting period. The waiting period required by the
act shall begin on the date of receipt of the notification required by
the act, in the manner provided by these rules (or, if such notification
is not completed, the notification to the extent completed and a
statement of the reasons for such noncompliance in accordance with
803.3) from:
(1) In the case of acquisitions to which 801.30 applies, the
acquiring person;
(2) In the case of the formation of a joint venture or other
corporation covered by 801.40, all persons contributing to the
formation of the joint venture or other corporation that are required by
the act and these rules to file notification;
(3) In the case of all other acquisitions, all persons required by
the act and these rules to file notification.
(b) Expiration of waiting period. (1) For purposes of section
7A(b)(1)(B), the waiting period shall expire at 11:59 p.m. Eastern Time
on the 30th (or in the case of a cash tender offer, the 15th) calendar
day (or if 802.23 applies, such other day as that section may provide)
following the beginning of the waiting period as determined under
paragraph (a) of this section, unless extended pursuant to section 7A(e)
and 803.20, or section 7A(g)(2), or unless terminated pursuant to
section 7A(b)(2) and 803.11.
(2) Unless further extended pursuant to section 7A(g)(2), or
terminated pursuant to section 7A(b)(2) and 803.11, any waiting period
which has been extended pursuant to section 7A(e)(2) and 803.20 shall
expire at 11:59 p.m. Eastern Time --
(i) On the 20th (or, in the case of a cash tender offer, the 10th)
day following the date of receipt of all additional information or
documentary material requested from all persons to whom such requests
have been directed (or, if a request is not fully complied with, the
information and documentary material submitted and a statement of the
reasons for such noncompliance in accordance with 803.3), by the
Federal Trade Commission or Assistant Attorney General, whichever
requested additional information or documentary material, at the office
designated in paragraph (c) of this section, or
(ii) As provided in paragraph (b)(1) of this section, whichever is
later.
(c)(1) Date of receipt and means of delivery. For purposes of this
section the date of receipt shall be the date on which delivery is
effected to the designated offices (Premerger Notification Office, Room
303, Federal Trade Commission, Washington, DC 20580, and Director of
Operations, Antitrust Division, Room 3214, Department of Justice,
Washington, DC 20530) during normal business hours. Delivery effected
after 5 p.m. eastern time on a regular business day, or at any time on
any day other than a regular business day, shall be deemed effected on
the next following regular business day. Delivery should be effected
directly to the designated office(s), either by hand or by certified or
registered mail. If delivery of all required filings to all offices
required to receive such filings is not effected on the same date, the
date of receipt shall be the latest of the dates on which delivery is
effected.
Examples: 1. In an acquisition other than a cash tender offer,
assume that a request for additional information is issued to a person
on the second day of the waiting period, and that the person supplies
the response 5 days later. Under subparagraph (b)(2)(ii), the waiting
period remains in effect through the 30th day, even though the 20th day
after receipt of such additional information would occur earlier.
2. In an acquisition other than a tender offer, assume that requests
for additional information are issued to both the acquiring and acquired
persons on the 26th day of the waiting period. One person submits the
additional information on the 35th day, while the other responds on the
44th day. Under this section, the waiting period expires twenty days
following the last receipt of additional information, that is, it
expires on the 64th day.
(2) Deficient filings. If notification or a response to a request
for additional information or documentary material received by the
Commission or Assistant Attorney General does not comply with these
rules, the Commission or the Assistant Attorney General shall promptly
notify the person filing such notification or response of the
deficiencies in such filing, and the date of receipt shall be the date
on which a filing which complies with these rules is received.
(43 FR 33548, July 31, 1978; 43 FR 36054, Aug. 15, 1978, as amended
at 52 FR 7083, Mar. 6, 1987)
16 CFR 803.11 Termination of waiting period.
(a) Except as provided in paragraph (c) of this section, no waiting
period shall be terminated pursuant to section 7A(b)(2) unless --
(1) All notifications required to be filed with respect to the
acquisition by the act and these rules (or, if such notification is not
completed, the notification to the extent completed and a statement of
the reasons for such noncompliance in accordance with 803.3) have been
received,
(2) It has been determined that no additional information or
documentary material pursuant to section 7A(e) and 803.20 will be
requested, or, if such additional information or documentary material
has been requested, it (or, if a request is not fully complied with, the
information and documentary material submitted and a statement of the
reasons for such noncompliance in accordance with 803.3) has been
received, and
(3) The Federal Trade Commission and the Assistant Attorney General
have concluded that neither intends to take any further action within
the waiting period.
(b) Any request for additional information or documentary material
pursuant to section 7A(e) and 803.20 shall constitute a denial of all
pending requests for termination of the waiting period.
(c) The Federal Trade Commission and the Assistant Attorney General
may in their discretion terminate a waiting period upon the written
request of any person filing notification or, notwithstanding paragraph
(a) of this section, sua sponte. A request for termination of the
waiting period shall be sent to the offices designated in 803.10(c).
Termination shall be effective upon notice to any requesting person by
telephone, and such notice shall be given as soon as possible. Such
notice shall also be confirmed in writing to each person which has filed
notification, and notice thereof shall be published in the Federal
Register in accordance with section 7A(b)(2). The Federal Trade
Commission and the Assistant Attorney General also may use other means
to make the termination public, prior to publication in the Federal
Register in a manner that will make the information equally accessible
to all members of the public.
(43 FR 33548, July 31, 1978, as amended at 54 FR 21427, May 18, 1989)
16 CFR 803.20 Requests for additional information or documentary
material.
(a)(1) Persons and individuals subject to request. Pursuant to
section 7A(e)(1), the submission of additional information or
documentary material relevant to the acquisition may be required from
one or more persons required to file notification, and, with respect to
each such person, from one or more entities included therein, or from
one or more officers, directors, partners, agents, or employees thereof,
if so required by the same request.
Example: A request for additional information may require a
corporation and, in addition, a named officer or employee to provide
certain information or documents, if both the corporation and the
officer or employee are named in the same request. See subparagraph
(b)(3) of this section.
(2) All the information and documentary material required to be
submitted pursuant to a request under paragraph (a)(1) of this section
shall be supplied to the Commission or to the Assistant Attorney
General, whichever made such request, at such location as may be
designated in the request, or, if no such location is designated, at the
office designated in 803.10(c). If such request is not fully complied
with, a statement of reasons for noncompliance pursuant to 803.3 shall
be provided for each item or portion of such request which is not full
complied with.
(b)(1) Who may require submission. A request for additional
information or documentary material with respect to an acquisition may
be issued by the Federal Trade Commission or its designee, or by the
Assistant Attorney General or his or her designee, but not by both to
the same person, any entities included therein, or any officers,
directors, partners, agents, or employees of that person.
(2) When request effective. A request for additional information or
documentary material shall be effective --
(i) In the case of a written request, upon receipt of the request by
the ultimate parent entity of the person to which the request is
directed, (or, if another entity included within the person filed
notification pursuant to 803.2(a), then by such entity), within the
original 30-day (or, in the case of a cash tender offer, 15-day) waiting
period (or, if 802.23 applies, such other period as that section
provides); or
(ii) In the case of a written request, upon notice of the issuance of
such request to the person to which it is directed within the original
30-day (or, in the case of a cash tender offer, 15-day) waiting period
(or, if 802.23 applies, such other period as that section provides),
provided that written confirmation of the request is mailed to the
person to which the request is directed within the original 30-day (or,
in the case of a cash tender offer, 15-day) waiting period (or, if
802.23 applies, such other period as that section provides). Notice to
the person to which the request is directed may be given by telephone or
in person. The person filing notification shall keep a designated
individual reasonably available during normal business hours throughout
the waiting period through the telephone number supplied on the
certification page of the Notification and Report Form. Notice of a
request for additional information or documentary material need be given
by telephone only to that individual or to the individual designated in
accordance with paragraph (b)(2)(iii) of this section. Upon the request
of the individual receiving notice of the issuance of such a request,
the full text of the request will be read. The written confirmation of
the request shall be mailed to the ultimate parent entity of the person
filing notification, or if another entity within the person filed
notification pursuant to 803.2(a), then to such entity.
(iii) When the individual designated in accordance with paragraph
(b)(2)(ii) of this section is not located in the United States, the
person filing notification shall designate an additional individual
located within the United States to be reasonably available during
normal business hours throughout the waiting period through a telephone
number supplied on the certification page of the Notification and Report
Form. This individual shall be designated for the limited purpose of
receiving notification of the issuance of requests for additional
information or documentary material in accordance with the procedure
described in paragraph (b)(2)(ii) of this section.
(3) Requests to natural persons. A request addressed to an
individual, requiring that he or she submit additional information or
documentary material, shall be transmitted to the person filing
notification of which the individual is an ultimate parent entity,
officer, director, partner, agent or employee, and shall be effective as
to that individual when effective as to the person filing notification
pursuant to paragraph (b)(2) of this section. A written copy of the
request shall also be delivered to the individual by hand, or by
registered or certified mail at his or her home or business address.
Example: A designee of the Federal Trade Commission sends, by
certified letter which is received within the 30-day waiting period, a
written request for additional information to corporation W, the
ultimate parent entity within a person which filed notification. The
request is effective under clause (b)(2)(i). If the letter also
addressed a request for documentary material to the secretary of
corporation W, a named individual, under paragraph (b)(3), the request
would likewise be effective as to the individual upon receipt of the
letter by W. In the latter case, the Federal Trade Commission also
would send a copy of the request to the Secretary of the corporation at
his or her home or business address.
(c) Waiting period extended. (1) During the time period when a
request for additional information or documentary material remains
outstanding to any person other than, in the case of a tender offer, the
person whose voting securities are sought to be acquired by the tender
offeror (or any officer, director, partner, agent or employee thereof),
the waiting period shall remain in effect, even though the waiting
period would have expired (see 803.10(b)) if no such request had been
made.
(2) A request for additional information or documentary material to
any person other than, in the case of a tender offer, the person whose
voting securities are being acquired pursuant to the tender offer (or
any officer, director, partner, agent or employee thereof) shall in
every instance extend the waiting period for a period of 20 (or, in the
case of a cash tender offer, 10) calendar days from the date of receipt
(as determined under 803.10) of the additional information or
documentary material requested.
Example: Acquiring person ''A'' desires to acquire voting securities
of corporation X on a securities exchange, and files notification.
Under 801.30, the waiting period begins upon filing by ''A,'' and ''X''
must file within 15 days thereafter. Assume that before the end of the
waiting period, the Assistant Attorney General issues a request for
additional information to ''X.'' Since the transaction is not a tender
offer, under paragraph (c)(1) the waiting period is extended until ''X''
supplies the requested information; under paragraph (c)(2), the waiting
period is extended for 20 days beyond the date on which ''X'' responds.
Note that under 803.21 ''X'' is obliged to respond to the request
within a reasonable time; nevertheless, the Federal Trade Commission
and Assistant Attorney General could, notwithstanding the pendency of
the request for additional information, terminate the waiting period sua
sponte pursuant to 803.11(c).
(d)(1) Identification of requests. Every request for additional
information or documentary material shall be clearly identified as such,
whether communicated in person, by telephone or in writing, and shall
clearly identify the person, entity or entities, or individual(s) to
which it is addressed.
(2) Request for clarification. No request for clarification or
amplification of a response to any item on the Notification and Report
Form, whether communicated in person, by telephone or in writing, shall
be considered a request for additional information or documentary
material within the meaning of section 7A(e) and this section.
(43 FR 33548, July 31, 1978, as amended at 48 FR 34441, July 29,
1983)
16 CFR 803.21 Additional information shall be supplied within
reasonable time.
All additional information or documentary material requested pursuant
to section 7A(e) and 803.20 (or, if such request is not fully complied
with, the information or documentary material submitted and a statement
of the reasons for such noncompliance in accordance with 803.3) shall
be supplied within a reasonable time.
16 CFR 803.30 Formal and informal interpretations of requirements under
the Act and the rules.
(a) The Commission staff may consider requests for formal or informal
interpretations as to the obligations under the act and these rules of
any party to an acquisition. A request for a formal interpretation
shall be made in writing to the offices designated in 803.10(c), and
shall state:
(1) All facts which the applicant believes to be material, (2) the
reasons why the requirements of the act are or may be applicable and (3)
the question(s) that the applicant wishes resolved. The Commission
staff may, in its discretion, render a formal or informal response to
any request, however made, or may decline to render such advice.
(b) In the sole discretion of the staff, any request for
interpretation may be referred to the Commission.
(c) Formal interpretations by the Commission staff or by the
Commission shall be rendered with the concurrence of the Assistant
Attorney General or his or her designee.
(d) Any formal interpretation shall be without prejudice to the right
of either the Commission or the Assistant Attorney General to rescind
any such interpretation rendered pursuant to this section. In the event
of such rescission, the party which requested the interpretation shall
be so notified in writing.
(e) The Commission shall publish a summary of formal interpretations
by the Commission, and any rescissions thereof, in the Federal Register.
16 CFR 803.90 Separability.
If any provision of the rules in this Subchapter (H) (including the
Notification and Report Form) or the application of any such provision
to any person or circumstances is held invalid, neither the other
provisions of the rules nor the application of such provision to other
persons or circumstances shall be affected thereby.
16 CFR 803.90 Appendix
16 CFR 803.90 Pt. 803, Appendix
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(52 FR 7083, Mar. 6, 1987; as amended at 55 FR 31374, Aug. 2, 1990)
16 CFR 803.90 SUBCHAPTER I -- FAIR DEBT COLLECTION PRACTICES ACT
16 CFR 803.90 PART 901 -- PROCEDURES FOR STATE APPLICATION FOR
EXEMPTION FROM THE PROVISIONS OF THE ACT
Sec.
901.1 Purpose.
901.2 Application.
901.3 Supporting documents.
901.4 Criteria for determination.
901.5 Public notice of filing.
901.6 Exemption from requirements.
901.7 Adverse determination.
901.8 Revocation of exemption.
Authority: Pub. L. 95-109, 91 Stat. 874, 15 U.S.C. 1692o; 5 U.S.C.
552.
Source: 44 FR 21005, Apr. 9, 1979, unless otherwise noted.
16 CFR 901.1 Purpose.
This part establishes procedures and criteria whereby States may
apply to the Federal Trade Commission for exemption of a class of debt
collection practices within the applying State from the provisions of
the Fair Debt Collection Practices Act as provided in section 817 of the
Act, 15 U.S.C. 1692o.
16 CFR 901.2 Application.
Any State may apply to the Commission pursuant to the terms of this
Rule for a determination that, under the laws of that State,1 any class
of debt collection practices2 within that State is subject to
requirements that are substantially similar to, or provide greater
protection for consumers than, those imposed under sections 803 through
812 of the Act, and that there is adequate provision for State
enforcement of such requirements. The application shall be in writing,
addressed to the Commission, signed by the Governor, Attorney General or
State official having primary enforcement or responsibility under the
State law which is applicable to the class of debt collection practices,
and shall be supported by the documents specified herein.
1Any reference to State law herein includes a reference to any
regulations that implement State law and formal interpretations thereof
by a court of competent jurisdiction or duly authorized agency of that
State.
2As applicable, references to ''class of debt collection practices''
in this rule include one or more such classes of debt collection
practices.
16 CFR 901.3 Supporting documents.
The application shall be accompanied by:
(a) A copy of the full text of the State law that is claimed to
contain requirements substantially similar to those imposed under
sections 803 through 812 of the Act, or to provide greater protection to
consumers than sections 803 through 812 of the Act, regarding the class
of debt collection practices within that State.
(b) A comparison of each provision of sections 803 through 812 of the
Act with the corresponding provision of the State law, together with
reasons supporting the claim that the corresponding provisions of the
State law are substantially similar to or provide greater protection to
consumers than provisions of sections 803 through 812 of the Act and an
explanation as to why any differences between the State and federal law
are not inconsistent with the provisions of sections 803 through 812 of
the Act and do not result in a diminution in the protection otherwise
afforded consumers; and a statement that no other State laws (including
administrative or judicial interpretations) are related to, or would
have an effect upon, the State law that is being considered by the
Commission in making its determination.
(c) A copy of the full text of the State law that provides for
enforcement of the State law referred to in paragraph (a) of this
section.
(d) A comparison of the provisions of the State law that provides for
enforcement with the provisions of section 814 of the Act, together with
reasons supporting the claim that such State law provides for:
(1) Administrative enforcement of the State law referred to in
paragraph (a) of this section that is substantially similar to, or more
extensive than, the enforcement provided under section 814 of the Act;
(2) Civil liabilities for a failure to comply with the requirements
of the State law that is substantially similar to, or more extensive
than, that provided under section 813 of the Act, including class action
liability and the ability of the State Attorney General or other
appropriate State officials to commence a civil action under
circumstances substantially similar to those prescribed in section 813
of the Act, except that such State law may provide a greater damage
remedy or other, more extensive remedies;
(3) A statute of limitations that prescribes a period for civil
actions of substantially similar duration to that provided under section
813(d) of the Act or a longer period; and
(e) A statement identifying the office designated or to be designated
to administer the State law referred to in paragraph (a) of this
section, together with complete information regarding the fiscal
arrangements for administrative enforcement (including the amount of
funds available or to be provided), the number and qualifications of
personnel engaged or to be engaged in enforcement, and a description of
the procedures under which such State law is to be administratively
enforced. The statement should also include reasons to support the
claim that there is adequate provision for enforcement of such State
law.
16 CFR 901.4 Criteria for determination.
The Commission will consider the criteria set forth below, and any
other relevant information, in determining whether the law of a State is
substantially similar to, or provides greater protection to consumers
than, the provisions of sections 803 through 812 of the Act regarding
the class of debt collection practices within that State, and whether
there is adequate provision for State enforcement of such law. In
making that determination, the Commission primarily will consider each
provision of the State law in comparison with each corresponding
provision in sections 803 through 812 of the Act, and not the State law
as a whole in comparison with the Act as a whole.
(a) In order for provisions of State law to be substantially similar
to, or provide greater protection to consumers than the provisions of
sections 803 through 812 of the Act, the provisions of State law3 at
least shall provide that:
(1) Definitions and rules of construction, as applicable, import the
same meaning and have the same application as those prescribed by
sections 803 through 812 of the Act.
(2) Debt collectors provide all of the applicable notifications
required by the provisions of sections 803 through 812 of the Act, with
the content and in the terminology, form, and time periods prescribed by
this part pursuant to sections 803 through 812; however, required
references to State law may be substituted for the references to Federal
law required in this part. Notification requirements under State law in
additional circumstances or with additional detail that do not frustrate
any of the purposes of the Act may be determined by the Commission to be
consistent with sections 803 through 812 of the Act;
(3) Debt Collectors take all affirmative actions and abide by
obligations substantially similar to, or more extensive than, those
prescribed by sections 803 through 812 of the Act under substantially
similar or more stringent conditions and within the same or more
stringent time periods as are prescribed in sections 803 through 812 of
the Act;
(4) Debt Collectors abide by the same or more stringent prohibitions
as are prescribed by sections 803 through 812 of the act;
(5) Obligations or responsibilities imposed on consumers are no more
costly, lengthy, or burdensome relative to consumers exercising any of
the rights or gaining the benefits of the protections provided in the
State law than corresponding obligations or responsibilities imposed on
consumers in sections 803 through 812 of the act.
(6) Consumers' rights and protections are substantially similar to,
or more favorable than, those provided by sections 803 through 812 of
the Act under conditions or within time periods that are substantially
similar to, or more favorable to consumers than, those prescribed by
sections 803 through 812 of the Act.
(b) In determining whether provisions for enforcement of the State
law referred to in 901.3(a) are adequate, consideration will be given
to the extent to which, under State law, provision is made for:
(1) Administrative enforcement, including necessary facilities,
personnel, and funding;
(2) Civil liability for a failure to comply with the requirements of
such a State law that is substantially similar to, or more extensive
than, that provided under section 813 of the act;
(3) A statute of limitations for civil liability of substantially
similar or longer duration as that provided under section 813(d) of the
act.
3This subsection is not be construed as indicating that the
Commission would consider adversely any additional requirements of State
law that are not inconsistent with the purpose of the Act or the
requirements imposed under sections 803 through 812 of the Act.
16 CFR 901.5 Public notice of filing.
In connection with any application that has been filed in accordance
with the requirements of 901.2 and 901.3 of this rule and following
initial review of the application, a notice of such filing shall be
published by the Commission in the Federal Register, and a copy of such
application shall be made available for examination by interested
persons during business hours at the Federal Trade Commission, Public
Reference Room, Room 130. A period of time shall be allowed from the
date of such publication for interested parties to submit written
comments to the Commission regarding that application.
16 CFR 901.6 Exemption from requirements.
If the Commission determines on the basis of the information before
it that, under the law of a State, a class of debt collection practices
is subject to requirements substantially similar to, or that provide
greater protection to consumers than, those imposed under sections 803
through section 812 and 814 of the Act, and that there is adequate
provision for State enforcement, the Commission will exempt the class of
debt collection practices in that State from the requirements of
sections 803 through 812 and section 814 of the Act in the following
manner and subject to the following conditions:
(a) Notice of the exemption shall be published in the Federal
Register, and the Commission shall furnish a copy of such notice to the
State official who made application for such exemption, to each Federal
authority responsible for administrative enforcement of the requirements
of sections 803 through 812 of the Act, and to the Attorney General of
the United States. Any exemption granted shall be effective 90 days
after the date of publication of such notice in the Federal Register.
(b) The appropriate official of any State that receives an exemption
shall inform the Commission in writing within 30 days of any change in
the State laws referred to in 901.3 (a) and (c). The report of any
such change shall contain copies of the full text of that change,
together with statements setting forth the information and opinions
regarding that change that are specified in 901.3 (b) and (d). The
appropriate official of any State that has received such an exemption
also shall file with the Commission from time to time such reports as
the Commission may require.
(c) The Commission shall inform the appropriate official of any State
that receives such an exemption of any subsequent amendments of the Act
(including the Commission's formal advisory opinions, and informal staff
interpretations issued by an authorized official or employee of the
Federal Trade Commission) that might necessitate the amendment of State
law for the exemption to continue.
(d) No exemption shall extend to the civil liability provisions of
section 813 of the Act. After an exemption is granted, the requirements
of the applicable State law shall constitute the requirements of
sections 803 through 812 of the Act, except to the extent such State law
imposes requirements not imposed by the Act or this part.
16 CFR 901.7 Adverse determination.
(a) If, after publication of a notice in the Federal Register as
provided under 901.5, the Commission finds on the basis of the
information before it that it cannot make a favorable determination in
connection with the application, the Commission shall notify the
appropriate State official of the facts upon which such findings are
based and shall afford that State authority a reasonable opportunity to
demonstrate or achieve compliance.
(b) If, after having afforded the State authority such opportunity to
demonstrate or achieve compliance, the Commission finds on the basis of
the information before it that it still cannot make a favorable
determination in connection with the application, the Commission shall
publish in the Federal Register a notice of its determination regarding
the application and shall furnish a copy of such notice to the State
official who made application for such exemption.
16 CFR 901.8 Revocation of exemption.
(a) The Commission reserves the right to revoke any exemption granted
under the provisions of this rule, if at any time it determines that the
State law does not, in fact, impose requirements that are substantially
similar to, or that provide greater protection to applicants than, those
imposed under sections 803 through 812 of the Act or that there is not,
in fact, adequate provision for State enforcement.
(b) Before revoking any such exemption, the Commission shall notify
the appropriate State official of the facts or conduct that, in the
Commission's opinion, warrants such revocation, and shall afford that
State such opportunity as the Commission deems appropriate in the
circumstances to demonstrate or achieve compliance.
(c) If, after having been afforded the opportunity to demonstrate or
achieve compliance, the Commission determines that the State has not
done so, notice of the Commission's intention to revoke such exemption
shall be published in the Federal Register. A period of time shall be
allowed from the date of such publication for interested persons to
submit written comments to the Commission regarding the intention to
revoke.
(d) If such exemption is revoked, notice of such revocation shall be
published by the Commission in the Federal Register, and a copy of such
notice shall be furnished to the appropriate State official, to the
Federal authorities responsible for enforcement of the requirements of
the Act, and to the Attorney General of the United States. The
revocation shall become effective, and the class of debt collection
practices affected within that State shall become subject to the
requirements of sections 803 through 812 of the Act, 90 days after the
date of publication of the notice in the Federal Register
16 CFR 901.8 PARTS 902 -- 999 (RESERVED)
16 CFR 901.8 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Chap.
16 CFR 901.8 Table of CFR Titles and Chapters
16 CFR 901.8 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
16 CFR 901.8 Title 2 -- (Reserved)
16 CFR 901.8 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
16 CFR 901.8 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
III General Accounting Office (CASB) (Parts 300 -- 499)
16 CFR 901.8 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Council (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
16 CFR 901.8 Title 6 -- (Reserved)
16 CFR 901.8 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
16 CFR 901.8 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
16 CFR 901.8 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
16 CFR 901.8 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
16 CFR 901.8 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
16 CFR 901.8 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIII Farm Credit System Assistance Board (Parts 1300 -- 1399)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
16 CFR 901.8 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
16 CFR 901.8 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
16 CFR 901.8 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
16 CFR 901.8 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
16 CFR 901.8 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
16 CFR 901.8 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
16 CFR 901.8 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
16 CFR 901.8 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
16 CFR 901.8 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
16 CFR 901.8 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
16 CFR 901.8 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
16 CFR 901.8 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
16 CFR 901.8 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
16 CFR 901.8 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
16 CFR 901.8 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
16 CFR 901.8 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
16 CFR 901.8 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200-1299)
XII Federal Mediation and Conciliation Service (Parts 1400-1499)
XIV Equal Employment Opportunity Commission (Parts 1600-1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
16 CFR 901.8 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
16 CFR 901.8 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
16 CFR 901.8 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200-1299)
XVI Selective Service System (Parts 1600-1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
16 CFR 901.8 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
16 CFR 901.8 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
16 CFR 901.8 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
16 CFR 901.8 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900-999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
16 CFR 901.8 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400-499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
16 CFR 901.8 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
16 CFR 901.8 Title 39 -- Postal Service
I United States Postal Service (Parts 1-999)
III Postal Rate Commission (Parts 3000 -- 3099)
16 CFR 901.8 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500-1599)
16 CFR 901.8 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
16 CFR 901.8 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
16 CFR 901.8 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
16 CFR 901.8 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
16 CFR 901.8 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Family Support
Administration, Department of Health and Human Services (Parts 200 --
299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Family Support Administration, Department of Health and Human
Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Family Support Administration,
Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Family Support Administration,
Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XX Commission on the Bicentennial of the United States Constitution
(Parts 2000 -- 2099)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (2200 --
2299)
16 CFR 901.8 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
16 CFR 901.8 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
16 CFR 901.8 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900-9999)
16 CFR 901.8 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Urban Mass Transportation Administration, Department of
Transportation (Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
16 CFR 901.8 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
16 CFR 901.8 CFR Index and Finding Aids Subject/Agency Index List
of Agency Prepared Indexes Parallel Tables of Statutory Authorities and
Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
16 CFR 901.8 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bicentennial of the United States Constitution, Commission on the 45,
XX
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on the Bicentennial of the United States Constitution 45,
XX
Committee for Purchase from the Blind and Other Severely Handicapped
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Farm Credit Administration 12, VI
Farm Credit System Assistance Board 12, XIII
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II, III
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Reduction in Meeting and Training Allowance Payments 41, 304
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Credit Union Administration 12, VII
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Office of Navajo and Hopi Indian Relocation 25, IV
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Oversight Board 12, XV
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Urban Mass Transportation Administration 49, VI
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Adminstration 15, XII
Urban Mass Transportation Administration 49, VI
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
16 CFR 901.8 16 CFR (1-1-92 Edition)
16 CFR 901.8 List of CFR Sections Affected
16 CFR 901.8 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985,'' published in seven
separate volumes.
16 CFR 901.8 1986
16 CFR
51 FR
Page
Chapter I
303.7 (u) added 20807
(t) added 20809
305 Energy efficiency ranges confirmed 3581, 24137
305.9 (a) table 1 revised; authority citation removed 16516
306 Summary and analysis of comments 10186
307 Added; eff. in part 2-27-87 40015
423 Existing regulations unchanged 28222
425 Existing regulations unchanged 42087
444.3 Exemption granted 28328
444.5 Exemption granted 24304
455 Exemption granted 20936
460.10 Revised 39651
460.18 (f) added 39651
460.19 (g) added 39651
460 Appendix A heading revised; Appendix B removed 39652
803 Appendix amended 10371
16 CFR 901.8 1987
16 CFR
52 FR
Page
Chapter I
305 Revised 46894
305.9 (a) Table 1 revised 22633
305 Appendixes A1 through J correctly revised 49634
429 Existing regulations unchanged 29507
436 Existing regulations unchanged 18353
453 Exemption granted in part 39376
455 Staff compliance guidelines 18553
Staff compliance guidelines corrected 19845
Petitions denied 34769
702.1 (c) revised; (g) removed 7574
702.3 (a) revised 7574
801.1 (b) introductory text, (1), and (2) revised; existing Example
designated as 1; Examples 2, 3, and 4 added 20063
801.4 (b) Example 1 revised 7080
801.11 (a) revised; (e) added 7080
801.12 (b)(1) revised 7081
801.13 (a)(1) and (b)(2)(ii) revised; (a)(2) Example 4 and (3) added
7081
801.15 (a)(2) and (c) Example 4 revised 7081
801.30 (b) Example 3 revised 7082
801.40 Example revised 7082
802.35 Added 7082
802.41 Example 1 revised 7082
802.70 Revised 7082
803.5 (a)(1)(iii) revised; (a)(2) Example designated as (a)(2)
Example 1; (a)(2) Examples 2 through 5 added 7082
803.10 (a)(2) redesignated as (a)(3) and revised; new (a)(2) added
7083
803 Appendix revised 7084
16 CFR 901.8 1988
16 CFR
53 FR
Page
Chapter I
300.10 (a) revised 31314
300.31 Revised 31314
301.19 (l) revised 31314
301.41 Revised 31315
303.16 (a) revised 31315
303.39 (a) revised 31315
304.1 (k) added 38942
304.6 (b) (3) and (4) revised 38942
305 Authority citation revised 18551,
19729, 52115, 52406
Energy efficiency ranges confirmed 39741
305.9 (a) revised 5971
(a) introductory text republished; (a) Table 1 revised 52406
305 Appendix F amended 18552
Appendixes H and I revised 19729
Appendixes D1, D2, and D3 amended 26238
Appendix K added 52116
429 Authority citation revised 45459
429.1 (a) amended; (b) introductory text revised 45459
444.3 Exemption granted 19893
455 Exemption granted 16390
Form republished 16395
Staff compliance guidelines 17658,
17660
500 Existing regulations unchanged 20834
802 Interpretation 47524
16 CFR 901.8 1989
16 CFR
54 FR
Page
Chapter I
303 Textile fiber products identification 23205
305 Energy efficiency ranges confirmed 6517, 41248
Energy efficiency ranges 46888
305.1 (a) revised 28034
305.2 (n) and (o) revised; (p) and (q) added 28034
305.3 (j) added 28035
305.4 (e)(2) revised 28035
305.5 Introductory text revised; (i) added 28035
305.7 (j) added 28035
305.8 (a) amended 28035
305.10 (a) amended 28035
305.11 (d) added 28035
305.13 (a) introductory text revised; (c) added 28036
305.14 (a) introductory text revised; (c) added 28036
305.16 Amended 28036
305.18 (a) and (b) amended; (e) and (f) revised; (i) redesignated
as (j); new (i) added; (j) republished 28036
305 Appendixes A1 amended 21051
Appendixes A2 and B amended 21052
Appendix C amended 32632
Appendix C and E amended 38967
Appendix F Energy efficiency ranges 21196
Appendixes G1 and G3 revised; eff. 3-20-90 52022
Appendixes H and I amended; eff. 3-28-90 53318
306 Petition granted in part 14073
424 Revised 35467
453.10 Revised 19360
456 Revised 10304
803.11 (c) revised; interim 21427
16 CFR 901.8 1990
16 CFR
55 FR
Page
Chapter I
240 Revised 33663
305 Energy efficiency ranges 22893, 23899, 24889,
28754, 34230, 37321
305.9 (a) table 1 revised 13265
305 Appendixes G2 and G3 redesignated as G3 and G4; new Appendixes
G2 and G5 added; Appendixes G1 and new G4 heading revised and text
amended 7303
Appendixes A1 and A2 amended 40161
Appendix B amended 40162
Appendixes H and I amended; eff. 1-24-91 43093
Appendixes A1, A2 and B regulation at 55 FR 40161 withdrawn 48230
Appendixes A1, A2 and B amended; eff. 2-19-91 48230
401 Removed 23902
414 Removed 25091
417 Regulatory review results 20450
432 Regulatory review results 23547
438 Removed 52989
460.5 Introductory text republished; (a) introductory text, (2),
(b), (d) introductory text and (1) revised 10055
(a) corrected 12110
600 Revised 18808
803 Appendix amended 31374
16 CFR 901.8 1991
16 CFR
56 FR
Page
Chapter I
305 Energy efficiency ranges 26763, 30494, 43692, 50812
305.9 (a) revised 9123
(a) Table 1, footnotes 7 and 9 corrected 11589
305 Appendix F amended 15275
Appendixes D1, D2 and D3 amended 46524
Appendixes H and I amended 46728
307.3 (n) added 11662
307.4 (b) amended 11662
307.9 Redesignated as 307.10; new 307.9 added 11662
307.10 Redesignated as 307.11; new 307.10 redesignated from 307.9
11662
307.11 Redesignated as 307.12; new 307.11 redesignated from 307.10
11662
307.12 Redesignated from 307.11 11662
(b) amended 11663
16
Commercial Practices
PARTS 150 TO 999
Revised as of January 1, 1992
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1992
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
16 CFR 901.8 Table of Contents
Page
Explanation v
Title 16:
Chapter I -- Federal Trade Commission (Continued)
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
16 CFR 901.8 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 1992), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-523-3517). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
January 1, 1992.
16 CFR 901.8 THIS TITLE
Title 16 -- Commercial Practices is composed of three volumes. The
first two volumes containing parts 0-149, and parts 150-999, comprise
chapter I -- Federal Trade Commission. The third volume containing part
1000 to end comprises chapter II -- Consumer Product Safety Commission.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 1992.
For this volume, Linda L. Jones was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
16 CFR 0.0 16 CFR Ch. II (1-1-92 Edition)
16 CFR 0.0 Consumer Product Safety Commission
16 CFR 0.0 Title 16 -- Commercial Practices
16 CFR 0.0 (This book contains part 1000 to End)
Part
chapter ii -- Consumer Product Safety Commission 1000
16 CFR 0.0 16 CFR Ch. II (1-1-92 Edition)
16 CFR 0.0 Consumer Product Safety Commission
16 CFR 0.0 CHAPTER II -- CONSUMER PRODUCT
16 CFR 0.0 SAFETY COMMISSION
Editorial Note: For documents affecting chapter II on rule review
under the Regulatory Flexibility Act see 52 FR 5079, Feb. 19, 1987 and
54 FR 601, Jan. 9, 1989.
16 CFR 0.0 SUBCHAPTER A -- GENERAL
Part
Page
1000 Commission organization and functions
1009 General statements of policy or interpretation 13
1010 Statement of policy and interpretation concerning exportation of
non complying, misbranded, or banned products
1011 Notice of agency activities
1012 Meetings policy -- Meetings between agency personnel and outside
parties
1013 Government in the Sunshine Act, rules for Commission meetings
1014 Policies and procedures implementing the Privacy Act of 1974 26
1015 Procedures for disclosure or production of information under the
Freedom of Information Act 31
1016 Policies and procedures for information disclosure and
Commission employee testimony in private litigation 39
1017 Procedures for safeguarding confidential business information
received from EPA 41
1018 Advisory committee management 43
1019 Procedures for export of noncomplying products
1021 Environmental review 51
1025 Rules of practice for adjudicative proceedings 58
1027 Salary offset
1028 Protection of human subjects 91
1030 Employee standards of conduct 99
1031 Commission participation and commission employee involvement in
voluntary standards activities 115
1033 Display of control numbers for collection of information
requirements under the Paperwork Reduction Act
1034 Enforcement of nondiscrimination on the basis of handicap in
programs or activities conducted by the Consumer Product Safety
Commission
1051 Procedure for petitioning for rulemaking
1052 Procedural regulations for informal oral presentations in
proceedings before the Consumer Product Safety Commission
1061 Applications for exemption from preemption
16 CFR 0.0 SUBCHAPTER B -- CONSUMER PRODUCT SAFETY ACT REGULATIONS
1101 Information disclosure under section 6(b) of the Consumer
Product Safety Act
1105 Contributions to costs of participants in development of
consumer product safety standards
1115 Substantial product hazard reports
1118 Investigations, inspections and inquiries under the Consumer
Product Safety Act
1145 Regulation of products subject to other acts under the Consumer
Product Safety Act 142
1201 Safety standard for architectural glazing materials 144
1202 Safety standard for matchbooks 161
1204 Safety standard for omnidirectional citizens band base station
antennas
1205 Safety standard for walk-behind power lawn mowers
1207 Safety standard for swimming pool slides 168
1209 Interim safety standard for cellulose insulation
1211 Safety standard for automatic residential garage door operators
1301 Ban of unstable refuse bins 190
1302 Ban of extremely flammable contact adhesives 194
1303 Ban of lead-containing paint and certain consumer products
bearing lead-containing paint 199
1304 Ban of consumer patching compounds containing respirable
free-form asbestos 203
1305 Ban of artificial emberizing materials (ash and embers)
containing respirable free-form asbestos 207
1306 Ban of hazardous lawn darts
1401 Self pressurized consumer products containing
chlorofluorocarbons: Requirements to provide the Commission with
performance and technical data; requirements to notify consumers at
point of purchase of performance and technical data 208
1402 CB base station antennas, TV antennas, and supporting structures
1404 Cellulose insulation
1406 Coal and wood burning appliances -- notification of performance
and technical data
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER C -- FEDERAL HAZARDOUS SUBSTANCES ACT
REGULATIONS
1500 Hazardous substances and articles; administration and
enforcement regulations 211
1501 Method for identifying toys and other articles intended for use
by children under 3 years of age which present choking, aspiration, or
ingestion hazards because of small parts
1502 Procedures for formal evidentiary public hearing
1505 Requirements for electrically operated toys or other
electrically operated articles intended for use by children 269
1507 Fireworks devices 283
1508 Requirements for full-size baby cribs 284
1509 Requirements for non-full-size baby cribs 287
1510 Requirements for rattles
1511 Requirements for pacifiers 291
1512 Requirements for bicycles 294
16 CFR 0.0 SUBCHAPTER D -- FLAMMABLE FABRICS ACT REGULATIONS
1602 Statements of policy or interpretation 316
1605 Investigations, inspections and inquiries pursuant to the
Flammable Fabrics Act 323
1608 General rules and regulations under the Flammable Fabrics Act
334
1609 Text of the Flammable Fabrics Act of 1953, as amended in 1954,
prior to 1967 amendment and revision 338
1610 Standard for the flammability of clothing textiles 341
1611 Standard for the flammability of vinyl plastic film 356
1615 Standard for the flammability of children's sleepwear: Sizes 0
through 6X (FF 3-71) 365
1616 Standard for the flammability of children's sleepwear: Sizes 7
through 14 (FF 5-74) 255
1630 Standard for the surface flammability of carpets and rugs (FF
1-70) 276
1631 Standard for the surface flammability of small carpets and rugs
(FF 2-70) 284
1632 Standard for the flammability of mattresses and mattress pads
(FF 4-72, amended) 292
16 CFR 0.0 SUBCHAPTER E -- POISON PREVENTION PACKAGING ACT OF 1970
REGULATIONS
1700 Poison prevention packaging 325
1701 Statements of policy and interpretation
1702 Petitions for exemptions from Poison Prevention Packaging Act
requirements; petition procedures and requirements
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER F -- REFRIGERATOR SAFETY ACT REGULATIONS
1750 Standard for devices to permit the opening of household
refrigerator doors from the inside 337
16 CFR 0.0 16 CFR Ch. II (1-1-92 Edition)
16 CFR 0.0 Consumer Product Safety Commission
16 CFR 0.0 SUBCHAPTER A -- GENERAL
16 CFR 0.0 PART 1000 -- COMMISSION ORGANIZATION AND FUNCTIONS
Sec.
1000.1 The Commission.
1000.2 Laws administered.
1000.3 Hotline.
1000.4 Commission addresses.
1000.5 Petitions.
1000.6 Commission decisions and records.
1000.7 Advisory opinions and interpretations of regulations.
1000.8 Meetings and hearings; public notice.
1000.9 Quorum.
1000.10 The Chairman and Vice Chairman.
1000.11 Delegation of functions.
1000.12 Organizational structure.
1000.13 Directives system.
1000.14 Office of the General Counsel.
1000.15 Office of Congressional Relations.
1000.16 Office of the Secretary.
1000.17 Office of the Inspector General.
1000.18 Office of Equal Employment Opportunity and Minority
Enterprise.
1000.19 Office of the Executive Director.
1000.20 Office of the Budget.
1000.21 Office of Hazard Identification and Reduction.
1000.22 Office of Planning and Evaluation.
1000.23 Office of Information and Public Affairs.
1000.24 Office of Compliance and Enforcement.
1000.25 Directorate for Epidemiology.
1000.26 Directorate for Economic Analysis.
1000.27 Directorate for Engineering Sciences.
1000.28 Directorate for Health Sciences.
1000.29 Directorate for Administration.
1000.30 Directorate for Field Operations.
Authority: 5 U.S.C. 552(a).
Source: 56 FR 30496, July 3, 1991, unless otherwise noted.
16 CFR 1000.1 The Commission.
(a) The Consumer Product Safety Commission is an independent
regulatory agency which was formed on May 14, 1973, under the provisions
of the Consumer Product Safety Act (Pub. L. 92-573, 86 Stat. 1207, as
amended (15 U.S.C. 2051, et seq.)). The purposes of the Commission under
the CPSA 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.
(b) The Commission is composed of five members appointed by the
President, by and with the advice and consent of the Senate, for terms
of seven years.
16 CFR 1000.2 Laws administered.
The Commission administers five acts:
(a) The Consumer Product Safety Act (Pub. L. 92-573, 86 Stat. 1207,
as amended (15 U.S.C. 2051, et seq.)).
(b) The Flammable Fabrics Act (Pub. L. 90-189, 67 Stat. 111, as
amended (15 U.S.C. 1191, et seq.)).
(c) The Federal Hazardous Substances Act (Pub. L. 86-613, 74 Stat.
380, as amended (15 U.S.C. 1261, et seq.)).
(d) The Poison Prevention Packaging Act of 1970 (Pub. L. 91-601, 84
Stat. 1670, as amended (15 U.S.C. 1471, et seq.)).
(e) The Refrigerator Safety Act of 1956 (Pub. L. 84-930, 70 Stat.
953, (15 U.S.C. 1211, et seq.)).
16 CFR 1000.3 Hotline.
(a) The Commission operates a toll-free telephone Hotline by which
the public can communicate with the Commission. The number for use in
all 50 states is 1-800-638-CPSC (1-800-638-2772).
(b) The Commission also operates a toll-free Hotline by which deaf or
speech-impaired persons can communicate by teletypewriter with the
Commission. The teletypewriter number for use in all states except
Maryland is 1-800-638-8270. The teletypewriter number for use in
Maryland is 1-800-492-8104.
16 CFR 1000.4 Commission address.
(a) The principal offices of the Commission are at 5401 Westbard
Avenue, Bethesda, Maryland. All written communications with the
Commission should be addressed to the Consumer Product Safety
Commission, Washington, DC 20207-0001, unless otherwise specifically
directed.
(b) The Commission has 3 Regional Centers which are located at the
following addresses and which serve the states and territories
indicated:
(1) Central Regional Center, 230 South Dearborn St., Room 2944,
Chicago, Illinois 60604-1601; Alabama, Georgia, Illinois, Indiana,
Iowa, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Missouri,
Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Wisconsin.
(2) Eastern Regional Center, 6 World Trade Center, Vesey Street, Room
301, New York, New York 10048-0950; Connecticut, Delaware, District of
Columbia, Florida, Maine, Maryland, Massachusetts, New Hampshire, New
Jersey, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode
Island, South Carolina, Vermont, Virginia, West Virginia, and Virgin
Islands.
(3) Western Regional Center, U.S. Customs House, 555 Battery St.,
Room 415, San Francisco, California 94111-2390; Alaska, American Samoa,
Arizona, Arkansas, California, Colorado, Guam, Hawaii, Idaho, Louisiana,
Montana, Nevada, New Mexico, Oklahoma, Oregon, Texas, Utah, Washington,
and Wyoming.
(56 FR 30496, July 3, 1991; 56 FR 67174, Dec. 30, 1991)
16 CFR 1000.5 Petitions.
Any interested person may petition the Commission to issue, amend, or
revoke a rule or regulation by submitting a written request to the
Secretary, Consumer Product Safety Commission, Washington, DC 20207.
16 CFR 1000.6 Commission decisions and records.
(a) Each decision of the Commission, acting in an official capacity
as a collegial body, is recorded in Minutes of Commission meetings or as
a separate Record of Commission Action. Copies of Minutes or of a
Record of Commission Action may be obtained upon written request from
the Secretary, Consumer Product Safety Commission, Washington, DC 20207,
or may be examined in the public reading room at Commission
headquarters. Requests should identify the subject matter of the
Commission action and the approximate date of the Commission action, if
known.
(b) Other records in the custody of the Commission may be requested
in writing from the Office of the Secretary pursuant to the Commission's
Procedures for Disclosure or Production of Information under the Freedom
of Information Act (16 CFR part 1015).
16 CFR 1000.7 Advisory opinions and interpretations of regulations.
(a) Advisory opinions. Upon written request, the General Counsel
provides written advisory opinions interpreting the acts the Commission
administers. Advisory opinions represent the legal opinions of the
General Counsel and may be changed or superseded by the Commission.
Requests for issuance of advisory opinions should be sent to the General
Counsel, Consumer Product Safety Commission, Washington, DC 20207.
Requests for copies of particular previously issued advisory opinions or
a copy of an index of such opinions should be submitted to the Office of
the Secretary, Consumer Product Safety Commission, Washington, DC 20207.
(b) Interpretations of regulations. Upon written request, the
Assistant Executive Director for Compliance and Enforcement will issue
written interpretations of Commission regulations pertaining to the
safety standards and the enforcement of those standards.
Interpretations of regulations represent the interpretations of the
staff and may be changed or superseded by the Commission. Requests for
such interpretations should be sent to the Assistant Executive Director
for Compliance and Enforcement, Consumer Product Safety Commission,
Washington, DC 20207. Requests for interpretations of administrative
regulations (e.g., Freedom of Information Act regulations) should be
sent to the Secretary, Consumer Product Safety Commission, Washington,
DC 20207.
16 CFR 1000.8 Meetings and hearings; public notice.
(a) The Commission may meet and exercise all its powers in any place.
(b) Meetings of the Commission are held as ordered by the Commission
and, unless otherwise ordered, are held at the principal office of the
Commission at 5401 Westbard Avenue, Bethesda, Maryland. Meetings of the
Commission for the purpose of jointly conducting the formal business of
the agency, including the rendering of official decisions, are generally
announced in advanced and open to the public, as provided by the
Government in the Sunshine Act (5 U.S.C. 552b) and the Commission's
Meetings Policy (16 CFR part 1012).
(c) The Commission may conduct any hearing or other inquiry necessary
or appropriate to its functions anywhere in the United States. It will
publish a notice of any proposed hearing in the Federal Register and
will afford a reasonable opportunity for interested persons to present
relevant testimony and data.
(d) Notices of Commission meetings, Commission hearings, and other
Commission activities are published in a Public Calendar, as provided in
the Commission's Meetings Policy (16 CFR part 1012).
16 CFR 1000.9 Quorum.
Three members of the Commission constitute a quorum for the
transaction of business. If there are only three members serving on the
Commission because of vacancies, two members constitute a quorum. If
there are only two members serving on the Commission because of
vacancies, two members constitute a quorum, but only for six months from
the time the number of members was reduced to two.
16 CFR 1000.10 The Chairman and Vice Chairman.
(a) The Chairman is the principal executive officer of the Commission
and, subject to the general policies of the Commission and to such
regulatory decisions, findings, and determinations as the Commission is
by law authorized to make, he or she exercises all of the executive and
administrative functions of the Commission.
(b) The Commission annually elects 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.
16 CFR 1000.11 Delegation of functions.
Section 27(b)(9) of the Consumer Product Safety Act (15 U.S.C.
2076(b)(9)) authorizes the Commission to delegate any of its functions
and powers, other than the power to issue subpoenas, to any officer or
employee of the Commission. Delegations are published in the
Commission's Directives System.
16 CFR 1000.12 Organizational structure.
The Consumer Product Safety Commission is composed of the principal
units listed in this section.
(a) The following units report directly to the Chairman of the
Commission:
(1) Office of the General Counsel;
(2) Office of Congressional Relations;
(3) Office of the Secretary;
(4) Office of the Inspector General;
(5) Office of Equal Employment Opportunity and Minority Enterprise;
(6) Office of the Executive Director.
(b) The following units report directly to the Executive Director of
the Commission:
(1) Office of the Budget;
(2) Office of Hazard Identification and Reduction;
(3) Office of Information and Public Affairs;
(4) Office of Compliance and Enforcement;
(5) Office of Planning and Evaluation;
(6) Directorate for Administration;
(7) Directorate for Field Operations.
(c) The following units report directly to the Assistant Executive
Director for Hazard Identification and Reduction:
(1) Directorate for Epidemiology;
(2) Directorate for Economic Analysis;
(3) Directorate for Health Sciences;
(4) Directorate for Engineering Sciences.
(56 FR 30496, July 3, 1991, as amended at 56 FR 46235, Sept. 11,
1991)
16 CFR 1000.13 Directives system.
The Commission maintains a Directives System which contains
delegations of authority and descriptions of Commission programs,
policies, and procedures. A complete set of directives is available for
inspection in the public reading room at Commission headquarters.
16 CFR 1000.14 Office of the General Counsel.
The Office of the General Counsel provides advice and counsel to the
Commissioners and organizational components of the Commission on matters
of law arising from operations of the Commission. It prepares the
Commission's legislative program and comments on relevant legislative
proposals originating elsewhere. The Office, in conjunction with the
Department of Justice, is responsible for the conduct of all Federal
court litigation to which the Commission is a party. The Office also
advises the Commission on administrative litigation matters. The Office
provides final legal review of and makes recommendations to the
Commission on proposed product safety standards, rules, regulations,
petition actions, and substantial hazard actions. It also provides
legal review of certain procurement, personnel, and administrative
actions and drafts documents for publication in the Federal Register.
16 CFR 1000.15 Office of Congressional Relations.
The Office of Congressional Relations is the principal contact with
the committees and members of Congress. It performs liaison duties for
the Commission, provides information and assistance to Congress on
matters of Commission policy, and coordinates testimony and appearances
by Commissioners and agency personnel before Congress.
16 CFR 1000.16 Office of the Secretary.
The Office of the Secretary prepares the Commission's agenda,
schedules and coordinates Commission business at official meetings, and
records, issues, and stores the official records of Commission actions.
The Office prepares and publishes the Public Calendar under the
Commission's Meetings Policy. The Office exercises joint responsibility
with the Office of the General Counsel for the interpretation and
application of the Privacy Act, Freedom of Information Act, and the
Government in the Sunshine Act, and prepares reports required by these
acts. It issues Commission decisions, orders, rules, and other official
documents, including Federal Register notices, for and on behalf of the
Commission and controls the use of the Commission seal. The Secretary
of the Commission also serves as the agency's Advisory Committee
Management Officer, and is responsible for managing the establishment,
procedures, and accomplishments of all advisory committees utilized by
the Commission. The Office supervises and administers the dockets of
adjudicative proceedings before the Commission. The Office maintains
the records of continuing guaranties of compliance with applicable
standards of flammability issued under the Flammable Fabrics Act (FFA)
which are filed with the Commission in accordance with provisions of
section 8(a) of the FFA (15 U.S.C. 1197(a)). Upon request, the Office of
the Secretary provides appropriate forms to persons and firms desiring
to execute continuing guaranties under the FFA. The Office also
supervises and administers the public reading room.
16 CFR 1000.17 Office of the Inspector General.
The Office of the Inspector General is an independent office
established under the provisions of the Inspector General Act of 1978, 5
U.S.C. Appendix, as amended by the Inspector General Act Amendments of
1988. This Office independently initiates, conducts, supervises, and
coordinates audits, operations reviews, and investigations of Commission
programs, activities, and operations. Reporting only to the Chairman,
and under his or her general supervision, the Office also makes
recommendations to promote economy, efficiency, and effectiveness within
the Commission's programs and operations. The Office receives and
investigates complaints or information concerning possible violations of
law, rules, or regulations, mismanagement, abuse of authority, and waste
of funds. It reviews existing and proposed legislation concerning the
economy, efficiency, and effectiveness of such legislation on Commission
operations.
16 CFR 1000.18 Office of Equal Employment Opportunity and Minority
Enterprise.
The Office of Equal Employment Opportunity and Minority Enterprise
assures compliance with all laws and regulations relating to equal
employment opportunity in accordance with the Equal Employment Act of
1972, 29 CFR part 1613, and section 8(a) of the Small Business Act. The
Office reports directly to the Chairman and provides advice to the
Chairman and Commission staff on EEO matters and the agency Procurement
Preference Program. The Office manages the discrimination complaint
process, the Upward Mobility Program, the stay-in-school program, and
other special emphasis activities having to do with affirmative action
employment practices. The Office makes recommendations to the Chairman
on ways to promote equal opportunity in order to enhance the
Commission's EEO posture.
16 CFR 1000.19 Office of the Executive Director.
The Executive Director with the assistance of the Deputy Executive
Director, under the broad direction of the Chairman and in accordance
with Commission policy, acts as the chief operating manager of the
agency, supporting the development of the agency's budget and operating
plan before and after Commission approval, and managing the execution of
those plans. The Executive Director has direct line authority over the
following directorates and offices: the Directorate for Administration
and the Directorate for Field Operations; the Office of the Budget, the
Office of Hazard Identification and Reduction, the Office of Information
and Public Affairs, the Office of Compliance and Enforcement, and the
Office of Planning and Evaluation.
(56 FR 30496, July 3, 1991, as amended at 56 FR 46235, Sept. 11,
1991)
16 CFR 1000.20 Office of the Budget.
The Office of the Budget is responsible for overseeing the
development of the Commission's budget. The Office, in consultation
with other offices and directorates, prepares, for the Commission's
approval, the annual budget requests to Congress and the Office of
Management and Budget and the operating plans for each fiscal year. It
manages the execution of the Commission's budget. The Office recommends
to the Office of the Executive Director actions to enhance effectiveness
of the Commission's programs and activities.
16 CFR 1000.21 Office of Hazard Identification and Reduction.
The Office of Hazard Identification and Reduction, under the
direction of the Assistant Executive Director for Hazard Identification
and Reduction, is responsible for managing the Commission's Hazard
Identification and Analysis Program and its Hazard Assessment and
Reduction Program. The Office reports to the Executive Director, and
has line authority over the Directorates for Epidemiology, Economic
Analysis, Engineering Sciences, and Health Sciences. The Office
develops strategies for and implements the agency's operating plans for
these two hazard programs. This includes the collection and analysis of
data to identify hazards and hazard patterns, the implementation of the
Commission's safety standards development projects, the coordination of
voluntary standards activities and international liaison activities
related to consumer product safety, and providing overall direction and
evaluation of projects involving hazard analysis, data collection,
emerging hazards, mandatory and voluntary standards, petitions, and
labeling rules. The Office assures that relevant technical,
environmental, economic, and social impacts of projects are
comprehensively and objectively presented to the Commission for
decision.
16 CFR 1000.22 Office of Planning and Evaluation.
The Office of Planning and Evaluation reports to the Executive
Director and is responsible for the Commission's planning and evaluation
activities. It develops integrated short and long range plans for
achieving the Commission's goals and objectives. The office is
responsible for the development and analysis of both major policy and
operational issues. Evaluation studies are conducted to determine how
well the Commission fulfills its mission. These studies include impact
and process evaluations of Commission programs, projects, functions, and
activities. Recommendations are made to the Executive Director for
changes to improve their efficiency and effectiveness. Management
analyses and special studies are also conducted. These cover, but are
not limited to, internal controls, organizational performance,
structure, and productivity measurement. Recommendations are made to
the Executive Director for improving management efficiency and
effectiveness. The Office also coordinates, develops, and issues
agencywide directives and manages the Commission's information
collection budget and obtains Office of Management and Budget clearance
for information collections.
16 CFR 1000.23 Office of Information and Public Affairs.
The Office of Information and Public Affairs is responsible for the
development, implementation, and evaluation of a comprehensive national
information and public affairs program designed to promote product
safety. This includes responsibility for developing and maintaining
relations with a wide range of national groups such as consumer
organizations; business groups; trade associations; state and local
government entities; labor organizations; medical, legal, scientific
and other professional associations; and other Federal health, safety
and consumer agencies. The Office also manages the Commission's
Hotline, described in 1000.3 of this chapter. The Office also is
responsible for implementing the Commission's media relations program
nationwide. The Office serves as the Commission's spokesperson to the
national print and broadcast media, develops and disseminates the
Commission's news releases, and organizes Commission news conferences.
16 CFR 1000.24 Office of Compliance and Enforcement.
The Office of Compliance and Enforcement, which is managed by the
Assistant Executive Director for Compliance and Enforcement, conducts or
supervises the conduct of compliance and administrative enforcement
activity under all administered acts, provides advice and guidance to
regulated industries on complying with all administered acts and reviews
proposed standards and rules with respect to their enforceability. The
Office's responsibility also includes identifying and acting on safety
hazards in consumer products already in distribution, promoting industry
compliance with existing safety rules, and conducting litigation before
an administrative law judge relative to administrative complaints. It
directs the enforcement efforts of the field offices and provides
program guidance, advice, and case guidance to field offices and
participates in the development of standards before their promulgation
to assure enforceability of the final product. It enforces the Consumer
Product Safety Act requirement that firms identify and report product
defects which could present possible substantial hazards, violations of
consumer product safety rules, violations of standards relied upon by
the Commission, or unreasonable risk of serious injury or death, and the
requirement that firms report certain lawsuit information. It reviews
consumer complaints, in-depth investigations, and other data to identify
those consumer products containing such hazards or which do not comply
with existing safety requirements. The Office negotiates and
subsequently monitors corrective action plans designed to give public
notice of hazards and recall defective or non-complying products subject
to the Commission's jurisdiction, gives public warning to consumers
where appropriate, and provides guidelines and directs the field in
negotiating and monitoring corrective action plans designed to recall
products which fail to comply with specific regulations. It gathers
information on generic product hazards which may lead to subsequent
initiation of safety standard setting procedures. The Office develops
surveillance strategies and programs designed to assure compliance with
Commission standards and regulations. It originates instructions to
field offices and provides subsequent interpretations or guidance for
field surveillance and enforcement activities.
16 CFR 1000.25 Directorate for Epidemiology.
The Directorate for Epidemiology, which is managed by the Associate
Executive Director for Epidemiology, is responsible for injury and human
factors data analysis to identify consumer-product related hazards or
hazard patterns. The Directorate collects data on consumer
product-related hazards and potential hazards, determines the frequency,
severity, and distribution of the various types of injuries, and
investigates their causes. It assesses the effects of product safety
standards and programs on consumer injuries and conducts epidemiological
and human factors studies and research in the field of consumer
product-related injuries. The Directorate provides statistical support
for all other Commission organizations, including, but not limited to,
standards development, certification programs, and sampling for field
inspection programs. It performs risk assessments based on injury and
incident data for physical, thermal, and electrical hazards in consumer
products. It maintains the National Injury Information Clearinghouse
and manages the National Electronic Injury Surveillance System (NEISS).
The Directorate manages hazard assessment and reduction projects as
assigned.
16 CFR 1000.26 Directorate for Economic Analysis.
The Directorate for Economic Analysis, which is managed by the
Associate Executive Director for Economic Analysis, is responsible for
providing the Commission with advice and information on economic and
environmental matters and on the economic, social and environmental
effects of Commission actions. It analyzes the potential effects of
CPSC actions on consumers and on industries, including effects on
competitive structure and commercial practices. The Directorate
acquires, compiles, and maintains economic data on movements and trends
in the general economy and on the production, distribution, and sales of
consumer products and their components to assist in the analysis of CPSC
priorities, policies, actions, and rules. It plans and carries out
economic surveys of consumers and industries. It studies the costs of
accidents and injuries. It evaluates the economic, societal, and
environmental impact of product safety rules and standards. It performs
regulatory analyses and studies of costs and benefits of CPSC actions as
required by the Consumer Product Safety Act, The National Environmental
Policy Act, the Regulatory Flexibility Act and other Acts, and by
policies established by the Consumer Product Safety Commission. The
Directorate manages hazard assessment and reduction projects as
assigned.
16 CFR 1000.27 Directorate for Engineering Sciences.
The Directorate for Engineering Sciences, which is managed by the
Associate Executive Director for Engineering Sciences, is responsible
for developing technical policy for and implementing the Commission's
engineering programs. The Directorate develops and evaluates product
safety standards and test methods; conducts specific product testing to
support general agency regulatory activities; manages hazard assessment
and reduction projects as assigned by the Office of Hazard
Identification and Reduction; develops and evaluates performance
criteria, design specifications, and quality control standards for
certain consumer products; provides scientific and technical expertise
to the Commission and Commission staff; provides advice on proposed
mandatory standards and industry voluntary standard efforts; performs
or monitors research in the engineering sciences; manages the
Commission's engineering laboratory and test facilities; and provides
analytical services in support of the Commission's enforcement
activities. It coordinates engineering research, testing, and
evaluation activities with the National Institute of Standards and
Technology and other Federal agencies, private industry, and consumer
interest groups; provides reliability engineering and quality control
analysis in support of standards development, product certification, and
compliance product testing; provides technical supervision and
direction of all engineering activities, including tests and analyses
conducted in the field; and provides engineering technical support to
all Commission organizations, activities, and programs. The Directorate
analyzes accident data, develops accident scenarios, and recommends
solutions.
16 CFR 1000.28 Directorate for Health Sciences.
The Directorate for Health Sciences, which is managed by the
Associate Executive Director for Health Sciences, is responsible for
developing science policy and implementing the Commission's Health
Sciences program. The Directorate's functional responsibilities include
development and evaluation of the content of product safety standards
and test methods based on the chemical, biological and medical sciences,
and the conduct and evaluation of specific product testing to support
general agency regulatory activity. The Directorate also provides
health sciences and medical expertise to the Commission, and develops
and evaluates performance criteria, design specifications, and quality
control standards for certain consumer products. It conducts and
evaluates scientific tests and test methods from a chemical or
biological perspective, participates in the scientific development of
product safety standards, and provides advice on proposed standards. It
collects health sciences and medical data, reviews and evaluates
toxicological, medical, and chemical hazards, and determines exposure,
uptake and metabolism, including identification of the toxicological and
physiological bases which cause some population segments to be at
special risk. It performs risk assessments for chemical hazards, and
physical hazards based on medical injury modeling, in consumer products.
It performs or monitors research, and conducts studies of the safety of
consumer products. It provides the Commission's primary source of
technical expertise for implementation of the Poison Prevention
Packaging Act. It provides the expertise on how chemical products are
manufactured and provides scientific and laboratory support to the
Commission's regulatory development and enforcement activities. It
provides health sciences and medical support to all Commission
organizations, activities, and programs. It manages hazard assessment
and reduction projects as assigned. The Directorate provides scientific
liaison with the National Toxicological Program, the National Cancer
Institute, the Environmental Protection Agency, other federal agencies
and programs, and organizations concerned with reducing the risks to
consumers from exposure to chemical hazards.
16 CFR 1000.29 Directorate for Administration.
The Directorate of Administration, which is managed by the Associate
Executive Director for Administration, is responsible for general policy
and internal control within his or her functional area of administrative
responsibility. The Directorate's functional responsibility includes
all general and delegated administrative functions supporting the
Commission in the areas of financial management, personnel
administration, information resources management, procurement, and
general administrative support services. The Directorate is responsible
for the payment, accounting, and reporting of all expenditures within
the Commission and for operating and maintaining the Commission's
accounting system and subsidiary Management Information System which
allocates staff work time and costs to programs and projects. The
Directorate is responsible for all aspects of personnel management for
the Commission, including recruitment and placement, position
classification, employee and labor-management relations, and training
and executive development. The Directorate provides the operational
interface with the Food and Drug Administration's Parklawn Computer
Center, manages the Commission's Office Automation System and personal
computers, and provides ADP operational and programming support for data
collection, information retrieval, report generation, and statistical
and mathematical requirements of the Commission. The Directorate is
responsible for all CPSC contracts and procurement services, and
provides general administrative support services including property and
space management, physical security, printing and reproduction, records
disposition, transportation, mail, telecommunications, warehousing, and
library services.
16 CFR 1000.30 Directorate for Field Operations.
(a) The Directorate for Field Operations, which is managed by the
Associate Executive Director for Field Operations, has direct line
authority over all Commission field operations; develops, issues,
approves, or clears proposals and instructions affecting the field
activities; and provides a central point within the Commission from
which Headquarters officials can obtain field support services. The
Directorate provides direction and leadership to the Regional Center
Directors and to all field employees and promulgates policies and
operational guidelines which form the framework for management of
Commission field operations. The Directorate works closely with the
other Headquarters functional units, the Regional Centers, and other
field offices to assure effective Headquarters-field relationships,
proper allocation of resources to support Commission priorities in the
field, and effective performance of field tasks. It represents the
field and prepares field program documents. It coordinates direct
contact procedures between Headquarter's offices and Regional Centers.
The Directorate is also responsible for liaison with State, local, and
other Federal agencies on product safety programs in the field.
(b) Regional Centers are responsible for carrying out investigative,
compliance, and consumer information and public affairs activities
within their areas. They encourage voluntary industry compliance with
the laws and regulations administered by the Commission, identify
product related incidents and investigate selected injuries or deaths
associated with consumer products, and implement wide-ranging public
information and education programs designed to reduce consumer product
injuries. They also provide support and maintain liaison with
components of the Commission, other Regional Centers, and appropriate
Federal, State, and local government offices.
16 CFR 1000.30 PART 1009 -- GENERAL STATEMENTS OF POLICY OR
INTERPRETATION
Sec.
1009.3 Policy on imported products, importers, and foreign
manufacturers.
1009.8 Policy on establishing priorities for Commission action.
1009.9 Policy regarding the granting of emergency exemptions from
Commission regulations.
16 CFR 1009.3 Policy on imported products, importers, and foreign
manufacturers.
(a) This policy states the Commission's views as to imported products
subject to the Consumer Product Safety Act (15 U.S.C. 2051) and the
other Acts the Commission administers: The Federal Hazardous Substances
Act (15 U.S.C. 1261), the Flammable Fabrics Act (15 U.S.C. 1191), the
Poison Prevention Packaging Act (15 U.S.C. 1471), and the Refrigerator
Safety Act (15 U.S.C. 1211). Basically, the Policy states that in order
to fully protect the American consumer from hazardous consumer products
the Commission will seek to ensure that importers and foreign
manufacturers, as well as domestic manufacturers, distributors, and
retailers, carry out their obligations and responsibilities under the
five Acts. The Commission will also seek to establish, to the maximum
extent possible, uniform import procedures for products subject to the
Acts the Commission administers.
(b) The Consumer Product Safety Act recognizes the critical position
of importers in protecting American consumers from unreasonably
hazardous products made abroad and accordingly, under that Act,
importers are made subject to the same responsibilities as domestic
manufacturers. This is explicitly stated in the definition of
''manufacturer'' as any person who manufacturers or imports a consumer
product (Section 3(a)(4); 15 U.S.C. 2052(a)(4)).
(c) The Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.),
the Flammable Fabrics Act (15 U.S.C. 1191 et seq.), the Poison
Prevention Packaging Act (15 U.S.C. 1471 et seq.), which were
transferred to the jurisdiction of the Consumer Product Safety
Commission under its enabling act, all assign responsibilities to
importers comparable to those of manufacturers and distributors.
(d) Historically, foreign-made products entering the United States
were ''cleared'' by those agencies with particular jurisdiction over
them. Products so cleared were limited in number relative to total
imports. The Consumer Product Safety Commission has jurisdiction over a
far larger number of products entering the United States through over
300 ports of entry. In addition, the total number of imports has
dramatically increased over the years and modern technology has brought
air transport and containerized freight for rapid handling and
distribution of consumer and other products. For the Commission to
effectively ''clear'' such products through ports of entry could
seriously impede and delay the transport of consumer products and impose
additional costs to both the consumer and the importer.
(e) The Consumer Product Safety Act provides alternative means to
both assure the consumer safe products and facilitate the free movement
of consumer products in commerce. For example, it requires
certification by manufacturers (foreign and domestic), importers and
private labelers of products that are subject to a consumer product
safety standard. Such certification must be based on a test of each
product or upon a reasonable testing program. The other acts enforced
by the Commission do not specifically require certificates; however,
both the Flammable Fabrics Act and the Federal Hazardous Substances Act
encourage guarantees of compliance by protecting from criminal
prosecution persons who have in good faith received such guarantees (15
U.S.C. 1197(a); 16 CFR 302.11; 15 U.S.C. 1264(b)).
(f) In the interest of giving the American consumer the full measure
of protection from hazardous products anticipated by the Congress, it is
the Commission's policy to assure that importers and foreign
manufacturers carry out their responsibilities under all laws
administered by this Commission. Specifically:
(1) Importers have responsibilities and obligations comparable to
those of domestic manufacturers. Rules and regulations promulgated by
the Commission will reflect these responsibilities and obligations.
(2) In promulgating its rules and regulations, the Commission
encourages the participation and comments of the import community,
including importers and foreign manufacturers.
(3) All imported products under the jurisdiction of the Consumer
Product Safety Commission shall, to the maximum extent possible, be
subject to uniform import procedures. The Commission recognizes the
need to establish and implement procedures that minimize delay and
expense involved in inspecting cargo at a port of entry. The Commission
encourages cooperation between importers, foreign manufacturers and
foreign governments, which increases the safety of the consumer and
facilitates the free movement of goods between countries.
(4) When enforcement actions are appropriate, they will be directed
toward the responsible officials of any import organization and will not
be restricted to action solely against the product.
(5) Legal actions sought by the Commission will usually be primarily
directed toward the owner or consignee of imported goods rather than
against the customs broker even though his or her name may appear as the
importer of record. However, the Commissioner believes it will not
serve the public interest to impede the Commission's rights of
investigation and enforcement by exempting a customs broker from the
coverage of the law merely because of his or her title or usual form of
business. It may be relevant that a customs broker, who does not have
an ownership interest in the goods but who is acting as an agent for the
actual owner or consignee, signs the entry documents as importer of
record. What effect and possible need for inclusion this will have in a
particular case can be judged by the Commission on a case-by-case basis.
(6) Commission procedures on imports shall be developed in the
context of the overall responsibilities, authorities, priorities,
resources, and compliance philosophy of this Commission. Any existing
procedures which have been inherited from predecessor agencies will be
reviewed and revised, if necessary, to be consistent with the authority
and philosophy of this Commission.
(g) The Commission recognizes that the importer may not be the only
person to be held responsible for protecting American Consumers from
unreasonably hazardous products made abroad, but the importer is, at
least, in a strategic position to guarantee the safety of imported
products.
(h) Whenever, in the application of this policy, it appears that
barriers to free trade may arise, the Commission may consider exceptions
to this policy insofar as it can be done without compromising the
Commission's responsibilities to assure safe products to the consumer.
(i) Whenever, in the application of this policy, it appears that
administrative or procedural aspects of the Commission's regulations are
unduly burdening the free flow of goods, the Commission may consider
modifications which alleviate such burdens. However, the Commission
cannot consider any modifications which do not assure the consumer the
same protection from unsafe foreign goods as from unsafe domestic goods.
(Sec. 9, 15 U.S.C. 1198, 67 Stat. 114; Sec. 14, 15 U.S.C. 1273, 74
Stat. 379; 80 Stat. 1304, 1305; Sec. 17, 15 U.S.C. 2066, 86 Stat.
1223)
(40 FR 47486, Oct. 9, 1975, as amended at 41 FR 47915, Nov. 1, 1976)
16 CFR 1009.8 Policy on establishing priorities for Commission Action.
(a) This document states the Consumer Product Safety Commission's
policy on establishing priorities for action under the five acts the
Commission administers. The policy is issued pursuant to sections
4(f)(2) and 4(f)(3) of the Consumer Product Safety Act, as amended, and
in further implementation of the Commission's statement of policy dated
September 21, 1973.
(b) It is the general policy of the Commission that priorities for
Commission action will be established by a majority vote of its members.
The policy will be reflected by votes on all requests for
appropriations, an annual operating plan, and any revisions thereof.
Recognizing that these documents are the result of a lengthy planning
process, during which many decisions are made that substantially
determine the content of the final documents, the Chairman shall
continually keep the Commission apprised of, and seek its guidance
concerning, significant problems, policy questions and alternative
solutions throughout the planning cycle leading to the development of
budget requests and operating plans.
(1) Requests for appropriations. Requests for appropriations are
submitted concurrently to the President or the Office of Management and
Budget and to the Congress pursuant to section 27(k)(1) of the Consumer
Product Safety Act.
(2) Annual operating plan. The operating plan shall be as specific
as possible with regard to products, groups of products, or generic
hazards to be addressed. It shall be submitted to the Commission for
approval at least 30 days prior to the beginning of the fiscal year.
(c) In establishing and revising its priorities, the Commission will
endeavor to fulfill each of its purposes as set forth in section 2(b) of
the Consumer Product Safety Act. In so doing, it will apply the
following general criteria:
(1) Frequency and severity of injuries. Two major criteria in
determining priorities are the frequency and severity of injuries
associated with consumer products. All available data including the
NEISS hazard index and supplementary data collection systems, such as
fire surveys and death certificate collection, shall be used to attempt
to identify the frequency and severity of injuries. Consideration shall
also be given to areas known to be undercounted by NEISS and a judgment
reached as to the probable frequency and severity of injuries in such
areas. The judgment as to severity shall include an evaluation of the
seriousness of the injury.
(2) Causality of injuries. Consideration shall then be given to the
amenability of a product hazard to injury reduction through standard
setting, information and education, or other Commission action. This
step involves an analysis of the extent to which the product and other
factors such as consumer behavior are causally related to the injury
pattern. Priority shall be assigned to products according to the extent
of product causality involvement and the extent of injuries that can
reasonably be expected to be reduced or eliminated through commission
action.
(3) Chronic illness and future injuries. Certain products, although
not presently associated with large numbers of frequent or severe
injuries, deserve priority attention if there is reason to believe that
the products will in the future be associated with many such injuries.
Although not as susceptible to measurements as other product related
injuries and illnesses, these risks shall be evaluated on the basis of
the best information available and given priority on the basis of the
predicted future illnesses and injuries and the effectiveness of
Commission action in reducing or eliminating them.
(4) Cost and benefit of CPSC action. Consideration shall be given on
a preliminary basis to the prospective cost of Commission action to
consumers and producers, and to the benefits expected to accrue to
society from the resulting reduction of injuries. Consideration of
product cost increases will be supplemented to the extent feasible and
necessary by assessments of effects on utility or convenience of the
product; product sales and shifts to substitutes; and industry supply
factors, competitive structure, or employment. While all these facets
of potential social ''cost'' cannot be subsumed in a single,
quantitative cost measure, they will be weighed, to the extent they are
available, against injury reduction benefits. The benefit estimates
will be based on (i) explicitly stated expectations as to the
effectiveness of regulatory options (derived from criterion (2),
''causality of injuries''); (ii) costs of injuries and deaths based on
the latest injury cost data and analyses available to the Commission;
(iii) explicit estimates or assumptions as to average product lives;
and (iv) such other factors as may be relevant in particular cases. The
Commission recognizes that in analyzing benefits as well as costs there
will frequently be modifying factors -- e.g., criteria (5) and (6) -- or
analytical uncertainties that complicate matters and militate against
reliance on single numerical expressions. Hence the Commission cannot
commit itself to priorities based solely on the preliminary cost/benefit
comparisons that will be available at the stage of priority setting, nor
to any one form of comparison such as net benefits or cost-benefit
ratios. Commission costs will also be considered. The Commission has a
responsibility to insure that its resources are utilized efficiently.
Assuming other factors to be equal, a higher priority will be assigned
to those products which can be addressed using fewer Commission
resources.
(5) Unforeseen nature of the risk. Other things being equal,
consideration should be to the degree of consumer awareness both of the
hazard and of its consequences. Priority could then be given to
unforeseen and unforeseeable risks arising from the ordinary use of a
product.
(6) Vulnerability of the population at risk. Children, the elderly,
and the handicapped are often less able to judge or escape certain
dangers in a consumer product or in the home environment. Because these
consumers are, therefore, more vulnerable to danger in products designed
for their special use or frequently used by them, the Commission will
usually place a higher priority, assuming other factors are equal, on
preventing product related injury to children, the handicapped, and
senior citizens.
(7) Probability of exposure to hazard. The Commission may also
consider several other things which can help to determine the likelihood
that a consumer would be injured by a product thought to be hazardous.
These are the number of units of the product that are being used by
consumers, the frequency with which such use occurs, and the likelihood
that in the course of typical use the consumer would be exposed to the
identified risk of injury.
(8) Additional criteria. Additional criteria may arise that the
staff believes warrant the Commission's attention. The Commission
encourages the inclusion of such criteria for its consideration in
establishing priorities. The Commission recognizes that
incontrovertible data related to the criteria identified in this policy
statement may be difficult to locate or develop on a timely basis.
Therefore, the Commission may not require extensive documentation on
each and every criterion before making a decision. In addition, the
Commission emphasizes that the order of listing of the criteria in this
policy is not intended to indicate either the order in which they are to
be considered or their relative importance. The Commission will
consider all the criteria to the extent feasible in each case, and as
interactively or jointly as possible.
(Sec. 4, 15 U.S.C. 2053, 86 Stat. 1210; as amended by sec. 4, Pub.
L. 94-284)
(42 FR 53953, Oct. 4, 1977)
16 CFR 1009.9 Policy regarding the granting of emergency exemptions
from Commission regulations.
(a) This document states the Consumer Product Safety Commission's
policy with respect to emergency requests for exemptions for companies
which inadvertently produce products that do not conform to Commission
regulations issued under the five acts the Commission administers.
These acts are the Consumer Product Safety Act, the Federal Hazardous
Substances Act, the Flammable Fabrics Act, the Poison Prevention
Packaging Act of 1970 and the Refrigerator Safety Act. While the
Commission is reluctant to grant such requests, it believes that the
public should be apprised of the manner in which it rules on exemption
requests and therefore is publishing the policy to provide guidance to
industry and others making such requests. The publication of the policy
will also serve to inform the public of the criteria that the Commission
uses in ruling upon such requests. This policy is intended to cover
emergency requests for exemptions and, while relevant, is not intended
to limit the discretion of CPSC staff to close or not to open cases in
the routine enforcement of CPSC regulations.
(b) The policy governs requests for exemption from any regulation
under any act the Commission administers. The policy lists criteria the
Commission considers in deciding whether to grant or deny an exemption
request and therefore, should provide guidance to companies on the types
of information to be submitted with requests. In additions, published
Commission procedures regarding petitioning for amendments to
regulations may assist companies in determining what supporting data to
submit with a request. (See, for example, existing Commission
procedures at 16 CFR 1110, 16 CFR 1607.14, 16 CFR 1500.82 and 16 CFR
1500.201). The exemption requests themselves should be filed with the
Office of the Secretary of the Commission.
(c) It is the general policy of the Commission that when a particular
exemption request is made and granted, all similarly situated persons
are accorded the same relief as the person who requested the exemption.
Therefore, when any amendment to a Commission regulation is proposed or
a statement of enforcement policy is issued, the document to the extent
practicable will be phrased in objective terms so that all similarly
situated persons will be able to determine whether their products would
fall within the relief.
(d) In deciding whether to grant or deny an exemption request, the
Commission considers the following general criteria:
(1) The degree to which the exemption if granted would expose
consumers to an increased risk of injury: The Commission does not
believe it should exempt products which would present a significantly
greater risk to consumers than complying products. Therefore, the
Commission will not grant exemption requests in such cases.
(2) The cost to the Commission of granting emergency requests:
Granting emergency exemption requests will in most cases require
drafting a proposed and a final amendment or a statement of enforcement
policy for publication in the Federal Register. Such action may also
require the Commission to monitor the sale or distribution of the
products. These activities consume scarce Commission resources. In
some instances, the costs to the Commission may exceed the benefit to be
derived by a company and similarly situated companies. If so, the
Commission may deny the request on this ground.
(3) The precedential effect of exempting some products: The
Commission recognizes that decisions to exempt some products set
precedents in at least two ways. First, they indicate to companies that
the CPSC will permit deviations to a given regulation. Second, they
indicate to companies that the CPSC will permit deviations to
regulations in general. Both precedents, if set carelessly by the CPSC,
could result in many requests for exemption and could undermine the
stability and integrity of the Commission's regulations.
(e) In deciding whether to grant or deny an exemption request, the
Commission also considers the following factors which relate
specifically to the company making the request: (If the request is
granted, all similarly situated companies, however, will be accorded the
same relief).
(1) The nature of the emergency exemption request: The Commission
will not reward bad quality control or faulty design work by permitting
companies to market their mistakes. Although it is difficult to detail
specific instances, the Commission is sympathetic to companies that
produced noncomplying products due to factors beyond their immediate
control or despite their best efforts.
(2) The economic loss which a company will suffer if its emergency
request is denied: The greater the loss a company may suffer the more
likely the Commission will favorably consider an exemption. However,
the Commission does not believe economic loss alone should be
determinative of an emergency exemption request.
(3) The fairness to competitors: The Commission is reluctant to
grant relief if it could place the company at an unfair competitive
advantage over other companies which have successfully complied with the
same regulation. Therefore, the Commission will afford the same relief
to similarly situated companies, and will decline to grant a request
where unfair competitive advantage may result.
(15 U.S.C. 1191, 1261, 1471, 2051, 2111)
(44 FR 40639, July 12, 1979)
16 CFR 1009.9 Pt. 1010
16 CFR 1009.9 PART 1010 -- STATEMENT OF POLICY AND INTERPRETATION
CONCERNING EXPORTATION OF NONCOMPLYING, MISBRANDED, OR BANNED PRODUCTS
Sec.
1010.1 Purpose and scope.
1010.2 Statutory provisions.
1010.3 Statement of policy and interpretation.
Authority: 15 U.S.C. 1263 (a) and (c); 15 U.S.C. 1264(b), 1269(a);
15 U.S.C. 2067(a); 5 U.S.C. 553)
Source: 49 FR 39667, Oct. 10, 1984, unless otherwise noted.
16 CFR 1010.1 Purpose and scope.
(a) This part 1010 states the policy of the Consumer Product Safety
Commission and its interpretation of the Consumer Product Safety Act and
the Federal Hazardous Substances Act with regard to exportation of
products which have been sold, offered for sale, or distributed in
commerce for use in the United States and which:
(1) Fail to comply with an applicable consumer product safety
standard or banning rule issued under provisions of the Consumer Product
Safety Act (15 U.S.C. 2051 et seq.); or
(2) Are ''misbranded hazardous substances'' or ''banned hazardous
substances'' as those terms are used in the Federal Hazardous Substances
Act (15 U.S.C. 1261 et seq.).
(b) The policy expressed in this part 1010 does not apply to any of
the following products:
(1) Products which could be regulated only under provisions of the
Consumer Product Safety Act but which are not subject to a consumer
product safety standard or banning rule issued under that Act.
(2) Consumer products which are subject to and fail to comply with an
applicable standard or banning rule issued under provisions of the
Consumer Product Safety Act but which have never been distributed in
commerce for use in the United States. (See section 18(b) of the
Consumer Product Safety Act, 15 U.S.C. 2067(b), and 16 CFR part 1019 for
requirements governing export of such products.)
(3) Products which could be regulated under one or more sections of
the Federal Hazardous Substances Act but which are neither ''misbranded
hazardous substances'' nor ''banned hazardous substances'' as those
terms are used in the Act.
(4) Products which are ''misbranded hazardous substances'' or
''banned hazardous substances'' as those terms are used in the Federal
Hazardous Substances Act but which have never been sold or offered for
sale in domestic commerce. (See sections 5(b) and 14(d) of the Federal
Hazardous Substances Act, 15 U.S.C. 1264(b) and 1273(d), and 16 CFR part
1019 for requirements governing export of such products.)
(5) Products for which the Commission has granted an exemption from
an applicable standard, ban, or labeling requirement under the CPSA,
FHSA, or FFA, in accordance with provisions of 16 CFR 1009.9. (These
products remain subject to the notification requirements of 16 CFR part
1019).
(6) Products which fail to comply with an applicable standard of
flammability issued under provisions of the Flammable Fabrics Act (15
U.S.C. 1191 et seq.). The Commission's policy regarding export of such
products is set forth in the Commission's Memorandum Decision and Order
In the Matter of Imperial Carpet Mills, Inc. , CPSC Docket No. 80-2,
July 7, 1983, and allows export without regard to whether the products
have been distributed in domestic commerce. (See section 15 of the
Flammable Fabrics Act, 15 U.S.C. 1202, and 16 CFR part 1019 for
requirements governing export of such products.)
(49 FR 39667, Oct. 10, 1984; 50 FR 51670, Dec. 19, 1985)
16 CFR 1010.2 Statutory provisions.
(a) Section 18(a) of the Consumer Product Safety Act (15 U.S.C.
2057(a)) states:
This Act (the Consumer Product Safety 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 of the United States.
(b) Section 4 of the Federal Hazardous Substances Act (15 U.S.C.
1263) states in part:
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. * * * (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.
(c) Section 5(b) of the Federal Hazardous Substances Act (15 U.S.C.
1264(b)) provides in part:
No person shall be subject to the penalties of subsection (a) of this
section * * * (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.
16 CFR 1010.3 Statement of policy and interpretation.
(a) In its enforcement of the Consumer Product Safety Act, the
Commission interprets the provisions of that Act to prohibit the export
of products which fail to comply with an applicable consumer product
safety standard or banning rule issued under that Act if those products
have at any time been distributed in commerce for use in the United
States.
(b) In its enforcement of the Federal Hazardous Substances Act, the
Commission interprets the provisions of the Act to prohibit the export
of products which are misbranded hazardous substances or banned
hazardous substances as those terms are used in that Act if those
products have at any time been sold or offered for sale in domestic
commerce.
16 CFR 1010.3 Pt. 1011
16 CFR 1010.3 PART 1011 -- NOTICE OF AGENCY ACTIVITIES
Sec.
1011.1 General policy considerations; scope.
1011.2 Definitions.
1011.3 General requirements for various kinds of meetings.
1011.4 Forms of advance public notice of meetings; Public
Calendar/Master Calendar and Federal Register.
Authority: 5 U.S.C. 552b(g); Pub. L. 92-573, 86 Stat. 1207 (15
U.S.C. 2051-81) as amended by Pub. L. 94-284, 90 Stat. 503, Pub. L.
95-319, 92 Stat. 386, Pub. L. 95-631, 92 Stat. 3742; Pub. L.
90-189, 81 Stat. 568 (15 U.S.C. 1191-1204); Pub. L. 86-613, 74 Stat.
372, as amended by Pub. L. 89-756, 80 Stat. 1303, and Pub. L.
91-113, 83 Stat. 187 (15 U.S.C. 1261-74); Pub. L. 91-601, 84 Stat.
1670 (15 U.S.C. 1471-76) and the Act of Aug. 7, 1956, 70 Stat. 953 (15
U.S.C. 1211-14).
Source: 46 FR 38322, July 24, 1981, unless otherwise noted.
16 CFR 1011.1 General policy considerations; scope.
(a) In order for the Consumer Product Safety Commission to properly
carry out its mandate to protect the public from unreasonable risks of
injury associated with consumer products, the Commission has determined
that it must involve the public in its activities to the fullest
possible extent.
(b) To ensure public confidence in the integrity of Commission
decisionmaking, the Agency, to the fullest possible extent, will conduct
its business in an open manner free from any actual or apparent
impropriety.
(c) This part 1011 presents general provisions concerning public
notice for various types of Agency activities.
16 CFR 1011.2 Definitions.
As used in this part 1011, the following terms shall have the
meanings set forth:
(a) Agency. The entire organization which bears the title Consumer
Product Safety Commission (CPSC).
(b) Agency staff. Employees of the Agency other than the five
Commissioners.
(c) Commissioner. An individual who belongs to the collegial body
heading the CPSC.
(d) Commission. The Commissioners of the Consumer Product Safety
Commission acting in an official capacity.
(e) Commission Meeting. A meeting of the Commissioners subject to
the Government in the Sunshine Act, 5 U.S.C. 552b. This term is more
fully defined in the Commission's regulations under the Government in
the Sunshine Act, 16 CFR part 1013.
(f) Agency meeting. A meeting between Agency personnel, including
individual Commissioners, and outside parties. This term and the term
''outside party'' are more fully defined in the Commission's Meeting
Policy, 16 CFR part 1012.
16 CFR 1011.3 General requirements for various kinds of meetings.
Meetings which involve Agency staff or the Commissioners, other than
Commission meetings, are classified in the following categories and
shall be held according to the procedures outlined within each category.
(a) Hearings. Hearings are public inquiries held by direction of the
Commission for the purpose of fact finding or to comply with statutory
requirements. The Office of the Secretary is responsible for providing
transcription services at the hearings. Where possible, notice of
forthcoming hearings will be published in the Public Calendar and the
Federal Register at least 30 days before the date of the hearings.
(b) Meetings between Commissioners or Agency staff and outside
parties. The requirements for Agency meetings between Commissioners or
Agency staff and outside parties involving substantial interest matters
are contained in 16 CFR part 1012.
(c) Commission meetings. The requirements for Commission meetings
under the Government in the Sunshine Act, 5 U.S.C. 552b are contained in
16 CFR part 1013.
(d) Staff meetings. As a general rule, only Agency employees attend
staff meetings. At the discretion of the participants, Staff meetings
may be listed on the Public Calendar and attendance by the public may be
permitted. Recordkeeping is at the discretion of the participants.
(e) Advisory committee meetings. Meetings of the Agency's advisory
committees are scheduled by the Commission. Advance notice will be
given in both the Public Calendar and the Federal Register. Advisory
committee meetings serve as a forum for discussion of matters relevant
to the Agency's statutory responsibilities with the objective of
providing advice and recommendations to the Commission. The Agency's
advisory committees are the National Advisory Committee for the
Flammable Fabrics Act, the Product Safety Advisory Council, the
Technical Advisory Committee on Poison Prevention Packaging and the
Toxicological Advisory Board. The Office of the Secretary is
responsible for the recordkeeping for such meetings. The Commission's
regulation for the management of its advisory committees is set out in
16 CFR part 1018.
16 CFR 1011.4 Forms of advance public notice of meetings; Public
Calendar/Master Calendar and Federal Register.
Advance notice of Agency activities is provided so that members of
the public may know of and participate in these activities to the
fullest extent possible. Where appropriate, the Commission uses the
following types of notice for both Agency meetings subject to 16 CFR
part 1012 and Commission meetings subject to 16 CFR part 1013:
(a) Public Calendar/Master Calendar. (1) The printed Public Calendar
and the Master Calendar maintained in the Office of the Secretary are
the principal means by which the Agency notifies the public of its
day-to-day activities. The Public Calendar and/or Master Calendar
provide advance notice of public hearings, Commission meetings, Agency
meetings with outside parties involving substantial interest matters,
other Agency meetings, selected staff meetings, advisory committee
meetings, and other activities such as speeches and participation in
panel discussions, regardless of the location. The Public Calendar also
lists recent CPSC Federal Register issuances and Advisory Opinions of
the Office of the General Counsel.
(2) Upon request in writing to the Office of the Secretary, Consumer
Product Safety Commission, Washington, D.C. 20207, any person or
organization will be sent the Public Calendar on a regular basis free of
charge. In addition, interested persons may contact the Office of the
Secretary to obtain information from the Master Calendar which is kept
current on a daily basis.
(3) The Public Calendar and the Master Calendar, supplemented by
meeting summaries, are intended to serve the requirements of section
27(j)(8) of the Consumer Product Safety Act (15 U.S.C. 2076(j)(8)).
(b) Federal Register. Federal Register is the publication through
which official notifications, including formal rules and regulations of
the Agency, are made. Because the Public Calendar and/or Master
Calendar are the primary devices through which the Agency notifies the
public of its routine, daily activities, the Federal Register will be
utilized only when required by the Government in the Sunshine Act (as
provided in 16 CFR part 1013) or other applicable law, or when the
Agency believes that the additional coverage which the Federal Register
can provide is necessary to assist in notification to the public of
important meetings.
16 CFR 1011.4 Pt. 1012
16 CFR 1011.4 PART 1012 -- MEETINGS POLICY -- MEETINGS BETWEEN AGENCY
PERSONNEL AND OUTSIDE PARTIES
Sec.
1012.1 General policy considerations; scope.
1012.2 Definitions.
1012.3 Advance public notice of agency meetings.
1012.4 Public attendance at agency meetings.
1012.5 Recordkeeping for agency meetings.
1012.6 The news media.
1012.7 Telephone conversations.
Authority: Pub. L. 92-573, 86 Stat. 1207 (15 U.S.C. 2051-81) as
amended by Pub. L. 94-284, 90 Stat. 503, Pub. L. 95-319, 92 Stat.
386, Pub. L. 95-631, 92 Stat. 3742; Pub. L. 90-189, 81 Stat. 568 (15
U.S.C. 1191-1204); Pub. L. 86-613, 74 Stat. 372, as amended by Pub.
L. 89-756, 80 Stat. 1303, and Pub. L. 91-113, 83 Stat. 187 (15 U.S.C.
1261-74); Pub. L. 91-601, 84 Stat. 1670 (15 U.S.C. 1471-76) and the
Act of Aug. 7, 1956, 70 Stat. 953 (15 U.S.C. 1211-14).
Source: 46 FR 38323, July 24, 1981, unless otherwise noted.
16 CFR 1012.1 General policy considerations; scope.
(a) To achieve its goals of involving the public in its activities
and conducting its business in an open manner, the Agency, whenever
practicable, shall notify the public in advance of all meetings
involving matters of substantial interest held or attended by its
personnel, and shall permit the public to attend such meetings.
Furthermore, to ensure the widest possible exposure of the details of
such meetings, the Agency will keep records of them freely available for
inspection by the public.
(b) This part 1012, the Agency's Meetings Policy, sets forth
requirements for advance public notice, public attendance, and
recordkeeping for Agency meetings.
16 CFR 1012.2 Definitions.
(a) As used in this part 1012, the following terms have the
respective meanings set forth in paragraphs (a)-(d) of 1011.2 of this
subchapter: ''Agency,'' ''Agency staff,'' ''Commissioner,''
''Commission.''
(b) Agency meeting. Any face-to-face encounter, other than a
Commission meeting subject to the Government in the Sunshine Act, 5
U.S.C. 552b, and part 1013, in which one or more employees, including
Commissioners, discusses with an outside party any subject relating to
the Agency or any subject under its jurisdiction. The term Agency
meeting does not include telephone conversations, but see 1012.8 which
relates to telephone conversations.
(c) Outside party. Any person not an employee, not under contract to
do work for the Agency, or not acting in an official capacity as a
consultant to the Consumer Product Safety Commission, such as advisory
committee members or offeror personnel. Examples of persons falling
within this definition are representatives from industry and consumer
groups. Members of the news media when acting in a newsgathering
capacity are not outside parties. (See also 1012.7.) Officers and
employees of the Federal Government when acting in their official
capacities (except when advocating a particular course of action on
behalf of an outside party) are not outside parties.
(d) Substantial interest matter. Any matter, other than that of a
trivial nature, that pertains in whole or in part to any issue that is
likely to be the subject of a regulatory or policy decision by the
Commission. Pending matters, i.e., matters before the Agency in which
the Agency is legally obligated to make a decision, automatically
constitute substantial interest matters. Examples of pending matters
are: Scheduled administrative hearings; matters published for public
comments; petitions under consideration; and mandatory standard
development activities. The following are some examples of matters that
do not contitute substantial interest matters: Inquiries concerning the
status of a pending matter; discussions relative to general
interpretations of existing laws, rules, and regulations; inspection of
nonconfidential CPSC documents by the public; negotiations for
contractual services; and routine CPSC activities such as recruitiment,
training, meetings involving consumer deputies, or meetings with
hospital staff and other personnel involved in the National Electronic
Injury Surveillance System.
16 CFR 1012.3 Advance public notice of agency meetings.
(a) Commissioners and Agency employees are responsible for reporting
meeting arrangements for Agency meetings to the Office of the Secretary
so that they may be published in the Public Calendar or entered on the
Master Calendar at least seven days before a meeting, except as provided
in paragraph (d) of this section. These reports shall include the
following information:
(1) Probable participants and their affiliations;
(2) Date, time and place of the meeting;
(3) Subject of the meeting (as fully and precisely described as
possible);
(4) Who requested the meeting;
(5) Whether the meeting involves matters of substantial interest;
(6) Notice that the meeting is open or reason why the meeting or any
portion of the meeting is closed (e.g., discussion of trade secrets);
and
(7) Names and telephone number of the CPSC host or CPSC contact
person.
(b) Once a report has been made to the Office of the Secretary,
Agency employees subsequently desiring to attend the meeting need not
notify the Office of the Secretary.
(c) When there is no opportunity to give seven days advance notice of
a meeting, Agency employees (other than the Commissioners or their
personal staff) who desire to hold or attend such a meeting must obtain
the approval of the General Counsel or his or her designee. Requests
for waiver of the seven-day advance notice requirement by members of the
staff who report to the Executive Director may only be submitted to the
General Counsel or his or her designee in writing by the Executive
Director or his or her designee. Personal staff of Commissioners must
obtain the approval of their respective Commissioners. If the short
notice is approved, the Agency employee must notify the Office of the
Secretary in advance of the meeting to record the meeting on the Master
Calendar. The Office of the Secretary shall publish notice of the
meeting as an addendum to the next Public Calendar.
(d) Exceptions. The notice requirement shall not apply to:
(1) Meetings with outside parties not involving substantial interest
matters (although such meetings should be limited where the public
interest would be served);
(2) Meetings with outside parties held during the normal course of
surveillance, inspection, or investigation under any of the Acts
administered by the Commission, including informal citation hearings
under the Federal Hazardous Substance Act or the Poison Prevention
Packaging Act;
(3) Meetings with outside parties concerning the settlement or
negotiation of an individual case, including proposed remedial action,
or meetings concerning any administrative or judicial action in which
the outside party is a participant, party, or amicus curiae;
(4) Routine speeches given by CPSC personnel before outside parties.
However, for information purposes, personnel are encouraged to submit
advance notice of these speeches to the Office of the Secretary for
inclusion in the Public Calendar;
(5) Meetings with other Federal personnel that are also attended by
outside parties except where a specific matter to be discussed is also
pending before the Commission or its staff;
(6) Meetings with state, local or foreign government personnel
concerning intergovernmental cooperative efforts and not the advocacy of
a particular course of action on behalf of a constituency of the
governmental entity;
(7) Meetings or discussions with or at the request of either members
of Congress and their staffs relating to legislation, appropriation or
oversight matters, or Management and Budget personnel relating to
legislation or appropriation matters;
(8) Pre-proposal conferences involving confidential contracts made
pursuant to 41 U.S.C. 252(c)(12) in connection with potential litigation
matters.
16 CFR 1012.4 Public attendance at agency meetings.
(a) Any person may attend any meeting involving a substantial
interest matter unless that meeting has been listed as a closed meeting.
For meetings not involving substantial interest matters, the
chairperson of the meeting may exercise his or her discretion to allow
attendance by a member of the public.
(b) When meetings between Agency employees and outside parties are
open to the public, attendance may be limited by space. When feasible,
a person or organization desiring to attend such a meeting should give
at least one day advance notice to one of the employees holding or
attending the meeting so that sufficient space can be arranged for all
those wishing to attend.
(c) Members of the public attending Agency meetings generally may
observe only. The chairperson of the meeting may exercise his or her
discretion to permit members of the public to participate as well.
(d) The following Agency meetings are not open to the public:
(1) Meetings, or, if possible, portions of meetings where the General
Counsel or his or her designee has determined that proprietary data are
to be discussed in such a manner as to imperil their confidentiality;
(2) Meetings held by outside parties at which limits on attendance
are imposed by lack of space, provided that such meetings are open to
the news media;
(3) Meetings with outside parties held during the normal course of
surveillance, inspection, or investigation under any of the Acts
administered by the Commission, including informal citation hearings
under the Federal Hazardous Substances Act or the Poison Prevention
Packaging Act;
(4) Meetings with outside parties concerning the settlement or
negotiation of an individual case, including proposed remedial action,
or meetings concerning any administrative or judicial action in which
the outside party is a participant, party, or amicus curiae;
(5) Meetings with other Federal personnel that are attended by
outside parties except where a specific matter to be discussed is also
pending before the Commission or its staff;
(6) Meetings with state, local or foreign government personnel
concerning intergovernmental cooperative efforts and not the advocacy of
a particular course of action on behalf of a constituency of the
governmental entity;
(7)(i) Meetings between Agency staff (other than Commissioners and
their personal staff) and an outside party when the General Counsel or
his or her designee determines that extraordinary circumstances require
that the meeting be closed. Requests for exemption by members of the
staff who report to the Executive Director may be submitted to the
General Counsel or his or her designee in writing only by the Executive
Director or his or her designee. In such a case, the reasons for
closing the meeting or a portion of the meeting shall be stated in the
Public Calendar notice announcing the meeting;
(ii) Meetings between a Commissioner (or his or her personal staff)
and an outside party when, in the opinion of the Commissioner,
extraordinary circumstances require that the meeting be closed. In such
a case, the reasons for closing the meeting or a portion of the meeting
must be stated in the Public Calendar notice announcing the meeting;
(8) Meetings or discussions with or at the request of either members
of Congress and their staffs relating to legislation, appropriation or
oversight matters, or Management and Budget personnel relating to
legislation or appropriation matters; and
(9) Pre-proposal conferences involving confidential contracts made
pursuant to 41 U.S.C. 252(c)(12), in connection with the potential
litigation matters.
16 CFR 1012.5 Recordkeeping for agency meetings.
(a) This section describes and establishes requirements for the two
types of records maintained for Agency meetings, Agency meeting
summaries and transcripts.
(b) Agency meeting summaries. Agency meeting summaries are written
records settling forth the issues discussed at all Agency meetings with
outside parties involving substantial interest matters. Any Commission
employee who holds or attends an Agency meeting involving a substantial
interest matter must prepare a meeting summary. However, only one
agency meeting summary is required for each meeting even if more than
one CPSC employee holds or attends the meeting. Agency meeting
summaries are generally available to the public in the Agency's Public
Reading Room in the Office of the Secretary as described in paragraph
(b)(2) of this section.
(1) An agency meeting summary should state the essence of all
substantive matters relevant to the Agency, especially any matter
discussed which was not listed on the Public Calendar, and should
describe any decisions made or conclusions reached regarding substantial
interest matters. An agency meeting summary should also indicate the
date of the meeting and the identity of persons who attended.
(2) An agency meeting summary or a notice of cancellation of the
meeting must be submitted to the Office of the Secretary within twenty
(20) calendar days after the meeting for which the summary is required.
The Office of the Secretary shall maintain a file of the meeting
summaries in chronological order, which shall be available to the public
to the extent permitted by law.
(c) Transcripts. Transcripts are generally taken at public hearings
and certain Agency meetings when complex subjects indicate verbatim
records are desirable. The transcript may also include exhibits
submitted to be part of the formal record of an Agency meeting. Copies
of such transcripts are placed on file for public inspection in the
Office of the Secretary.
16 CFR 1012.6 The news media.
The Agency recognizes that the news media occupy a unique position in
informing the public of the Agency's activities. The Commission
believes that the inherently public nature of the news media allows
their activities to be exempt from the requirements of this part
whenever Agency meetings are held with the news media for the purpose of
informing them about Agency activities. Such Agency meetings are not
exempt in the event that any representative of the news media attempts
to influence any Agency employee on a substantial interest matter.
16 CFR 1012.7 Telephone conversations.
(a) Telephone conversations present special problems regarding Agency
meetings. The Commission recognizes that persons outside the Agency
have a legitimate right to receive information and to present their
views regarding Agency activities. The Commission also recognizes that
such persons may not have the financial means to travel to meet with
Agency employees. However, because telephone conversations, by their
very nature, are not susceptible to public attendance, or participation,
Agency employees must take care to ensure that telephone conversations
are not utilized to circumvent the provisions of this part.
(b) Two basic rules apply to telephone conversations:
(1) Any Agency employee holding a telephone conversation in which
substantial interest matters are discussed with an outside party must
prepare a telephone call summary of the conversation. The summary must
meet the requirements of 1012.5(b), and must be submitted to the Office
of the Secretary within twenty (20) calendar days of the conversation.
The Office of the Secretary shall maintain file of telephone call
summaries in chronological order which shall be available to the public
to the extent permitted by law.
(2) All Agency employees must exercise sound judgment in discussing
substsantial interest matters during a telephone conversation. In the
exercise of such discretion Agency employees should not hesitate to
terminate a telephone conversation and insist that the matters being
discussed be postponed until an Agency meeting with appropriate advance
public notice may be scheduled, or, if the outside party is financially
or otherwise unable to meet with the Agency employee, until the matter
is presented to the Agency in writing.
16 CFR 1012.7 Pt. 1013
16 CFR 1012.7 PART 1013 -- GOVERNMENT IN THE SUNSHINE ACT, RULES FOR
COMMISSION MEETINGS
Sec.
1013.1 General policy considerations; scope.
1013.2 Definitions.
1013.3 Announcement of Commission meetings and changes after
announcement.
1013.4 Public attendance at Commission meetings.
1013.5 Recordkeeping requirements.
1013.6 Public availability of transcripts, recordings and minutes of
Commission meetings.
Authority: 5 U.S.C. 552b(g).
Source: 46 FR 38326, July 24, 1981, unless otherwise noted.
16 CFR 1013.1 General policy considerations; scope.
(a) In enacting the Government in the Sunshine Act, 5 U.S.C. 552b,
the Congress stated the policy that, to the fullest practicable extent,
the public is entitled to information regarding the decisionmaking
processes of the Federal Government. The purpose of the Government in
the Sunshine Act is to provide the public with such information while
protecting both the rights of individuals and the ability of the
Government to carry out its responsibilities. When the Commissioners of
the Consumer Product Safety Commission hold meetings for the purpose of
jointly conducting or disposing of Commission business they will conduct
these meetings in accordance with the provisions of the Government in
the Sunshine Act.
(b) This part 1013 prescribes rules the Commission follows in
carrying out the Government in the Sunshine Act.
16 CFR 1013.2 Definitions.
(a) As used in this part 1013, the following terms shall have the
respective meanings set forth in paragraphs (a), (c) and (d) of 1011.2
of this subchapter: ''Agency,'' ''Commissioner,'' ''Commission.''
(b) Majority of the Commission. Three or more of the Commissioners.
(c) Commission meeting. The joint deliberations of at least a
majority of the Commission where such deliberations determine or result
in the joint conduct or disposition of official Agency business. This
term does not include meetings required or permitted by 1013.4(b) (to
determine whether a meeting will be open or closed), meetings required
or permitted by 1013.3(e) (to change the subject matter of a meeting or
the determination to open or close a meeting after the public
announcement) or meetings required or permitted by 1013.3(c) (to
dispense with the one week advance notice of a meeting).
16 CFR 1013.3 Announcement of Commission meetings and changes after
announcement.
(a) The Secretary of the Commission is responsible for preparing and
making public the announcements and notices relating to Commission
meetings that are required in this part.
(b) The Agency shall announce each Commission meeting in the Public
Calendar or Master Calendar at least one week (seven calendar days)
before the meeting. The Agency shall concurrently submit the
announcement for publication in the Federal Register. The announcement
and the Federal Register notice shall contain the following information:
(1) The date, time, and place of the meeting;
(2) The subject matter of the meeting;
(3) Whether the meeting will be open or closed to the public;
(4) The name and phone number of the official who responds to
requests for information about the meeting.
(c) If a majority of the Commission determines by recorded vote that
Agency business requires calling a meeting without seven calendar days
advance public notice, the Office of the Secretary shall announce this
determination in the Public Calendar or Master Calendar at the earliest
practicable time and shall concurrently transmit the announcement for
publication in the Federal Register.
(d) When necessary and at the direction of the Chairman, the
Secretary shall change the time of a Commission meeting after the
announcement in the Public Calendar or Master Calendar. Any such change
shall be entered on the Master Calendar and such other notice shall be
given as is practicable.
(e) After announcement of a Commission meeting in the Public Calendar
or Master Calendar, the Commission may change the subject matter of a
Commission meeting or the decision to open or close a Commission meeting
or portion thereof to the public, only if a majority of the Commission
determines by recorded vote that Agency business so requires, and only
if a majority of the Commission determines by recorded vote that no
earlier announcement of the change was possible. The Commission shall
announce the change in the Public Calendar or Master Calendar at the
earliest practicable time before the meeting and shall concurrently
transmit the announcement for publication in the Federal Register.
Announcement of the change shall include the vote of each Commissioner
upon the change. (See also 1013.4(d) for requirements for Commission
reconsideration of a decision to open or close a meeting to the public.)
16 CFR 1013.4 Public attendance at Commission meetings.
(a) Attendance by the public. Every portion of every Commission
meeting shall be open to public observation except as provided in
paragraph (b) of this section. Notwithstanding the applicability of the
exemptions contained in paragraph (b) of this section, a Commission
meeting or portions thereof shall be open to public observation when the
Commission determines that the public interest so requires. The
Commission shall take into account in all cases the relative advantages
and disadvantages to the public of conducting the Commission meeting in
open session. The number of public observers shall be limited only by
availability of space. Attendance by the public shall usually be
limited to observation and shall not include participation except where,
by majority vote, the Commission determines that data or views from
certain members of the public will be permitted. To the extent their
use does not interfere with the conduct of open meetings, cameras and
sound-recording equipment may be used at open Commission meetings. The
Chairman or presiding Commissioner shall insure that use of such
equipment does not disrupt the meeting.
(b) Exemptions to the requirement of openness. The requirement in
paragraph (a) of this section that all Commission meetings be open to
public observation shall not apply to any Commission meeting or portion
thereof for which the Commission has determined in accordance with the
procedures for closing meetings set forth in paragraph (c) of this
section, that such meeting or portion thereof is likely to:
(1) Disclose matters that are specifically authorized under criteria
established by an Executive Order to be kept secret in the interest of
national defense or foreign policy and in fact are properly classified
pursuant to such Executive Order;
(2) Relate solely to the internal personnel rules and practices of
the Agency;
(3) Disclose matters specifically exempted from disclosure by statute
(other than 5 U.S.C. 552): Provided, That such statute (i) requires
that the matters be withheld from the public in such a manner as to
leave no discretion on the issue, or (ii) 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,
(i) Interfere with enforcement proceedings,
(ii) Deprive a person of a right to a fair trial or an impartial
adjudication,
(iii) Constitute an unwarranted invasion of personal privacy,
(iv) 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,
(v) Disclose investigative techniques and procedures or,
(vi) 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 be
likely to significantly frustrate implementation of a proposed Agency
action. This provision does 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 subpoena, 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 5 U.S.C. 554
or otherwise involving a determination on the record after opportunity
for a hearing.
(c) Procedure for closing Commission Meetings. The following
procedure shall be followed in closing a Commission meeting or portion
thereof to public observation:
(1) A majority of the Commission must vote to close a meeting or
portion thereof to public observation pursuant to paragraph (b) of this
section. A separate vote of the Commission shall be taken for each
matter with respect to which a Commission meeting is proposed to be
closed to public observation. Each such vote may, at the discretion of
the Commission, apply to that portion of any meeting held within the
following thirty days in which such matter is to be discussed. The vote
of each Commissioner participating in such vote shall be recorded and no
proxies shall be allowed.
(2) Any person whose interest may be directly affected if a portion
of a Commission meeting is open may request in writing to the Office of
the Secretary that the Commission close that portion of the meeting on
the basis of paragraph (b) (5), (6), or (7) of this section. The
Commission shall vote on such requests if at least one Commissioner
desires to do so.
(3) Before the Commission may hold a closed meeting the General
Counsel must certify that in his or her opinion, the meeting may
properly be closed to the public. Such certification shall be in
writing and shall state each relevant exemptive provision.
(4) Within one day of a vote in accordance with paragraph (c) (1) or
(2) of this section to close a Commission meeting or portion thereof,
the Secretary shall make available to the public a notice setting forth:
(i) The results of the vote reflecting the vote of each Commissioner;
(ii) A full explanation of the action of the Commission closing the
meeting or portion thereof, including reference to the specific basis
for such closing (see paragraph (b) of this section) and an explanation,
(without disclosing exempt information), of why the Commission concludes
on balance, taking into account the relative advantages and
disadvantages to the public of conducting the meeting in open or closed
session, that the public interest would best be served by closing the
meeting;
(iii) A list of all non-Agency personnel expected to attend the
meeting and their affiliations; and
(iv) A certification by the General Counsel that in his or her
opinion, the meeting may properly be closed to the public. If a vote to
close a Commission meeting takes place on the same day as the meeting,
the certification must be made available to the public before the
meeting is convened.
(5) The public release of the portion of the written statement
required by paragraph (c)(4)(ii) of this section may be delayed upon a
determination by the Commission, by recorded vote, that such a notice,
or portion thereof, would disclose information which may be withheld in
accordance with paragraphs (b) (1) through (10) of this section.
(d) Reconsideration of a decision to open or close a Commission
meeting. The Commission may, in accordance with the procedures in
1013.3(3) or paragraph (c)(2) of this section, reconsider its decision
to open or close a Commission meeting when it finds that the public
interest so requires.
(46 FR 38326, July 24, 1981, as amended at 48 FR 36566, Aug. 12,
1983)
16 CFR 1013.5 Recordkeeping requirements.
(a) Commission meetings, transcripts, recordings, or minutes.
(1) The Agency shall maintain a complete transcript or electronic
recording of each Commission meeting, whether open or closed, except
that in the case of a Commission meeting or portion thereof closed to
the public pursuant to paragraph (b)(10) of 1013.4, the Agency may
elect to maintain a set of meeting minutes instead of a transcript or a
recording. Minutes of such closed Commission meetings shall:
(i) Fully and clearly describe all matters discussed, and
(ii) 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 roll call vote (reflecting the vote of
each Commissioner on the question). All documents considered in
connection with any action shall be identified in the meeting minutes.
(2) The transcript, recording or minutes of closed Commission
meetings shall include the certification by the General Counsel or by
his or her designee, required by 1013.4(c)(3) and a statement by the
presiding Commissioner setting forth the date, time and place of the
meeting and the persons present.
(3) The transcript, recording, or minutes of any Commission meeting
may include attachments such as Commission opinions, briefing papers, or
other documents presented at the meeting.
(4) The transcript and accompanying material shall be maintained by
the Secretary for a period of at least two years after the meeting, or
until one year after the conclusion of any Agency proceeding with
respect to which the meeting, or portion thereof, was held, whichever
occurs later.
(b) Minutes of Commission Decisions. Minutes of Commission Decisions
summarizing the issues presented to the Commission for decision and
indicating the vote of each Commissioner document the decisions of the
Commission, whether made at open or closed meetings or by ballot vote.
The Commission's final Minutes of Commission Decisions, issued by the
Office of the Secretary, constitute the official means of recording the
decisions of the Commission and the votes of individual Commissioners.
16 CFR 1013.6 Public availability of transcripts, recordings and
minutes of Commission meetings.
(a) Availability of transcripts, recordings or minutes. The Agency
shall make available to the public the transcript, recording or minutes
of Commission meetings. However, unless the Commission finds that the
public interest requires otherwise, any portion of the transcript,
recording or minutes of a closed Commission meeting which is determined
to contain information which may properly be withheld from the public on
the basis of paragraphs (b) (1) through (10) of 1013.4 need not be made
available to the public.
(b) Procedures for making available transcripts, recordings or
meeting minutes. Meeting records will be made available for inspection,
or copies will be furnished, as requested, in accordance with the
following procedures.
(1) Requests. Requests for inspection or copies shall be in writing
addressed to the Secretary, Consumer Product Safety Commission,
Washington, D.C. 20207. A request must reasonably describe the
Commission meeting, or portion thereof, including the date and subject
matter or any other information which may help to identify the requested
material.
(2) Responses to requests. The responsibility for responding to
requests for meeting records is vested in the Secretary of the
Commission. In any case where the Secretary or his or her designee, in
his or her discretion, determines that a request for an identifiable
meeting record should be initially determined by the Commission, the
Secretary or his or her designee may certify the matter to the
Commission for decision. In that event, the Commission decision shall
be made within the time limits set forth in paragraph (b)(5)(iii) of
this section and shall be final.
(3) Time limitations on responses to requests. The Secretary or his
or her designee shall respond to all written requests for copies of
meeting records within ten (10) working days. The time limitations on
responses to requests shall begin to run as of the time a request for
records is received and date stamped by the Office of the Secretary.
(4) Responses. Form and content. When a requested meeting record
has been identified and is available for disclosure the requester shall
either be informed as to where and when the records will be made
available for inspection or be supplied with a copy. A response denying
a written request for a meeting record of a closed Commission meeting
shall be in writing signed by the Secretary and shall include:
(i) A reference to the specific exemptions under the Government in
the Sunshine Act (5 U.S.C. 552b(c)) authorizing the denial; and
(ii) A statement that the denial may be appealed to the Commission
pursuant to paragraph (b)(5) of this section.
(5) Appeals to the Commissioners. (i) When the Secretary or his or
her designee has denied a request for records in whole or in part, the
requester may, within 30 days of its receipt, appeal the denial to the
Commissioners of the Consumer Product Safety Commission by writing to
the attention of the Chairman, Consumer Product Safety Commission,
Washington, D.C. 20207.
(ii) The Commission will act upon an appeal within 20 working days of
its receipt. The time limitations on an appeal begin to run as of the
time an appeal is received by the Office of the Chairman and date
stamped.
(iii) The Commission's action on appeal shall be in writing, signed
by the Chairman of the Commission if the appeal is denied and shall
identify the Commissioners who voted for a denial. A denial in whole or
in part of a request on appeal for records of a closed meeting shall set
forth the exemption relied on and a brief explanation (without
disclosing exempt information) of how the exemption applies to the
records withheld. A denial in whole or in part shall also inform the
requester of his or her right to seek judicial review as specified in 5
U.S.C. 552b(h).
(6) Fees. (i) Fees shall be charged for copies of transcriptions of
recording or minutes in accordance with the schedule contained in
paragraph (b)(6)(iii) of this section.
(ii) There shall be no fee charged for services rendered in
connection with production or disclosure of meeting records unless the
charges, calculated according to the schedule below, exceed the sum of
$25.00. Where the charges are calculated to be an amount in excess of
$25.00, the fee charged shall be the difference between $25.00 and the
calculated charges.
(iii) The schedule of charges for furnishing copies of meeting
records is as follows:
(A) Reproduction, duplication or copying of transcripts or minutes:
10 cents per page.
(B) Reproduction of recordings: actual cost basis.
(C) Transcription (where meeting records are in the form of a
recording only): actual cost basis.
(D) Postage: actual cost basis.
16 CFR 1013.6 Pt. 1014
16 CFR 1013.6 PART 1014 -- POLICIES AND PROCEDURES IMPLEMENTING THE
PRIVACY ACT OF 1974
Sec.
1014.1 Purpose and scope.
1014.2 Definitions.
1014.3 Procedures for requests pertaining to individual records.
1014.4 Requirements for identification of individuals making
requests.
1014.5 Disclosure of requested information to individuals.
1014.6 Request for correction or amendment to a record.
1014.7 Agency review of request for correction or amendment of a
record.
1014.8 Appeal of initial denial of access, correction or amendment.
1014.9 Disclosure of record to person other than the individual to
whom it pertains.
1014.10 Fees.
1014.11 Penalties.
1014.12 Specific exemptions.
Authority: Privacy Act of 1974 (5 U.S.C. 552a).
Source: 40 FR 53381, Nov. 18, 1975, unless otherwise noted.
16 CFR 1014.1 Purpose and scope.
This part sets forth the regulations of the Consumer Product Safety
Commission implementing the Privacy Act of 1974 (Pub. L. 93-579). The
purpose of these regulations is to inform the public about records
maintained by the Commission which contain personal information about
individuals, and to inform those individuals how they may seek access to
and correct records concerning themselves. These regulations do not
apply to requests for information made pursuant to the Freedom of
Information Act (except where such disclosures would constitute an
invasion of privacy of an individual).
16 CFR 1014.2 Definitions.
As used in this part:
(a) Individual means a person who is a citizen of the United States
or an alien lawfully admitted for permanent residence.
(b) Privacy Act means the Privacy Act of 1974 (Pub. L. 93-579).
(c) Record means any item of personal information relating to an
individual, such as educational, employment, financial or medical
information.
(d) 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.
(e) System of records or records systems means a group of records
maintained by the Commission from which information may be retrieved by
the name of an individual or some other individual identifier.
(f) Maintain includes the collection, use, storage, and dissemination
of information.
16 CFR 1014.3 Procedures for requests pertaining to individual records.
(a) Any individual may request the Commission to inform him or her
whether a particular record system named by the individual contains a
record pertaining to him or her. The request may be made by mail or in
person during business hours (8:30 a.m. to 5 p.m.) to the Freedom of
Information/Privacy Act Officer, Office of the Secretary, Consumer
Product Safety Commission, 5401 Westbard Avenue, Bethesda, Maryland
(mailing address: Consumer Product Safety Commission, Washington, DC
20207.)
(b) An individual who believes that the Commission maintains a record
pertaining to him or her but who cannot determine which record system
may contain the record, may request assistance by mail or in person at
the Office of the Secretary during business hours.
(c) A Commission officer or employee or former employee who desires
to review or obtain a copy of a personnel record pertaining to him or
her may make a request by mail or in person at the Division of
Personnel's Processing Unit in Room 337, 5401 Westbard Avenue, Bethesda,
Maryland (mailing address: Consumer Product Safety Commission,
Washington, DC 20207.)
(d) Each individual requesting the disclosure of a record or a copy
of a record shall furnish the following information to the extent known
with the request to the Freedom of Information/Privacy Act Officer or to
the Division of Personnel's Processing Unit, as applicable:
(1) A description of the record sought;
(2) The approximate date of the record;
(3) The name or other description of the record system containing the
record;
(4) Proof as required in 1014.4 that he or she is the individual to
whom the requested record relates; and
(5) Any other information required by the notice describing the
record system.
(e) An individual personally inspecting his or her records may be
accompanied by other persons of his or her own choosing. The individual
shall sign a written statement authorizing disclosure of the record in
the other person's presence.
(f) Any individual who desires to have a record concerning himself or
herself disclosed to or mailed to another person may authorize that
person to act as his or her agent for that specific purpose. The
authorization shall be in writing, signed by the individual, and shall
be notarized. An agent requesting the review or copy of another's
record shall submit with the request the authorization and proof of his
or her identify as required by 1014.4(c).
(g) The parent of any minor individual or the legal guardian of any
individual who has been declared by a court of competent jurisdiction to
be incompetent, due to physical or mental incapacity or age, may act on
behalf of that individual in any matter covered by this part. A parent
or guardian who desires to act on behalf of such individual shall
present suitable evidence of parentage or guardianship, by birth
certificate, certified copy of a court order, or similar documents, and
proof of the individual's identity in a form that complies with
1014.4(c).
(h) An individual may request an accounting of all disclosures made
to other persons or agencies of his or her record, except those
disclosures made to law enforcement agencies pursuant to section (b)(7)
of the Privacy Act (5 U.S.C. 552a(b)(7)). A request for accounting,
whenever made, shall be treated as a request for disclosure of records.
(40 FR 53381, Nov. 18, 1975, as amended at 53 FR 52404, Dec. 28,
1988)
16 CFR 1014.4 Requirements for identification of individuals making
requests.
The following proof of identity is required for requests for records
made pursuant to 1014.3:
(a) An individual seeking a record about himself or herself in person
may establish his or her identity by the presentation of a single
document bearing a photograph (such as a passport or driver's license)
or by a presentation of two items of identification which do not bear a
photograph but do bear both a name and address. An individual who
cannot provide documentation of his or her identity may provide a
written statement affirming his or her identity and the fact that he or
she understands the penalties for making false statements (18 U.S.C.
1001 and 5 U.S.C. 552a(i)(3)).
(b) An individual seeking a record by mail shall include a statement
signed by the individual and properly notarized, that he or she appeared
before a notary public and submitted proof of identity acceptable to the
notary public.
(c) Requests made by an agent, parent, or guardian shall, in addition
to establishing the identity of the minor or other person he or she
represents as required by paragraphs (a) and (b), establish his or her
agency, parentage, or guardianship by documentation.
(d) In any case in which the Commission determines that the proof of
identity is not adequate, it may request the individual to submit
additional proof of identity.
16 CFR 1014.5 Disclosure of requested information to individuals.
(a) Upon submission of proof of identity, the Office of the Secretary
or the Director of Resource Utilization, as applicable, shall promptly
forward the request to the system manager who will promptly allow the
individual to see and/or have a copy of the requested record or send a
copy of the record to the individual by mail, as requested by the
individual. If the individual asks to see the record, the record should
be made available for review and/or copying at the location where the
record is maintained, in the Office of the Secretary, or the Director of
Resource Utilization, or at the nearest Area Office.
(b) If the system manager should determine, for any reason, that the
requested records are exempt from the right of access, a notice of
denial shall be sent to the requester stating the reasons for denial,
and the requester's right to appeal the denial in accordance with the
procedures set forth in 1014.8 of these regulations.
16 CFR 1014.6 Request for correction or amendment to a record.
(a) Any individual who has reviewed a record pertaining to himself or
herself may request the Executive Director to correct or amend all or
any part of the record.
(b) Each request for a correction or amendment of a record shall be
in writing and shall contain the following information:
(1) The name of the individual requesting the correction or
amendment;
(2) The name or other description of the system of records in which
the record sought to be amended is maintained;
(3) The location of that record in the system of records to the
extent that it is known;
(4) A copy of the record sought to be amended or a description of
that record;
(5) A statement of the material in the record that should be
corrected or amended;
(6) A statement of the specific wording of the correction or
amendment sought; and
(7) A statement of the basis for the requested correction or
amendment including any material that the individual can furnish to
substantiate the reasons for the amendment sought.
(40 FR 53381, Nov. 18, 1975, as amended at 42 FR 22878, May 5, 1977)
16 CFR 1014.7 Agency review of request for correction or amendment of a
record.
(a) Not later than 10 working days after the receipt of the request
for the correction or amendment of a record under 1014.6, the
responsible Commission official shall acknowledge receipt of the request
and inform the individual whether further information is required before
the correction or amendment can be considered.
(b) The responsible Commission official will promptly review the
request and either make the requested correction or amendment or notify
the individual of his or her refusal to do so, including in the
notification the reasons for the refusal, and the appeal procedures
provided by 1014.8.
(c) The responsible Commission official will make each requested
correction or amendment to a record if that correction or amendment will
correct anything within the record that is not accurate, relevant,
timely, or complete. A copy of each corrected or amended record shall
be furnished to the individual who requested the action. If an
accounting of disclosure has been kept, all previous recipients of the
record shall be notified of the correction and its substance.
16 CFR 1014.8 Appeal of initial denial of access, correction or
amendment.
(a) Any individual whose request for access, correction or amendment
to a record is denied, in whole or in part, may appeal that decision
within 30 working days to the Chairman, Consumer Product Safety
Commission, Washington, D.C. 20207.
(b) The appeal shall be in writing and shall:
(1) Name the individual making the appeal;
(2) Identify the record to which access is sought or which is sought
to be corrected or amended;
(3) Name or describe the record system in which the record is
contained;
(4) Contain a short statement describing the correction of amendment
sought;
(5) State the name and location of the Commission official who
initially denied the correction or amendment; and
(6) State the date of the initial denial.
(c) Not later than 30 working days after the date on which the appeal
is received, the Chairman shall complete a review of the appeal and make
a final decision thereon. However, for good cause shown, the Chairman
of the Commission may extend the 30-day period. If the Chairman so
extends the period, he or she shall promptly notify the individual
requesting the review that the extension has been made.
(d) If after review of an appeal request, the Chairman also refuses
to amend the record or grant access to the record in accordance with the
request, he or she shall send a written notice to the requester
containing the following information:
(1) The decision and the reasons for the decision;
(2) The right of the requester to institute a civil action in a
Federal District Court for judicial review of the decision; and
(3) The right of the requester to file with the Chairman a concise
statement setting forth the reasons for his or her disagreement with the
denial of the correction or amendment. A copy of the statement of
disagreement shall be filed with the record in issue, and the record in
issue shall be so marked as to indicate that there is a disagreement.
The system manager shall make the statement of disagreement available to
prior recipients of the disputed record to the extent that an accounting
of disclosures was maintained, and to any person to whom the record is
later disclosed, together with a brief statement, if deemed appropriate,
of the reasons for denying the requested correction or amendment.
(40 FR 53381, Nov. 18, 1975, as amended at 42 FR 22878, May 5, 1977)
16 CFR 1014.9 Disclosure of record to person other than the individual
to whom it pertains.
(a) Any person or agency (other than an officer or employee of the
Commission who has a need for individual records in the performance of
his or her duty) seeking disclosure of personal records of another
individual which are contained in a system of records shall submit a
request in accordance with the Commission's Procedures for Disclosure of
Production of Information under the Freedom of Information Act (16 CFR
part 1015, subpart A).
(b) The determination of whether or not the requested disclosure is
proper will be made in accordance with the provisions of the Freedom of
Information Act, as amended (5 U.S.C. 552) and the Commission's policies
and procedures issued thereunder (16 CFR part 1015).
(41 FR 30324, July 23, 1976)
16 CFR 1014.10 Fees.
The Commission shall not charge an individual for the costs of making
a search for a record, the costs of reviewing or copying a record, or
the cost of correcting or amending a record.
16 CFR 1014.11 Penalties.
Any person who makes a false statement in connection with any request
for a record, or an amendment thereto, under this part, is subject to
the penalties prescribed in 18 U.S.C. 494, 495, and 1001; and 5 U.S.C.
552a(i)(3).
16 CFR 1014.12 Specific exemptions.
(a) Injury information. (1) The Bureau of Epidemiology maintains a
file of Accident Reports (In-Depth Investigations) which are conducted
on a sample of product related injuries reported to the Commission by
selected hospital emergency rooms by consumers through the Commission's
''Hot-Line'' telephone service and through written consumer complaints
and by other means such as newspaper reports. The purpose of this
record system is to compile accident statistics for analyzing the
incidence and severity of product related injuries.
(2) Inasmuch as the maintenance of the record system listed in
paragraph (a)(1) of this section is authorized by section 5 of the
Consumer Product Safety Act (15 U.S.C. 2054) and the data are used
solely as statistical records, the system is exempted from the
requirements of the Privacy Act relating to making available the
accounting of disclosures, correction or amendment of the record and the
application of these rules to the system of records. Specifically, the
system is exempt from 5 U.S.C. 552a(c)(3); (d) (2) and (3); (e)(1);
(e)(4) (G), (H) and (I); and (f). However, Accident Reports made by
Commission employees are disclosable in accordance with paragraph (a)(3)
of this section:
(3) Section 25(c) of the Consumer Product Safety Act (15 U.S.C.
2074(c)) provides that accident or investigation reports made 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 or her, without the consent of the person
identified. Consequently, an accident or investigation report which
identifies individuals is available to the injured party or the person
treating him or her but would not be available for disclosure to a third
party without the consent of the injured party or person treating him or
her.
(4) Since accident or investigation reports are compiled only for
statistical purposes and are not used in whole or in part in making any
determination about an individual, they are exempted from the
requirement to correct or amend a record as provided by subsection
(d)(2) of the Privacy Act (5 U.S.C. 552a (d)(2)). Exceptions from this
paragraph, insofar as they relate to amendments or additions, may be
allowed by the Executive Director.
(40 FR 53381, Nov. 18, 1975, as amended at 42 FR 9161, Feb. 15, 1977)
16 CFR 1014.12 PART 1015 -- PROCEDURES FOR DISCLOSURE OR PRODUCTION OF INFORMATION UNDER THE FREEDOM OF INFORMATION ACT
16 CFR 1014.12 Subpart A -- Production or Disclosure Under 5 U.S.C.
552(a)
Sec.
1015.1 Purpose and scope.
1015.2 Public reference facilities.
1015.3 Requests for records and copies.
1015.4 Responses to requests for records; responsibility.
1015.5 Time limitations on responses to requests for records.
1015.6 Responses: Form and content.
1015.7 Appeals from initial denials; reconsideration by the
Secretary.
1015.8 Requests received during the course of administrative
hearings. (Reserved)
1015.9 Fees for production of records.
1015.10 Commission report of actions to Congress.
1015.11 Disclosure of trade secrets to consultants and contractors;
nondisclosure to advisory committees and other Government agencies.
1015.12 Disclosure to Congress.
16 CFR 1014.12 Subpart B -- Exemptions From Production and Disclosure
Under 5 U.S.C. 552(b)
1015.15 Purpose and scope.
1015.16 Exemptions (5 U.S.C. 552(b)).
1015.17 Internal Commission procedure for withholding exempt records.
1015.18 Information submitted to the Commission; request for
treatment as exempt material.
1015.19 Decisions on requests for exemption from disclosure under 5
U.S.C. 552(b)(4).
16 CFR 1014.12 Subpart C -- Disclosure of Commission Accident or
Investigation Reports Under 15 U.S.C. 2074(c)
1015.20 Public availability of accident or investigation reports.
Authority: 86 Stat. 1207; (15 U.S.C. 2051), 74 Stat. 372 as
amended; (15 U.S.C. 1261), 84 Stat. 1670; (15 U.S.C. 1471), 70 Stat.
953; (15 U.S.C. 1211), 68 Stat. 11 as amended; (15 U.S.C. 1191), 81
Stat. 54 as amended (5 U.S.C. 552).
Source: 42 FR 10490, Feb. 22, 1977, unless otherwise noted.
16 CFR 1014.12 Subpart A -- Production or Disclosure Under 5 U.S.C. 552(a)
16 CFR 1015.1 Purpose and scope.
(a) The regulations of this subpart provide information concerning
the procedures by which Consumer Product Safety Commission records may
be made available for inspection and the procedures for obtaining copies
of records from the Consumer Product Safety Commission. Official
records of the Consumer Product Safety Commission consist of all
documentary material maintained by the Commission in connection with its
responsibilities and functions under the Consumer Product Safety Act.
Commission records include records transferred to the Commission under
the Federal Hazardous Substances Act, Poison Prevention Packaging Act of
1970, Refrigerator Safety Act, and Flammable Fabrics Act, as well as
records maintained under any other authorized activity. Official
records do not, however, include objects or articles such as tangible
exhibits, samples, models, equipment, or other items of valuable
property; books, magazines, or other reference material; or documents
routinely distributed by the Commission in the normal course of business
such as copies of Federal Register notices, pamphlets, and laws.
Official records include only existing records. Official records of the
Commission made available under the requirements of the Freedom of
Information Act (5 U.S.C. 552) shall be furnished to the public as
prescribed by this part 1015. A request by an individual for records
about himself or herself that are contained in the Commission's system
of records under the Privacy Act (5 U.S.C. 552a) will be processed under
the Privacy Act. A request by a third party for records that are
contained in the Commission's system of records under the Privacy Act
will be processed administratively under these regulations with respect
to the time limits and appeals rights ( 1015.5 and 1015.7), but
substantively under the applicable provisions of first the Freedom of
Information Act and then the Privacy Act. Documents routinely
distributed to the public in the normal course of business will continue
to be furnished to the public by employees of the Commission informally
and without compliance with the procedures prescribed herein.
(b) The Commission's policy with respect to requests for records is
that disclosure is the rule and withholding is the exception. All
records not exempt from disclosure will be made available. Moreover,
records which may be exempted from disclosure will be made available as
a matter of discretion when disclosure is not prohibited by law, or is
not against the public interest. See, 1015.15(b). Section 6(a)(2) of
the Consumer Product Safety Act, 15 U.S.C. 2055(a)(2), prohibits the
disclosure of trade secrets or other matters referred to in 18 U.S.C.
1905.
(c) The Attorney General's Memorandum on the 1974 Amendments to the
Freedom of Information Act published in February, 1975 is available from
the Superintendent of Documents and may be consulted in considering
questions arising under the Freedom of Information Act.
16 CFR 1015.2 Public reference facilities.
(a) The Consumer Product Safety Commission will maintain in a public
reference room or area the materials relating to the Consumer Product
Safety Commission which are required by 5 U.S.C. 552(a)(2) and 552(a)(5)
to be made available for public inspection and copying. The principal
location will be in the Office of the Secretary. The address of this
office is:
Office of the Secretary, Consumer Product Safety Commission, 1111
18th Street, N.W., Washington, D.C. 20207.
(b) This public reference facility will maintain and make available
for public inspection and copying a current index of the materials
available at that facility which are required to be indexed by 5 U.S.C.
552(a)(2). For the purpose of providing the opportunity for greater
public access to records of the Consumer Product Safety Commission, the
Commission may establish additional public reference facilities. Each
such additional reference facility will also maintain and make available
for public inspection and copying a current index of the materials
available at that facility which are required to be indexed by 5 U.S.C.
552(a)(2).
16 CFR 1015.3 Requests for records and copies.
(a) A request for access to records of the Commission shall be in
writing addressed to the Secretary, Consumer Product Safety Commission,
Washington, D.C. 20207. Any written request for records covered by this
part shall be deemed to be a request for records pursuant to the Freedom
of Information Act, whether or not the Freedom of Information Act is
mentioned in the request. An oral request for records will not be
considered a request for records pursuant to the Freedom of Information
Act. Responses to oral requests for records shall be made as promptly
as resources and time restraints permit.
(b) A request for access to records must reasonably describe the
records requested. Where possible, specific information regarding
dates, title, file designations, and other information which may help
identify the records should be supplied by the requester. If the
request relates to a matter in pending litigation, where the Commission
is a party, the court and its location should be identified. Where the
information supplied by the requester is not sufficient to permit
identification and location of the records by Commission personnel
without an unreasonable amount of effort, the requester will be
contacted and asked to supply the necessary information. Every
reasonable effort shall be made by Commission personnel to assist in the
identification and location of requested records.
(c) If it is determined that a request would unduly burden or
interfere with the operations of the Commission, the response shall so
state and shall extend to the requester an opportunity to confer with
appropriate Commission personnel in an attempt to reduce the request to
manageable proportions by reformulation and by agreeing on an orderly
procedure for the production of the records.
(d) If a requested record cannot be located from the information
supplied, or is known to have been destroyed or otherwise disposed of,
the requester shall be so notified by the Secretary or delegate of the
Secretary.
16 CFR 1015.4 Responses to requests for records; responsibility.
The ultimate responsibility for responding to requests for records is
vested in the Secretary of the Consumer Product Safety Commission. The
Secretary or delegate of the Secretary may respond directly or forward
the request to any other office of the Commission for response. In any
case where the Secretary or delegate of the Secretary in his/her
discretion determines that a request for an identifiable record should
be initially determined by the Commission, the Secretary, or the
delegate of the Secretary, may certify the matter to the Commission for
a decision. In that event the Commission decision shall be made within
the time limits set forth in 1015.5 and shall be final. The Commission
response shall be in the form set forth in 1015.7(d) for action on
appeal. If no response is made by the Commission within ten working
days, or any extension thereof, the requester and the Commission may
take the action specified in 1015.7(e).
16 CFR 1015.5 Time limitations on responses to requests for records.
(a) The Secretary or delegate of the Secretary shall respond to all
written requests for records within ten (10) working days (excepting
Saturdays, Sundays, and legal public holidays). The time limitations on
responses to requests for records shall begin to run as of the time a
request for records is received by the Office of the Secretary and a
date stamp notation placed directly on the request.
(b) The time for responding to requests for records may be extended
by the Secretary at the initial stage or by the Chairman of the
Commission at the appellate stage up to an additional ten (10) working
days under the following unusual circumstances:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
Office of the Secretary.
(2) The need to search for, collect and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request.
(3) 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
Commission having substantial subject matter interest therein.
(c) Any extension of time must be accompanied by written notice to
the person making the request setting forth the reason(s) for such
extension and the time within which a response is expected to be made.
16 CFR 1015.6 Responses: Form and content.
(a) When a requested record has been identified and is available for
disclosure, the requester shall either be supplied with a copy or
notified as to where and when the record will be made available for
inspection. If a requester desires to inspect records at one of the
regional offices of the Commission, the Secretary will ordinarily make
the records available at the requested regional office. If the payment
of fees is required the requester shall be advised by the Secretary in
writing of any applicable fees under 1015.9 hereof.
(b) A response denying a written request for a record shall be in
writing signed by the Secretary or delegate of the Secretary and shall
include:
(1) The identity of each person responsible for the denial.
(2) A reference to the specific exemption or exemptions under the
Freedom of Information Act authorizing the withholding of the record
with a brief explanation of how the exemption applies to the record
withheld; and
(3) A statement that the denial may be appealed to the Commissioners
of the Consumer Product Safety Commission. Any such appeal must be made
within 30 calendar days of receipt of the denial by the requester.
(c) If no response is made within ten (10) working days or any
extension thereof, the requester can consider his/her administrative
remedies exhausted and seek judicial relief in a United States District
Court as specified in 5 U.S.C. 552(a)(4)(B). When it appears that no
response can be made to the requester within the applicable time limit,
the Secretary or delegate of the Secretary may ask the requester to
forego judicial relief until a response can be made. The Secretary or
delegate of the Secretary shall inform the requester of the reason for
the delay, of the date on which a response may be expected and of
his/her right to seek judicial review as specified in 5 U.S.C.
552(a)(4)(B).
16 CFR 1015.7 Appeals from initial denials; reconsideration by the
Secretary.
(a) When the Secretary or delegate of the Secretary has denied a
request for records in whole or in part, the requester may, within 30
days of its receipt, appeal the denial to the General Counsel of the
Consumer Product Safety Commission, attention of the Secretary,
Washington, D.C. 20207.
(b) The General Counsel, or the Secretary upon reconsideration, will
act upon an appeal within 20 working days of its receipt. The time
limitations on an appeal begin to run as of the time an appeal is
received by the Office of the Secretary and date stamped.
(c) After reviewing the appeal, the Secretary will reconsider his/her
initial denial. If the Secretary upon reconsideration decides to
release any or all of the information requested on appeal, an appeal as
to the information released will be considered moot; and the Secretary
will so inform the requester and submitter of the information in
accordance with 1015.6(a) and 1015.18(b). If the Secretary decides to
affirm the initial denial, in whole or in part, the General Counsel will
decide the appeal within the 20-day time limit or any extension thereof
in accordance with 1015.5.
(d) The General Counsel shall have the authority to grant or deny all
appeals and, as an exercise of discretion, to disclose records exempt
from mandatory disclosure under 5 U.S.C. 552(b). In unusual or difficult
cases the General Counsel may, in his/her discretion, refer an appeal to
the Commissioners for determination.
(e) The General Counsel's action on appeal shall be in writing, shall
be signed by the General Counsel, and shall constitute final agency
action. A denial in whole or in part of a request on appeal shall set
forth the exemption relied upon; a brief explanation, consistent with
the purpose of the exemption, of how the exemption applies to the
records withheld; and the reasons for asserting it. A denial in whole
or in part shall also inform the requester of his/her right to seek
judicial review of the Commission's final determination in a United
States district court, as specified in 5 U.S.C. 552(a)(4)(B).
(f) If no response is made to the requester within 20 working days or
any extension thereof, the requester may consider his/her administrative
remedies exhausted and seek judicial relief in a United States district
court. When no response can be made within the applicable time limit,
the General Counsel shall inform the requester of the reason for the
delay, of the date by which a response may be expected, and of the
requester's right to seek judicial review as specified in 5 U.S.C.
552(a)(4)(B).
(g) Copies of all appeals and copies of all actions on appeal shall
be furnished to and maintained in a public file by the Secretary.
(5 U.S.C. 552(a)(6)(A); 5 U.S.C. 553; 15 U.S.C. 2076(b)(9))
(50 FR 7753, Feb. 26, 1985)
1015.8 Requests received during the course of administrative
hearings. (Reserved)
16 CFR 1015.9 Fees for production of records.
(a) The Commission will provide, at no charge, certain routine
information. For other Commission responses to information requests,
the Secretary shall determine and levy fees for duplication, search,
review, and other services, in accordance with this section.
(b) Fees shall be paid by check or money order, payable to the
Treasury of the United States and sent to the Commission.
(c) The following definitions shall apply under this section:
(1) Direct costs means those expenditures which an agency actually
incurs in searching for and duplicating (and in the case of commercial
requesters, reviewing) documents to respond to a FOIA request.
(2) Search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents.
(3) Duplication refers to the process of making a copy of a document
necessary to respond to a FOIA request.
(4) Review refers to the process of examining documents located in
response to a commercial use request to determine whether any portion of
any document located is permitted to be withheld.
(5) Commercial use request refers to a request that seeks information
for a use or purpose that furthers commercial, trade, or profit
interests.
(6) Educational institution refers to an entity organized and
operated exclusively for educational purposes, whose purpose is
scholarly.
(7) Non-commercial scientific institution refers to an entity
organized and operated exclusively for the purpose of conducting
scientific research, the results of which are not intended to promote
any particular product or industry.
(8) Representative of the news media refers to any person or
organization which regularly publishes or disseminates news to the
public, in print or electronically.
(d) A commercial use request may incur charges for duplication,
search, and review. The following requests may incur charges only for
duplication: A request from an educational institution for records not
sought for commercial use; a request from a non-commercial scientific
institution for records not sought for commercial use; a request from a
representative of the news media. Any other request may incur charges
for duplication and search.
(e) The following fee schedule will apply:
(1) Copies of documents reproduced on a standard photocopying
machine: $0.10 per page.
(2) File searches conducted by clerical personnel: $3.00 for each
one-quarter hour (a fraction thereof to be counted as one-quarter hour).
Any special costs of sending records from field locations to
headquarters for review will be included in search fees, billed at the
clerical personnel rate.
(3) File searches conducted by non-clerical or professional or
managerial personnel: $4.90 for each one-quarter hour (a fraction
thereof to be counted as one-quarter hour).
(4) Review of records: $4.90 for each one-quarter hour (a fraction
thereof to be counted as one-quarter hour).
(5) Computerized records: for central processing, $0.32 per second
of central processing unit (CPU) time; for printer, $10.00 per 1,000
lines; and for computer magnetic tapes or discs, direct costs.
(6) Postage: Direct-cost basis for mailing requested materials, if
the requester wants special handling or if the volume or dimensions of
the materials requires special handling.
(7) Microfiche: $0.35 for each frame.
(8) Other charges for materials requiring special reproducing or
handling, such as photographs, slides, blueprints, video and audio tape
recordings, or other unusual materials: direct-cost basis.
(9) Any other service: An appropriate fee established by the
Secretary, based on direct costs.
(f) Fees shall be waived as follows:
(1) No automatic fee waiver shall apply to commercial use requests.
(2) The first $10.00 of duplication costs shall be waived for
requests from educational institutions, non-commercial scientific
institutions, and representatives of the news media.
(3) For all other requests, the first $10.00 of duplication costs and
the first $40 of search costs shall be waived.
(4) The Secretary shall waive or reduce fees whenever disclosure of
the requested 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 disclosure of the requested information
is not primarily in the commercial interest of the requester.
(5) In making a determination under paragraph (f)(4) of this section,
the Secretary shall consider the following factors:
(i) The subject of the request: Whether the subject of the requested
records concerns the operations or activities of the government.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is likely to contribute to an understanding of
government operations or activities.
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to public understanding.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities.
(v) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(vi) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is primarily in the commercial interest of the requester.
(6) Any determination made by the Secretary concerning fee waivers
may be appealed by the requester to the Commission's General Counsel in
the manner described at 1015.7.
(g) Collection of fees shall be in accordance with the following:
(1) Interest will be charged on amounts billed, starting on the 31st
day following the day on which the billing was sent. Interest will be
at the rate prescribed in 31 U.S.C. 3717.
(2) Search fees will be imposed (on requesters charged for search
time) even if no responsive documents are located or if the search leads
to responsive documents that are withheld under an exemption to the
Freedom of Information Act. Such fees shall not exceed $25.00, unless
the requester has authorized a higher amount.
(3) Before the Commission begins processing a request or discloses
any information, it will require advance payment if:
(i) Charges are estimated to exceed $250.00 and the requester has no
history of payment and cannot provide satisfactory assurance that
payment will be made; or
(ii) A requester failed to pay the Commission for a previous Freedom
of Information Act request within 30 days of the billing date.
(4) The Commission will aggregate requests, for the purposes of
billing, whenever it reasonably believes that a requester or group of
requesters is attempting to separate a request into more than one
request for the purpose of evading fees.
(5) If a requester's total bill is less than $9.00, the Commission
will not request payment.
(52 FR 28979, Aug. 5, 1987)
16 CFR 1015.10 Commission report of actions to Congress.
On or before March 1, of each calendar year, the Commission shall
submit a report of its activities with regard to freedom of information
requests during the preceding calendar year to the Speaker of the House
of Representatives and to the President of the Senate. This report
shall include:
(a) The number of determinations made by the Commission not to comply
with requests for records made to the Commission under the provisions of
this part and the reasons for each such determination.
(b) The number of appeals made by persons under such provisions, the
result of such appeals, and the reason for the action upon each appeal
that results in a denial of information.
(c) The names and titles or positions of each person responsible for
the denial of records requested under the provisions of this part and
the number of instances of participation for each.
(d) The results of each proceeding conducted pursuant to subsection
(a)(4)(f) of FOIA as amended November 21, 1974, including a report of
the disciplinary action taken against the officer or employee who was
primarily responsible for improperly withholding records or an
explanation of why disciplinary action was not taken.
(e) A copy of every rule made by the Commission implementing the
provisions of the FOIA, as amended November 21, 1974.
(f) A copy of the fee schedule and the total amount of fees collected
by the agency for making records available under this section.
(g) Such other information as indicates efforts to administer fully
the provisions of the FOIA, as amended.
16 CFR 1015.11 Disclosure of trade secrets to consultants and
contractors; nondisclosure to advisory committees and other government
agencies.
(a) In accordance with section 6(a)(2) of the CPSA, the Commission
may disclose information which it has determined to be a trade secret
under 5 U.S.C. 552(b)(4) to Commission consultants and contractors for
use only in their work for the Commission. Such persons are subject to
the same restrictions with respect to disclosure of such information as
any Commission employee.
(b) In accordance with section 6(a)(2) of the CPSA, the Commission is
prohibited from disclosing information which it has determined to be a
trade secret under 5 U.S.C. 552(b)(4) to advisory committees, except
when required in the official conduct of their business, or to other
Federal agencies and state and local governments.
16 CFR 1015.12 Disclosure to Congress.
(a) All records of the Commission shall be disclosed to Congress upon
a request made by the chairman or ranking minority member of a committee
or subcommittee of Congress acting pursuant to committee business and
having jurisdiction over the matter about which information is
requested.
(b) An individual member of Congress who requests a record for his or
her personal use or on behalf of any constituent shall be subject to the
same rules that apply to members of the general public.
(42 FR 10490, Feb. 22, 1977, as amended at 52 FR 45632, Dec. 1, 1987;
53 FR 3868, Feb. 10, 1988)
16 CFR 1015.12 Subpart B -- Exemptions From Production and Disclosure Under 5 U.S.C. 552(b)
16 CFR 1015.15 Purpose and scope.
(a) The regulations of this subpart provide information concerning
the types of records which may be withheld from production and
disclosure by the Consumer Product Safety Commission and the internal
Commission procedure for withholding exempt records. These regulations
also provide information on the method whereby persons submitting
information to the Commission may request that the information be
considered exempt from disclosure, and information concerning the
Commission's treatment of documents submitted with a request that they
be treated as exempt from disclosure.
(b) No identifiable record requested in accordance with the
procedures contained in this part shall be withheld from disclosure
unless it falls within one of the classes of records exempt under 5
U.S.C 552(b). The Commission will make available, to the extent
permitted by law, records authorized to be withheld under 5 U.S.C.
552(b) unless the Commission determines that disclosure is contrary to
the public interest. In this regard the Commission will not ordinarily
release documents that provide legal advice to the Commission concerning
pending or prospective litigation where the release of such documents
would significantly interfere with the Commission's regulatory or
enforcement proceedings.
(c) Draft documents that are agency records are subject to release
upon request in accordance with this regulation. However, in order to
avoid any misunderstanding of the preliminary nature of a draft
document, each draft document released will be marked to indicate its
tentative nature. Similarly, staff briefing packages, which have been
completed but not yet transmitted to the Commission by the Office of the
Secretary are subject to release upon request in accordance with this
regulation. Each briefing package or portion thereof released will be
marked to indicate that it has not been transmitted to or acted upon by
the Commission. In addition, briefing packages, or portions thereof,
which the Secretary upon the advice of the Office of the General Counsel
has determined would be released upon request in accordance with this
regulation, will be publicly available in the public reference facility
established under 1015.2 promptly after the briefing package has been
transmitted to the Commissioners by the Office of the Secretary. Such
packages will be marked to indicate that they have not been acted upon
by the Commission.
(d) The exceptions contained in 1015.16 are as contained in 5 U.S.C.
552(b). These exemptions will be interpreted in accordance with the
applicable law at the time a request for production or disclosure is
considered.
(42 FR 10490, Feb. 22, 1977, as amended at 45 FR 22022, Apr. 3, 1980)
16 CFR 1015.16 Exemptions (5 U.S.C. 552 (b)).
(a) Records specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and are in fact properly classified pursuant to such
Executive order.
(b) Records related solely to the internal personnel rules and
practices of the Commission.
(c) Records specifically exempted from disclosure by statute (other
than section 552b of Title 5, United States Code), provided that such
statute either requires that the matters be withheld from the public in
such a manner as to leave no discretion on the issue, or establishes
particular criteria for withholding or refers to particular types of
matters to be withheld.
(d) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential.
(e) Interagency or intra-agency memoranda or letters which would not
be available by law to a party other than an agency in litigation with
the agency.
(f) Personnel and medical files and similar files the disclosure of
which would consititute a clearly unwarranted invasion of personal
privacy.
(g) Resords or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records
or information (1) could reasonably be expected to interfere with
enforcement proceedings, (2) would deprive a person of a right to a fair
trial or an impartial adjudication, (3) could reasonably be expected to
constitute an unwarranted invasion of personal privacy, (4) 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, (5) 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 (6) could reasonably be
expected to endanger the life or physical safety of any individual.
(h) Records contained in or related to examinations, 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.
(i) Records of geological and geophysical information and data,
including maps, concerning wells.
(42 FR 10490, Feb. 22, 1977, as amended at 52 FR 44597, Nov. 20,
1987)
16 CFR 1015.17 Internal Commission procedure for withholding exempt
records.
Paragraphs (a) and (b) of this section describe the internal
Commission procedure to be followed for requesting that a record exempt
from disclosure under the inter- intra-agency memorandum exemption, 5
U.S.C. 552(b)(5), or the investigatory file exemption, 5 U.S.C.
552(b)(7), not be disclosed.
(a) If a bureau or office director believes that it is against the
public interest to disclose a Commission record prepared by his/her
bureau or office, he/she may request in writing that the Secretary
withhold the document. The request must specify why the release would
be against the public interest.
(1) If the Secretary agrees to withhold the document, the requester
shall be notified in writing of the denial and of his/her right to
appeal in accordance with 1015.6(b).
(2) If the Secretary decides to release the document, the bureau or
office director shall be notified and given two working days within
which to appeal to the Commissioners. An appeal by a bureau or office
director shall be in writing addressed to the Chairman. If an appeal is
taken by a bureau or office director, the Secretary will not disclose
the document. The Commissioner's action on appeal shall be in
accordance with 1015.7(d).
(b) If a Commissioner believes that it is not in the public interest
to disclose a Commission record prepared by himself/herself or by
his/her office personnel, the Commissioner shall so inform the Secretary
and shall specify in writing why the release would be against the public
interest. The Secretary shall notify the requester in writing of the
denial in accordance with 1015.6(b). Any appeal by a requester shall be
in accordance with 1015.7 except the provisions for reconsideration by
the Secretary is not applicable. On appeal, the Commissioner who
withheld the document shall not participate in the decision.
(42 FR 10490, Feb. 22, 1977, as amended at 45 FR 22023, Apr. 3, 1980)
16 CFR 1015.18 Information submitted to the Commission; request for
treatment as exempt material.
(a) A person who is submitting information to the Commission, after
being notified by the Commission of his/her opportunity to request
confidential treatment for information, must accompany the submission
with a request that the information be considered exempt from disclosure
or indicate that a request will be submitted within 10 working days of
the submission. The failure to make a request within the prescribed
time limit will be considered an acknowledgment that the submitter does
not wish to claim exempt status.
(b) A person who has previously submitted information to the
Commission, that is now the subject of a Freedom of Information request,
after being notified by the Commission of his/her opportunity to request
confidential treatment for the information, must submit a request that
the information be considered exempt from disclosure within 5 working
days from receipt of notification. The failure to make a request within
the prescribed time limit will be considered an acknowledgment that the
submitter does not wish to claim exempt status.
(c) Each request for exemption from disclosure under 5 U.S.C.
552(b)(4) as a trade secret or privileged or confidential commercial or
financial information must:
(1) Specifically identify the exact portion(s) of the document
claimed to be confidential;
(2) State whether the information claimed to be confidential has ever
been released in any manner to a person who was not an employee or in a
confidential relationship with the company;
(3) State whether the information so specified is commonly known
within the industry or is readily ascertainable by outside persons with
a minimum of time and effort;
(4) State how release of the information so specified would be likely
to cause substantial harm to the company's competitive position; and
(5) State whether the submitter is authorized to make claims of
confidentiality on behalf of the person or organization concerned.
(d) Material received with a request that it be considered exempt
shall not be maintained in a public file. If, in complying with a
request for the disclosure of records, it is determined that some or all
of the material relative to the request has been claimed to be exempt
from disclosure, the requester will be supplied with a list of this
material and informed that those portions found not to be exempt will be
made available as soon as possible.
(e) No request for exemption from disclosure under 5 U.S.C.
552(b)(4) should be made by any person who does not intend in good faith
to assist the Commission in the defense of any judicial proceeding that
might thereafter be brought to compel the disclosure of information
which the Commission has determined to be a trade secret or privileged
or confidential commercial or financial information.
16 CFR 1015.19 Decisions on requests for exemption from disclosure
under 5 U.S.C. 552(b)(4).
(a) The Commission generally will not decide whether material
received with a request for exemption from disclosure under 5 U.S.C.
552(b)(4) is entitled to be withheld until a request for production or
disclosure is made for that information. The determination will be
based on the most authoritative judicial interpretations available at
the time a request for disclosure or production is considered. Any
reasonably segregable portion of a record will be disclosed to any
person requesting such record after deletion of any portions determined
to be exempt under 5 U.S.C. 552(b)(4). The requester will be given a
brief description of any information found to be exempt.
(b) If material received with a request for exemption from disclosure
under 5 U.S.C. 552(b)(4) is found to be disclosable, in whole or in
part, the person submitting the material will be notified in writing and
given 10 calendar days from the receipt of the letter to seek judicial
relief. In no event, however, will the material be returned to the
person submitting it.
16 CFR 1015.19 Subpart C -- Disclosure of Commission Accident or Investigation Reports Under 15 U.S.C. 2074(c)
16 CFR 1015.20 Public availability of accident or investigation
reports.
(a) Accident or investigation reports made by an officer, employee,
or agent of the Commission are available to the public under the
procedures set forth in subpart A of this part 1015. No portion of such
report are subject to the investigatory file exemption contained in the
Freedom of Information Act (as restated in 1015.16) except that
portions identifying any injured person or any person treating such
injured person will be deleted in accordance with section 25(c)(1) of
the CPSA. Where disclosure of an accident or investigation report is
requested by supplying the name of the person injured or other details
of a specific accident (other than cases where the report is requested
by the injured person or the injured person's legal representative), the
Commission will offer to obtain the written consent of the injured party
or the injured party's representative to the disclosure of the report
without deleting the party's identity. No deletion of identifying
portions of such reports or refusal to disclose without the Commission
having first obtained written consent shall be considered as a denial by
the Commission of disclosure of Commission records.
(b) Research reports, demonstration reports, and reports of other
related activities of the Commission are available to the public under
the procedures set forth in subpart A of this part 1015.
16 CFR 1015.20 PART 1016 -- POLICIES AND PROCEDURES FOR INFORMATION
DISCLOSURE AND COMMISSION EMPLOYEE TESTIMONY IN PRIVATE LITIGATION
Sec.
1016.1 Purpose and policy.
1016.2 Definition.
1016.3 Disclosure and certification of information and records.
1016.4 Testimony of Commission employees in private litigation.
Authority: 15 U.S.C. 2051-81; 15 U.S.C. 1261-74; 15 U.S.C.
1191-1204; 15 U.S.C. 1471-76; 15 U.S.C. 1211-14; 5 U.S.C. 552; and 5
U.S.C. 552a.
Source: 53 FR 6594, Mar. 2, 1988, unless otherwise noted.
16 CFR 1016.1 Purpose and policy.
(a) The Commission's policy is to make official records available to
private litigants, to the fullest extent possible.
(b) The Commission's policy and responsibility is to conserve the
time of its employees for work on Commission projects and activities.
Participation of Commission employees in private litigation, in their
official capacities, is generally contrary to this policy and
responsibility. In addition, such participation could impair the
effectiveness of Commission employees as witness in litigation in which
the Commission is directly involved.
16 CFR 1016.2 Definition.
Private litigation'' refers to any legal proceeding which does not
involve the United States government, or any department or agency of the
U.S. government, as a party.
16 CFR 1016.3 Disclosure and certification of information and records.
(a) Identifiable information and records in the Commission's
possession will be made available to private litigants in accordance
with the Commission's Procedures for Disclosure or Production of
Information under the Freedom of Information Act (16 CFR part 1015), the
Freedom of Information Act (5 U.S.C. 552), sections 6 and 25(c) of the
Consumer Product Safety Act (15 U.S.C. 2055 and 2074(c)), and any other
applicable statutes or regulations.
(b) The Secretary of the Commission shall certify the authenticity of
copies of Commission records. Requests must be in writing and must
include the records to be certified. Requests should be sent to:
Secretary, Consumer Product Safety Commission, Washington, DC 20207.
(c) Any subpoena duces tecum served on a Commission employee will be
handled by the Office of the Secretary in conjunction with the Office of
the General Counsel. Whenever necessary to prevent the improper
disclosure of documents, the General Counsel will take steps, in
conjunction with the Department of Justice, to quash such subpoenas or
seek protective orders.
16 CFR 1016.4 Testimony of Commission employees in private litigation.
(a) No Commission employee shall testify in his or her official
capacity in any private litigation, without express authorization from
the Commission's General Counsel. The Commission may, in its
discretion, review a decision by the General Counsel to authorize such
employee testimony. The General Counsel shall in such instances, where
time permits, advise the Commission, on a no objection basis, of the
authorization of such employee testimony.
(b) If any Commission employee is served with a subpoena seeking
testimony in private litigation, he or she must immediately notify the
Office of the General Counsel. The Office of the General Counsel, in
conjunction with the Department of Justice, will (1) take steps to quash
the subpoena or (2) direct the employee to appear in response to the
subpoena but refuse to testify on the ground that it is prohibited by
this section.
(c) If the General Counsel becomes aware of private litigation in
which testimony by a Commission employee would be in the interests of
the Commission, he or she may authorize such testimony, notwithstanding
paragraph (b) of this section. The Commission may, in its discretion,
review a decision by the General Counsel to authorize such employee
testimony. The General Counsel shall in such instances, where time
permits, advise the Commission, on a no objection basis, of the
authorization of such employee testimony. Any such testimony must be
provided in a way that minimizes the use of Commission resources as much
as possible.
16 CFR 1016.4 Pt. 1017
16 CFR 1016.4 PART 1017 -- PROCEDURES FOR SAFEGUARDING CONFIDENTIAL BUSINESS INFORMATION RECEIVED FROM EPA
16 CFR 1016.4 Subpart A -- (Reserved)
16 CFR 1016.4 Subpart B -- Purpose and Description of Information
Sec.
1017.1 Purpose and scope.
1017.2 -- 1017.4 (Reserved)
16 CFR 1016.4 Subpart C -- Responsibilities
1017.5 Safeguarding confidential business information received from
EPA; Associate Executive Director for Health Sciences responsibilities.
1017.6 Document Control Officer and Assistant responsibilities.
1017.7 Employee responsibilities.
1017.8 Security Officer responsibilities.
1017.9 Other individuals' responsibilities; Chief, Contracts Branch;
Project Officer.
1017.10 -- 1017.14 (Reserved)
16 CFR 1016.4 Subpart D -- Procedures for Handling Confidential
Business Information
1017.15 Document Control Officer: Procedures upon receiving
information.
1017.16 Storage of confidential business information.
1017.17 Protection of confidential business information during use.
1017.18 Reproduction of confidential business information.
1017.19 Return of confidential business information to EPA or
destruction.
1017.20 Discussion of confidential business information in meetings.
1017.21 Newly created documents containing confidential business
information.
1017.22 Transfer of confidential business information.
1017.23 Lost or misplaced documents; violations of security by
Commission employees.
1017.24 -- 1017.26 (Reserved)
16 CFR 1016.4 Subpart E -- Procedures for Authorizing Access for
Employees and for Employees To Obtain Access
1017.27 Request and approval for access to confidential business
information.
1017.28 Investigations.
1017.29 Employee access to information.
1017.30 -- 1017.33 (Reserved)
16 CFR 1016.4 Subpart F -- Authorization for the Commission To Provide
Access to Confidential Business Information to Members of the Chronic
Hazard Advisory Panels
1017.34 Chronic Hazard Advisory Panels: Access to confidential
business information.
16 CFR 1016.4 Subpart G -- Security Requirements for Contractors and
Subcontractors
1017.35 Contractor and subcontractor access to confidential business
information.
1017.36 Contracts and subcontracts involving access to confidential
business information.
1017.37 Award of contracts and subcontracts involving confidential
business information.
1017.38 Modifying existing contracts and subcontracts involving
confidential business information.
1017.39 Contractor prohibition on computer use of confidential
business information.
1017.40 Transfer of confidential business information to contractors
and subcontractors.
1017.41 Inspection of contractor and subcontractor facilities.
1017.42 Return of information.
1017.43 Violations of security by contractors and subcontractors.
16 CFR 1016.4 Subpart H -- Chemical Formulations for Consumer Products
1017.50 Purpose and scope.
1017.51 Responsible officials.
1017.52 Internal Commission safeguards.
1017.53 Commission representatives' safeguards.
I -- Confidentiality Agreement for Consumer Product Safety Commission
Employees
II -- Confidentiality Agreement for Consumer Product Safety
Commission Employees Upon Termination or Transfer
III -- Request for Access to Confidential Business Information
IV -- Confidential Business Information User Sign-Out Log
V -- Confidential Business Information Document Control No. Form
VI -- Confidential Business Information Inventory Log
VII -- Selected Confidential Information Record Disposition Log
VIII -- Security Procedures for Handling Confidential Business
Information Provided to Contractors or Subcontractors
Authority: Sec. 6(a)(2), Pub. L. 92-573, 86 Stat. 1212-1215; as
amended Pub. L. 95-631, 92 Stat. 3742-45; Pub. L. 97-35, 95 Stat.
703, 752 (15 U.S.C. 2055(a)(2)).
Source: 48 FR 50517, Nov. 2, 1983, unless otherwise noted.
16 CFR 1016.4 Subpart A -- (Reserved)
16 CFR 1016.4 Subpart B -- Purpose and Description of Information
16 CFR 1017.1 Purpose and scope.
This part sets forth the security measures that Consumer Product
Safety Commission employees must follow to safeguard confidential
business information (CBI) which the Environmental Protection Agency
obtains pursuant to the Toxic Substances Control Act (TSCA) and
furnishes to the Commission. This part also establishes security
measures for Commission contractors and subcontractors obtaining access
to this information. No such CBI shall be disclosed except as expressly
authorized by section 6 of the CPSA, as amended (15 U.S.C. 2055), and
by this regulation.
1017.2 -- 1017.4 (Reserved)
16 CFR 1017.1 Subpart C -- Responsibilities
16 CFR 1017.5 Safeguarding confidential business information received
from EPA; Associate Executive Director for Health Sciences
responsibilities.
(a) The Commission's Associate Executive Director for Health Sciences
(AEDHS) has the primary responsibility for safeguarding CBI obtained by
EPA pursuant to TSCA and furnished to the Commission.
(b) The AEDHS shall:
(1) Ensure that all CBI is handled under these procedures;
(2) Authorizes the use of storage room(s) for CBI and any
reproduction of CBI, and approve the return to EPA or destruction of
selected documents.
(3) Designate a Document Control Officer (DCO) and one Assistant
Document Control Officer (DCOA) to serve under the direct supervision of
the AEDHS to implement the procedures in this part;
(4) Provide authorization for Commission employees, contractors and
subcontractors to have access to CBI in accordance with 1017.15,
1017.27 and 1017.35.
(5) Ensure that no CBI or confidential data based on, compiled from
or otherwise derived from original CBI furnished by EPA, is
computerized.
(6) Initiate appropriate action when any employee, contractor or
subcontractor fails to comply with these procedures, e.g., disciplinary
action against such employee or termination of a contract or
subcontract.
(7) The AEDHS shall immediately notify the Executive Director and
General Counsel of any investigation by the Security Officer that covers
the suspected or actual compromise of CBI, a violation of or apparent
violation of the security provisions of this part, including the
unauthorized disclosure of CBI.
(8) The AEDHS will have acess to CBI only to the extent necessary to
fulfill the specific responsibilities set forth above and elsewhere in
this regulation and to carry out his responsibilities as AED as provided
in 1017.27 of this regulation.
(48 FR 50517, Nov. 2, 1983, as amended at 49 FR 22770, June 1, 1984)
16 CFR 1017.6 Document Control Officer and Assistant responsibilities.
(a) The Document Control Officer (DCO) is responsible for the
following:
(1) Maintaining a current list of Commission personnel, contractors
and subcontractors who are authorized to have access to CBI, including
any limitations on access;
(2) Maintaining document control records for all CBI, both incoming
and outgoing;
(3) Assigning document control numbers to all documents containing
CBI;
(4) Releasing CBI only to authorized employees;
(5) Ensuring that CBI when not in use is stored in accordance with
these procedures.
(6) Changing the room lock and storage container combinations in
accordance with 1017.16(e).
(7) Maintaining a system for retrieval of documents;
(8) Supervising the reproduction, and destruction or return of CBI to
EPA.
(9) Conducting with the security officer periodic, but not less than
annual, inventory checks of documents containing CBI and furnishing the
results to the AEDHS; such inventory checks also will occur whenever
there is a change of the AEDHS, DCO, Document Control Officer's
Assistant (DCOA) or Security Officer, a suspected breach of security, or
when a Commission or contract employee who has access to CBI receives an
unfavorable suitability determination by the Commission as set forth in
1017.28.
(10) Immediately reporting any violation of these procedures to the
AEDHS.
(11) Conducting routine training on good security procedures for
employees accessing CBI.
(b) The DCOA designated by the AEDHS is responsible for performing
the duties assigned by the DCO and acting for the DCO in routine matters
only in the absence of the DCO and only after written approval has been
obtained from the AEDHS.
(48 FR 50517, Nov. 2, 1983, as amended at 49 FR 22770, June 1, 1984)
16 CFR 1017.7 Employee responsibilities.
(a) Commission and/or contract employees who are authorized access to
CBI are responsible for the following:
(1) Controlling and safeguarding all CBI they receive. This will be
done in accordance with these procedures, any additional Commission
security procedures which may be implemented in the future and common
sense. Employees must sign the appropriate appended Confidentiality
Agreement and meet the suitability/investigative requirements set forth
in 1017.28 before they are granted access to CBI;
(2) Discussing CBI only with authorized persons who need to know;
(3) Safeguarding CBI when it is in actual use;
(4) Immediately reporting possible violations of these procedures to
the DCO;
(5) Not reproducing CBI except with the approval of the AEDHS and
under the supervision of the DCO;
(6) Not discussing CBI over the telephone;
(7) Returning CBI to the DCO when not in use and at the close of
business each day for safeguarding in accordance with these procedures.
16 CFR 1017.8 Security Officer responsibilities.
(a) The Executive Director shall appoint a Security Officer.
(b) The Security Officer shall be responsible for the following:
(1) Ensuring that appropriate investigations required in 1017.28 are
conducted for the AEDHS, the DCO, DCOA and also for employees to whom
access to CBI is provided in accordance with these procedures;
(2) Maintaining a file of signed Confidentiality Agreements (appendix
I) which must be executed by all employees who are granted access to
CBI;
(3) Conducting periodic physical security surveys to ensure
compliance with these procedures;
(4) Investigating any alleged or suspected wrongful disclosure of CBI
and furnishing the results of the investigation to the DCO, AEDHS, and
the Associate Executive Director for Administration (AEDAD) for any
appropriate action.
(5) Investigating any alleged or suspected violation of these
procedures by an employee and furnishing the results to the DCO, AEDHS,
and AEDAD for any appropriate action;
(6) Investigating any alleged or suspected violations of contract or
subcontract security procedures and reporting the results to the DCO and
AEDHS for any appropriate action.
(7) Administering, witnessing, and maintaining the Confidentiality
Agreement for CPSC Employee Upon Termination or Transfer (appendix II)
for each employee who has had access to CBI and is transferring from or
terminating his/her employment with the Commission;
(8) Accompany personnel from EPA Security Management Support Division
to conduct periodic inspection of contractor or subcontractor facilities
to determine compliance with required security procedures.
(c) The Security Officer will have access to CBI only to the extent
necessary to fulfill the responsibilities set forth above.
16 CFR 1017.9 Other individuals' responsibilities; Chief, Contracts
Branch; Project Officer.
(a) The Chief of the Contracts Branch of the Directorate for
Administration is responsible for the following;
(1) Ensuring that the clause entitled ''Security Procedures for
Handling Confidential Business Information Provided to Contractors and
Subcontractors (appendix VIII) is included in any Request for Proposals,
contract, or subcontract where the contractor or subcontractor will have
access to CBI obtained from EPA pursuant to TSCA.
(2) Reporting any alleged or suspected violations of the contract or
subcontract security provisions to the Security Officer.
(b) The Project Officer for a contract, who has been approved for
access to CBI in accordance with 1017.27, is responsible for obtaining
from the DCO and securely transferring CBI to a contractor/subcontractor
and ensuring that all the information is returned to the DCO at the
completion of the contract work. Prior to transferring CBI to a
contractor/subcontractor, the Project Officer for a contract is
responsible for notifying the affected business at least ten days in
advance of the transfer.
(48 FR 50517, Nov. 2, 1983, as amended at 49 FR 22770, June 1, 1984)
1017.10 -- 1017.14 (Reserved)
16 CFR 1017.9 Subpart D -- Procedures for Handling Confidential Business Information
16 CFR 1017.15 Document Control Officer: Procedures upon receiving
information.
(a) Upon receipt of documents containing CBI, the DCO shall:
(1) Assign a document control number to each document;
(2) Attach a Confidential Business Information cover sheet to the
information (Appendix V); and
(3) Enter the required information into the Inventory Log (Appendix
VI) including a description of the document, date received, and name of
submitter.
16 CFR 1017.16 Storage of confidential business information.
(a) When CBI is not in use and at the close of business each day, the
DCO, at a minimum, must store the CBI within a metal cabinet with a bar
and a three-way changeable combination padlock approved by the Security
Officer.
(b) The metal cabinet or other approved security container must be
located in a room(s) that the AEHDS has authorized and which is
approved, before use, by the Security Officer and by the EPA.
(c) The room(s) must have doors with a simplex combination or
similarly-rated lock and one or more of the following, depending upon
the location, construction, and configuration of the room:
(1) Contact alarmed doors/windows;
(2) Ultrasonic alarm;
(3) Vibration alarms; or
(4) Other remote intrusion alarms.
(d) Only the DCO and DCOA are authorized to be given the combinations
to the room(s) and to the storage container(s).
(e) The room lock and the storage container combinations must be
changed by the DCO at least once each year and every time an employee
having access to the storage containers terminates employment, transfers
to responsibilities that do not allow access, has breached security, or
who has had his/her access authorization terminated.
16 CFR 1017.17 Protection of confidential business information during
use.
(a) Except as provided in paragraph (b) of this section, CBI, when in
actual use by an authorized person, shall be protected as follows:
(1) Kept under the constant surveillance of an authorized person who
is in a physical position to exercise direct security control over the
material;
(2) Covered, turned face down, placed in storage containers, or
otherwise protected when unauthorized persons are also present; and,
when the material is not in use it shall be returned to the secure
storage area.
(3) Discussed only with other authorized persons; and
(4) Returned to the DCO not later than close of business each day.
(b) In instances where CBI is to be given to a contractor or
subcontractor, the information shall be handled in the same manner as
described in paragraph (a) of this section except that it shall be
returned at the close of business each day to the person designated by
the contractor or subcontractor to safeguard CBI.
(48 FR 50517, Nov. 2, 1983, as amended at 49 FR 22770, June 1, 1984)
16 CFR 1017.18 Reproduction of confidential business information.
The reproduction of CBI should be kept to an absolute minimum.
Reproduction of CBI may be done only with the approval of the AEDHS and
under the supervision of the DCO. The DCO shall enter all copies into
the document control system (Inventory Log, Appendix VI), notify the
AEDHS, and apply the same control requirements as for the original.
16 CFR 1017.19 Return of confidential business information to EPA or
destruction.
(a) Documents containing CBI will either be returned to EPA promptly
when the information has served the purpose or purposes for which it was
obtained or will be destroyed.
(b) Whenever possible and feasible, documents shall be returned to
EPA by personal delivery by authorized Commission personnel in
accordance with the procedures set forth in 1017.22 (a) and (b) of this
regulation.
(c) If the information is to be returned by mail, it must be
transmitted in accordance with the procedures set forth in 1017.22(c)
of this regulation.
(d) In instances where it is not possible or feasible to return
documents to EPA, the documents shall be destroyed by shredding or
burning under the supervision of the DCO and in the presence of a
witness.
(e) The DCO shall record the return/destruction on the Inventory Log
(Appendix VI) and the Record Disposition Log (Appendix VII) in the
presence of the employee returning CBI. The DCO shall maintain the
Inventory Log and a copy of the User Sign-Out Log (Appendix IV) for all
materials returned/destroyed for a period of at least five years.
16 CFR 1017.20 Discussion of confidential business information in
meetings.
(a) In any meeting, symposium, panel discussion, or seminar in which
CBI will be discussed by Commission employees, the meeting chairman
shall:
(1) Be a person authorized to have access to CBI;
(2) Ensure that only persons authorized to have access to CBI are
present when such information is to be discussed;
(3) Provide a sign-in sheet, including the date, time, place, subject
of the meeting, and type CBI discussed and require all attendees to sign
it. The meeting chairperson shall give the sign-in sheet to the DCO who
will retain it for at least one year.
(4) Review with the attendees their responsibility for safeguarding
CBI.
(5) Ensure that no electronic recording is made of the meeting unless
the AEDHS has authorized it. If authorized, the recording must be
treated as all other CBI and the DCO must enter it into the document
control system;
(6) Ensure that the meeting room is secured after the meeting. This
shall include erasing all blackboards, destroying all tear sheets and
other notes, and ensuring that nothing is left in the room which would
lead to an unauthorized disclosure of CBI.
16 CFR 1017.21 Newly created documents containing confidential business
information.
Creation of new documents by extracting information from documents
containing CBI should be kept to an absolute minimum. When a new
document is created by extracting information from documents containing
CBI, the newly created document shall be brought to the attention of the
DCO by the close of business on the day it is created. The DCO shall
follow the procedures in this subpart of numbering and logging the new
documents. The new document should be clearly and prominently marked as
being confidential and subject to the requirements of Section 6 of the
CPSA and of this regulation. Notes containing CBI taken from a document
or at a meeting shall likewise be brought to the attention of the DCO
for numbering, logging and marking confidential and subject to Section 6
of the CPSA and this regulation on the day they are created.
16 CFR 1017.22 Transfer of confidential business information.
(a) CBI routinely will be transferred between geographic locations by
authorized CPSC personnel, provided that the DCO maintains a record and
obtains a receipt from the person receiving the information. When
hand-delivery is not feasible, the information will be transmitted by
registered mail. In no instance will the information be transmitted by
regular or certified mail.
(b) The information to be transmitted by hand must be in a double
envelope. The inner envelope must reflect the name and address of the
recipient, with the following wording on the front side: ''Confidential
Business Information -- To Be Opened By Addressee Only.'' The outer
envelope must reflect the normal address, without the additional
wording, and be marked ''BY HAND.''
(c) If the information cannot reasonably be delivered by hand and
thus is to be transmitted by mail, the DCO must send it by registered
mail, return receipt requested, in a double envelope. The inner
envelope must reflect the name and address of the recipient with the
following wording on the front side of the inner envelope:
''Confidential Business Information -- To Be Opened By Addressee Only.''
The outer envelope must reflect the normal address without the
additional wording.
16 CFR 1017.23 Lost or misplaced documents; violations of security by
Commission employees.
(a) If any employee becomes aware that a document containing CBI is
lost or otherwise unaccounted for, he/she shall immediately notify the
DCO. If the document is not located within eight working hours, the DCO
shall refer the matter to the Security Officer and the AEDHS for
processing in accordance with paragraphs (b) through (e) of this
section.
(b) If an employee intentionally or unintentionally violates or
apparently violates the security provisions of this part the Security
Officer shall investigate the violations or apparent violations, and
report the matter to the DCO and the AEDHS. The AEDHS shall immediately
notify the Executive Director and the General Counsel.
(c) If the investigation by the Security Officer uncovers a violation
of the security requirements of this part and there is no evidence of
any unauthorized disclosure, the Security Officer shall inform the DCO
and the AEDHS.
(d) If the investigation by the Security Officer uncovers the
probable unauthorized disclosure of CBI, the Security Officer
immediately shall inform the DCO and the AEDHS. The AEDHS shall
immediately notify the Executive Director and the General Counsel.
(e) If the Executive Director determines that there is a suspected or
actual unauthorized compromise of CBI, he/she shall immediately notify
the Chief, Security Management Support Division, EPA, and the affected
business.
(f) If the investigation by the Security Officer uncovers information
reflecting a possible criminal violation, the Security Officer will
immediately inform the AEDHS and DCO. The AEDHS shall immediately
inform the Executive Director, and the General Counsel. If there is
evidence of a criminal violation, the General Counsel shall refer the
matter to the Department of Justice pursuant to 28 U.S.C. 535.
1017.24 -- 1017.26 (Reserved)
16 CFR 1017.23 Subpart E -- Procedures for Authorizing Access for Employees and for Employees To Obtain Access
16 CFR 1017.27 Request and approval for access to confidential business
information.
(a) The Commissioners, the Executive Director, Deputy Executive
Director, Associate Executive Directors, General Counsel and Office
Directors have authority to request access to CBI for themselves or
employees under their supervision. A request must be made to the AEDHS
by completing part 1 of the document ''Request for Access to Selected
Confidential Business Information.'' (Appendix III). The request must
be accompanied by a Confidentiality Agreement (Appendix I) signed by the
employee for whom access is requested.
(b) The AEDHS shall approve the request for access by completing part
2 of the request form (Appendix III) if the person requesting access can
demonstrate a legitimate need to have access to CBI. If the AEHDS
approves the request for access, the AEDHS shall send the completed form
to the Security Officer who will be responsible for ensuring that an
appropriate security investigation has been conducted, as described in
1017.28.
(c) If the AEDHS determines that an employee has not demonstrated a
legitimate need to have access to CBI, the employee will not be granted
access. This decision may be appealed to the CPSC Executive Director
with a copy of the appeal being sent to the General Counsel. If the
Executive Director upholds the decision of the AEDHS, the denial of
access may be appealed to the Chairman with a copy of the appeal being
sent to the General Counsel.
16 CFR 1017.28 Investigations.
(a) All employees must have a National Agency Check and Inquiries
(NACI) completed before being given access to CBI unless a temporary
waiver is obtained in accordance with paragraph (b) of this section.
The Security Officer, upon receipt of completed parts 1 and 2 of a
request form for employee access to CBI (Appendix III), will contact the
Personnel Office and obtain in writing the fact that an NACI has been
completed with a favorable suitability determination. The Security
Officer will then complete part 3 of the request form (Appendix III) to
authorize the employee to have access to CBI. The Security Officer
shall then notify the employee, the AEDHS and the DCO who will place the
employee's name on the authorized access list.
(b) If a NACI investigation has not been completed for an employee
and there is an urgent need for the employee to have access to CBI in
order to protect against immediate potential harm to consumers' health,
the Director of Personnel or his/her designated representative may grant
a temporary waiver. A temporary waiver may be granted only after review
of official personnel documentation consistent with the suitability
criteria contained in chapter 731 of the Federal Personnel Manual. If
the Director of Personnel or designated representative makes a favorable
suitability determination after such a review he/she shall notify the
DCO and the Executive Director and General Counsel of the temporary
waiver in writing and authorize the DCO to place the employee's name on
the authorized access list. If derogatory information later identified
in the NACI causes the Commission to reevaluate the employee's
suitability with an unfavorable determination, his/her access to CBI
shall be immediately terminated, all data in his/her possession shall be
immediately reclaimed and the procedures set forth in 1017.23(b)
followed, as appropriate.
(c) The DCO and DCOA, because of their positions, must have a
background investigation with a favorable suitability determination
completed before assuming their responsibilities under this part except
as provided in paragraph (d) of this section. The Personnel Office will
verify to the Security Officer and the AEDHS that a background
investigation of the responsible officials has been conducted and that
there is nothing of record to preclude them from having access to CBI or
from assuming their responsibilities under this part.
(d) The Director of Personnel or his/her designated representative
may temporarily waive the requirement for a background investigation for
the DCO and DCOA when there is an urgent need for the person to assume
his/her duties to protect against immediate potential harm to consumers'
health. The Director of Personnel or his/her designated representative
will notify the person in writing that he/she may assume
responsibilities immediately, provided (1) that an NACI investigation
has been completed and there is nothing of record to preclude the person
from assuming responsibilities, and (2) that the employee, at that time,
applies for a background investigation. If the Director of Personnel or
his/her designated representative temporarily waives the requirement for
a background investigation he/she must immediately notify the Executive
Director and General Counsel in writing. If an unfavorable suitability
determination is later made, based on the results of the background
investigation, his/her access to confidential business information shall
be immediately terminated, all data in his/her possession shall be
immediately reclaimed and the procedures set forth in 1017.23 (b)
through (e) followed, as appropriate.
16 CFR 1017.29 Employee access to information.
(a) To obtain access to CBI, an employee who is authorized to have
access to CBI in accordance with this regulation must complete a
''Request For Access to Confidential Business Information'' (Appendix
III), obtain all necessary additional signatures, and present the
completed form to the DCO.
(1) The DCO must verify that the requester is on the authorized
access list;
(2) The DCO will retrieve the document from storage and give it to
the authorized employee;
(3) The authorized employee must return the document to the DCO as
soon as he/she has finished using it but not later than by close of
business the day that it was accessed;
(4) The DCO will enter the appropriate information in the User
Sign-out Log (Appendix IV);
(5) The DCO will assure that each document has a control number and
CPSC Confidential Business Information cover sheet (Appendix V) before
releasing the document, as required by subpart E below.
(b) If a document is not returned to the DCO by the end of the day
accessed, if not sooner, the DCO will immediately attempt to retrieve
the document and notify the AEDHS and the Security Officer who will
investigate the matter.
1017.30 -- 1017.33 (Reserved)
16 CFR 1017.29 Subpart F -- Authorization for the Commission To Provide Access to Confidential Business Information to Members of the Chronic Hazard Advisory Panels
16 CFR 1017.34 Chronic Hazard Advisory Panels: Access to confidential
business information.
(a) The Commission is authorized to provide access to CBI to members
of the Chronic Hazard Advisory Panels (CHSPA), established pursuant to
Section 28 of the CPSA, as amended in 1981, 15 U.S.C. 2077.
(b) The CBI will be furnished to CHAP members under all of the
safeguards relating to Commission employees provided in subparts B
through E herein.
(c) Members of CHAP who obtain access to CBI are subject to all of
the provisions of subpart G herein relating to Commission contractors
and subcontractors.
16 CFR 1017.34 Subpart G -- Security Requirements for Contractors and Subcontractors
16 CFR 1017.35 Contractor and subcontractor access to confidential
business information.
(a) Contractors and subcontractors are responsible for maintaining
the confidentiality of CBI to which they are given access under the
terms of a contract.
(b) CBI may be furnished to Commission contractors and subcontractors
only when it is necessary for the performace of work specified in the
contract or subcontract, when the contract or subcontract contains the
required clauses, when the contractor or subcontractor and their
employees sign confidentiality agreements, and when the procedures in
this subpart have been followed. The affected business will be notified
at least ten days in advance of disclosure of CBI to contractors or
subcontractors.
16 CFR 1017.36 Contracts and subcontracts involving access to
confidential business information.
(a) When a Commission office initiates a Request for Proposals for a
contract and the contractor or subcontractor will need access to CBI to
perform the work, the CPSC Project Officer responsible for the contract
must request approval for such access from the AEDHS prior to initiating
a Request for Proposals. The AEDHS shall approve or disapprove the
request in writing based upon a determination of whether the
contractor/subcontractor would require access to perform the contract
and shall notify the person making the request of the decision.
(b) If the AEDHS determines that a contractor or subcontractor does
not have a legitimate need to have access to data, this decision may be
appealed to the Executive Director. If the Executive Director upholds
the decision of the AEDHS, the denial of access may be appealed to the
Chairman. Throughout this appeal process the General Counsel will be
kept apprised.
(c) After the AEDHS has approved a request for contractor or
subcontractor access, the office requesting the access shall notify the
Contracts Branch that the Request for Proposals and resulting contract
must include the contract provision set forth in Appendix VIII,
''Security Procedures for Handling Confidential Business Information
Provided to Contractors and Subcontractors'' and that contract employees
who require access to Confidential Business Information must meet the
same suitability investigative requirements as Federal employees as set
forth in 1017.28.
16 CFR 1017.37 Award of contracts and subcontracts involving
confidential business information.
In evaluating the proposals submitted by offerors responding to the
Request for Proposals, the Contracts Branch and the requesting office
shall consider any potential conflicts of interest that might preclude
the handling of CBI by the successful offeror. They shall also consider
the offeror's past performance on similar contracts or subcontracts
involving the handling of CBI or other information of confidential
and/or a sensitive nature, such as national defense information or
privacy information.
16 CFR 1017.38 Modifying existing contracts and subcontracts involving
confidential business information.
When a contract or subcontract is already in effect and a Commission
office determines that it will be necessary to furnish CBI to a
contractor or subcontractor to perform the work required, the procedures
set forth in 1017.25, 1017.36 and 1017.37 will be followed. The
contract or subcontract shall be modified to include the provisions set
forth in Appendix VIII.
16 CFR 1017.39 Contractor prohibition on computer use of confidential
business information.
(a) CBI or confidential data based on, compiled from or otherwise
derived from original CBI furnished by EPA may not be computerized by a
contractor or subcontractor.
16 CFR 1017.40 Transfer of confidential business information to
contractors and subcontractors.
(a) The project officer responsible for the contract or subcontract
shall request the required CBI from the DCO. The request shall include
the identity of the contractor or subcontractor, the number of the
contract or subcontract, a statement that the appropriate clauses are
included in the contract or subcontract and that the contractor and
subcontractor employees having access to the information have signed a
nondisclosure statement. A copy of the approval given by the AEDHS
should also be attached.
(b) Upon receipt of a request, the DCO shall provide the requested
information to the Project Officer who shall deliver the information to
the contractor or subcontractor in person, if feasible. The Project
Officer shall obtain a written receipt for the information from the
contractor or subcontractor and send it to the DCO.
(c) The information will routinely be transferred to the contractor
or subcontractor by personal delivery by authorized CPSC personnel,
provided that the DCO maintains a record and obtains a receipt from the
person receiving the information. When hand-delivery is not feasible,
the information will be transmitted by registered mail. In no instance
will the information be transmitted by regular or certified mail.
(d) When the information is to be transmitted by personal delivery,
the procedures set forth in 1017.22 (a) and (b) of this regulation must
be followed. If the information is to be transmitted by registered
mail, the procedures set forth in 1017.22(c) of this regulation must be
followed.
16 CFR 1017.41 Inspection of contractor and subcontractor facilities.
(a) Before the award or modification of a contract, the Contracts
Office shall request the EPA Security Management Support Division to
verify and certify in writing that a contractor or subcontractor has in
place adequate facilities, safeguards and procedures to insure the
security of CBI.
(b) Until CPSC receives EPA approval it shall not furnish to any
contractor or subcontractor any CBI it has received from EPA.
(c) The Contracts Office may periodically request the Security
Officer to conduct unannounced security inspections to assure that the
contractor or subcontractor is taking the necessary steps to protect the
CBI. A copy of the Security Officer's report shall immediately be sent
to the Chief, Security Management Support Division. EPA.
16 CFR 1017.42 Return of information.
Upon completion of the contract or subcontract, the Project Officer
responsible for the contract or subcontract shall obtain from the
contractor or subcontractor all copies of CBI previously provided to the
contractor or subcontractor and shall send them to the DCO under the
procedures set forth in 1017.41(c).
16 CFR 1017.43 Violations of security by contractors and
subcontractors.
(a) If a contractor or subcontractor violates or is suspected of
violating the security terms of a contract or subcontract obligating it
to protect CBI the Security Officer shall investigate the violations or
apparent violations, and report the matter to the DCO, AEDHS and the
General Counsel.
(b) If the investigation by the Security Officer uncovers a violation
of the security requirements of the contract and there is no evidence of
any unauthorized disclosure, the Security Officer shall inform the DCO,
AEDHS and the Contracting Officer who shall take appropriate action
under the terms of the contract or subcontract. The AEDHS shall
immediately notify the Executive Director and the General Counsel.
(c) If the investigation by the Security Officer uncovers the
suspected or actual compromise of CBI, the Project Officer immediately
will retrieve all CBI and return it to the DCO. The Security Officer
shall immediately inform the DCO and AEDHS. The AEDHS shall immediately
notify the Executive Director and the General Counsel. If in the
judgment of the Executive Director there is a suspected or actual
compromise of CBI, he shall immediately notify the Chief, Security
Management Support Division, EPA and the affected business. Appropriate
action under the terms of the contract or subcontract shall be taken.
This action may include terminating the contract or subcontract, without
penalty to CPSC.
(d) If the investigation by the Security Officer uncovers information
reflecting a possible criminal violation, the Security Officer will
immediately inform the DCO and AEDHS. The AEDHS shall immediately
notify the Executive Director and the General Counsel. If there is
evidence of a criminal violation, the General Counsel shall refer the
case to the Department of Justice pursuant to 15 U.S.C. 2613(d)(2).
16 CFR 1017.43 Subpart H -- Chemical Formulations for Consumer Products
Source: 43 FR 49532, Oct. 24, 1978, unless otherwise noted.
Redesignated at 48 FR 50517, Nov. 2, 1983.
16 CFR 1017.50 Purpose and scope.
The procedures set forth in this subpart H describe the measures
taken by the Consumer Product Safety Commission (the Commission) to
safeguard the confidentiality of chemical product formula information
claimed confidential and submitted to the Commission in any form,
voluntarily or pursuant to its special order of August 21, 1975 (40 FR
36617), or any similar special order.
16 CFR 1017.51 Responsible officials.
(a) The Team Leader, Chronic Hazard Program, Division of Program
Analysis-Epidemiology (HIEA), Directorate for Hazard Identification and
Analysis (HIA) or the Team Leader's designee, in concert with the
Associate Executive Director, Directorate for Hazard Identification and
Analysis, or the Associate Executive Director's designee, is responsible
for implementing and supervising the procedures of this subpart H.
(b) The Division Document Control Custodian HIEA designated by the
Associate Executive Director, HIA, is responsible for keeping a logbook
record that shall account for the custody of proprietary information.
The logbook record shall also show which employees are authorized to
have access to the information and shall reflect each instance of access
to the information.
(c) The Commission Security Officer designated by the Associate
Executive Director, Directorate for Administration, is responsible for
providing facilitative support to the Chronic Hazard Program, HIEA, for
the physical security of the confidential information and for assisting
in regulating the use of confidential information by other Commission
employees outside the Chronic Hazard Program, HIEA.
16 CFR 1017.52 Internal Commission safeguards.
(a) Personnel. In accordance with the statutory restrictions imposed
by section 6(a)(2) of the Consumer Product Safety Act, only Commission
employees concerned with carrying out the Consumer Product Safety Act
may be authorized to have access to the confidential information. The
Team Leader, Chronic Hazard Program, HIEA, shall determine on an
individual basis which employees are so authorized and to what
information the employees may have access. These determinations shall
be communicated in writing to the Division Document Control Custodian
and the Commission Security Officer.
(b) Facilities and other measures. (1) Confidential information
shall be kept in a combination lock safe within a security area in the
Commission. Additional (backup) copies of the proprietary information
shall be stored in a commercial bank vault. The Commission security
area shall be a room or rooms that are locked at all times and
electronically monitored outside normal working hours. Also, after
regular business hours, the security area shall be periodically checked
by a member of the Commission's building security force. Any time a
Commission employee who knows a combination to a safe leaves the employ
of the Commission, the combination will be changed.
(2) Information may be removed from the safe or bank vault only by
the Division Document Control Custodian or, in the Custodian's absence,
by the Team Leader, Chronic Hazard Program, HIEA, or the Commission
Security Officer. At no time shall such information be out of the
immediate possession of the authorized employee. The information shall
be returned to the Division Document Control Custodian by the close of
business each day or whenever the authorized employee is not able to
exercise direct surveillance and immediate personal control of the
information. The Division Document Control Custodian, or, in the
Custodian's absence, the Team Leader, Chronic Hazard Program, HIEA, or
the Commission Security Officer, in turn, shall return the information
to the safe or bank vault.
(3) Only the Division Document Control Custodian or the Team Leader,
Chronic Hazard Program, HIEA, may authorize making a copy of proprietary
information. Any copy made shall be safeguarded in the same manner as
required for the original material by this subpart H and records shall
be kept by the Division Document Control Custodian to record each copy
produced.
(4) Disposal or destruction of any confidential information shall be
carried out in the presence of the Division Document Control Custodian
or the Team Leader, Chronic Hazard Program, HIEA, and the Commission
Security Officer. Disposal or destruction shall be done in a manner
that allows no possible extraction or compilation of information
contained therein. Records shall be kept all materials destroyed.
(5) The Division Document Control Custodian shall maintain complete
records on the use or disposal of proprietary information as specified
in 1017.51(b).
(c) Computer processing. (1) Processing of proprietary information
shall be done only at a Government or contract facility having security
procedures that meet or substantially exceed the standards of the DHEW
Information Processing Standards Publication No. 3, entitled ''ADP
System Security Required by the Privacy Act of 1974,'' dated July 24,
1975 (HEW TN75.4).
(2) Magnetic tapes containing proprietary information shall be
handcarried by an authorized Commission employee to and from the
appropriate computer facility, and all processing shall be done under
that employee's supervision and in that employee's presence. After
completion of the processing, no proprietary information shall remain in
the computer.
(3) The Division Document Control Custodian shall maintain complete
records on instances of computer processing of the material, citing the
location of the facility, the employee transporting the records and
witnessing the computer processing of the material, and the date and
time.
16 CFR 1017.53 Commission representatives' safeguards.
A representative of the Commission, whether another governmental
entity or a private contractor, when collecting or processing
proprietary information for the Commission, shall be subject to the
procedures of this section. Before any entity may act as the
Commission's representative for collecting or processing proprietary
information, the following requirements must be met:
(a) Facilities and other measures. The Team Leader, Chronic Hazard
Program, HIEA and/or the Division Document Control Custodian and the
Commission Security Officer shall inspect and approve in writing the
proposed representative's facilities and control measures to insure that
they are adequate to safeguard the confidentiality of the proprietary
information.
(b) Computer processing. The Team Leader, Chronic Hazard Program,
HIEA and the Division Document Control Custodian shall inspect and
approve the computer processing methods of the proposed representative
to insure that they are adequate to safeguard the confidentiality of the
proprietary information. Approval shall not be given unless the methods
meet the standards described in 1017.52(c)(1).
(c) Personnel. The Team Leader, Chronic Hazard Program, HIEA, and
the Division Document Control Custodian shall take steps to insure that
any access to information by employees of a Commission representative is
strictly controlled. If the representative is a private contractor,
these steps shall include requiring each employee who is permitted to
have access to the proprietary information to first execute an affidavit
of nondisclosure. The Commission Security Officer shall review
affidavits of nondisclosure executed by Commission representatives to
insure that the forms are completed accurately and completely.
(d) Subcontractors. Use of a subcontractor by a Commission
representative must have the approval, in writing, of the Team Leader,
Chronic Hazard Program, HIEA, if the subcontractor will handle
proprietary information. The Team Leader, in concert with the
Commission Security Officer, shall insure that the requirement of
paragraphs (a), (b), and (c) of this section are met by each
subcontractor.
(e) Agreements. Every agreement between the Commission and its
representative and between the representative and a subcontractor which
will handle proprietary information shall include provisions to insure
that measures adequate to safeguard proprietary information are
maintained.
16 CFR 1017.53 Pt. 1017, App. I
16 CFR 1017.53 Appendix I -- Confidentiality Agreement for Consumer
Product Safety Commission Employees
I understand that I will have access to certain Confidential Business
Information (CBI). This access has been granted in accordance with my
official duties as an employee of the Consumer Product Safety
Commission.
I understand that CBI may not be disclosed to other employees or
persons, except as authorized in accordance with the CPSC Security
Regulation (16 CFR part 1017 subparts B, C, D, E, F and G). I
understand that the unauthorized disclosure of this information may
subject me to civil and criminal penalties. In addition, I understand
that I may be subject to disciplinary action for violation of this
agreement with penalities ranging up to and including dismissal.
I have read and understand the CPSC Security Regulation. I agree
that I will treat any CBI furnished to me as confidential and that I
will follow the procedures set forth in the CPSC Security Regulation. I
also agree that I will not remove any CBI from the premises of CPSC and
that I will return all copies of any CBI in my possession to the
Document Control Officer when I am finished with their use but not later
than the end of the day accessed. I further agree that I will not
disclose any CBI to any person after termination of employment with
CPSC.
I am aware that I may be subject to criminal penalties under 18
U.S.C. 1001 if I have made any statement of material facts knowing that
such a statement is false or if I willfully conceal any material fact.
--
Signature
--
Date
--
Name
--
CPSC Employee Number
16 CFR 1017.53 Pt. 1017, App. II
16 CFR 1017.53 Appendix II -- Confidentiality Agreement for Consumer
Product Safety Commission Employees Upon Termination or Transfer
In accordance with my official duties an an employee of the Consumer
Product Safety Commission, I have had access to CBI. I understand that
CBI information may not be disclosed to other employees or persons
except as authorized by the CPSC Security Regulation (16 CFR part 1017
subparts B, C, D, E, F, and G).
I certify that I have returned all copies of any CBI information in
my possession to the document control officer as required by the CPSC
Security Regulation.
I agree that I will not remove any copies of CBI from the premises of
other Agency upon my termination or transfer. I further agree that I
will not disclose any CBI to any person after my termination or
transfer.
I understand that as an employee of the United States who has had
access to CBI I am liable to civil and criminal penalties for
unauthorized disclosure.
If I am still employed by the United States, I also understand that I
may be subject to disciplinary action for violation of this agreement.
I am aware that I may be subject to criminal penalties under 18
U.S.C. 1001 if I have made any statement of material facts knowing that
such a statement is false or if I willfully conceal any material fact.
--
Signature
--
Date
--
Name
--
CPSC Employee Number
16 CFR 1017.53 Pt. 1017, App. III
16 CFR 1017.53 Appendix III -- Request for Access to Confidential
Business Information
1. The following named employee will require access to Confidential
Business Information (CBI) in the performance of official duties.
--
Full Name
--
CPSC Employee Number
--
Position
--
Office
--
Date Required
--
Justification
--
Please authorize access, for the above named employee, to CBI.
Attached is a copy of the Confidentiality Agreement signed by the
employee.
--
Signature of Designating Official
--
Date
--
Title
--
Office
2. Associate Executive Director for Health Sciences.
The authorization for the above named individual has been:
( ) Approved for access contingent upon verification by the Security
Officer that a satisfactory investigation has been conducted. Access is
limited to the information specified.
( ) Disapproved -- Operational need for access has not been
demonstrated.
--
Signature
--
Date
3. Security Officer.
( ) A National Agency Check and Inquiries (NACI) investigation has
been conducted on the above-named individual. The individual meets the
investigative requirement and nothing is of record to preclude access to
CBI.
--
Signature
--
Date
( ) A temporary waiver from the NACI investigation has been granted
by the Association Executive Director for Health Sciences and the
individual approved for immediate access to CBI.
--
Signature
--
Date
16 CFR 1017.53 Pt. 1017, App. IV
Insert illustration O255
16 CFR 1017.53 Pt. 1017, App. V
Insert illustration O256
16 CFR 1017.53 Pt. 1017, App. VI
Insert illustration O257
16 CFR 1017.53 Pt. 1017, App. VII
Insert illustration O258
16 CFR 1017.53 Pt. 1017, App. VIII
16 CFR 1017.53 Appendix VIII -- Security Procedures for Handling
Confidential Business Information Provided to Contractors or
Subcontractors
A. The Project Officer may disclose to the Contractor confidential
business information (CBI) necessary to carry out the work required
under this Contract. The Contractor agrees to use the CBI only under
the following conditions.
1. The Contractor and Contractor's employees shall (i) use CBI only
for the purposes of carrying out the work required by the Contract;
(ii) not disclose the information to anyone other than CPSC employees
authorized to have access to CBI without prior written CPSC approval,
(iii) return to the Project Officer all copies of the information, and
any abstracts or excerpts therefrom, upon request by the Project
Officer; whenever the information is no longer required by the
Contractor for the performance of the work required by the Contract; or
upon completion of the Contract; and (iv) comply with the CPSC Security
Regulation (16 CFR part 1017) in handling and storing CBI.
2. The Contractor shall obtain a written agreement to comply with the
above limitations from each of the Contractor's employees who will have
access to the information, before the employee is allowed access. A
copy of each agreement shall be furnished to the Project Officer.
B. The Contractor shall not use any CBI supplied by CPSC or obtained
during performance hereunder to compete with any business to which the
CBI information relates, or in any other manner except as authorized by
the contract. Unauthorized use or disclosure of CBI may result in
termination of the Contract for default and may subject the Contractor
and Contractor's employees to civil and criminal penalties.
C. The Contractor shall not computerize any CBI obtained by the CPSC
from the Environmental Protection Agency under TSCA and furnished by
CPSC to the Contractor.
D. The Contractor agrees that these contract conditions concerning
the use and disclosure of CBI are included for the benefit of, and shall
be enforceable by, both CPSC and any affected business having a
proprietary interest in the information.
E. The Contractor agrees to obtain the written consent of the
Commission's Contracting Officer and the Acting Executive Director for
Health Sciences prior to entering into any subcontract that will involve
the disclosure of CBI by the contractor to a subcontractor. The
Contractor also agrees to include this clause, including this
subparagraph, in each subcontract where CBI will be furnished to the
subcontractor.
F. The Contractor shall, upon request of the CPSC Contracting
Officer, permit the Contracting Officer or other Commission personnel
access to and inspection of the Contractor's facilities for the purpose
of ascertaining the Contractor's compliance with this clause.
16 CFR 1017.53 Pt. 1018
16 CFR 1017.53 PART 1018 -- ADVISORY COMMITTEE MANAGEMENT
16 CFR 1017.53 Subpart A -- General Provisions
Sec.
1018.1 Purpose.
1018.2 Definitions.
1018.3 Policy.
1018.4 Applicability.
1018.5 Advisory Committee Management Officer.
16 CFR 1017.53 Subpart B -- Establishment of Advisory Committees
1018.11 Charters.
1018.12 Statutory advisory committees.
1018.13 Non-statutory advisory committees.
1018.14 Non-Commission established advisory committees.
1018.15 Membership composition.
1018.16 Membership selection.
1018.17 Appointments.
16 CFR 1017.53 Subpart C -- Operation of Advisory Committees
1018.21 Calling of meetings.
1018.22 Notice of meetings.
1018.23 Designated Commission employee.
1018.24 Agenda.
1018.25 Minutes and meeting reports.
1018.26 Advisory functions.
1018.27 Public participation.
1018.28 Records and transcripts.
1018.29 Appeals under the Freedom of Information Act.
16 CFR 1017.53 Subpart D -- Administration of Advisory Committees
1018.31 Support services.
1018.32 Compensation and travel expenses.
1018.33 Change of status.
1018.34 Conflict of interest.
1018.35 Termination of membership.
16 CFR 1017.53 Subpart E -- Records, Annual Reports, and Audits
1018.41 Agency records on advisory committees.
1018.42 Annual report.
1018.43 Comprehensive review.
16 CFR 1017.53 Subpart F -- Termination and Renewal
1018.61 Statutory advisory committees.
1018.62 Non-statutory advisory committees.
Authority: Sec. 8, Pub. L. 92-463, 86 Stat. 770 (5 U.S.C. App.
I).
Source: 41 FR 45882, Oct. 18, 1976, unless otherwise noted.
16 CFR 1017.53 Subpart A -- General Provisions
16 CFR 1018.1 Purpose.
This part contains the Consumer Product Safety Commission's
regulations governing the establishment, operations and administration
of advisory committees under its jurisdiction. These regulations are
issued pursuant to section 8(a) of the Federal Advisory Committee Act
(Pub. L. 92-463, 5 U.S.C. App. I), and supplement Executive Order No.
11769 (39 FR 7125 (1974)) and Office of Management and Budget Circular
No. A-63 (Rev.) (39 FR 12369 (1974)).
16 CFR 1018.2 Definitions.
(a) Advisory Committee Act or Act means the Federal Advisory
Committee Act (Pub. L. 92-463, 5 U.S.C. App. I (1974)).
(b) OMB Circular No. A-63 means Office of Management and Budget
Circular No. A-63 (Rev.), entitled ''Advisory Committee Management''
(39 FR 12369, April 5, 1974), as amended.
(c) Advisory Committee means any committee, board, commission,
council, conference, panel, task force or other similar group, or any
subcommittee or other subgroup, thereof, which is established or used by
the Commission in the interest of obtaining advice or recommendations
and which is not composed wholly of full-time officers or employees of
the Federal Government.
(d) Statutory advisory committee means an advisory committee
established or directed to be established by Congress.
(e) Non-statutory advisory committee means an advisory committee
established by the Commission, including a committee which was
authorized, but not established by Congress.
(f) Ad hoc advisory committee means a non-continuing, non-statutory
advisory committee established by the Commission for the stated purpose
of providing advice or recommendations regarding a particular problem
which must be resolved immediately or within a limited period of time.
(g) Non-Commission established advisory committee means an advisory
committee established by a Federal, State, or local instrumentality
other than the Commission, or by a private organization or group and
utilized by the Commission for advisory services.
(h) GSA Secretariat means the Committee Management Secretariat of the
General Services Administration.
(i) Chairman means the Chairman of the Consumer Product Safety
Commission.
(41 FR 45882, Oct. 18, 1976, as amended at 46 FR 63248, Dec. 31,
1981)
16 CFR 1018.3 Policy.
In application of this part, Commission officials shall be guided by
the Advisory Committee Act, the statutes creating the Commission's
advisory committees, and by the directives in Executive Order No. 11769
and OMB Circular No. A-63. Principles to be followed include:
(a) Limiting the number of advisory committees to those that are
essential and terminating any committee not fulfilling its purpose;
(b) Insuring effective use of advisory committees and their
recommendations, while assuring that decisional authority is retained by
the responsible Commission officers;
(c) Providing clear goals, standards, and uniform procedures with
respect to the establishment, operation, and administration of advisory
committees;
(d) Ensuring that adequate information is provided to the public
regarding advisory committees; and
(e) Ensuring adequate opportunities for access by the public to
advisory committee meetings and information.
16 CFR 1018.4 Applicability.
(a) This part shall apply to all advisory committees (whether
statutory or non-statutory) subject to the jurisdiction of the
Commission. This part also shall apply to ad hoc advisory committees
and non-Commission established advisory committees when they are
performing advisory services for the Commission.
(b) Nothing in this part shall apply to any of the following types of
organizations:
(1) Any local civic group whose primary function is that of rendering
a public service with respect to a Federal program;
(2) Any state or local government committee, council, board,
commission, or similar group established to advise or make
recommendations to State or local officials or agencies;
(3) Any committee whether advisory, interagency, or intraagency which
is composed wholly of full-time officers or employees of the Federal
Government;
(4) Persons or organizations having contractual relationships with
the Commission; and
(5) Persons or organizations developing consumer product safety
standards under section 7 of the Consumer Product Safety Act (15 U.S.C.
2056).
(c) This part shall not apply to a committee or other group to the
extent that it is specifically exempted by statute from the Federal
Advisory Committee Act.
(41 FR 45882, Oct. 18, 1976, as amended at 46 FR 63248, Dec. 31,
1981)
16 CFR 1018.5 Advisory Committee Management Officer.
The Chairman shall designate an Advisory Committee Management Officer
who shall:
(a) Exercise control and supervision over the establishment,
procedures, and accomplishments of all advisory committees established
or utilized by the Commission;
(b) Assemble and maintain the reports, records, and other papers of
any such committee during its existence, and carry out, on behalf of the
Secretary of the Commission, the provisions of section 552 of Title 5,
United States Code (Freedom of Information Act) and the Commission's
Procedures for Disclosure or Production of Information Under the Freedom
of Information Act (16 CFR part 1015) with respect to such reports,
records, and other papers; and
(c) Perform such other functions as specified in this part.
16 CFR 1018.5 Subpart B -- Establishment of Advisory Committees
16 CFR 1018.11 Charters.
(a) No advisory committee shall meet or take any action until its
charter has been filed with the GSA Secretariat in accordance with the
requirements of section 9(c) of the Federal Advisory Committee Act.
(b) The Advisory Committee Management officer shall have
responsibility for the preparation and filing of charters.
(41 FR 45882, Oct. 18, 1976, as amended at 46 FR 63249, Dec. 31,
1981)
16 CFR 1018.12 Statutory advisory committees.
The Commission has one statutory advisory committee subject to the
Federal Advisory Committee Act. The Toxicological Advisory Board was
established by the Commission on December 22, 1978, pursuant to section
20 of the Federal Hazardous Substances Act, as amended (Pub. L. 95-631,
92 Stat. 3747, 15 U.S.C. 1275).
(46 FR 63248, Dec. 31, 1981)
16 CFR 1018.13 Non-statutory advisory committees.
(a) In proposing to establish a non-statutory advisory committee, the
Commission shall follow the procedural requirements of section 9(a)(2)
of the Advisory Committee Act and section 6(a) of OMB Circular No.
A-63.
(b) A non-statutory advisory committee shall not be established if
the proposed function can be performed effectively by Commission
personnel, by an existing advisory committee, or by another Federal
agency.
16 CFR 1018.14 Non-Commission established advisory committees.
(a) To the extent practicable, the Commission shall utilize advisory
committees already established by Federal, State, or local government or
by private organizations, rather than establish a new advisory committee
or expand the functions of an existing Commission advisory committee.
(b) In utilizing a non-Commission established advisory committee,
Commission officials shall follow the applicable provisions of this part
and the requirements of the Advisory Committee Act.
16 CFR 1018.15 Membership composition.
The Toxicological Advisory Board, as specified in section 20 of the
Federal Hazardous Substances Act, as amended (Pub. L. 95-631, 92 Stat.
3747, 15 U.S.C. 1275), 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 Commission will seek a
balanced membership, including individuals representative of consumers,
government and industry.
(46 FR 63248, Dec. 31, 1981)
16 CFR 1018.16 Membership selection.
(a) Whenever new applicants are required for a Commission advisory
committee, public notice will be issued in the Federal Register inviting
individuals to submit, on or before a specified date, applications or
nominations for membership.
(b) An applicant for membership on an advisory committee shall
disclose all affiliations, either paid or as a volunteer, that bear any
relationship to the subject area of product safety or to membership on
the advisory committee. This disclosure shall include both current
affiliations and relevant past affiliations.
(c) The Secretary of the Commission shall, from time to time, appoint
a Candidate Evaluation Panel consisting of qualified, staff members of
the Commission, including the Advisory Committee Management Officer.
(d) The Candidate Evaluation Panel, using selection criteria
established by the Commission, shall evaluate all candidates and submit
to the Commissioners the names of those candidates it recommends for
membership. Where possible, at least three candidates shall be
recommended for each appointment to be made. Final selection for
membership shall be made by the Commissioners.
(e) The membership of each Commission Advisory Committee shall be
fairly balanced in terms of geographic location, age, sex, and race.
16 CFR 1018.17 Appointments.
(a) The Chairman shall appoint as members to advisory committees
those persons selected by the Commissioners.
(b) The term of appointment to an advisory committee shall be for two
years, unless otherwise specified by the Commission. To promote maximum
participation, an advisory committee member may serve for only one
consecutive full term. This subsection shall not be deemed to affect
the term of appointment of any present member of an advisory committee
in effect on the original effective date of this part, September 24,
1975.
(c) A vacancy that occurs during the term of an appointment normally
will be filled by the Commission from the applications or nominations on
file. Appointment to any such vacancy will be for the unexpired portion
of the original appointment. Appointees to such an unexpired term may
be reappointed for a full two-year term.
(d) Notwithstanding paragraphs (b) and (c) above, members of the
Toxicological Advisory Board shall be appointed for terms of three
years. Members may be reappointed for a subsequent three-year term.
Any vacancy on the Board shall be filled in the same manner in which the
original appointment was made. Any person appointed to fill a vacancy
occurring before the expiration of the term for which his or her
predecessor was appointed shall serve only for the remainder of such
term.
(41 FR 45882, Oct. 18, 1976, as amended at 43 FR 60876, Dec. 29,
1978)
16 CFR 1018.17 Subpart C -- Operation of Advisory Committees
16 CFR 1018.21 Calling of meetings.
Advisory committees shall, as a general rule, meet four times per
year, except that, as provided by statute, the Toxicological Advisory
Board shall meet not less than two times each year.
No advisory committee shall hold a meeting without advance approval
of the Chairman or the Commission official designated under 1018.23(a).
Before giving such advance approval, the Chairman or Commission official
shall notify the Commission of the date of the proposed meeting.
(41 FR 45882, Oct. 18, 1976, as amended at 43 FR 60876, Dec. 29,
1978)
16 CFR 1018.22 Notice of meetings.
(a) Meetings shall be called by written and/or oral notice to all
members of the advisory committee.
(b) Notice of each advisory committee meeting shall be published in
the Federal Register as well as other means to give widespread public
notice, at least 15 calendar days before the date of the meeting, except
that shorter notice may be provided in emergency situations. Reasons
for such emergency exceptions shall be made part of the meeting notice.
(c) A meeting notice shall include:
(1) The official designation of the committee;
(2) The address and site of the meeting;
(3) The time of the meeting;
(4) The purpose of the meeting, including where appropriate, a
summary of the agenda;
(5) Whether, or the extent to which, the public will be permitted to
attend or participate;
(6) An explanation of how any person who wishes to do so may file a
written statement with the committee before, during, or after the
meeting; and
(7) The procedure by which a public attendee may present an oral
statement or question to members of the committee.
16 CFR 1018.23 Designated Commission employee.
(a) The Chairman shall designate a member of the Commission or other
Commission officer or employee to chair or attend each meeting of each
advisory committee.
(b) Unless otherwise provided in the statute creating a statutory
advisory committee, the committee normally will be chaired, on a
rotating basis, by a member of the Commission.
(c) No advisory committee shall conduct any meeting in the absence of
the officer or employee designated under paragraph (a) of this section.
(d) The officer or employee designated under paragraph (a) of this
section is authorized to adjourn any advisory committee meeting whenever
he or she determines adjournment to be in the public interest.
16 CFR 1018.24 Agenda.
Prior to each advisory committee meeting, the Advisory Committee
Management Officer shall prepare and, after approval by the officer or
employee designated under 1018.23 (a), shall distribute to each
committee member the agenda for that meeting. The agenda for a meeting
shall list the matters to be discussed at the meeting and shall indicate
whether and when any part of the meeting will concern matters which are
exempt from public disclosure under the Freedom of Information Act (5
U.S.C. 552(b) or section 6(a)(2) of the Consumer Product Safety Act (15
U.S.C. 2045(a)(2)).
16 CFR 1018.25 Minutes and meeting reports.
(a) The Advisory Committee Management Officer shall be responsible
for the preparation of detailed minutes of each meeting of each advisory
committee. The minutes shall include at least the following:
(1) The time and place of the meeting;
(2) A list of advisory committee members and staff and Commission
employees present at the meeting;
(3) A complete summary of all matters discussed and conclusions
reached;
(4) Copies of all reports received, issued, or approved by the
advisory committee; and
(5) A description of public participation, including a list of
members of the public who presented oral or written statements and an
estimate of the number of members of the public who attended the
meeting.
(b) The chairman of the advisory committee shall certify the accuracy
of the minutes.
(c) Whenever a non-Commission established committee convenes and, at
the request of the Commission, a portion of the session is allocated to
the rendering of advisory services to the Commission, the Advisory
Committee Management Officer shall attend and prepare minutes for that
portion of the meeting in accordance with this section.
(d) In addition to the information required by subsection (a) of this
section, the minutes of the Toxicological Advisory Board shall specify
the reasons for all conclusions reached and, where conclusions are not
unanimous, the Board is encouraged to submit minority or dissenting
opinions.
(41 FR 45882, Oct. 18, 1976, as amended at 43 FR 60876, Dec. 29,
1978)
16 CFR 1018.26 Advisory functions.
(a) Unless otherwise specifically provided by statute, advisory
committees shall be utilized solely for advisory functions.
(b) The Commission shall ensure that the advice and recommendations
of advisory committees shall not be in-appropriately influenced by the
Commission, its staff, or by any special interest, but will be the
result of the advisory committee's independent judgment.
16 CFR 1018.27 Public participation.
(a) The Commission is committed to a policy of encouraging public
participation in its activities and will hold all advisory committee
meetings open to the public.
(b) The guidelines in section 8(c) of OMB Circular A-63 shall be
followed in providing public access to advisory committee meetings.
16 CFR 1018.28 Records and transcripts.
(a) Subject to section 552 of title 5, United States Code (Freedom of
Information Act) and 16 CFR part 1015 (Commission's Procedures for
Disclosure or Production of Information under the Freedom of Information
Act), the records, reports, transcripts, minutes, appendices, working
papers, drafts, studies, agendas or other documents which were made
available to or prepared for or by an advisory committee shall be made
available for public inspection and copying in the Commission's Office
of the Secretary.
(b) Advisory Committee documents shall be made available until the
advisory committee ceases to exist. Disposition of the advisory
committee documents shall be determined by the Secretary of the
Commission at that time.
16 CFR 1018.29 Appeals under the Freedom of Information Act.
Appeals from the denial of access to advisory committee documents
shall be considered in accordance with the Commission's Procedures for
Disclosure or Production of Information under the Freedom of Information
Act (16 CFR part 1015).
16 CFR 1018.29 Subpart D -- Administration of Advisory Committees
16 CFR 1018.31 Support services.
Unless the stautory authority for a particular advisory committee
provides otherwise, the Advisory Committee Management Officer shall be
responsible for providing and overseeing all necessary support services
for each advisory committee established by or reporting to the
Commission. Support services include providing committee staff, meeting
rooms, supplies, and funds, including funds for the publication of
reports.
16 CFR 1018.32 Compensation and travel expenses.
(a) A single rate of compensation will be offered to members of all
advisory committees with the exception of government employees and those
individuals whose company or organization prohibits such payment. This
rate shall be $100 per day for each day in attendance at the meeting and
for each day of travel.
(b) The Commission shall determine per diem and travel expenses for
members, staffs, and consultants in accordance with section 7(d) of the
Advisory Committee Act and section 11 of OMB Circular No. A-63.
(c) Members of advisory committees, while engaged in the performance
of their duties away from their homes or regular place of business, may
be allowed travel expenses including per diem in lieu of expenses as
authorized by 5 U.S.C. 5703.
16 CFR 1018.33 Change of status.
Any advisory committee member who changes his or her affiliation or
who assumes an additional affiliation, so as to actually or potentially
affect his or her representational capacity on an advisory committee
(upon which the member's application was based), shall immediately
notify, in writing, the Advisory Committee Management Officer. Such
notification shall include all relevant information concerning the
change in affiliation and a statement by the member expressing his or
her opinion regarding the implications of such change. The notification
and any other relevant information shall be evaluated by the
Commissioners to determine the appropriateness of the member's continued
membership on the advisory committee.
16 CFR 1018.34 Conflict of interest.
Members of the Commission's statutory advisory committees are not
legally subject to the standards of conduct and conflict of interest
statutes and regulations applicable to Commission employees. However,
it is important to avoid situations in which a member of an advisory
committee has an actual or apparent conflict of interest between the
member's private interests (or the interests of the member's
organization) and the member's interest in properly performing his or
her duties as an advisory committee member. To preclude any such actual
or apparent conflict of interest, committee members shall be subject to
the following guidelines:
(a) Committee members should not personally participate, either for
themselves or on behalf of an organization, in negotiations, or the
preparation of negotiations, for contracts with or grants from the
Commission. Nor should committee members, either as an individual or on
behalf of an organization, become personally involved in the performance
of work under such a negotiated contract or grant awarded by the
Commission. Committee members may participate in preparing bids for and
performing work under advertised contracts where price is the single
factor in the determination of award.
(b) Committee members should not become personally involved in the
preparation or submission of a proposal to develop a safety standard or
regulation under any of the Acts administered by the Commission.
(c) Committee members representing anyone in a professional capacity
in a proceeding before the Commission should, pursuant to paragraph (e)
and (f) of this section, advise the committee chairperson and the other
members of the committee on which he or she serves of the representation
prior to the committee's discussion regarding that proceeding. Where
the chairperson of the committee determines that the representation
involves a conflict or the appearance of a conflict of interest, the
member will be asked to withdraw from the discussion of the proceeding.
In circumstances where withdrawal from the committee's discussion or
consideration of the matter is determined by the Commission to be
insufficient to avoid a conflict or apparent conflict of interest,
continued representation may be considered incompatible with membership
on the committee.
(d) Committee members should exercise caution to ensure that their
public statements are not interpreted to be official policy statements
of the Commission.
(e) Committee members shall disclose to the committee chairperson and
to the other members of the committee on which he or she serves, any
special interest in a particular proceeding or matter then pending
before the committee which in any way may affect that member's position,
views or arguments on the particular proceeding or matter. The
disclosure shall be made orally prior to the commencement of the
discussion. ''Special interest'' is not intended to include a member's
general interest in presenting a position, views, or arguments in his or
her representational capacity.
(f) Where the chairperson of the committee determines that the
disclosure referred to in paragraph (e) of this section reveals a
conflict or apparent conflict of interest with respect to a member's
involvement in the committee's consideration or discussion of a
particular matter, the member will be asked to withdraw from the
discussion of the matter.
(g) The provisions of paragraphs (a) and (b) of this section do not
apply to state and local government officers and employees.
16 CFR 1018.35 Termination of membership.
Advisory committee membership may be terminated at any time upon a
determination by the Commission that such action is appropriate.
16 CFR 1018.35 Subpart E -- Records, Annual Reports and Audits
16 CFR 1018.41 Agency records on advisory committees.
(a) In accordance with section 12(a) of the Advisory Committee Act,
the Advisory Committee Management Officer shall maintain, in the Office
of the Secretary, records which will fully disclose the nature and
extent of the activities of each advisory committee established or
utilized by the Commission.
(b) The records shall include a current financial report itemizing
expenditures and disclosing all funds available for each advisory
committee during the current fiscal year.
(c) The records shall also include a complete set of the charters of
the Commission's advisory committee and copies of the annual reports on
advisory committees.
16 CFR 1018.42 Annual report.
(a) The Advisory Committee Management Officer shall prepare an annual
report on the Commission's advisory committees for inclusion in the
President's annual report to Congress as required by section 6(c) of the
Advisory Committee Act. This report shall be prepared and submitted in
accordance with General Services Administration guidelines (39 FR 44814,
December 27, 1974).
(b) Results of the annual comprehensive review of advisory committee
made under 1018.43 shall be included in the annual report.
16 CFR 1018.43 Comprehensive review.
A comprehensive review of all Commission established or utilized
advisory committees shall be made annually in accordance with section 10
of the GSA Circular No. A-63, as amended, and shall be submitted to the
GSA Secretariat by November 30 of each year.
(41 FR 45882, Oct. 18, 1976, as amended at 46 FR 63249, Dec. 31,
1981)
16 CFR 1018.43 Subpart F -- Termination and Renewal
16 CFR 1018.61 Statutory advisory committees.
A new charter shall be filed for each statutory advisory committee in
accordance with section 9(c) of the Advisory Committee Act and 1018.11
upon the expiration of each successive two-year period following the
date of enactment of the statute establishing or requiring the
establishment of the committee.
16 CFR 1018.62 Non-statutory advisory committees.
(a) Each non-statutory advisory committee established by the
Commission after the effective date of this part shall terminate not
later than two years after its establishment unless prior to that time
it is renewed in accordance with paragraph (c) of this section.
(b) Each non-statutory advisory committee which is renewed by the
Commission shall terminate not later than two years after its renewal
unless prior to that time it is again renewed in accordance with
paragraph (c) of this section.
(c) Before a non-statutory advisory committee can be renewed by the
Commission, the chairman shall inform the GSA Secretariat by letter not
more than 60 days nor less than 30 days before the committee expires of
the following:
(1) His or her determination that renewal is necessary and is in the
public interest;
(2) The reasons for his or her determination;
(3) The Commission's plan to attain balanced membership of the
committee, and;
(4) An explanation of why the committee's functions cannot be
performed by the Commission or by another existing advisory committee.
(d) If the GSA Secretariat concurs, the Chairman shall certify in
writing that the renewal of the advisory committee is in the public
interest and shall publish notice of the renewal in the Federal Register
and shall file a new charter.
(41 FR 45882, Oct. 18, 1976, as amended at 46 FR 63249, Dec. 31,
1981)
16 CFR 1018.62 PART 1019 -- PROCEDURES FOR EXPORT OF NONCOMPLYING
PRODUCTS
Sec.
1019.1 Purpose, applicability, and exemptions.
1019.2 Definitions.
1019.3 General requirements for notifying the Commission.
1019.4 Procedures for notifying the Commission; content of
notification.
1019.5 Time notification must be made to Commission; reductions of
time.
1019.6 Changes to notification.
1019.7 Commission notification of foreign governments.
1019.8 Confidentiality.
Authority: Secs. 5, 6, 7, Pub. L. 95-631; 15 U.S.C. 1196, 1202,
1263, 1273, 2067 and 2068.
Source: 45 FR 53063, Aug. 8, 1980, unless otherwise noted.
16 CFR 1019.1 Purpose, applicability, and exemptions.
(a) Purpose. The regulations in this part 1019 establish the
procedures exporters must use to notify the Consumer Product Safety
Commission of their intent to export from the United States products
which are banned or fail to comply with an applicable safety standard,
regulation or statute. These regulations also set forth the procedures
the Commission uses in transmitting the notification of export of
noncomplying products to the government of the country to which those
products will be sent. The Consumer Product Safety Act Authorization
Act of 1978 (Pub. L. 95-631), which became effective November 10, 1978,
established these notification requirements and authorizes the
Commission to issue regulations to implement them.
(b) Applicability. These regulations apply to any person or firm
which exports from the United States any item which is:
(1) A consumer product that does not conform to an applicable
consumer product safety rule issued under sections 7 and 9 of the
Consumer Product Safety Act (15 U.S.C. 2056, 2058), or which has been
declared to be a banned hazardous product under provisions of sections 8
and 9 of that Act (15 U.S.C. 2057, 2058); or
(2) A misbranded hazardous substance or a banned hazardous substance
within the meaning of sections 2(p) and 2(q) of the Federal Hazardous
Substances Act (15 U.S.C. 1261); or
(3) A fabric or related material or an item of wearing apparel or
interior furnishing made of fabric or related material which fails to
conform with an applicable flammability standard or regulation issued
under section 4 of the Flammable Fabrics Act (15 U.S.C. 1191, 1193).
(c) Exemption for Certain Items with Noncomplying Labeling. The
exporter of an item that fails to comply with a standard or regulation
only because it is labeled in a language other than English need not
notify the Commission prior to export if the product is labeled with the
required information in the language of the country to which the product
will be sent.
(d) Exemption for Samples. The exporter of an item that fails to
comply with a standard or regulation, but which is intended for use only
as a sample and not for resale, need not notify the Commission prior to
export, if the item is conspicuously and legibly labeled in English with
the statement: ''Sample only. Not for resale.'' (The Commission
encourages exporters to provide this label, in addition, in the language
of the importing country, but does not require the foreign language
labeling.) To qualify as a sample shipment under this exemption, the
quantity of goods involved must be consistent with prevalent trade
practices with respect to the specific product.
(e) Exemption for items not in child-resistant packaging. The
exporter of an item which is a ''misbranded hazardous substance'' within
the meaning of section 2(p) of the Federal Hazardous Substances Act (15
U.S.C. 1261(p)) only because it fails to comply with an applicable
requirement for child-resistant packaging under the Poison Prevention
Packaging Act of 1970 (15 U.S.C. 1471 et seq.) need not notify the
Commission prior to export.
16 CFR 1019.2 Definitions.
As used in this part 1019:
(a) ''Consignee'' means the person, partnership, corporation or
entity in a foreign country to whom noncomplying goods are sent;
(b) ''Export'' means to send goods outside the United States or
United States possessions for purposes of trade, except the term does
not apply to sending goods to United States installations located
outside the United States or its possessions;
(c) ''Exporter'' means the person, partnership, corporation or entity
that initiates the export of noncomplying goods;
(d) ''Noncomplying goods'' means any item described in 1019.1(b),
except for items excluded from the requirements of these regulations by
1019.1 (c), (d), and (e).
16 CFR 1019.3 General requirements for notifying the Commission.
Not less than 30 days before exporting any noncomplying goods
described in 1019.1(b), the exporter must file a statement with the
Consumer Product Safety Commission, as described in 1019.4 and 1019.5
of this part. The exporter need not notify the Commission about the
export of items described in 1019.1 (c), (d), and (e). As described in
1019.5, the exporter may request the Commission to allow the statement
to be filed between 10 and 29 days before the intended export, and the
request may be granted for good cause.
16 CFR 1019.4 Procedures for notifying the Commission; content of the
notification.
(a) Where notification must be filed. The notification of intent to
export shall be addressed to the Associate Executive Director for
Compliance and Enforcement, Consumer Product Safety Commission,
Washington, D.C. 20207.
(b) Coverage of notification. An exporter must file a separate
notification for each country to which noncomplying goods are to be
exported. Each notification may include a variety of noncomplying goods
being shipped to one country. The notification may include goods
intended to be shipped to one country in any one year, unless the
Associate Executive Director for Compliance and Enforcement directs
otherwise in writing.
(c) Form of notification. The notification of intent to export must
be in writing and must be entitled ''Notification of Intent to Export
Noncomplying Goods to (indicate name of country).'' The Commission has
no notification forms, but encourages exporters to provide the required
information in the order listed in paragraphs (d) and (e) of this
section.
(d) Content of notification; required information. The notification
of intent to export shall contain the information required by this
subsection. If the notification covers a variety of noncomplying goods
the exporter intends to export to one country, the information required
below must be clearly provided for each class of goods, and may include
an estimate of the information required in paragraphs (d) (3) and (5) of
this subsection.
(1) Name, address and telephone number of the exporter;
(2) Name and address of each consignee;
(3) Quantity and description of the goods to be exported to each
consignee, including brand or trade names or model or other identifying
numbers;
(4) Identification of the standards, bans, regulations and statutory
provisions applicable to the goods being exported, and an accurate
description of the manner in which the goods fail to comply with
applicable requirements; and
(5) Anticipated date of shipment and port of destination.
(e) Optional information. In addition to the information required by
1019.4(d), above, the notification intent to export may contain, at the
exporter's option, the following information:
(1) Copies of any correspondence from the government of the country
of destination of the goods indicating whether the noncomplying goods
may be imported into that country.
(2) Any other safety-related information that the exporter believes
is relevant or useful to the Commission or to the government of the
country of intended destination.
(f) Signature. The notification of intent to export shall be signed
by the owner of the exporting firm if the exporter is a sole
proprietorship, by a partner if the exporter is a partnership, or by a
corporate officer if the exporter is a corporation.
16 CFR 1019.5 Time notification must be made to Commission; reductions
of time.
(a) Time of notification. The notification of intent to export must
be received by the Commission's Associate Executive Director for
Compliance and Enforcement at least 30 days before the noncomplying
goods are to leave the customs territory of the United States. If the
notification of intent to export includes more than one shipment of
noncomplying goods to a foreign country, the Associate Executive
Director for Compliance and Enforcement must receive the notification at
least 30 days before the first shipment of noncomplying goods is to
leave the customs territory of the United States.
(b) Incomplete notification. Promptly after receiving notification
of intent to export, the Associate Executive Director will inform the
exporter if the notification of intent to export is incomplete and will
describe which requirements of 1019.4 are not satisfied. The Associate
Executive Director may inform the exporter that the 30-day advance
notification period will not begin until the Associate Executive
Director receives all the required information.
(c) Requests for reduction in 30-day notification requirement. Any
exporter may request an exemption from the requirement of 30-day advance
notification of intent to export by filing with the Commission's
Associate Executive Director for Compliance and Enforcement (Washington,
D.C. 20207) a written request that the time be reduced to a time between
10 and 30 days before the intended export. The request for reduction in
time must be received by the Associate Executive Director for Compliance
and Enforcement at least 3 working days before the exporter wishes the
reduced time period to begin.
The request must:
(1) Be in writing;
(2) Be entitled ''Request for Reduction of Time to File Notification
of Intent to Export Noncomplying Goods to (indicate name of country)'';
(3) Contain a specific request for the time reduction requested (the
notification must be made at least 10 days before the intended export,
so the request must be for a reduction of the notification period to a
time between 10 and 30 days before the intended export); and
(4) Provide reasons for the request for reduction of time.
(d) Response to requests for reduction of time. The Associate
Executive Director for Compliance and Enforcement has the authority to
approve or disapprove requests for reduction of time. The Associate
Executive Director will promptly inform the exporter who has requested
the reduction of time whether there is good cause to grant the request.
If the request is granted, the Associate Executive Director shall
indicate the amount of time before export that the exporter must provide
the notification. If the request is not granted, the Associate
Executive Director shall explain the reasons, in writing.
16 CFR 1019.6 Changes to notification.
If the exporter causes any change to any of the information required
by 1019.4, or learns of any change to any of that information, at any
time before the noncomplying goods reach the country of destination, the
exporter must notify the Associate Executive Director for Compliance and
Enforcement within two working days after causing or learning of such
change, and must state the reason for any such change. The Associate
Executive Director will promptly inform the exporter whether the 30-day
advance notification period will be discontinued, and whether the
exporter must take any other steps to comply with the advance
notification requirement.
16 CFR 1019.7 Commission notification of foreign governments.
After receiving notification from the exporter, or any changes in
notification, the Associate Executive Director for Compliance and
Enforcement shall inform on a priority basis the appropriate government
agency of the country to which the noncomplying goods are to be sent of
the exportation and the basis on which the goods are banned or fail to
comply with Commission standards, regulations, or statutes, and shall
send all information supplied by the exporter in accordance with
1019.4(d). The Associate Executive Director shall also enclose any
information supplied in accordance with 1019.4(e), but he or she may
also state that the Commission disagrees with or takes no position on
its content, including its relevance or accuracy. The Associate
Executive Director shall take whatever other action is necessary to
provide full information to foreign countries and shall also work with
and inform the U.S. State Department and foreign embassies and
international organizations, as appropriate. The Associate Executive
Director shall also seek acknowledgment of the notification from the
foreign government. Foreign governments intending to prohibit entry of
goods that are the subject of a notification from the Commission should
initiate action to prevent such entry and should notify the exporter
directly of that intent.
16 CFR 1019.8 Confidentiality.
If the exporter believes any of the information submitted should be
considered trade secret or privileged or confidential commercial or
financial information, the exporter must request confidential treatment,
in writing, at the time the information is submitted or must indicate
that a request will be made within 10 working days. The Commission's
regulations under the Freedom of Information Act, 16 CFR part 1015,
govern confidential treatment of information submitted to the
Commission.
16 CFR 1019.8 Pt. 1021
16 CFR 1019.8 PART 1021 -- ENVIRONMENTAL REVIEW
16 CFR 1019.8 Subpart A -- General
Sec.
1021.1 Purpose.
1021.2 Policy.
1021.3 Definitions.
1021.4 Overview of environmental review process for CPSC actions.
1021.5 Categories of CPSC actions.
16 CFR 1019.8 Subpart B -- Procedures
1021.6 Responsible official.
1021.7 Coordination of environmental review with CPSC procedures.
1021.8 Legislative proposals.
1021.9 Public participation, notice, and comment.
1021.10 Emergencies.
1021.11 Information regarding NEPA compliance.
16 CFR 1019.8 Subpart C -- Contents of Environmental Review Documents
1021.12 Environmental assessment.
1021.13 Finding of no significant impact.
1021.14 Environmental impact statement.
Authority: National Environmental Policy Act (Pub. L. 91-190, 83
Stat. 852, 42 U.S.C 4321-4347, as amended by Pub. L. 94-83, August 9,
1975) and Regulations issued by the President's Council on Environmental
Quality (40 CFR part 1500 et seq., 43 FR 55978, November 29, 1978).
Source: 45 FR 69434, Oct. 21, 1980, unless otherwise noted.
16 CFR 1019.8 Subpart A -- General
16 CFR 1021.1 Purpose.
This part contains Consumer Product Safety Commission procedures for
review of environmental effects of Commission actions and for
preparation of environmental impact statements (EIS) and related
documents. These procedures supersede any Commission procedures
previously applicable. The procedures provide for identification of
effects of a proposed action and its alternatives on the environment;
for assessment of the significance of these effects; for consideration
of effects at the appropriate points in the Commission's decision-making
process; and for preparation of environmental impact statements for
major actions significantly affecting the environment. These procedures
are intended to implement the Council on Environmental Quality's final
regulations of November 29, 1978 (43 FR 55978; 40 CFR part 1500, et
seq.) concerning agency compliance with the National Environmental
Policy Act, as amended (NEPA) (15 U.S.C. 4321-4347 as amended by Pub.
L. 94-83, August 8, 1975).
16 CFR 1021.2 Policy.
It is the policy of the Commission to weigh and consider the effects
upon the human environment of a proposed action and its reasonable
alternatives. Actions will be designed to avoid or minimize adverse
effects upon the quality of the human environment wherever practicable.
16 CFR 1021.3 Definitions.
(a) The term CPSC actions means rulemaking actions; enforcement
actions; adjudications; legislative proposals or reports;
construction, relocation, or renovation of CPSC facilities; decisions
on petitions; and any other agency activity designated by the Executive
Director as one necessitating environmental review.
(b) The term Commission means the five Commissioners of the Consumer
Product Safety Commission.
(c) The term CPSC means the entire organization which bears the title
Consumer Product Safety Commission.
(d) The term NEPA regulations means the Council of Environmental
Quality regulations of November 29, 1978 (43 FR 55978) for implementing
the provisions of the National Environmental Policy Act, as amended (42
U.S.C 4321, et. seq).
(e) The term environmental review process refers to all activities
associated with decisions to prepare an environmental assessment, a
finding of no significant impact, or an environmental impact statement.
(f) The definitions given in part 1508 of the Council's NEPA
regulations are applicable to this part 1021 and are not repeated here.
16 CFR 1021.4 Overview of environmental review process for CPSC
actions.
The environmental review process normally begins during the staff
development of a proposed action and progresses through the following
steps:
(a) Environmental assessment. (Section 1508.9 of the NEPA
regulations). The assessment is initiated along with the staff
development of a proposal and the identification of realistic
alternatives. The assessment shall be available to the Commission
before the Commission votes on a proposal and its alternatives. Its
purpose is to identify and describe foreseeable effects on the
environment, if any, of the action and its alternatives. The assessment
culminates in a written report. This report generally contains analyses
of the same categories of information as would an EIS, but in a much
less detailed fashion. (See 1021.10(a), below.) It contains sufficient
information to form a basis for deciding whether effects on the
environment are likely to be ''significant.'' (See 1508.27 of the NEPA
regulations.).
(b) Decision as to significance of effects on the environment. This
decision is made by the Executive Director of the CPSC and is based upon
the results of the environmental assessment as well as any other
pertinent information. If the effects are significant, CPSC publishes
in the Federal Register a notice of intent to prepare an environmental
impact statement. (See 1508.22 of the NEPA regulations.) If not, a
finding of no significant impact is prepared. (Section 1508.13 of the
NEPA regulations.)
(c) Finding of no significant impact. This is a written document
which gives reasons for concluding that the effects of a proposed
action, or its alternatives, on the environment will not be significant.
Together with the environmental assessment, it explains the basis for
not preparing an EIS. The finding of no significant impact is signed by
the Executive Director. The finding of no significant impact and the
environmental assessment accompany the proposed action throughout the
Commission decision-making process.
(d) Draft environmental impact statement. The content of a draft EIS
is described in 1021.12, below. For a particular proposal, the breadth
of issues to be discussed is determined by using the scoping process
described in 1501.7 of the NEPA regulations. The draft EIS pertaining
to a proposed rule is before the Commission at the time it considers the
proposed action and is available to the public when the notice of
proposed rulemaking is published or as soon as possible thereafter. In
appropriate instances, the Federal Register preamble for a proposed rule
may serve as the draft EIS. The draft EIS shall accompany the proposed
action throughout the remainder of the Commission decision-making
process.
(e) Final EIS. The content of this document is described in
1021.12. A final EIS responds to all substantive comments on the draft
statement. It is before the Commission when it considers a final
action.
(f) Supplemental statements. When CPSC makes changes in the proposed
action that are important to environmental issues or when there is
significant new environmental information, the Executive Director
instructs CPSC staff to prepare supplements to either the draft or final
EIS (See 1502.9(c) of the NEPA regulations).
(g) Record of decision. (Sections 1505.2 and 1506.1 of the NEPA
regulations.) At the time of a decision on a proposed action which
involves an EIS, CPSC prepares a written record of decision explaining
the decision and why any alternatives discussed in the EIS were
rejected. This written record is signed by the Secretary of the
Commission for the Commission. No action going forward on the proposal
may be taken until the record of decision is signed and filed in the
Office of the Secretary of the Commission.
16 CFR 1021.5 Categories of CPSC actions.
(a) There are no CPSC actions which ordinarily produce significant
environmental effects. Therefore, there are no actions for which an
environmental impact statement is normally required.
(b) The following categories of CPSC actions have the potential of
producing environmental effects and therefore, normally require
environmental assessments but not necessarily environmental impact
statements:
(1) Regulatory actions dealing with health risks.
(2) Actions requiring the destruction or disposal of large quantities
of products or components of products.
(3) Construction, relocation, or major renovation of CPSC facilities.
(4) Recommendations or reports to Congress on proposed legislation
that will substantially affect the scope of CPSC authority or the use of
CPSC resources, authorize construction or razing of facilities, or
dislocate large numbers of employees.
(5) Enforcement actions which result in the widespread use of
substitute products, which may present health risks.
(c) The following categories of CPSC actions normally have little or
no potential for affecting the human environment; and therefore,
neither an environmental assessment nor an environmental impact
statement is required. (These categories are termed ''categorical
exclusions'' in the NEPA regulations; see 1507.3(b)(2) and 1508.4):
(1) Rules or safety standards to provide design or performance
requirements for products, or revision, amendment, or revocation of such
standards.
(2) Product certification or labeling rules.
(3) Rules requiring poison prevention packaging of products or
exempting products from poison prevention packaging rules.
(4) Administrative proceedings to require individual manufacturers to
give notice of and/or to correct, repair, replace, or refund the
purchase price of banned or hazardous products. Other administrative
adjudications which are primarily law enforcement proceedings.
(5) Recommendations or reports to Congress on proposed legislation to
amend, delete or add procedural provisions to existing CPSC statutory
authority.
(6) Decisions on petitions for rulemaking.
(7) Issuance of subpoenas, general orders, and special orders.
(d) In exceptional circumstances, actions within category in
paragraph (c) of this section (''categorical exclusions'') may produce
effects on the human environment. Upon a determination by the Executive
Director that a normally excluded proposed action may have such an
effect, an environmental assessment and a finding of no significant
impact or an environmental impact statement shall be prepared.
16 CFR 1021.5 Subpart B -- Procedures
16 CFR 1021.6 Responsible official.
(a) The Executive Director of the CPSC shall have the responsibility
to ensure that the Commission's policies and procedures set forth in
this part are carried out. He or she shall have the following specific
powers and duties:
(1) To ensure that CPSC environmental review is conducted in
accordance with the NEPA regulations as well as this part 1021.
(2) To evaluate the significance of effects of a CPSC action on the
environment and to determine whether a finding of no significant impact
or an EIS should be prepared.
(3) To determine when a categorical exclusion requires environmental
review because of exceptional circumstances indicating that the
otherwise excluded action may produce an environmental effect.
(4) To instruct CPSC staff to prepare supplements to either draft or
final EIS's where there is new environmental information or when CPSC
makes changes in a proposed action that are important to environmental
issues.
(5) To ensure that environmental documents are before the Commission
at all stages of review of proposed action.
(6) To make provisions for soliciting public comment on the
anticipated effects on the environment of proposed CPSC actions and
their reasonable alternatives at any stage of the environmental review
process, whenever he or she decides that such comment will be helpful.
The Executive Director, for example, shall have the power to require
that provision for soliciting such comments, written or oral, be
included in any announcement of a public hearing on proposed rulemaking
or on the merits of a petition for rulemaking.
(7) To call upon all resources and expertise available to CPSC to
ensure that environmental review is accomplished through an
interdisciplinary effort.
(8) To delegate any of his or her powers and duties, other than
paragraphs (a) (2) and (3) of this section, to any officer or employee
of the CPSC.
16 CFR 1021.7 Coordination of environmental review with CPSC
procedures.
(a) The Commission shall consider all relevant environmental
documents in evaluating proposals for Commission action. The
preparation and completion of assessments and statements required by
this part shall be scheduled to assure that available environmental
information is before the Commission at all appropriate stages of
development of CPSC actions along with technical and economic
information otherwise required. The range of alternatives discussed in
appropriate environmental documents shall be encompassed by the range of
alternatives considered by the Commission for an action.
(b) An environmental assessment on a proposed rulemaking action
requiring environmental review shall be available to the commission
before the Commission votes on a proposed rule, and its alternatives.
If the Executive Director determines that an EIS is needed, the draft
EIS shall normally be before the Commission at the time it votes to
publish a proposed rule. A final EIS shall be before the Commission
when it considers final action on a proposed rule. Relevant
environmental documents shall accompany the proposed rulemaking action
throughout the Commission's decisionmaking process.
(c) Draft EISs or findings of no significant impact together with
environmental assessments shall be made available to the public for
comment at the time of publication in the Federal Register of CPSC
proposals for regulatory action requiring environmental review or
promptly thereafter. Pursuant to 1506.10 of the NEPA regulations, no
decision on a proposed action shall be made by the Commission until the
later of 90 days after the Environmental Protection Agency (EPA) has
published a notice announcing receipt of the draft EIS or 30 days after
EPA announces receipt of the final EIS. These time periods may run
concurrently. In addition, with regard to rulemaking for the purpose of
protecting the public health and safety, the Commission may waive the 30
day period and publish a decision on a final rule simultaneously with
publication by EPA of the notice of availability.
(d) Whenever the Commission decides to solicit offers by an outside
person or organization to develop a proposed consumer product safety
standard in accordance with section 7 of the Consumer Product Safety Act
(15 U.S.C. 2056) and the Executive Director has determined that
environmental review is needed, the Executive Director shall recommend
to the Commission whether the ''offeror'' should perform an
environmental assessment during development of the proposed standard.
In making this recommendation, the Executive Director shall take into
account the resources of the ''offeror'', including the expertise and
money available to it. If the Commission decides that the ''offeror''
should perform an assessment, the agreement between the Commission and
the offeror shall so provide. CPSC, however, shall independently
evaluate any assessment prepared and shall take responsibility for the
scope and content of the assessment.
(e) CPSC adjudications are primarily law enforcement proceedings and
therefore are not agency actions within the meaning of NEPA. (See
1508.18(8) of the NEPA regulations.) However, in CPSC formal rulemaking
proceedings, all available environmental information, including any
supplements to a draft or final EIS, shall be filed in the Office of the
Secretary and shall be made part of the formal record of the proceeding.
16 CFR 1021.8 Legislative proposals.
Draft EISs on legislative proposals which may significantly affect
the environment shall be prepared as described in 1506.8 of the NEPA
regulations. The draft EIS, where feasible, shall accompany the
legislative proposal or report to Congress and shall be available in
time for Congressional hearings and deliberations. The draft EIS shall
be forwarded to the Environmental Protection Agency in accordance with
1506.9 of the NEPA regulations. Comments on the legislative statement
and CPSC's responses shall be forwarded to the appropriate Congressional
committees.
16 CFR 1021.9 Public participation, notice, and comment.
(a) Information and comments are solicited from and provided to the
public on anticipated environmental effects of CPSC actions as follows:
(1) Promptly after a decision is made to prepare a draft EIS, a
notice of intent to prepare the draft EIS shall be published in the CPSC
Public Calendar and in the Federal Register. The notice shall state the
nature of the proposed action and available alternatives and shall
describe the planned scoping process. The notice shall solicit
information and comment by other governmental agencies and the public.
(2) As soon as practicable after a finding of no significant impact
is completed, a copy of the finding together with the environmental
assessment report shall be forwarded to the Office of the Secretary of
the Commission to be made available to the public. Any information and
comments received from the public on the documents will be considered
and will accompany the documents throughout the CPSC decisionmaking
process, but comments will not ordinarily be answered individually.
(3)(i) Upon completion of a draft EIS, a notice of its availability
for comment should be published in the CPSC Public Calendar and in the
Federal Register. Copies of the draft EIS shall be filed with the
Environmental Protection Agency (EPA) in accordance with 1506.9 of the
NEPA regulations. The length of the comment period on the draft EIS
shall be stated in the notice of availability and on the cover of the
draft EIS. The comment period, in accordance with 1506.10 of the NEPA
regulations, shall be a minimum of 45 days from the date the notice of
receipt of the draft EIS is published in the Federal Register by EPA.
It should also be stated in the CPSC notice that comments received
during the comment period will be addressed in the final EIS, whereas
late comments will be considered to the extent practicable, and that all
comments will be appended to the final EIS.
(ii) Copies of the draft EIS shall be sent to public and private
organizations known by CPSC to have special expertise with respect to
the environmental effects involved, those who are known to have an
interest in the action, and those who request an opportunity to comment.
Also, copies shall be circulated for comment to Federal, State, and
local agencies with jurisdiction by law and special expertise with
respect to environmental effects involved. Part 1503 of the NEPA
regulations shall be consulted for further details of this procedure.
(iii) Draft EIS's shall be available to the public in the Office of
the Secretary at Commission headquarters.
(4) Upon completion of a final EIS, a notice of its availability in
the Office of the Secretary, shall be published in the CPSC Public
Calendar and if deemed appropriate, in the Federal Register. Copies of
the final EIS shall be forwarded to EPA and one copy shall be sent to
each entity or person who commented on the draft EIS.
(5) A list of EIS's under preparation and of EIS's or findings of no
significant impact and environmental assessments completed shall be
available to the public in the Office of the Secretary, at Commission
headquarters. The list shall be continuously updated.
(6) In addition to publication in the CPSC Public Calendar and the
Federal Register, notices called for by this section may also be
publicized through press releases or local newspapers, whenever
appropriate.
16 CFR 1021.10 Emergencies.
Where emergency circumstances make it necessary to take an action
without observing all the provisions of these implementing procedures or
the NEPA regulations, CPSC will consult with the Council on
Environmental Quality about alternative arrangements.
16 CFR 1021.11 Information regarding NEPA compliance.
Interested persons may contact the Commission's Office of the
Executive Director (301-492-6550) for information regarding CPSC NEPA
compliance.
16 CFR 1021.11 Subpart C -- Contents of Environmental Review Documents
16 CFR 1021.12 Environmental assessment.
(a) An environmental assessment shall first briefly describe the
proposed action and realistic alternative actions. Next, it shall
identify all effects on the environment that can be expected to result
from the proposed and alternative actions. After each anticipated
effect is identified, it shall be described as fully as can be done with
available data in order to show its magnitude and significance. Sources
of information for assessment include CPSC staff studies and research
reports, information gathered at hearings or meetings held to obtain the
views of the public on the proposed action, and other information
received from members of the public and from governmental entities.
(b) The assessment shall identify and describe any methods or
approaches which would avoid or minimize adverse effects on the
environment.
16 CFR 1021.13 Finding of no significant impact.
(a) A finding of no significant impact shall cite and be attached to
the environmental assessment upon which it is based. It shall refer to
anticipated effects upon the environment identified in the environmental
assessment and give the reason(s) why those effects will not be
significant. The final paragraph of the finding shall give the reasons
why the overall impact on the environment is not regarded as
significant.
(b) The signature of the Executive Director shall appear at the end
of the finding of no significant impact.
16 CFR 1021.14 Environmental impact statement.
(a) Draft and final EIS's, unless there is a compelling reason to do
otherwise, shall conform to the recommended format specified in 1502.10
of the NEPA regulations and shall contain the material required by
1502.11 through 1502.18 of those regulations.
(b) It may be necessary to include in an EIS a description of effects
which are not effects on the natural or physical environment, but rather
are, for example, purely economic or health effects. For this reason,
an EIS may include issues and facts that are thoroughly analyzed in
other comprehensive CPSC documents such as hazard analyses, economic
impact analyses, or analyses of impact on particular age groups among
consumers. In such cases, the EIS shall not duplicate the other
documents, but rather shall cite and summarize from them. A list of
background documents and sources of data cited in the EIS shall appear
at the end of every EIS.
16 CFR 1021.14 Pt. 1025
16 CFR 1021.14 PART 1025 -- RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS
16 CFR 1021.14 Subpart A -- Scope of Rules, Nature of Adjudicative
Proceedings, Definitions
Sec.
1025.1 Scope of the rules.
1025.2 Nature of adjudicative proceedings.
1025.3 Definitions.
16 CFR 1021.14 Subpart B -- Pleadings, Form, Execution, Service of
Documents
1025.11 Commencement of proceedings.
1025.12 Answer.
1025.13 Amendments and supplemental pleadings.
1025.14 Form and filing of documents.
1025.15 Time.
1025.16 Service.
1025.17 Intervention.
1025.18 Class actions.
1025.19 Joinder of proceedings.
16 CFR 1021.14 Subpart C -- Prehearing Procedures, Motions,
Interlocutory Appeals, Summary Judgments, Settlements
1025.21 Prehearing conferences.
1025.22 Prehearing briefs.
1025.23 Motions.
1025.24 Interlocutory appeals.
1025.25 Summary decisions and orders.
1025.26 Settlements.
16 CFR 1021.14 Subpart D -- Discovery, Compulsory Process
1025.31 General provisions governing discovery.
1025.32 Written interrogatories to parties.
1025.33 Production of documents and things.
1025.34 Requests for admission.
1025.35 Depositions upon oral examination.
1025.36 Motions to compel discovery.
1025.37 Sanctions for failure to comply with discovery orders.
1025.38 Subpoenas.
1025.39 Orders requiring witnesses to testify or provide other
information and granting immunity.
16 CFR 1021.14 Subpart E -- Hearings
1025.41 General rules.
1025.42 Powers and duties of Presiding Officer.
1025.43 Evidence.
1025.44 Expert witnesses.
1025.45 In camera materials.
1025.46 Proposed findings, conclusions and order.
1025.47 Record.
1025.48 Official docket.
1025.49 Fees.
16 CFR 1021.14 Subpart F -- Decision
1025.51 Initial decision.
1025.52 Adoption of initial decision.
1025.53 Appeal from initial decision.
1025.54 Review of initial decision in absence of appeal.
1025.55 Final decision on appeal or review.
1025.56 Reconsideration.
1025.57 Effective date of order.
1025.58 Reopening of proceedings.
16 CFR 1021.14 Subpart G -- Appearances, Standards of Conduct
1025.61 Who may make appearances.
1025.62 Authority for representation.
1025.63 Written appearances.
1025.64 Attorneys.
1025.65 Persons not attorneys.
1025.66 Qualifications and standards of conduct.
1025.67 Restrictions as to former members and employees.
1025.68 Prohibited communications.
16 CFR 1021.14 Subpart H -- Implementation of the Equal Access to
Justice Act in Adjudicative Proceedings With the Commission
1025.70 General provisions.
1025.71 Information required from applicant.
1025.72 Procedures for considering applications.
Appendix I -- Suggested Form of Final Prehearing Order
Authority: Consumer Product Safety Act (secs. 15, 20, 27 (15 U.S.C.
2064, 2069, 2076), the Flammable Fabrics Act (sec. 5, 15 U.S.C. 1194),
the Federal Trade Commission Act (15 U.S.C. 45)), unless otherwise
noted.
Source: 45 FR 29215, May 1, 1980, unless otherwise noted.
16 CFR 1021.14 Subpart A -- Scope of Rules, Nature of Adjudicative Proceedings, Definitions
16 CFR 1025.1 Scope of rules.
The rules in this part govern procedures in adjudicative proceedings
relating to the provisions of section 15 (c), (d), and (f) and 17(b) of
the Consumer Product Safety Act (15 U.S.C. 2064 (c), (d), (f);
2066(b)), section 15 of the Federal Hazardous Substances Act (15 U.S.C.
1274), and sections 3 and 8(b) of the Flammable Fabrics Act (15 U.S.C.
1192, 1197(b)), which are required by statute to be determined on the
record after opportunity for a public hearing. These rules will also
govern adjudicative proceedings for the assessment of civil penalties
under section 20(a) of the Consumer Product Safety Act (15 U.S.C.
2068(a)), except in those instances where the matter of a civil penalty
is presented to a United States District Court in conjunction with an
action by the Commission for injunctive or other appropriate relief.
These Rules may also be used for such other adjudicative proceedings as
the Commission, by order, shall designate. A basic intent of the
Commission in the development of these rules has been to promulgate a
single set of procedural rules which can accommodate both simple matters
and complex matters in adjudication. To accomplish this objective,
broad discretion has been vested in the Presiding Officer who will hear
a matter being adjudicated to allow him/her to alter time limitations
and other procedural aspects of a case, as required by the complexity of
the particular matter involved. A major concern of the Commission is
that all matters in adjudication move forward in a timely manner,
consistent with the Constitutional due process rights of all parties.
It is anticipated that in any adjudicative proceedings for the
assessment of civil penalties there will be less need for discovery
since most factual matters will already be known by the parties.
Therefore, the Presiding Officer should, whenever appropriate, expedite
the proceedings by setting shorter time limitations than those time
limitations generally applicable under these Rules. For example, the
150-day limitation for discovery, as provided in 1025.31(g), should be
shortened, consistent with the extent of discovery reasonably necessary
to prepare for the hearing.
(45 FR 29215, May 1, 1980, as amended at 47 FR 46846, Oct. 21, 1982)
16 CFR 1025.2 Nature of adjudicative proceedings.
Adjudicative proceedings shall be conducted in accordance with Title
5, United States Code, sections 551 through 559, and these Rules. It is
the policy of the Commission that adjudicative proceedings shall be
conducted expeditiously and with due regard to the rights and interests
of all persons affected and in locations chosen with due regard to the
convenience of all parties. Therefore, the Presiding Officer and all
parties shall make every effort at each stage of any proceedings to
avoid unnecessary delay.
16 CFR 1025.3 Definitions.
As used in this part:
(a) Application means an ex parte request by a party for an order
that may be granted or denied without opportunity for response by any
other party.
(b) Commission means the Consumer Product Safety Commission or a
quorum thereof.
(c) Commissioner means a Commissioner of the Consumer Product Safety
Commission.
(d) Complaint Counsel means counsel for the Commission's staff.
(e) Motion means a request by a party for a ruling or order that may
be granted or denied only after opportunity for responses by all other
parties.
(f) Party means any named person or any intervenor in any proceedings
governed by these Rules.
(g) Person means any individual, partnership, corporation,
unincorporated association, public or private organization, or a
federal, state or municipal governmental entity.
(h) Petition means a written request, addressed to the Commission or
the Presiding Officer, for some affirmative action.
(i) Presiding Officer means a person who conducts any adjudicative
proceedings under this part, and may include an administrative law judge
qualified under Title 5, United States Code, section 3105, but shall not
include a Commissioner.
(j) Respondent means any person against whom a complaint has been
issued.
(k) Secretary means the Secretary of the Consumer Product Safety
Commission.
(l) Staff means the staff of the Consumer Product Safety Commission.
Additional definitions relating to prohibited communications are in
1025.68.
16 CFR 1025.3 Subpart B -- Pleadings, Form, Execution, Service of Documents
16 CFR 1025.11 Commencement of proceedings.
(a) Notice of institution of enforcement proceedings. Any
adjudicative proceedings under this part shall be commenced by the
issuance of a complaint, authorized by the Commission, and signed by the
Associate Executive Director for Compliance and Enforcement.
(b) Form and content of complaint. The complaint shall contain the
following:
(1) A statement of the legal authority for instituting the
proceedings, including the specific sections of statutes, rules and
regulations involved in each allegation.
(2) Identification of each respondent or class of respondents.
(3) A clear and concise statement of the charges, sufficient to
inform each respondent with reasonable definiteness of the factual basis
or bases of the allegations of violation or hazard. A list and summary
of documentary evidence supporting the charges shall be attached.
(4) A request for the relief which the staff believes is in the
public interest.
(c) Notice to the public. Once issued, the complaint shall be
submitted without delay to the Federal Register for publication.
16 CFR 1025.12 Answer.
(a) Time for filing. A respondent shall have twenty (20) days after
service of a complaint to file an answer.
(b) Contents of answer. The answer shall contain the following:
(1) A specific admission or denial of each allegation in the
complaint. If a respondent is without knowledge or information
sufficient to form a belief as to the truth of an allegation, the
respondent shall so state. Such statement shall have the effect of a
denial. Allegations that are not denied shall be deemed to have been
admitted.
(2) A concise statement of the factual or legal defenses to each
allegation of the complaint.
(c) Default. Failure of a respondent to file an answer within the
time provided, unless extended, shall constitute a waiver of the right
to appear and contest the allegations in the complaint, and the
Presiding Officer may make such findings of fact and conclusions of law
as are just and reasonable under the circumstances.
16 CFR 1025.13 Amendments and supplemental pleadings.
The Presiding Officer may allow appropriate amendments and
supplemental pleadings which do not unduly broaden the issues in the
proceedings or cause undue delay.
16 CFR 1025.14 Form and filing of documents.
(a) Filing. Except as otherwise provided in these Rules, all
documents submitted to the Commission or the Presiding Officer shall be
addressed to, and filed with, the Secretary. Documents may be filed in
person or by mail and shall be deemed filed on the day of filing or
mailing.
(b) Caption. Every document shall contain a caption setting forth
the name of the action, the docket number, and the title of the
document.
(c) Copies. An original and three (3) copies of all documents shall
be filed. Each copy must be clear and legible.
(d) Signature. (1) The original of each document filed shall be
signed by a representative of record for the party or participant; or
in the case of parties or participants not represented, by the party or
participant; or by a partner, officer or other appropriate official of
any corporation, partnership, or unincorporated association, who files
an appearance on behalf of the party or participant.
(2) By signing a document, the signer represents that the the signer
has read it and that to the best of the signer's knowledge, information
and belief, the statements made in it are true and that it is not filed
for purposes of delay.
(e) Form. (1) All documents shall be dated and shall contain the
address and telephone number of the signer.
(2) Documents shall be on paper approximately 8 1/2 11 inches in
size. Print shall not be less than standard elite or 12 point type.
Pages shall be fastened in the upper left corner or along the left
margin.
(3) Documents that fail to comply with this section may be returned
by the Secretary.
16 CFR 1025.15 Time.
(a) Computation. In computing any period of time prescribed or
allowed by these rules, the day of the act, event, or default from which
the designated period of time begins to run shall not be included. The
last day of the period so computed shall be included, unless it is a
Saturday, a Sunday, or a legal holiday, in which event the period runs
until the end of the next day which is not a Saturday, a Sunday, or a
legal holiday. When the period of time prescribed or allowed is less
than seven (7) days, intermediate Saturdays, Sundays, and legal holidays
shall be excluded in the computation. As used in this rule, ''legal
holiday'' includes New Year's Day, Washington's Birthday, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving
Day, Christmas Day, and any other day declared as a holiday by the
President or the Congress of the United States.
(b) Additional time after service by mail. Whenever a party is
required or permitted to do an act within a prescribed period after
service of a document and the document is served by mail, three (3) days
shall be added to the prescribed period.
(c) Extensions. For good cause shown, the Presiding Officer may
extend any time limit prescribed or allowed by these rules or by order
of the Commission or the Presiding Officer, except for those sections
governing the filing of interlocutory appeals and appeals from Initial
Decisions and those sections expressly requiring Commission action.
Except as otherwise provided by law, the Commission, for good cause
shown, may extend any time limit prescribed by these rules or by order
of the Commission or the Presiding Officer.
16 CFR 1025.16 Service.
(a) Mandatory service. Every document filed with the Secretary shall
be served upon all parties to any proceedings, i.e., Complaint Counsel,
respondent(s), and party intervenors, as well as the Presiding Officer.
Every document filed with the Secretary shall also be served upon each
participant, if the Presiding Officer or the Commission so directs.
(b) Service of complaint, ruling, petition for interlocutory appeal,
order, decision, or subpoena. A complaint, ruling, petition for
interlocutory appeal, order, decision, or subpoena shall be served in
one of the following ways:
(1) By registered or certified mail. A copy of the document shall be
addressed to the person, partnership, corporation or unincorporated
association to be served at his/her/its residence or principal office or
place of business and sent by registered or certified mail; or
(2) By delivery to an individual. A copy of the document may be
delivered to the person to be served; or to a member of the partnership
to be served; or to the president, secretary, or other executive
officer, or a director of the corporation or unincorporated association
to be served; or to an agent authorized by appointment or by law to
receive service; or
(3) By delivery to an address. If the document cannot be served in
person or by mail as provided in paragraph (b)(1) or (b)(2) of this
section, a copy of the document may be left at the principal office or
place of business of the person, partnership, corporation,
unincorporated association, or authorized agent with an officer or a
managing or general agent; or it may be left with a person of suitable
age and discretion residing therein, at the residence of the person or
of a member of the partnership or of an executive officer, director, or
agent of the corporation or unincorporated association to be served; or
(4) By publication in the Federal Register. A respondent that cannot
be served by any of the methods already described in this section may be
served by publication in the Federal Register and such other notice as
may be directed by the Presiding Officer or the Commission, where a
complaint has issued in a class action pursuant to 1025.18.
(c) Service of other documents. Except as otherwise provided in
paragraph (b) of this section, when service of a document starts the
running of a prescribed period of time for the submission of a
responsive document or the occurrence of an event, the document may be
served as provided in paragraph (b) of this section or by ordinary
first-class mail, properly addressed, postage prepaid.
(d) Service on a representative. When a party has appeared by an
attorney or other representative, service upon that attorney or other
representative shall constitute service upon the party.
(e) Certificate of service. The original of every document filed
with the Commission and required to be served upon all parties to any
proceedings, as well as participants if so directed by the Presiding
Officer, shall be accompanied by a certificate of service signed by the
party making service, stating that such service has been made upon each
party and participant to the proceedings. Certificates of service may
be in substantially the following form:
I hereby certify that I have served the attached document upon all
parties and participants of record in these proceedings by mailing,
postage prepaid, (or by delivering in person) a copy to each on
-- --
(Signature)
For
(f) Date of service. The date of service of a document shall be the
date on which the document is deposited with the United States Postal
Service, postage prepaid, or is delivered in person.
16 CFR 1025.17 Intervention.
(a) Participation as an intervenor. Any person who desires to
participate as a party in any proceedings subject to these rules shall
file a written petition for leave to intervene with the Secretary and
shall serve a copy of the petition on each party.
(1) A petition shall ordinarily be filed not later than the convening
of the first prehearing conference. A petition filed after that time
will not be granted unless the Presiding Officer determines that the
petitioner has made a substantial showing of good cause for failure to
file on time.
(2) A petition shall (i) identify the specific aspect or aspects of
the proceedings as to which the petitioner wishes to intervene, (ii) set
forth the interest of the petitioner in the proceedings, (iii) state how
the petitioner's interest may be affected by the results of the
proceedings, and (iv) state any other reasons why the petitioner should
be permitted to intervene as a party, with particular reference to the
factors set forth in paragraph (d) of this section. Any petition
relating only to matters outside the jurisdiction of the Commission
shall be denied.
(3) Any person whose petition for leave to intervene is granted by
the Presiding Officer shall be known as an ''intervenor'' and as such
shall have the full range of litigating rights afforded to any other
party.
(b) Participation by a person not an intervenor. Any person who
desires to participate in the proceedings as a non-party shall file with
the Secretary a request to participate in the proceedings and shall
serve a copy of such request on each party to the proceedings.
(1) A request shall ordinarily be filed not later than the
commencement of the hearing. A petition filed after that time will not
be granted unless the Presiding Officer determines that the person
making the request has made a substantial showing of good cause for
failure to file on time.
(2) A request shall set forth the nature and extent of the person's
alleged interest in the proceedings. Any request relating only to
matters outside the jurisdiction of the Commission shall be denied.
(3) Any person who files a request to participate in the proceedings
as a non-party and whose request is granted by the Presiding Officer
shall be known as a ''Participant'' and shall have the right to
participate in the proceedings to the extent of making a written or oral
statement of position, filing proposed findings of fact, conclusions of
law and a post hearing brief with the Presiding Officer, and filing an
appellate brief before the Commission if an appeal is taken by a party
or review is ordered by the Commission in accordance with 1025.53 or
1025.54, as applicable, of these rules.
(c) Response to petition to intervene. Any party may file a response
to a petition for leave to intervene after the petition is filed with
the Secretary, with particular reference to the factors set forth in
paragraph (d) of this section.
(d) Ruling by Presiding Officer on petition. In ruling on a petition
for leave to intervene, the Presiding Officer shall consider, in
addition to all other relevant matters, the following factors:
(1) The nature of the petitioner's interest, under the applicable
statute governing the proceedings, to be made a party to the
proceedings;
(2) The nature and extent of the petitioner's interest in protecting
himself/herself/itself or the public against unreasonable risks of
injury associated with consumer products;
(3) The nature and extent of the petitioner's property, financial or
other substantial interest in the proceedings;
(4) Whether the petitioner would be aggrieved by any final order
which may be entered in the proceedings;
(5) The extent to which the peititioner's intervention may reasonably
be expected to assist in developing a sound record;
(6) The extent to which the petitioner's interest will be represented
by existing parties;
(7) The extent to which the petitioner's intervention may broaden the
issues or delay the proceedings; and
(8) The extent to which the petitioner's interest can be protected by
other available means.
If the Presiding Officer determines that a petitioner has failed to
make a sufficient showing to be allowed to intervene as a party, the
Presiding Officer shall view such petition to intervene as if it had
been timely filed as a request to participate in the proceedings as a
participant pursuant to paragraph (b) of this section.
(e) Ruling by Presiding Officer on request. In ruling on a request
to participate as a participant, the Presiding Officer, in the exercise
of his/her discretion, shall be mindful of the Commission's mandate
under its enabling legislation (see 15 U.S.C. 2051 et seq.) and its
affirmative desire to afford interested persons, including consumers and
consumer organizations, as well as governmental entities, an opportunity
to participate in the agency's regulatory processes, including
adjudicative proceedings. The Presiding Officer shall consider, in
addition to all other relevant matters, the following factors:
(1) The nature and extent of the person's alleged interest in the
proceedings;
(2) The possible effect of any final order which may be entered in
the proceedings on the person's interest; and
(3) The extent to which the person's participation can be expected to
assist the Presiding Officer and the Commission in rendering a fair and
equitable resolution of all matters in controversy in the proceedings.
The Presiding Officer may deny a request to participate if he/she
determines that the person's participation cannot reasonably be expected
to assist the Presiding Officer or the Commission in rendering a fair
and equitable resolution of matters in controversy in the proceedings or
if he/she determines that the person's participation would unduly
broaden the issues in controversy or unduly delay the proceedings.
(f) Designation of single representative. If the Presiding Officer
determines that a petitioner pursuant to paragraph (a) of this section
or a person requesting to participate pursuant to paragraph (b) of this
section is a member of a class of prospective intervenors or
participants, as applicable, who share an identity of interest, the
Presiding Officer may limit such intervention or participation, as
applicable, through designation of a single representative by the
prospective intervenors or participants, as applicable, or, if they are
unable to agree, by designation of the Presiding Officer.
16 CFR 1025.18 Class actions.
(a) Prerequisites to a class action. One or more members of a class
of respondents may be proceeded against as representative parties on
behalf of all respondents if (1) the class is so numerous or
geographically dispersed that joinder of all members is impracticable;
(2) there are questions of fact or issues of law common to the class;
(3) the defenses of the representative parties are typical of the
defenses of the class; and (4) the representative parties will fairly
and adequately protect the interests of the class.
(b) Composition of class. A class may be composed of (1)
manufacturers, distributors, or retailers, or a combination of them, of
products which allegedly have the same defect, or (2) manufacturers,
distributors, or retailers, or a combination of them, of products which
allegedly fail to conform to an applicable standard, regulation, or
consumer product safety rule, or (3) manufacturers, distributors, or
retailers, or a combination of them, who have themselves allegedly
failed to conform to an applicable standard, regulation, or consumer
product safety rule. When appropriate, a class may be divided into
subclasses and each subclass shall be treated as a class.
(c) Notice of commencement. A complaint issued under this section
shall identify the class, the named respondents considered to be
representative of the class, and the alleged defect or nonconformity
common to the products manufactured, imported, distributed or sold by
the members of the class. The complaint shall be served upon the
parties in accordance with 1025.16.
(d) Proper class action determination. Upon motion of Complaint
Counsel and as soon as practicable after the commencement of any
proceedings brought as a class action, the Presiding Officer shall
determine by order whether the action is a proper class action. It is a
proper class action if the prerequisites of paragraph (a) of this
section are met and if the Presiding Officer finds that:
(1) The prosecution of separate actions against individual members of
the respondent class might result in (i) inconsistent or varying
determinations with respect to individual members of the class which
might produce incompatible or conflicting results, or (ii)
determinations with respect to individual members of the class which
would, as a practical matter, be dispositive of the interests of the
other members who are not parties to the proceedings or would
substantially impair or impede the ability of the absent members to
protect their interests; or
(2) The Commission has acted on grounds generally applicable to the
class, thereby making appropriate an order directed to the class as a
whole.
In reaching a decision, the Presiding Officer shall consider the
interests of members of the class in individually controlling the
defense of separate actions, the extent and nature of any proceedings
concerning the controversy already commenced against members of the
class, the desirability or undesirability of concentrating the
litigation in one adjudication, and the difficulties likely to be
encountered in the management of a class action, as well as the benefits
expected to result from the maintenance of a class action.
(e) Revision of class membership. Upon motion of any party or any
member of the class, or upon the Presiding Officer's own initiative, the
Presiding Officer may revise the membership of the class.
(f) Orders in conduct of class actions. In proceedings to which this
section applies, the Presiding Officer may make appropriate orders:
(1) Determining the course of the proceedings or prescribing measures
to prevent undue repetition and promote the efficient presentation of
evidence or argument;
(2) Requiring (for the protection of the members of the class, or
otherwise for the fair conduct of the action) that notice be given, in
such manner as the Presiding Officer may direct, of any step in the
action, of the extent of the proposed order, or of the opportunity for
members to inform the Presiding Officer whether they consider the
representation to be fair and adequate, or of the opportunity for class
members to intervene and present defenses;
(3) Requiring that the pleadings be amended to eliminate allegations
concerning the representation of absent persons; or
(4) Dealing with other procedural matters.
The orders may be combined with a prehearing order under 1025.21 of
these rules and may be altered or amended as may be necessary.
(g) Scope of final order. In any proceedings maintained as a class
action, any Decision and Order of the Presiding Officer or the
Commission under 1025.51 or 1025.55, as applicable, whether or not
favorable to the class, shall include and describe those respondents
whom the Presiding Officer or the Commission finds to be members of the
class.
(h) Notice of results. Upon the termination of any adjudication that
has been maintained as a class action, the best notice practicable of
the results of the adjudication shall be given to all members of the
class in such manner as the Presiding Officer or the Commission directs.
16 CFR 1025.19 Joinder of proceedings.
Two or more matters which have been scheduled for adjudicative
proceedings and which involve similar issues may be consolidated for the
purpose of hearing or Commission review. A motion for consolidation may
be filed by any party to such proceedings not later than thirty (30)
days prior to the hearing and served upon all parties to all proceedings
in which joinder is contemplated. The motion may include a request that
the consolidated proceedings be maintained as a class action in
accordance with 1025.18 of these rules. The proceedings may be
consolidated to such extent and upon such terms as may be proper. Such
consolidation may also be ordered upon the initiative of the Presiding
Officer or the Commission. Single representatives may be designated by
represented parties, intervenors, and participants with an identity of
interests.
16 CFR 1025.19 Subpart C -- Prehearing Procedures, Motions, Interlocutory Appeals, Summary Judgments, Settlements
16 CFR 1025.21 Prehearing conferences.
(a) When held. Except when the presiding officer determines that
unusual circumstances would render it impractical or valueless, a
prehearing conference shall be held in person or by conference telephone
call within fifty (50) days after publication of the complaint in the
Federal Register and upon ten (10) days' notice to all parties and
participants. At the prehearing conference any or all of the following
shall be considered:
(1) Petitions for leave to intervene;
(2) Motions, including motions for consolidation of proceedings and
for certification of class actions;
(3) Identification, simplification and clarification of the issues;
(4) Necessity or desirability of amending the pleadings;
(5) Stipulations and admissions of fact and of the content and
authenticity of documents;
(6) Oppositions to notices of depositions;
(7) Motions for protective orders to limit or modify discovery;
(8) Issuance of subpoenas to compel the appearance of witnesses and
the production of documents;
(9) Limitation of the number of witnesses, particularly to avoid
duplicate expert witnesses;
(10) Matters of which official notice should be taken and matters
which may be resolved by reliance upon the laws administered by the
Commission or upon the Commission's substantive standards, regulations,
and consumer product safety rules;
(11) Disclosure of the names of witnesses and of documents or other
physical exhibits which are intended to be introduced into evidence;
(12) Consideration of offers of settlement;
(13) Establishment of a schedule for the exchange of final witness
lists, prepared testimony and documents, and for the date, time and
place of the hearing, with due regard to the convenience of the parties;
and
(14) Such other matters as may aid in the efficient presentation or
disposition of the proceedings.
(b) Public notice. The Presiding Officer shall cause a notice of the
first prehearing conference, including a statement of the issues, to be
published in the Federal Register at least ten (10) days prior to the
date scheduled for the conference.
(c) Additional conferences. Additional prehearing conferences may be
convened at the discretion of the Presiding Officer, upon notice to the
parties, any participants, and to the public.
(d) Reporting. Prehearing conferences shall be stenographically
reported as provided in 1025.47 of these rules and shall be open to the
public, unless otherwise ordered by the Presiding Officer or the
Commission.
(e) Prehearing orders. The Presiding Officer shall issue a final
prehearing order in each case after the conclusion of the final
prehearing conference. The final prehearing order should contain, to
the fullest extent possible at that time, all information which is
necessary for controlling the course of the hearing. The Presiding
Officer may require the parties to submit a jointly proposed final
prehearing order, such as in the format set forth in Appendix I.
16 CFR 1025.22 Prehearing briefs.
Not later than ten (10) days prior to the hearing, unless otherwise
ordered by the Presiding Officer, the parties may simultaneously serve
and file prehearing briefs which should set forth (a) a statement of the
facts expected to be proved and of the anticipated order of proof; (b)
a statement of the issues and the legal arguments in support of the
party's contentions with respect to each issue; and (c) a table of
authorities relied upon.
16 CFR 1025.23 Motions.
(a) Presentation and disposition. During the time a matter in
adjudication is before the Presiding Officer, all motions, whether oral
or written, except those filed under 1025.42(e), shall be addressed to
the Presiding Officer, who shall rule upon them promptly, after
affording an opportunity for response.
(b) Written motions. All written motions shall state with
particularity the order, ruling, or action desired and the reasons why
the action should be granted. Memoranda, affidavits, or other documents
supporting a motion shall be served and filed with the motion. All
motions shall contain a proposed order setting forth the relief sought.
All written motions shall be filed with the Secretary and served upon
all parties, and all motions addressed to the Commission shall be in
writing.
(c) Opposition to motions. Within ten (10) days after service of any
written motion or petition or within such longer or shorter time as may
be designated by these Rules or by the Presiding Officer or the
Commission, any party who opposes the granting of the requested order,
ruling or action may file a written response to the motion. Failure to
respond to a written motion may, in the discretion of the Presiding
Officer, be considered as consent to the granting of the relief sought
in the motion. Unless otherwise permitted by the Presiding Officer or
the Commission, there shall be no reply to the response expressing
opposition to the motion.
(d) Rulings on motions for dismissal. When a motion to dismiss a
complaint or a motion for other relief is granted, with the result that
the proceedings before the Presiding Officer are terminated, the
Presiding Officer shall issue an Initial Decision and Order in
accordance with the provisions of 1025.51. If such a motion is granted
as to all issues alleged in the complaint in regard to some, but not
all, respondents or is granted as to any part of the allegations in
regard to any or all respondents, the Presiding Officer shall enter an
order on the record and consider the remaining issues in the Initial
Decision. The Presiding Officer may elect to defer ruling on a motion
to dismiss until the close of the case.
16 CFR 1025.24 Interlocutory appeals.
(a) General. Rulings of the Presiding Officer may not be appealed to
the Commission prior to the Initial Decision, except as provided in this
section.
(b) Exceptions. (1) Interlocutory appeals to Commission. The
Commission may, in its discretion, consider interlocutory appeals where
a ruling of the Presiding Officer:
(i) Requires the production of records claimed to be confidential;
(ii) Requires the testimony of a supervisory official of the
Commission other than one especially knowledgeable of the facts of the
matter in adjudication;
(iii) Excludes an attorney from participation in any proceedings
pursuant to 1025.42(b);
(iv) Denies or unduly limits a petition for intervention pursuant to
the provisions of 1025.17.
(2) Procedure for interlocutory appeals. Within ten (10) days of
issuance of a ruling other than one ordering the production of records
claimed to be confidential, any party may petition the Commission to
consider an interlocutory appeal of a ruling in the categories
enumerated above. The petition shall not exceed fifteen (15) pages.
Any other party may file a response to the petition within ten (10) days
of its service except where the order appealed from requires the
production of records claimed to be confidential. The response shall
not exceed fifteen (15) pages. The Commission shall decide the petition
or may request such further briefing or oral presentation as it deems
necessary.
(3) If the Presiding Officer orders the production of records claimed
to be confidential a petition for interlocutory appeal shall be filed
within five (5) days of the entry of the order. Any opposition to the
petition shall be filed within five (5) days of service of the petition.
The order of the Presiding Officer shall be automatically stayed until
five (5) days following the date of entry of the order to allow an
affected party the opportunity to file a petition with the Commission
for an interlocutory appeal pursuant to 1025.24(b)(2). If an affected
party files a petition with the Commission pursuant to 1025.24(b)(2)
within the 5-day period, the stay of the Presiding Officer's order is
automatically extended until the Commission decides the petition.
(4) Interlocutory appeals from all other rulings -- (i) Grounds.
Interlocutory appeals from all other rulings by the Presiding Officer
may proceed only upon motion to the Presiding Officer and a
determination by the Presiding Officer in writing that the ruling
involves a controlling question of law or policy as to which there is
substantial ground for differences of opinion and that an immediate
appeal from the ruling may materially advance the ultimate termination
of the litigation, or that subsequent review will be an inadequate
remedy. The Presiding Officer's certification shall state the reasons
for the determination.
(ii) Form. If the Presiding Officer makes the determination
described in paragraph (b)(4)(i) of this section, a petition for
interlocutory appeal under this subparagraph may be filed in accordance
with paragraph (b)(2) of this section.
(c) Proceedings not stayed. Except as otherwise provided under this
section, a petition for interlocutory appeal shall not stay the
proceedings before the Presiding Officer unless the Presiding Officer or
the Commission so orders.
16 CFR 1025.25 Summary decisions and orders.
(a) Motion. Any party may file a motion, with a supporting
memorandum, for a Summary Decision and Order in its favor upon all or
any of the issues in controversy. Complaint Counsel may file such a
motion at any time after thirty (30) days following issuance of a
complaint, and any other party may file a motion at any time after
issuance of a complaint. Any such motion by any party shall be filed at
least twenty (20) days before the date fixed for the adjudicative
hearing.
(b) Response to motion. Any other party may, within twenty (20) days
after service of the motion, file a response with a supporting
memorandum.
(c) Grounds. A Summary Decision and Order shall be granted if the
pleadings and any depositions, answers to interrogatories, admissions,
or affidavits show that there is no genuine issue as to any material
fact and that the moving party is entitled to a Summary Decision and
Order as a matter of law.
(d) Legal effect. A Summary Decision and Order upon all the issues
being adjudicated shall constitute the Initial Decision of the Presiding
Officer and may be appealed to the Commission in accordance with
1025.53 of these rules. A Summary Decision, interlocutory in character,
may be rendered on fewer than all issues and may not be appealed prior
to issuance of the Initial Decision.
(e) Case not fully adjudicated on motion. A Summary Decision and
order that does not dispose of all issues shall include a statement of
those material facts about which there is no substantial controversy and
of those material facts that are actually and in good faith
controverted. The Summary Order shall direct such further proceedings
as are appropriate.
16 CFR 1025.26 Settlements.
(a) Availability. Any party shall have the opportunity to submit an
offer of settlement to the Presiding Officer.
(b) Form. Offers of settlement shall be filed in camera and the form
of a consent agreement and order, shall be signed by the respondent or
respondent's representative, and may be signed by any other party. Each
offer of settlement shall be accompanied by a motion to transmit the
proposed agreement and order to the Commission. The motion shall
outline the substantive provisions of the agreement and state reasons
why it should be accepted by the Commission.
(c) Contents. The proposed consent agreement and order which
constitute the offer of settlement shall contain the following:
(1) An admission of all jurisdictional facts;
(2) An express waiver of further procedural steps and of all rights
to seek judicial review or otherwise to contest the validity of the
Commission order;
(3) Provisions that the allegations of the complaint are resolved by
the consent agreement and order;
(4) A description of the alleged hazard, noncompliance, or violation;
(5) If appropriate, a listing of the acts or practices from which the
respondent shall refrain; and
(6) If appropriate, a detailed statement of the corrective action(s)
which the respondent shall undertake. In proceedings arising under
Section 15 of the Consumer Product Safety Act, 15 U.S.C. 2064, this
statement shall contain all the elements of a ''Corrective Action
Plan,'' as outlined in the Commission's Interpretation, Policy, and
Procedure for Substantial Product Hazards, 16 CFR part 1115.
(d) Transmittal. The Presiding Officer may transmit to the
Commission for decision all offers of settlement and accompanying
memoranda that meet the requirements enumerated in paragraph (c) of this
section. The Presiding Officer shall consider whether an offer of
settlement is clearly frivolous, duplicative of offers previously made
and rejected by the Commission or contrary to establish Commission
policy. The Presiding Officer may, but need not, recommend acceptance
of offers. Any party may object to the transmittal to the Commission of
a proposed consent agreement by filing a response opposing the motion.
(e) Stay of proceedings. When an offer of settlement has been agreed
to by all parties and has been transmitted to the Commission, the
proceedings shall be stayed until the Commission has ruled on the offer.
When an offer of settlement has been made and transmitted to the
Commission but has not been agreed to by all parties, the proceedings
shall not be stayed pending Commission decision on the offer, unless
otherwise ordered by the Presiding Officer or the Commission.
(f) Commission ruling. The Commission shall rule upon all
transmitted offers of settlement. If the Commission accepts the offer,
the Commission shall issue an appropriate order, which shall become
effective upon issuance.
(g) Commission rejection. If the Commission rejects an offer of
settlement, the Secretary, in writing, shall give notice of the
Commission's decision to the parties and the Presiding Officer. If the
proceedings have been stayed, the Presiding Officer shall promptly issue
an order notifying the parties of the resumption of the proceedings,
including any modifications to the schedule resulting from the stay of
the proceedings.
(h) Effect of rejected offer. Neither rejected offers of settlement,
nor the fact of the proposal of offers of settlement are admissible in
evidence.
16 CFR 1025.26 Subpart D -- Discovery, Compulsory Process
16 CFR 1025.31 General provisions governing discovery.
(a) Applicability. The discovery rules established in this subpart
are applicable to the discovery of information among the parties in any
proceedings. Parties seeking information from persons not parties may
do so by subpoena in accordance with 1025.38 of these rules.
(b) Discovery methods. Parties may obtain discovery by one or more
of the following methods: (1) Written interrogatories; (2) requests
for production of documents or things; (3) requests for admission; or
(4) depositions upon oral examination. Unless the Presiding Officer
otherwise orders under paragraph (d) of this section, the frequency of
use of these methods is not limited.
(c) Scope of discovery. The scope of discovery is as follows:
(1) In general. Parties may obtain discovery regarding any matter,
not privileged, which is within the Commission's statutory authority and
is relevant to the subject matter involved in the proceedings, whether
it relates to the claim or defense of the party seeking discovery or to
the claim or defense of any other party, including the existence,
description, nature, custody, condition and location of any books,
documents, or other tangible things and the identity and location of
persons having knowledge of any discoverable matter. It is not ground
for objection that the information sought will be inadmissible at the
hearing if the information sought appears reasonably calculated to lead
to the discovery of admissible evidence.
(2) Privilege. Discovery may be denied or limited, or a protective
order may be entered, to preserve the privilege of a witness, person, or
governmental agency as governed by the Constitution, any applicable Act
of Congress, or the principles of the common law as they may be
interpreted by the Commission in the light of reason and experience.
(3) Hearing preparation: materials. Subject to the provisions of
paragraph (c)(4) of this section, a party may obtain discovery of
documents and tangible things otherwise discoverable under paragraph
(c)(1) of this section and prepared in anticipation of litigation or for
hearing by or for another party or by or for that other party's
representative (including his attorney or consultant) only upon a
showing that the party seeking discovery has substantial need of the
materials in the preparation of his case and that he is unable without
unique hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the required
showing has been made, the Presiding Officer shall protect against
disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party.
(4) Hearing preparation: experts. Discovery of facts known and
opinions held by experts, otherwise discoverable under the provisions of
paragraph (c)(1) of this section and acquired or developed in
anticipation of litigation or for trial, may be obtained only as
follows:
(i)(A) A party may through interrogatories require any other party to
identify each person whom the other party expects to call as an expert
witness at trial, to state the subject matter on which the expert is
expected to testify, to state the substance of the facts and opinions to
which the expert is expected to testify, and to provide a summary of the
grounds for each opinion.
(B) Upon motion, the Presiding Officer may order further discovery by
other means upon a showing of substantial cause and may exercise
discretion to impose such conditions, if any, as are appropriate in the
case.
(ii) A party may discover facts known or opinions held by an expert
who has been retained or specially employed by another party in
anticipation of litigation or preparation for trial and who is not
expected to be called as a witness at trial only upon a showing of
exceptional circumstances under which it is impracticable for the party
seeking discovery to obtain facts or opinions on the same subject by
other means.
(iii) The Presiding Officer may require as a condition of discovery
that the party seeking discovery pay the expert a reasonable fee, but
not more than the maximum specified in 5 U.S.C. 3109 for the time spent
in responding to discovery.
(d) Protective orders. Upon motion by a party and for good cause
shown, the Presiding Officer may make any order which justice requires
to protect a party or person from annoyance, embarrassment, competitive
disadvantage, oppression, or undue burden or expense, including one or
more of the following: (1) That the discovery shall not be had; (2)
that the discovery may be had only on specified terms and conditions,
including a designation of the time or place; (3) that the discovery
shall be had only by a method of discovery other than that selected by
the party seeking discovery; (4) that certain matters shall not be
inquired into or that the scope of discovery shall be limited to certain
matters; (5) that discovery shall be conducted with no one present
except persons designated by the Presiding Officer; (6) that a trade
secret or other confidential research, development, or commercial
information shall not be disclosed or shall be disclosed only in a
designated way or only to designated parties; and (7) that responses to
discovery shall be placed in camera in accordance with 1025.45 of these
rules.
If a motion for a protective order is denied in whole or in part, the
Presiding Officer may, on such terms or conditions as are appropriate,
order that any party provide or permit discovery.
(e) Sequence and timing of discovery. Discovery may commence at any
time after filing of the answer. Unless otherwise provided in these
Rules or by order of the Presiding Officer, methods of discovery may be
used in any sequence and the fact that a party is conducting discovery,
whether by deposition or otherwise, shall not operate to delay any other
party's discovery.
(f) Supplementation of responses. A party who has responded to a
request for discovery with a response that was complete when made is
under a duty to supplement that response to include information later
obtained.
(g) Completion of discovery. All discovery shall be completed as
soon as practical but in no case longer than one hundred fifty (150)
days after issuance of a complaint, unless otherwise ordered by the
Presiding Officer in exceptional circumstances and for good cause shown.
All discovery shall be commenced by a date which affords the party from
whom discovery is sought the full response period provided by these
Rules.
(h) Service and filing of discovery. All discovery requests and
written responses, and all notices of deposition, shall be filed with
the Secretary and served on all parties and the Presiding Officer.
(i) Control of discovery. The use of these discovery procedures is
subject to the control of the Presiding Officer, who may issue any just
and appropriate order for the purpose of ensuring their timely
completion.
16 CFR 1025.32 Written interrogatories to parties.
(a) Availability; procedures for use. Any party may serve upon any
other party written interrogatories to be answered by the party served
or, if the party served is a public or private corporation or a
partnership or unincorporated association or governmental entity, by any
officer or agent, who shall furnish such information as is available to
the party. Interrogatories may, without leave of the Presiding Officer,
be served upon any party after the filing of an answer.
(b) Procedures for response. Each interrogatory shall be answered
separately and fully in writing under oath, unless it is objected to, in
which event the reasons for objection shall be stated in lieu of an
answer. Each answer shall be submitted in double-spaced typewritten
form and shall be immediately preceded by the interrogatory, in
single-spaced typewritten form, to which the answer is responsive. The
answers are to be signed by the person making them, and the objections
signed by the person or representative making them. The party upon whom
the interrogatories have been served shall serve a copy of the answers,
and objections if any, within 30 days after service of the
interrogatories. The Presiding Officer may allow a shorter or longer
time for response. The party submitting the interrogatories may move
for an order under 1025.36 of these rules with respect to any objection
to, or other failure to answer fully, an interrogatory.
(c) Scope of interrogatories. Interrogatories may relate to any
matters which can be inquired into under 1025.31(c), and the answers
may be used to any extent permitted under these rules. An interrogatory
otherwise proper is not objectionable merely because an answer to the
interrogatory would involve an opinion or contention which relates to
fact or to the application of law to fact, but the Presiding Officer may
order that such an interrogatory need not be answered until a later
time.
(d) Option to produce business records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon whom the interrogatory has been served, or from an
examination, audit, or inspection of such business records, or from a
compilation, abstract, or summary of those records, and the burden of
deriving the answer is substantially the same for the party serving the
interrogatory as for the party served, it is a sufficient answer to the
interrogatory to specify the records from which the answer may be
derived or ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit, or inspect such
records and to make copies, compilations, abstracts, or summaries.
16 CFR 1025.33 Production of documents and things.
(a) Scope. Any party may serve upon any other party a request (1) to
produce and permit the party making the request, or someone acting on
behalf of that party, to inspect and copy any designated documents
(including writings, drawings, graphs, charts, photographs,
phono-records, and any other data compilation from which information can
be obtained, translated, if necessary, by the party in possession
through detection devices into reasonably usable form), or to inspect
and copy, test, or sample any tangible things which constitute or
contain matters within the scope of 1025.31(c) and which are in the
possession, custody, or control of the party upon whom the request is
served, or (2) to permit entry upon designated land or other property in
the possession or control of the party upon whom the request is served
for the purpose of inspection (including photographing), or sampling any
designated object or operation within the scope of 1025.31(c).
(b) Procedure for request. The request may be served at any time
after the filing of an answer without leave of the Presiding Officer.
The request shall set forth the items to be inspected, either by
individual item or by category, and shall describe each item or category
with reasonable particularity. The request shall specify a reasonable
time, place, and manner for making the inspection and performing the
related acts.
(c) Procedure for response. The party upon whom the request is
served shall respond in writing within thirty (30) days after service of
the request. The Presiding Officer may allow a shorter or longer time
for response. The response shall state, with respect to each item or
category requested, that inspection and related activities will be
permitted as requested, unless the request is objected to, in which
event the reasons for objection shall be stated. If objection is made
to only part of an item or category, that part shall be specified. The
party submitting the request may move for an order under 1025.36 with
respect to any objection to or other failure to respond to the request
or any part thereof, or to any failure to permit inspection as
requested.
(d) Persons not parties. This section does not preclude an
independent action against a person not a party for production of
documents and things.
16 CFR 1025.34 Requests for admission.
(a) Procedure for request. A party may serve upon any other party a
written request for the admission, for the purposes of the pending
proceedings only, of the truth of any matters within the scope of
1025.31(c) set forth in the request that relate to statements of fact or
of the application of law to fact, including the genuineness of any
documents described in the request. Copies of documents shall be served
with the request unless they have been or are otherwise furnished or
made available for inspection and copying. The request may, without
leave of the Presiding Officer, be served upon any party after filing of
the answer. Each matter about which an admission is requested shall be
separately set forth.
(b) Procedure for response. The matter about which an admission is
requested will be deemed admitted unless within thirty (30) days after
service of the request, or within such shorter or longer time as the
Presiding Officer may allow, the party to whom the request is directed
serves upon the party requesting the admission a written answer or
objection addressed to the matter, signed by the party or the party's
representative and stating the reasons for the objections. The answer
shall specifically admit or deny the matter or set forth in detail the
reasons why the answering party cannot truthfully admit or deny the
matter. A denial shall fairly meet the substance of the requested
admission. When good faith requires that a party qualify an answer or
deny only a part of the matter to which an admission is requested, the
party shall specify the portion that is true and qualify or deny the
remainder. An answering party may not give lack of information or
knowledge as a reason for failure to admit or deny a fact unless the
party states that he/she has made reasonable inquiry and that the
information known or readily available to him/her is insufficient to
enable him/her to admit or deny a fact. A party who considers that a
matter to which an admission has been requested presents a genuine issue
for hearing may not, on that ground alone, object to the request but may
deny the matter or set forth reasons why the party cannot admit or deny
it. The party who has requested an admission may move to determine the
sufficiency of any answer or objection in accordance with 1025.36 of
these Rules. If the Presiding Officer determines that an answer does
not comply with the requirements of this section, he/she may order that
the matter be deemed admitted or that an amended answer be served.
(c) Effect of admission. Any matter admitted under this section is
conclusively established unless the Presiding Officer on motion permits
withdrawal or amendment of such admission. The Presiding Officer may
permit withdrawal or amendment when the presentation of the merits of
the action will be served thereby and the party who obtained the
admission fails to satisfy the Presiding Officer that withdrawal or
amendment will prejudice that party in maintaining an action or defense
on the merits. Any admission made by a party under this section is for
the purposes of the pending adjudication only and is not an admission by
that party for any other purposes, nor may it be used against that party
in any other proceedings.
16 CFR 1025.35 Depositions upon oral examination.
(a) When depositions may be taken. At any time after the first
prehearing conference, upon leave of the Presiding Officer and under
such terms and conditions as the Presiding Officer may prescribe, any
party may take the deposition of any other party, including the agents,
employees, consultants, or prospective witnesses of that party at a
place convenient to the deponent. The attendance of witnesses and the
production of documents and things at the deposition may be compelled by
subpoena as provided in 1025.38 of these rules.
(b) Notice of deposition -- (1) Deposition of a party. A party
desiring to take a deposition of another party to the proceedings shall,
after obtaining leave from the Presiding Officer, serve written notice
of the deposition on all other parties and the Presiding Officer at
least ten (10) days before the date noticed for the deposition. The
notice shall state (i) the time and place for the taking of the
deposition; (ii) the name and address of each person to be deposed, if
known, or if the name is not known, a general description sufficient to
identify him/her; and (iii) the subject matter of the expected
testimony. If a subpoena duces tecum is to be served on the person to
be deposed, the designation of the materials to be produced, as set
forth in the subpoena, shall be attached to or included in the notice of
deposition.
(2) Deposition of a non-party. A party desiring to take a deposition
of a person who is not a party to the proceedings shall make application
for the issuance of a subpoena, in accordance with 1025.38 of these
rules, to compel the attendance, testimony, and/or production of
documents by such non-party. The paty desiring such deposition shall
serve written notice of the deposition on all other parties to the
proceedings, after issuance of the subpoena. The date specified in the
subpoena for the deposition shall be at least twenty (20) days after the
date on which the application for the subpoena is made to the Presiding
Officer.
(3) Opposition to notice. A person served with a notice of
deposition may oppose, in writing, the taking of the deposition within
five (5) days of service of the notice. The Presiding Officer shall
rule on the notice and any opposition and may order the taking of all
noticed depositions upon a showing of good cause. The Presiding Officer
may, for good cause shown, enlarge or shorten the time for the taking of
a deposition.
(c) Persons before whom depositions may be taken. Depositions may be
taken before any person who is authorized to administer oaths by the
laws of the United States or of the place where the examination is held.
No deposition shall be taken before a person who is a relative,
employee, attorney, or representative of any party, or who is a relative
or employee of such attorney or representative, or who is financially
interested in the action.
(d) Taking of deposition -- (1) Examination. Each deponent shall
testify under oath, and all testimony shall be recorded. All parties or
their representatives may be present and participate in the examination.
Evidence objected to shall be taken subject to any objection.
Objections shall include the grounds relied upon. The questions and
answers, together with all objections made, shall be recorded by the
official reporter before whom the deposition is taken. The original or
a verified copy of all documents and things produced for inspection
during the examination of the deponent shall, upon a request of any
party present, be marked for identification and made a part of the
record of the deposition.
(2) Motion to terminate or limit examination. At any time during the
deposition, upon motion of any party or of the deponent, and upon a
showing that the examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass or oppress the deponent or
party, the Presiding Officer may order the party conducting the
examination to stop the deposition or may limit the scope and manner of
taking the deposition as provided in 1025.31(d) of these rules.
(3) Participation by parties not present. In lieu of attending a
deposition, any party may serve written questions in a sealed envelope
on the party conducting the deposition. That party shall transmit the
envelope to the official reporter, who shall unseal it and read the
questions to the deponent.
(e) Transcription and filing of depositions -- (1) Transcription.
Upon request by any party, the testimony recorded at a deposition shall
be transcribed. When the testimony is fully transcribed, the deposition
shall be submitted to the deponent for examination and signature and
shall be read to or by the deponent, unless such examination and
signature are waived by the deponent. Any change in form or substance
which the deponent desires to make shall be entered upon the deposition
by the official reporter with a statement of the reasons given by the
deponent for making them. The deposition shall then be signed by the
deponent, unless the deponent waives signature or is ill or cannot be
found or refuses to sign. If the deposition is not signed by the
deponent within thirty (30) days of its submission to him/her, the
official reporter shall sign the deposition and state on the record the
fact of the waiver of signature or of the illness or absence of the
deponent or of the refusal to sign, together with a statement of the
reasons therefor. The deposition may then be used as fully as though
signed, in accordance with paragraph (i) of this section.
(2) Certification and filing. The official reporter shall certify on
the deposition that it was taken under oath and that the deposition is a
true record of the testimony given and corrections made by the deponent.
The official reporter shall then seal the deposition in an envelope
endorsed with the title and docket number of the action and marked
''Deposition of (name of deponent)'' and shall promptly file the
deposition with the Secretary. The Secretary shall notify all parties
of the filing of the deposition and shall furnish a copy of the
deposition to any party or to the deponent upon payment of reasonable
charges.
(f) Costs of deposition. The party who notices the deposition shall
pay for the deposition. The party who requests transcription of the
deposition shall pay for the transcription.
(g) Failure to attend or to serve subpoena; expenses. If a party who
notices a deposition fails to attend or conduct the deposition, and
another party attends in person or by a representative pursuant to the
notice, the Presiding Officer may order the party who gave the notice to
pay to the attending party the reasonable expenses incurred. If a party
who notices a deposition fails to serve a subpoena upon the deponent and
as a result the deponent does not attend, and if another party attends
in person or by a representative because that party expects the
deposition to be taken, the Presiding Officer may order the party who
gave notice to pay to the attending party the reasonable expenses
incurred.
(h) Deposition to preserve testimony -- (1) When available. By leave
of the Presiding Officer, a party may take the deposition of his/her own
witness for the purpose of perpetuating the testimony of that witness.
A party who wishes to conduct such a deposition shall obtain prior leave
of the Presiding Officer by filing a motion. The motion shall include a
showing of substantial reason to believe that the testimony could not be
presented at the hearing. If the Presiding Officer is satisfied that
the perpetuation of the testimony may prevent a failure of justice or is
otherwise reasonably necessary, he/she shall order that the deposition
be taken.
(2) Procedure. Notice of a deposition to preserve testimony shall be
served at least fifteen (15) days prior to the deposition unless the
Presiding Officer authorizes less notice when warranted by extraordinary
circumstances. The deposition shall be taken in accordance with the
provisions of paragraph (d) of this section. Any deposition taken to
preserve testimony shall be transcribed and filed in accordance with
paragraph (e) of this section.
(i) Use of depositions. At the hearing or upon a petition for
interlocutory appeal, any part or all of a deposition may be used
against any party who was present or represented at the deposition or
who had reasonable notice of the deposition, in accordance with any of
the following:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of anyone who at the time of the taking of the
deposition was an officer, director, managing agent, or person otherwise
designated to testify on behalf of a public or private corporation,
partnership or unincorporated association or governmental entity which
is a party to the proceedings, may be used by any adverse party for any
purpose.
(3) The deposition of a witness may be used by any party for any
purpose if the Presiding Officer finds: (i) That the witness is dead;
or (ii) that the witness is out of the United States, unless it appears
that the absence of the witness was procured by the party offering the
deposition; or (iii) that the witness is unable to attend or testify
because of age, illness, infirmity, or imprisonment; or (iv) that the
party offering the depostion has been unable to procure the attendance
of the witness by subpoena; or (v) that such exceptional circumstances
exist as to make it desirable, in the interest of justice and with due
regard for the importance of presenting the testimony of witnesses
orally during the hearing, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party,
any other party may move to introduce any other part of the deposition.
16 CFR 1025.36 Motions to compel discovery.
If a party fails to respond to discovery, in whole or in part, the
party seeking discovery may move within twenty (20) days for an order
compelling an answer, or compelling inspection or production of
documents, or otherwise compelling discovery. For purposes of this
section, an evasive or incomplete response is to be treated as a failure
to respond. When taking depositions, the discovering party shall
continue the examination to the extent possible with respect to other
areas of inquiry before moving to compel discovery.
16 CFR 1025.37 Sanctions for failure to comply with discovery orders.
If a party fails to obey an order to provide or permit discovery, the
Presiding Officer may take such action as is just, including but not
limited to the following:
(a) Infer that the admission, testimony, document or other evidence
would have been adverse to the party;
(b) Order that for the purposes of the proceedings, the matters
regarding which the order was made or any other designated facts shall
be taken to be established in accordance with the claim of the party
obtaining the order;
(c) Order that the party withholding discovery not introduce into
evidence or otherwise rely, in support of any claim or defense, upon the
documents or other evidence withheld;
(d) Order that the party withholding discovery not introduce into
evidence, or otherwise use at the hearing, information obtained in
discovery;
(e) Order that the party withholding discovery forfeit its right to
object to introduction and use of secondary evidence to show what the
withheld admission, testimony, documents, or other evidence would have
shown;
(f) Order that a pleading, or part of a pleading, or a motion or
other submission by the party, concerning which the order was issued, be
stricken, or that decision on the pleadings be rendered against the
party, or both; and
(g) Exclude the party or representative from the proceedings, in
accordance with 1025.42(b) of these rules.
Any such action may be taken by order at any point in the
proceedings.
16 CFR 1025.38 Subpoenas.
(a) Availability. A subpoena shall be addressed to any person not a
pary for the purpose of compelling attendance, testimony, and production
of documents at a hearing or deposition, and may be addressed to any
party for the same purposes.
(b) Form. A subpoena shall identify the action with which it is
connected; shall specify the person to whom it is addressed and the
date, time, and place for compliance with its provisions; and shall be
issued by order of the Commission and signed by the Secretary or by the
Presiding Officer. A subpoena duces tecum shall specify the books,
papers, documents, or other materials or data-compilations to be
produced.
(c) How obtained -- (1) Content of application. An application for
the issuance of a subpoena, stating reasons, shall be submitted in
triplicate to the Presiding Officer. The Presiding Officer shall bring
the application to the attention of the Commission by forwarding it or
by communicating its contents by any other means, e.g., by telephone, to
the Commission.
(2) Procedure for application. The original and two copies of the
subpoena, marked ''original,'' ''duplicate'' and ''triplicate,'' shall
accompany the application. The Commission shall rule upon an
application for a subpoena ex parte, by issuing the subpoena or by
issuing an order denying the application.
(d) Issuance of a subpoena. The Commission shall issue a subpoena by
authorizing the Secretary or the Presiding Officer to sign and date each
copy in the lower right-hand corner. The ''duplicate'' and
''triplicate'' copies of the subpoena shall be transmitted to the
applicant for service in accordance with these Rules; the ''original''
shall be retained by, or be forwarded to, the Secretary for retention in
the docket of the proceedings.
(e) Service of a subpoena. A subpoena may be served in person or by
registered or certified mail, return receipt requested, as provided in
1025.16(b) of these rules. Service shall be made by delivery of the
signed ''duplicate'' copy to the person named therein.
(f) Return of service. A person serving a subpoena shall promptly
execute a return of service, stating the date, time, and manner of
service. If service is effected by mail, the signed return receipt
shall accompany the return of service. In case of failure to make
service, a statement of the reasons for the failure shall be made. The
''triplicate'' copy of the subpoena, bearing or accompanied by the
return of service, shall be returned without delay to the Secretary
after service has been completed.
(g) Motion to quash or limit subpoena. Within five (5) days of
receipt of a subpoena, the person to whom it is directed may file a
motion to quash or limit the subpoena, setting forth the reasons why the
subpoena should be withdrawn or why it should be limited in scope. Any
such motion shall be answered within five (5) days of service and shall
be ruled on immediately. The order shall specify the date, if any, for
compliance with the specifications of the subpoena.
(h) Consequences of failure to comply. In the event of failure by a
person to comply with a subpoena, the Presiding Officer may take any of
the actions enumerated in 1025.37 of these rules, or may order any
other appropriate relief to compensate for the withheld testimony,
documents, or other materials. If in the opinion of the Presiding
Officer such relief is insufficient, the Presiding Officer shall certify
to the Commission a request for judicial enforcement of the subpoena.
16 CFR 1025.39 Orders requiring witnesses to testify or provide other
information and granting immunity.
(a) Applicability to Flammable Fabrics Act only. This section
applies only to proceedings arising under the Flammable Fabrics Act.
(b) Procedure. A party who desires the issuance of an order
requiring a witness or deponent to testify or provide other information
upon being granted immunity from prosecution under title 18, United
States Code, section 6002, may make a motion to that effect. The motion
shall be made and ruled on in accordance with 1025.23 of these rules
and shall include a showing:
(1) That the testimony or other information sought from a witness or
deponent, or prospective witness or deponent, may be necessary to the
public interest; and
(2) That such individual has refused or is likely to refuse to
testify or provide such information on the basis of that individual's
privilege against self-incrimination.
(c) Approval of the Attorney General. If the Presiding Officer
determines that the witness' testimony appears necessary and that the
privilege against self-incrimination may be invoked, he/she may certify
to the Commission a request that it obtain the approval of the Attorney
General of the United States for the issuance of an order granting
immunity.
(d) Issuance of order granting immunity. Upon application to and
approval by the Attorney General of the United States, and after the
witness has invoked the privilege against self-incrimination, the
Presiding Officer shall issue the order granting immunity unless he/she
determines that the privilege was improperly invoked.
(e) Sanctions for failure to testify. Failure of a witness to
testify after a grant of immunity or after a denial of a motion for the
issuance of an order granting immunity shall result in the imposition of
appropriate sanctions as provided in 1025.37 of these rules.
16 CFR 1025.39 Subpart E -- Hearings
16 CFR 1025.41 General rules.
(a) Public hearings. All hearings conducted pursuant to these Rules
shall be public unless otherwise ordered by the Commission or the
Presiding Officer.
(b) Prompt completion. Hearings shall proceed with all reasonable
speed and, insofar as practicable and with due regard to the convenience
of the parties, shall continue without suspension until concluded,
except in unusual circumstances or as otherwise provided in these Rules.
(c) Rights of parties. Every party shall have the right of timely
notice and all other rights essential to a fair hearing, including, but
not limited to, the rights to present evidence, to conduct such
cross-examination as may be necessary for a full and complete disclosure
of the facts, and to be heard by objection, motion, brief, and argument.
(d) Rights of participants. Every participant shall have the right
to make a written or oral statement of position and to file proposed
findings of fact, conclusions of law, and a post hearing brief, in
accordance with 1025.17(b) of these Rules.
(e) Rights of witnesses. Any person compelled to testify in any
proceedings in response to a subpoena may be accompanied, represented,
and advised by legal counsel or other representative, and may purchase a
transcript of his/her testimony.
16 CFR 1025.42 Powers and duties of Presiding Officer.
(a) General. A Presiding Officer shall have the duty to conduct
full, fair, and impartial hearings, to take appropriate action to avoid
unnecessary delay in the disposition of proceedings, and to maintain
order. He/she shall have all powers necessary to that end, including
the following powers:
(1) To administer oaths and affirmations;
(2) To compel discovery and to impose appropriate sanctions for
failure to make discovery;
(3) To rule upon offers of proof and receive relevant, competent, and
probative evidence;
(4) To regulate the course of the proceedings and the conduct of the
parties and their representatives;
(5) To hold conferences for simplification of the issues, settlement
of the proceedings, or any other proper purposes;
(6) To consider and rule, orally or in writing, upon all procedural
and other motions appropriate in adjudicative proceedings;
(7) To issue Summary Decisions, Initial Decisions, Recommended
Decisions, rulings, and orders, as appropriate;
(8) To certify questions to the Commission for its determination;
and
(9) To take any action authorized by these Rules or the provisions of
title 5, United States Code, 551-559.
(b) Exclusion of parties by Presiding Officer. A Presiding Officer
shall have the authority, for good cause stated on the record, to
exclude from participation in any proceedings any party, participant, or
representative who violates the requirements of 1025.66 of these rules.
Any party, participant or representative so excluded may appeal to the
Commission in accordance with the provisions of 1025.24 of these rules.
If the representative of a party or participant is excluded, the
hearing may be suspended for a reasonable time so that the party or
participant may obtain another representative.
(c) Substitution of Presiding Officer. In the event of the
substitution of a new Presiding Officer for the one originally
designated, any motion predicated upon such substitution shall be made
within five (5) days.
(d) Interference. In the performance of adjudicative functions, a
Presiding Officer shall not be responsible to or subject to the
supervision or direction of any Commissioner or of any officer,
employee, or agent engaged in the performance of investigative or
prosecuting functions for the Commission. All directions by the
Commission to a Presiding Officer concerning any adjudicative
proceedings shall appear on and be made a part of the record.
(e) Disqualification of Presiding Officer. (1) When a Presiding
Officer considers himself/herself disqualified to preside in any
adjudicative proceedings, he/she shall withdraw by notice on the record
and shall notify the Chief Administrative Law Judge and the Secretary of
such withdrawal.
(2) Whenever, for good and reasonable cause, any party considers the
Presiding Officer to be disqualified to preside, or to continue to
preside, in any adjudicative proceedings, that party may file with the
Secretary a motion to disqualify and remove, supported by affidavit(s)
setting forth the alleged grounds for disqualification. A copy of the
motion and supporting affidavit(s) shall be served by the Secretary on
the Presiding Officer whose removal is sought. The Presiding Officer
shall have ten (10) days to respond in writing to such motion. However,
the motion shall not stay the proceedings unless otherwise ordered by
the Presiding Officer or the Commission. If the Presiding Officer does
not disqualify himself/herself, the Commission shall determine the
validity of the grounds alleged, either directly or on the report of
another Presiding Officer appointed to conduct a hearing for that
purpose and, in the event of disqualification, shall take appropriate
action by assigning another Presiding Officer or requesting loan of
another Administrative Law Judge through the U.S. Office of Personnel
Management.
16 CFR 1025.43 Evidence.
(a) Applicability of Federal Rules of Evidence. Unless otherwise
provided by statute or these rules, the Federal Rules of Evidence shall
apply to all proceedings held pursuant to these Rules. However, the
Federal Rules of Evidence may be relaxed by the Presiding Officer if the
ends of justice will be better served by so doing.
(b) Burden of proof. (1) Complaint counsel shall have the burden of
sustaining the allegations of any complaint.
(2) Any party who is the proponent of a legal or factual proposition
shall have the burden of sustaining that proposition.
(c) Admissibility. All relevant and reliable evidence is admissible,
but may be excluded by the Presiding Officer if its probative value is
substantially outweighed by unfair prejudice or confusion of the issues,
or by considerations of undue delay, waste of time, immateriality, or
needless presentation of cumulative evidence.
(d) Official notice -- (1) Definition. Official notice means use by
the Presiding Officer or the Commission of facts not appearing on the
record and legal conclusions drawn from those facts. An officially
noticed fact or legal conclusion must be one not subject to reasonable
dispute in that it is either: (i) Generally known within the
jurisdiction of the Commission or (ii) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.
(2) Method of taking official notice. The Presiding Officer and/or
the Commission may at any time take official notice upon motion of any
party or upon its own initiative. The record shall reflect the facts
and conclusions which have been officially noticed.
(f) Offer of proof. When an objection to proffered testimony or
documentary evidence is sustained, the sponsoring party may make a
specific offer, either in writing or orally, of what the party expects
to prove by the testimony or the document. When an offer of proof is
made, any other party may make a specific offer, either in writing or
orally, of what the party expects to present to rebut or contradict the
offer of proof. Written offers of proof or of rebuttal, adequately
marked for identification, shall accompany the record and be available
for consideration by any reviewing authority.
16 CFR 1025.44 Expert witnesses.
(a) Definition. An expert witness is one who, by reason of
education, training, experience, or profession, has peculiar knowledge
concerning the subject matter to which his/her testimony relates and
from which he/she may draw inferences based upon hypothetically stated
facts or offer opinions from facts involving scientific or technical
knowledge.
(b) Method of presenting testimony of expert witness. Except as may
otherwise be ordered by the Presiding Officer, the direct testimony of
an expert witness shall be in writing and shall be filed on the record
and exchanged between the parties no later than ten (10) days preceding
the commencement of the hearing. The written testimony of an expert
witness shall be incorporated into the record and shall constitute the
direct testimony of that witness. Upon a showing of good cause, the
party sponsoring the expert witness may be permitted to amplify the
written direct testimony during the hearing.
(c) Cross-examination and redirect examination of expert witness.
Cross-examination, redirect examination, and re-cross-examination of an
expert witness shall proceed in due course based upon the written
testimony and any amplifying oral testimony.
(d) Failure to file or exchange written testimony. Failure to file
or exchange written testimony of expert witnesses as provided in this
section shall deprive the sponsoring party of the use of the expert
witness and of the conclusions which that witness would have presented,
unless the opposing parties consent or the Presiding Officer otherwise
orders in unusual circumstances.
16 CFR 1025.45 In camera materials.
(a) Definition. In camera materials are documents, testimony, or
other data which by order of the Presiding Officer or the Commission are
kept confidential and excluded from the public record.
(b) In camera treatment of documents and testimony. The Presiding
Officer or the Commission shall have authority, when good cause is found
on the record, to order documents or testimony offered in evidence,
whether admitted or rejected, to be received and preserve in camera.
The order shall specify the length of time for in camera treatment and
shall include:
(1) A description of the documents or testimony;
(2) The reasons for granting in camera treatment for the specified
length of time; and
(3) The terms and conditions imposed by the Presiding Official, if
any, limiting access to or use of the in camera material.
(c) Access and disclosure to parties. (1) Commissioners and their
staffs, Presiding Officers and their staffs, and Commission staff
members concerned with judicial review shall have complete access to in
camera materials. Any party to the proceedings may seek access only in
accordance with paragraph (c)(2) of this section.
(2) Any party desiring access to, or disclosure of, in camera
materials for the preparation and presentation of that party's case
shall make a motion which sets forth its justification. The Presiding
Officer or the Commission may grant such motion for good cause shown and
shall enter a protective order prohibiting unnecessary disclosure and
requiring any other necessary safeguards. The Presiding Officer or the
Commission may examine the in camera materials and excise any portions
prior to disclosure of the materials to the moving party.
(d) Segregation of in camera materials. In camera materials shall be
segregated from the public record and protected from public view.
(e) Public release of in camera materials. In camera materials
constitute a part of the confidential records of the Commission and
shall not be released to the public until the expiration of in camera
treatment.
(f) Reference to in camera materials. In the submission of proposed
findings, conclusions, briefs, or other documents, all parties shall
refrain from disclosing specific details of in camera materials.
However, such refraining shall not preclude general references to such
materials. To the extent that parties consider necessary the inclusion
of specific details of in camera materials, those references shall be
incorporated into separate proposed findings, conclusions, briefs, or
other documents marked ''Confidential, Contains In Camera Material,''
which shall be placed in camera and become part of the in camera record.
Those documents shall be served only on parties accorded access to the
in camera materials by these rules, the Presiding Officer, or the
Commission.
16 CFR 1025.46 Proposed findings, conclusions, and order.
Within a reasonable time after the closing of the record and receipt
of the transcript, all parties and participants may file, simultaneously
unless otherwise directed by the Presiding Officer, post-hearing briefs,
including proposed findings of fact and conclusions of law, as well as a
proposed order. The Presiding Officer shall establish a date certain
for the filing of the briefs, which shall not exceed fifty (50) days
after the closing of the record except in unusual circumstances. The
briefs shall be in writing and shall be served upon all parties. The
briefs of all parties shall contain adequate references to the record
and authorities relied upon. Replies shall be filed within fifteen (15)
days of the date for the filing of briefs unless otherwise established
by the Presiding Officer. The parties and participants may waive either
or both submissions.
16 CFR 1025.47 Record.
(a) Reporting and transcription. Hearings shall be recorded and
transcribed by the official reporter of the Commission under the
supervision of the Presiding Officer. The original transcript shall be
a part of the record of proceedings. Copies of transcripts are
available from the reporter at a cost not to exceed the maximum rates
fixed by contract between the Commission and the reporter. In
accordance with Section 11 of the Federal Advisory Committee Act (Pub.
L. 92-463, 5 U.S.C. Appendix I), copies of transcripts may be made by
members of the public or by Commission personnel, when available, at the
Office of the Secretary at reproduction costs as provided in 1025.49.
(b) Corrections. Corrections of the official transcript may be made
only when they involve errors affecting substance and then only in the
manner described in this section. The Presiding Officer may order
corrections, either on his/her own motion or on motion of any party.
The Presiding Officer shall determine the corrections to be made and
shall so order. Corrections shall be interlineated or otherwise
inserted in the official transcript so as not to obliterate the original
text.
16 CFR 1025.48 Official docket.
The official docket in any adjudicatory proceedings shall be
maintained in the Office of the Secretary and be available for public
inspection during normal business hours of the Commission.
16 CFR 1025.49 Fees.
(a) Fees for dDeponents and witnesses. Any person compelled to
appear in person in response to a subpoena or notice of deposition shall
be paid the same attendance and mileage fees as are paid witnesses in
the courts of the United States, in accordance with title 28, United
States Code, section 1821. The fees and mileage referred to in this
paragraph shall be paid by the party at whose instance deponents or
witnesses appear.
(b) Fees for production of records. Fees charged for production or
disclosure of records contained in the official docket shall be in
accordance with the Commission's ''Procedures for Disclosures or
Production of Information Under the Freedom of Information Act,'' title
16, Code of Federal Regulations, 1015.9.
16 CFR 1025.49 Subpart F -- Decision
16 CFR 1025.51 Initial decision.
(a) When filed. The Presiding Officer shall endeavor to file an
Initial Decision with the Commission within sixty (60) days after the
closing of the record or the filing of post-hearing briefs, whichever is
later.
(b) Content. The Initial Decision shall be based upon a
consideration of the entire record and shall be supported by reliable,
probative, and substantial evidence. The Initial Decision shall
include:
(1) Findings and conclusions, as well as the reasons or bases for
such findings and conclusions, upon the material questions of fact,
material issues of law, or discretion presented on the record, and
should, where practicable, be accompanied by specific page citations to
the record and to legal and other materials relied upon; and
(2) An appropriate order.
(c) By whom made. The Initial Decision shall be made and filed by
the Presiding Officer who presided over the hearing, unless otherwise
ordered by the Commission.
(d) Reopening of proceedings by Presiding Officer; termination of
jurisdiction. (1) At any time prior to, or concomitant with, the filing
of the Initial Decision, the Presiding Officer may reopen the
proceedings for the reception of further evidence.
(2) Except for the correction of clerical errors, or where the
proceeding is reopened by an order under paragraph (d)(1) of this
section, the jurisdiction of the Presiding Officer is terminated upon
the filing of the Initial Decision, unless and until such time as the
matter may be remanded to the Presiding Officer by the Commission.
16 CFR 1025.52 Adoption of initial decision.
The Initial Decision and Order shall become the Final Decision and
Order of the Commission forty (40) days after issuance unless an appeal
is noted and perfected or unless review is ordered by the Commission.
Upon the expiration of the fortieth day, the Secretary shall prepare,
sign, and enter an order adopting the Initial Decision and Order, unless
otherwise directed by the Commission.
16 CFR 1025.53 Appeal from initial decision.
(a) Who may file notice of intention. Any party may appeal an
Initial Decision to the Commission, provided that within ten (10) days
after issuance of the Initial Decision such party files and serves a
notice of intention to appeal.
(b) Appeal brief. An appeal is perfected by filing a brief within
forty (40) days after service of the Initial Decision. The appeal brief
must be served upon all parties. The appeal brief shall contain, in the
order indicated, the following:
(1) A subject index of the matters in the brief, with page
references, and a table of cases (alphabetically arranged), textbooks,
statutes, and other material cited, with page references thereto;
(2) A concise statement of the case;
(3) A statement containing the reasons why the party believes the
Initial Decision is incorrect;
(4) The argument, presenting clearly the points of fact and law
relied upon to support each reason why the Initial Decision is
incorrect, with specific page references to the record and the legal or
other material relied upon; and
(5) A proposed form of order for the Commission's consideration in
lieu of the order contained in the Initial Decision.
(c) Answering brief. Within thirty (30) days after service of the
appeal brief upon all parties, any party may file an answering brief
which shall contain a subject index, with page references, and a table
of cases (alphabetically arranged), textbooks, statutes, and other
material cited, with page references thereto. Such brief shall present
clearly the points of fact and law relied upon in support of the reasons
the party has for each position urged, with specific page references to
the record and legal or other materials relied upon.
(d) Participant's brief. Within thirty (30) days after service of
the appeal brief upon all parties, any participant may file a brief on
appeal, presenting clearly the position urged.
(e) Cross appeal. If a timely notice of appeal is filed by a party,
any other party may file a notice of cross appeal within ten (10) days
of the date on which the first notice of appeal was filed. Cross
appeals shall be included in the answering brief and shall conform to
the requirements for form, content, and filing specified in paragraph
(b) of this section for an appeal brief. If an appeal is noticed but
not perfected, no cross appeal shall be permitted and the notice of
cross appeal shall be deemed void.
(f) Reply brief. A reply brief shall be limited to rebuttal of
matters presented in answering briefs, including matters raised in
cross-appeals. A reply brief shall be filed and served within fourteen
(14) days after service of an answering brief, or on the day preceding
the oral argument, whichever comes first.
(g) Oral argument. The purpose of an oral argument is to emphasize
and clarify the issues. The Commission may order oral argument upon
request of any party or upon its own initiative. A transcript of oral
arguments shall be prepared. A Commissioner absent from an oral
argument may participate in the consideration of and decision on the
appeal.
16 CFR 1025.54 Review of initial decision in absence of appeal.
The Commission may, by order, review a case not otherwise appealed by
a party. Should the Commission so order, the parties shall, and
participants may, file briefs in accordance with 1025.53, except that
the Commission may, in its discretion, establish a different briefing
schedule in its order. The Commission shall issue its order within
forty (40) days after issuance of the Initial Decision. The order shall
set forth the issues which the Commission will review and may make
provision for the filing of briefs. If the filing of briefs is
scheduled by the Commission, the order shall designate which party or
parties shall file the initial brief and which party or parties may
thereafter file an answering brief, or the order may designate the
simultaneous filing of briefs by the parties.
16 CFR 1025.55 Final decision on appeal or review.
(a) Consideration of record. Upon appeal from or review of an
Initial Decision, the Commission shall consider the record as a whole or
such parts of the record as are cited or as may be necessary to resolve
the issues presented and, in addition, shall, to the extent necessary or
desirable, exercise all the powers which it could have exercised if it
had made the Initial Decision.
(b) Rendering of final decision. In rendering its decision, the
Commission shall adopt, modify, or set aside the findings, conclusions,
and order contained in the Initial Decision, and shall include in its
Final Decision a statement of the reasons for its action and any
concurring or dissenting opinions. The Commission shall issue an order
reflecting its Final Decision.
(c) Except as otherwise ordered by the Commission, the Commission
shall endeavor to file its Decision within ninety (90) days after the
filing of all briefs or after receipt of transcript of the oral
argument, whichever is later.
16 CFR 1025.56 Reconsideration.
Within twenty (20) days after issuance of a Final Decision and Order
by the Commission, any party may file a petition for reconsideration of
such decision or order, setting forth the relief desired and the grounds
in support of the petition. Any petition filed under this section must
be confined to new questions raised by the decision or order upon which
the petitioner had no previous opportunity to argue. Any party desiring
to oppose such a petition shall file an opposition to the petition
within ten (10) days after sevice of the petition. The filing of a
petition for reconsideration shall not stay the effective date of the
Final Decision and Order or toll the running of any statutory time
period affecting the Decision or Order unless specifically ordered by
the Commission.
16 CFR 1025.57 Effective date of order.
(a) Orders in proceedings arising under the Consumer Product Safety
Act. An order of the Commission in proceedings arising under the
Consumer Product Safety Act becomes effective upon receipt, unless
otherwise ordered by the Commission.
(b) Orders in proceedings arising under the Flammable Fabrics Act --
(1) Consent orders. An order in proceedings arising under the Flammable
Fabrics Act, which has been issued following the Commission's acceptance
of an offer of settlement in accordance with 1025.26 of these rules,
becomes effective upon receipt of notice of Commission acceptance,
unless otherwise ordered by the Commission.
(2) Litigated orders. All other orders in proceedings arising under
the Flammable Fabrics Act become effective upon the expiration of the
statutory period for court review specified in Section 5(c) of the
Federal Trade Commission Act, title 15, United States Code, section
45(c), or, if a petition for review has been filed, upon a court's
affirmance of the Commission's order.
(c) Consequences of failure to comply with effective order. A
respondent against whom an order has been issued who is not in
compliance with such order on or after the date the order becomes
effective is in violation of such order and is subject to an immediate
action for the civil or criminal penalties provided for in the
applicable statute.
16 CFR 1025.58 Reopening of proceedings.
(a) General. Any proceedings may be reopened by the Commission at
any time, either on its own initiative or upon petition of any party to
the proceedings.
(b) Exception. Proceedings arising under the Flammable Fabrics Act
shall not be reopened while pending in a United States court of appeals
on a petition for review after the transcript of the record has been
filed, or while pending in the Supreme Court of the United States.
(c) Commission-originated reopening -- (1) Before effective date of
order. At any time before the effective date of a Commission order, the
Commission may, upon its own initiative and without prior notice to the
parties, reopen any proceedings and enter a new decision or order to
modify or set aside, in whole or in part, the decision or order
previously issued.
(2) After effective date of order. Whenever the Commission is of the
opinion that changed conditions of fact or law or the public interest
may require that a Commission decision or order be altered, modified, or
set aside in whole or in part, the Commission shall serve upon all
parties to the original proceedings an order to show cause, stating the
changes the Commission proposes to make in the decision or order and the
reasons such changes are deemed necessary. Within thirty (30) days
after service of an order to show cause, any party to the original
proceedings, may file a response. Any party not responding to the order
to show cause within the time allowed shall be considered to have
consented to the proposed changes.
(d) Petition for reopening. Whenever any person subject to a final
order is of the opinion that changed conditions of fact or law require
that the decision or order be altered, modified, or set aside, or that
the public interest so requires, that person may petition the Commission
to reopen the proceedings. The petition shall state the changes desired
and the reasons those changes should be made, and shall include such
supporting evidence and argument as will, in the absence of any
opposition, provide the basis for a Commission decision on the petition.
The petition shall be served upon all parties to the original
proceedings. Within thirty (30) days after service of the petition,
Complaint Counsel shall file a response. Any other party to the
original proceedings also may file a response within that period.
(e) Hearings -- (1) Unopposed. Where an order to show cause or
petition to reopen is not opposed, or is opposed but the pleadings do
not raise issues of fact to be resolved, the Commission, in its
discretion, may decide the matter on the order to show cause or petition
and responses, or it may serve upon the parties a notice of hearing
containing the date when the matter will be heard. The proceedings
normally will be limited to the filing of briefs but may include oral
argument when deemed necessary by the Commission.
(2) Factual issues. When the pleadings raise substantial factual
issues, the Commission may direct such hearings as it deems appropriate.
Upon conclusion of the hearings, and after opportunity for the parties
to file post-hearing briefs containing proposed findings of fact and
conclusions of law, as well as a proposed order, the Presiding Officer
shall issue a Recommended Decision, including proposed findings and
conclusions, and the reasons, as well as a proposed Commission order.
If the Presiding Officer recommends that the Commission's original order
be reopened, the proposed order shall include appropriate provisions for
the alteration, modification or setting aside of the original order.
The record and the Presiding Officer's Recommended Decision shall be
certified to the Commission for final disposition of the matter.
(f) Commission disposition. Where the Commission has ordered a
hearing, upon receipt of the Presiding Officer's Recommended Decision,
the Commission shall make a decision and issue an order based on the
hearing record as a whole. If the Commission determines that changed
conditions of fact or law or the public interest requires, it shall
reopen the order previously issued; alter, modify, or set aside the
order's provisions in whole or in part; and issue an amended order
reflecting the alterations, modifications, or deletions. If the
Commission determines that the original order should not be reopened, it
shall issue an order affirming the original order. A decision stating
the reasons for the Commission's order shall accompany the order.
16 CFR 1025.58 Subpart G -- Appearances, Standards of Conduct
16 CFR 1025.61 Who may make appearances.
A party or participant may appear in person, or by a duly authorized
officer, partner, regular employee, or other agent of the party or
participant, or by counsel or other duly qualified representative, in
accordance with 1025.65.
16 CFR 1025.62 Authority for representation.
Any individual acting in a representative capacity in any
adjudicative proceedings may be required by the Presiding Officer or the
Commission to show his/her authority to act in such capacity. A regular
employee of a party who appears on behalf of the party may be required
by the Presiding Officer or the Commission to show his/her authority to
so appear.
16 CFR 1025.63 Written appearances.
(a) Filing. Any person who appears in any proceedings shall file a
written notice of appearance with the Secretary or deliver a written
notice of appearance to the Presiding Officer at the hearing, stating
for whom the appearance is made and the name, address, and telephone
number (including area code) of the person making the appearance and the
date of the commencement of the appearance. The written appearance
shall be made a part of the record.
(b) Withdrawal. Any person who has previously appeared in any
proceedings may withdraw his/her appearance by filing a written notice
of withdrawal of appearance with the Secretary. The notice of
withdrawal of appearance shall state the name, address, and telephone
number (including area code) of the person withdrawing the appearance,
for whom the appearance was made, and the effective date of the
withdrawal of the appearance. Such notice of withdrawal shall be filed
within five (5) days of the effective date of the withdrawal of the
appearance.
16 CFR 1025.64 Attorneys.
Any attorney at law who is admitted to practice before any United
States court or before the highest court of any State, the District of
Columbia, or any territory or commonwealth of the United States, may
practice before the Commission. An attorney's own representation that
he/she is in good standing before any of such courts shall be sufficient
proof thereof, unless otherwise directed by the Presiding Officer or the
Commission.
16 CFR 1025.65 Persons not attorneys.
(a) Filing and approval of proof of qualifications. Any person who
is not an attorney at law may be admitted to appear in any adjudicative
proceedings as a representative of any party or participant if that
person files proof to the satisfaction of the Presiding Officer that
he/she possesses the necessary knowledge of administrative procedures,
technical, or other qualifications to render valuable service in the
proceedings and is otherwise competent to advise and assist in the
presentation of matters in the proceedings. An application by a person
not an attorney at law for admission to appear in any proceedings shall
be submitted in writing to the Secretary, not later than thirty (30)
days prior to the hearing. The application shall set forth in detail
the applicant's qualifications to appear in the proceedings.
(b) Exception. Any person who is not an attorney at law and whose
application has not been approved shall not be permitted to appear in
Commission proceedings. However, this provision shall not apply to any
person who appears before the Commission on his/her own behalf or on
behalf of any corporation, partnership, or unincorporated association of
which the person is a partner or general officer.
16 CFR 1025.66 Qualifications and standards of conduct.
(a) Good faith transactions. The Commission expects all persons
appearing in proceedings before the Commission or the Presiding Officer
to act with integrity, with respect, and in an ethical manner. Business
transacted before and with the Commission or the Presiding Officer shall
be conducted in good faith.
(b) Exclusion of parties, participants, or their representatives. To
maintain orderly proceedings, the Commission or the Presiding Officer
may exclude parties, participants, or their representatives for refusal
to comply with directions, continued use of dilatory tactics, refusal to
adhere to reasonable standards of orderly and ethical conduct, failure
to act in good faith, or violation of the prohibition in 1025.68
against certain ex parte communications.
(c) Exclusions from the record. The Presiding Officer or the
Commission may disregard and order the exclusion from the record of any
written or oral submissions or representations which are not made in
good faith or which are unfair, incomplete, or inaccurate.
(d) Appeal by excluded party. An excluded party, participant, or
representative may petition the Commission to entertain an interlocutory
appeal in accordance with 1025.24 of these rules. If, after such
appeal, the representative of a party or participant is excluded, the
hearing shall, at the request of the party or participant, be suspended
for a reasonable time so that the party or participant may obtain
another representative.
16 CFR 1025.67 Restrictions as to former members and employees.
(a) Generally. Except as otherwise provided in paragraph (b) of this
section, the post-employee restrictions applicable to former Commission
members and employees, as set forth in the Commission's ''Post
Employment Restrictions Applicable to Former Commission Officers and
Employees'', 16 CFR part 1030, subpart L, shall govern the activities of
former Commission members and employees in matters connected with their
former duties and responsibilities.
(b) Participation as witness. A former member or employee of the
Commission may testify in any proceeding subject to these Rules
concerning his/her participation in any Commission activity. This
section does not constitute a waiver by the Commission of any objection
provided by law to testimony that would disclose privileged or
confidential material. The provisions of 18 U.S.C. 1905 prohibiting the
disclosure of trade secrets also applies to testimony by former members
and employees.
(c) Procedure for requesting authorization to appear. In cases to
which paragraph (a) of this section is applicable, a former member or
employee of the Commission may request authorization to appear or
participate in any proceedings or investigation by filing with the
Secretary a written application disclosing the following information:
(1) The nature and extent of the former member's or employee's
participation in, knowledge of, and connection with the proceedings or
investigation during his/her service with the Commission;
(2) Whether the files of the proceedings or investigation came to
his/her attention;
(3) Whether he/she was employed in the directorate, division, or
other organizational unit within the Commission in which the proceedings
or investigation is or has been pending;
(4) Whether he/she worked directly or in close association with
Commission personnel assigned to the proceedings or investigation and,
if so, with whom and in what capacity; and
(5) Whether during service with the Commission, he/she was engaged in
any matter concerning the person involved in the proceedings or
investigation.
(d) Denial of Request to Appear. The requested authorization shall
not be given in any case:
(1) Where it appears that the former member or employee, during
service with the Commission, participated personally and substantially
in the proceedings or investigation; or
(2) Where the Commission is not satisfied that the appearance or
participation will not involve any actual or apparent impropriety; or
(3) In any case which would result in a violation of title 18, United
States Code, section 207.
16 CFR 1025.68 Prohibited communications.
(a) Applicability. This section is applicable during the period
commencing with the date of issuance of a complaint and ending upon
final Commission action in the matter.
(b) Definitions -- (1) Decision-maker. Those Commission personnel
who render decisions in adjudicative proceedings under these rules, or
who advise officials who render such decisions, including:
(i) The Commissioners and their staffs;
(ii) The Administrative Law Judges and their staffs;
(iii) The General Counsel and his/her staff, unless otherwise
designated by the General Counsel.
(2) Ex parte communication. (i) Any written communication concerning
a matter in adjudication which is made to a decision-maker by any person
subject to these Rules, which is not served on all parties; or
(ii) Any oral communication concerning a matter in adjudication which
is made to a decision-maker by any person subject to these Rules,
without advance notice to all parties to the proceedings and opportunity
for them to be present.
(c) Prohibited ex parte communications. Any oral or written ex parte
communication relative to the merits of any proceedings under these
Rules is a prohibited ex parte communication, except as otherwise
provided in paragraph (d) of this section.
(d) Permissible ex parte communications. The following
communications shall not be prohibited under this section.
(1) Ex parte communications authorized by statute or by these rules.
(See, for example, 1025.38 which governs applications for the issuance
of subpoenas.)
(2) Any staff communication concerning judicial review or judicial
enforcement in any matter pending before or decided by the Commission.
(e) Procedures for handling prohibited ex parte communication -- (1)
Prohibited written ex parte communication. To the extent possible, a
prohibited written ex parte communication received by any Commission
employee shall be forwarded to the Secretary rather than to a
decision-maker. A prohibited written ex parte communication which
reaches a decision-maker shall be forwarded by the decision-maker to the
Secretary. If the circumstances in which a prohibited ex parte written
communication was made are not apparent from the communication itself, a
statement describing those circumstances shall be forwarded with the
communication.
(2) Prohibited oral ex parte communication. (i) If a prohibited oral
ex parte communication is made to a decision-maker, he/she shall advise
the person making the communication that the communication is prohibited
and shall terminate the discussion; and
(ii) In the event of a prohibited oral ex parte communication, the
decision-maker shall forward to the Secretary a signed and dated
statement containing such of the following information as is known to
him/her.
(A) The title and docket number of the proceedings;
(B) The name and address of the person making the communication and
his/her relationship (if any) to the parties and/or participants to the
proceedings;
(C) The date and time of the communication, its duration, and the
circumstances (e.g., telephone call, personal interview, etc.) under
which it was made;
(D) A brief statement of the substance of the matters discussed; and
(E) Whether the person making the communication persisted in doing so
after being advised that the communication was prohibited.
(3) Filing. All communications and statements forwarded to the
Secretary under this section shall be placed in a public file which
shall be associated with, but not made a part of, the record of the
proceedings to which the communication or statement pertains.
(4) Service on parties. The Secretary shall serve a copy of each
communication and statement forwarded under this section on all parties
to the proceedings. However, if the parties are numerous, or if other
circumstances satisfy the Secretary that service of the communication or
statement would be unduly burdensome, he/she, in lieu of service, may
notify all parties in writing that the communication or statement has
been made and filed and that it is available for insection and copying.
(5) Service on maker. The Secretary shall forward to the person who
made the prohibited ex parte communication a copy of each communication
or statement filed under this section.
(f) Effect of ex parte communications. No prohibited ex parte
communication shall be considered as part of the record for decision
unless introduced into evidence by a party to the proceedings.
(g) Sanctions. A person subject to these Rules who make, a
prohibited ex parte communication, or who encourages or solicits another
to make any such communication, may be subject to any appropriate
sanction or sanctions, including but not limited to, exclusion from the
proceedings and an adverse ruling on the issue which is the subject of
the prohibited communication.
16 CFR 1025.68 Subpart H -- Implementation of the Equal Access to
Justice Act in Adjudicative Proceedings With the Commission
Authority: Equal Access to Justice Act, Pub. L. 96-481, 94 Stat.
2325, 5 U.S.C. 504 and the Administrative Procedure Act, 5 U.S.C. 551 et
seq.
Source: 47 FR 25513, June 14, 1982, unless otherwise noted.
16 CFR 1025.70 General provisions.
(a) Purpose of this rule. The Equal Access to Justice Act, 5 U.S.C.
504 (called ''the EAJA'' in this subpart), provides for the award of
attorney fees and other expenses to eligible persons who are parties to
certain adversary adjudicative proceedings before the Commission. An
eligible party may receive an award when it prevails over Commission
complaint counsel, unless complaint counsel's position in the proceeding
was substantially justified or special circumstances make an award
unjust. This subpart describes the parties eligible for awards and the
proceedings covered. The rules also explain how to apply for awards and
the procedures and standards that the Commission will use to make them.
(b) When the EAJA applies. The EAJA applies to any adversary
adjudicative proceeding pending before the Commission at any time
between October 1, 1981 and September 30, 1984. This includes
proceedings commenced before October 1, 1981, if final Commission action
has not been taken before that date, and proceedings pending on
September 30, 1984, regardless of when they were initiated or when final
Commission action occurs.
(c) Proceedings covered. (1) The EAJA and this rule apply to
adversary adjudicative proceedings conducted by the Commission. These
are adjudications under 5 U.S.C. 554 in which the position of the
Commission or any component of the Commission is represented by an
attorney or other representative who enters an appearance and
participates in the proceeding. The rules in this subpart govern
adversary adjudicative proceedings relating to the provisions of
sections 15 (c), (d) and (f) and 17(b) of the Consumer Product Safety
Act (15 U.S.C. 2064 (c) (d) and (f); 2066(b)), sections 3 and 8(b) of
the Flammable Fabrics Act (15 U.S.C. 1192, 1197(b)), and section 15 of
the Federal Hazardous Substances Act (15 U.S.C. 1274), which are
required by statute to be determined on the record after opportunity for
a public hearing. These rules will also govern administrative
adjudicative proceedings for the assessment of civil penalties under
section 20(a) of the Consumer Product Safety Act (15 U.S.C. 2068(a)).
See 16 CFR 1025.1.
(2) The Commission may designate a proceeding not listed in paragraph
(c)(1) of this section as an adversary adjudicative proceeding for
purposes of the EAJA by so stating in an order initiating the proceeding
or designating the matter for hearing. The Commission's failure to
designate a proceeding as an adversary adjudicative proceeding shall not
preclude the filing of an application by a party who believes the
proceeding is covered by the EAJA. Whether the proceeding is covered
will then be an issue for resolution in proceedings on the application.
(3) If a proceeding includes both matters covered by the EAJA and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
(d) Eligibility of applicants. (1) To be eligible for an award of
attorney fees and other expenses under the EAJA, the applicant must be a
party to the adversary adjudication for which it seeks an award. The
term ''party'' is defined in 5 U.S.C. 551(3) and 16 CFR 1025.3(f). The
applicant must show that it meets all conditions of eligibility set out
in this paragraph and in 1025.71.
(2) The types of eligible applicants are:
(i) Individuals with a net worth of not more than $1 million;
(ii) Sole owners of unincorporated businesses who have a net worth of
not more than $5 million including both personal and business interests,
and not more than 500 employees;
(iii) Charitable or other tax-exempt organizations described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
which have not more than 500 employees;
(iv) Any other partnership, corporation, association, or public or
private organization with a net worth of not more than $5 million and
which have not more than 500 employees.
(3) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
(4) An applicant who owns an unincorporated business will be
considered as an ''individual'' rather than as a ''sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(5) The number of employees of an applicant include all persons who
regularly perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be
included on a proportional basis.
(6) The net worth and number of employees of the applicant and all of
its affiliates shall be aggregated to determine eligibility. For this
purpose, ''affiliate'' means (i) An individual, corporation or other
entity that directly or indirectly controls or owns a majority of the
voting shares or other interest of the applicant, or (ii) Any
corporation or other entity of which the applicant directly or
indirectly owns or controls a majority of the voting shares or other
interest. However, the presiding officer may determine that such
treatment would be unjust and contrary to the purposes of the EAJA in
light of the actual relationship between the affiliated entities. In
addition, the presiding officer may determine that financial
relationships of the applicant other than those described in this
paragraph constitute special circumstances that would make an award
unjust.
(7) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
(8) An applicant that represents himself/herself regardless of
whether he is licensed to practice law may be awarded all such expenses
and fees available to other prevailing eligible parties. See 16 CFR
1025.61 and 1025.65 of the Commission's rules.
(e) Standards for awards. (1) An eligible prevailing applicant may
receive an award for fees and expenses incurred in connection with a
proceeding, or in a significant and discrete substantive portion of the
proceeding, unless the position of Commission complaint counsel over
which the applicant has prevailed was substantially justified.
Complaint counsel bear the burden of proof that an award should not be
made to an eligible prevailing applicant. Complaint counsel may avoid
the granting of an award by showing that its position was reasonable in
law and fact.
(2) An award will be reduced or denied if the applicant has unduly or
unreasonably protracted the proceeding or if special circumstances make
the award sought unjust.
(f) Allowable fees and expenses. (1) Awards will be based on rates
customarily charged by persons engaged in the business of acting as
attorneys, agents and expert witnesses, even if the services were made
available without charge or at a reduced rate to the applicant.
(2) No award for the fee of an attorney or agent under these rules
may exceed $75 per hour. No award to compensate an expert witness may
exceed the highest rate at which the Commission is authorized to pay
expert witnesses. However, an award may also include the reasonable
expenses of the attorney, agent, or witness as a separate item, if the
attorney, agent or witness ordinarily charges clients separately for
such expenses.
(3) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the presiding officer shall consider
the following:
(i) If the attorney, agent or witness is in private practice, his or
her customary fee for similar services, or, if an employee of the
applicant, the fully allocated cost of the services;
(ii) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(iii) The time actually spent in the representation of the applicant;
(iv) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(v) Such other factors as may bear on the value of the services
provided.
(4) The reasonable cost of any study, analysis, engineering report,
test, project or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.
(5) Fees may be awarded to eligible applicants only for service
performed after the issuance of a complaint and the commencement of the
adjudicative proceeding in accordance with 16 CFR 1025.11(a).
(g) Rulemaking on maximum rates for attorney fees. (1) If warranted
by an increase in the cost of living or by special circumstances, the
Commission may adopt regulations providing that attorney fees may be
awarded at a rate higher than $75 per hour in some or all of the types
of proceedings covered by this subpart. The Commission will conduct any
rulemaking proceedings for this purpose under the informal rulemaking
procedures of the Administrative Procedure Act, 5 U.S.C. 533.
(2) Any person may file with the Commission a petition for rulemaking
to increase the maxiumum rate for attorney fees, in accordance with the
Administrative Procedure Act, 5 U.S.C. 553(e). The petition should
identify the rate the petitioner believes the Commission should
establish and the types of proceedings in which the rate should be used.
The petition should also explain fully the reasons why the higher rate
is warranted. The Commission will respond to the petition within a
reasonable time after it is filed, by initiating a rulemaking
proceeding, denying the petition, or taking other appropriate action.
(h) Presiding officer. The presiding oficer in a proceeding covered
by this regulation is a person as defined in the Commission's Rules, 16
CFR 1025.3(i), who conducts an adversary adjudicative proceeding.
16 CFR 1025.71 Information required from applicant.
(a) Contents of application. (1) An application for an award of fees
and expenses under the EAJA shall identify the applicant and the
proceeding for which an award is sought. The application shall show
that the applicant has prevailed and identify the position of complaint
counsel in the adjudicative proceeding that the applicant alleges was
not substantially justified. Unless the applicant is an individual, the
application shall also state the number of employees of the applicant
and describe briefly the type and purpose of its organization or
business.
(2) The application shall also include a verified statement that the
applicant's net worth does not exceed $1 million (if an individual) or
$5 million (for all other applicants, including their affiliates).
However, an applicant may omit this statement if it attaches a copy of a
ruling by the Internal Revenue Service that it qualifies as an
organization described in section 501(c)(3) of the Internal Revenue Code
or, in the case of a tax-exempt organization not required to obtain a
ruling from the Internal Revenue Service on its exempt status, a
statement that describes the basis for the applicant's belief that it
qualifies under such section.
(3) The application shall state the amount of fees and expenses for
which an award is sought.
(4) The application may also include any other matters that the
applicant wishes the Commission to consider in determining whether and
in what amount an award should be made.
(5) The application shall be signed by the applicant or an authorized
officer or attorney of the applicant. It shall also contain or be
accompanied by a written verification under oath or under penalty of
perjury that the information provided in the application is true and
correct.
(b) Net worth exhibit; confidential treatment. (1) Each applicant
except a qualified tax-exempt organization or cooperative association
must provide with its application a detailed exhibit showing the net
worth of the applicant and any affiliates (as defined in 1025.70(d)(6)
of this subpart) when the proceeding was initiated. The exhibit may be
in any form convenient to the applicant that provides full disclosure of
the applicant's and its affiliates' assets and liabilities and is
sufficient to determine whether the applicant qualifies under the
standards in this subpart. The presiding officer may require an
applicant to file additional information to determine its eligibility
for an award.
(2) Ordinarily, the net worth exhibit will be included in the public
record of the proceeding. However, an applicant that objects to public
disclosure of information in any portion of the exhibit or to public
disclosure of any other information submitted, and believes there are
legal grounds for withholding it from disclosure, may move to have that
information kept confidential and excluded from public disclosure in
accordance with 1025.45 of the Commission rules for in camera
materials, 16 CFR 1025.45. This motion shall describe the information
sought to be withheld and explain, in detail, why it falls within one or
more of the specific exemptions from mandatory disclosure under the
Freedom of Information Act, 5 U.S.C. 552(b)(1)-(9).
(3) Section 6(a)(2) of the Consumer Product Safety Act, 15 U.S.C.
2055(a)(2), provides that certain information which contains or relates
to a trade secret or other matter referred to in section 1905 of title
18, United States Code, or subject to 5 U.S.C. 552(b)(4) shall not be
disclosed. This prohibition is an Exemption 3 statute under the Freedom
of Information Act, 5 U.S.C. 552(b)(3). Material submitted as part of an
application for which in camera treatment is granted shall be available
to other parties only in accordance with 16 CFR 1025.45(c) of the
Commission Rules and, if applicable, section 6(a)(2) of the CPSA. If
the presiding officer determines that the information should not be
withheld from disclosure because it does not fall within section 6(a)(2)
of the CPSA, he shall place the information in the public record but
only after notifying the submitter of the information in writing of the
intention to disclose such document at a date not less than 10 days
after the date of receipt of notification. Otherwise, any request to
inspect or copy the exhibit shall be disposed of in accordance with the
Commission's established procedures under the Freedom of Information Act
(see 16 CFR 1015).
(c) Documentation of fees and expenses. The application shall be
accompanied by full documentation of the fees and expenses, including
the cost of any study, analysis, engineering report, test, project or
similar matter, for which an award is sought. A separate itemized
statement shall be submitted for each professional firm or individual
whose services are covered by the application, showing the hours spent
in connection with the proceeding by each individual, a description of
the specific services performed, the rate at which each fee has been
computed, any expenses for which reimbursement is sought, the total
amount claimed, and the total amount paid or payable by the applicant or
by any other person or entity for the services provided. The presiding
officer may require the applicant to provide vouchers, receipts; or
other substantiation for any expenses claimed.
(d) When an application may be filed. (1) An application may be
filed whenever the applicant has prevailed in a proceeding covered by
this subpart or in a significant and discrete substantive portion of the
proceeding. However, an application must be filed no later than 30 days
after the Commission's final disposition of such a proceeding.
(2) If review or reconsideration is sought or taken of a decision as
to which an applicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy.
(3) If review or reconsideration is sought or taken of a decision as
to which an applicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy.
(4) For purposes of this subpart, final disposition means the later
of:
(i) The date on which an initial decision by the presiding officer
becomes final, see 16 CFR 1025.52;
(ii) The date on which the Commission issues a final decision (See 16
CFR 1025.55);
(iii) The date on which the Commission issues an order disposing of
any petitions for reconsideration of the Commission's final order in the
proceeding (See 16 CFR 1025.56; or
(iv) Issuance of a final order or any other final resolution of a
proceeding, such as a settlement or voluntary dismissal, which is not
subject to a petition for reconsideration.
(e) Where an application must be filed. The application for award
and expenses must be submitted to the Office of the Secretary, Consumer
Product Safety Commission, Washington, D.C. 20207 in accordance with the
application requirements of this section.
16 CFR 1025.72 Procedures for considering applications.
(a) Filing and service of documents. Any application for an award or
other pleading or document related to an application shall be filed and
served on all parties to the proceeding in the same manner as provided
in the Commission's Rules of Practice, 16 CFR 1025.11-1025.19.
(b) Answer to application. (1) Within 30 days after service of an
application for an award of fees and expenses, complaint counsel in the
underlying administrative proceeding upon which the application is based
may file an answer to the application. Unless complaint counsel
requests an extension of time for filing or files a statement of intent
to negotiate under paragraph (b)(2) of this section, failure to file an
answer within the 30-day period may be treated as a consent to the award
requested.
(2) If complaint counsel and the applicant believe that the issues in
the fee application can be settled, they may jointly file a statement of
their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 30 days,
and further extensions may be granted by the presiding officer upon
request by complaint counsel and the applicant.
(3) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of Commission
counsel's position. If the answer is based on any alleged facts not
already in the record of the proceeding, complaint counsel shall include
with the answer either supporting affidavits or a request for further
proceedings under paragraph (f) of this section.
(c) Reply. Within 15 days after service of an answer, the applicant
may file a reply. If the reply is based on any alleged facts not
already in the record of the proceeding, the applicant shall include
with the reply either supporting affidavits or a request for further
proceedings under paragraph (f) of this section.
(d) Comments by other parties. Any party to a proceeding other than
the applicant and complaint counsel may file comments on an application
within 30 days after it is served or on an answer within 15 days after
it is served. A commenting party may not participate further in
proceedings on the application unless the presiding officer determines
that the public interest requires such participation in order to permit
full exploration of matters raised in the comments.
(e) Settlement. The applicant and complaint counsel may agree on a
proposed settlement of the award before final action on the application,
either in connection with a settlement of the underlying proceeding, or
after the underlying proceeding has been concluded, in accordance with
the Commission's standard settlement procedure (See 16 CFR 1115.20(b),
1118.20, 1025.26, and 1605.3). If a prevailing party and complaint
counsel agree on a proposed settlement of an award before an application
has been filed, the application shall be filed with the proposed
settlement.
(f) Further proceedings. (1) Ordinarily, the determination of an
award will be made on the basis of the written record. However, on
request of either the applicant or complaint counsel, or on his or her
own initiative, the presiding officer may order further proceedings.
Such further proceedings shall be held only when necessary for full and
fair resolution of the issues arising from the application, and shall be
conducted as promptly as possible.
(2) A request that the presiding officer order further proceedings
under this paragraph shall specifically identify the information sought
or the disputed issues and shall explain why the additional proceedings
are necessary to resolve the issues.
(g) Initial decision. The presiding officer shall endeavor to issue
an initial decision on the application within 30 days after completion
of proceedings on the application. The decision shall include written
findings and conclusions on the applicant's eligibility and status as a
prevailing party, and an explanation of the reasons for any difference
between the amount requested and the amount awarded. The decision shall
also include, if at issue, findings on whether the complaint counsel's
position was substantially justified, whether the applicant unduly
protracted the proceedings, or whether special circumstances make an
award unjust. If the applicant has sought an award against more than
one agency, the decision of this Commission will only address the
allocable portion for which this Commission is responsible to the
eligible prevailing party.
(h) Agency review. (1) Either the applicant or complaint counsel may
seek review of the initial decision on the fee application, or the
Commission may decide to review the decision on its own initiative, in
accordance with 16 CFR 1025.54, 1025.55 and 1025.56.
(2) If neither the applicant nor Commission complaint counsel seeks
review and the Commission does not take review on its own initiative,
the initial decision on the application shall become a final decision of
the Commission 30 days after it is issued.
(3) If an appeal from or review of an initial decision under this
subpart is taken, the Commission shall endeavor to issue a decision on
the application within 90 days after the filing of all briefs or after
receipt of transcripts of the oral argument, whichever is later, or
remand the application to the presiding officer for further proceedings.
(i) Judicial review. Judicial review of final Commission decisions
on awards may be sought as provided in 5 U.S.C. 504(c)(2).
(j) Payment of award. An applicant seeking payment of an award shall
submit to the Secretary of the Commission a copy of the Commission's
final decision granting the award, accompanied by a verified statement
that the applicant will not seek review of the decision in the United
States courts. (Office of the Secretary, Consumer Product Safety
Commission, Washington, D.C. 20207.) The Commission will pay the amount
awarded to the applicant within 60 days, unless judicial review of the
award or of the underlying decision of the adversary adjudication has
been sought by the applicant or any other party to the proceeding.
Comments and accompanying material may be seen in or copies obtained
from the Office of the Secretary, Consumer Product Safety Commission,
Washington, D.C. 20207, during working hours Monday through Friday.
16 CFR 1025.72 Pt. 1025, App. I
16 CFR 1025.72 Appendix I -- Suggested Form of Final Prehearing Order
A final prehearing conference was held in this matter, pursuant to
Rule 21 of the Commission's Rules of Practice for Adjudicative
Proceedings (6 CFR 1025.21), on the ------ day of ------------ , 19 -- ,
at ---- o'clock, -- m.
Counsel appeared as follows:
For the Commission staff:
For the Respondent(s):
Others:
1. Nature of Action and Jurisdiction. This is an action for
-------------------- and the jurisdiction of the Commission is invoked
under United States Code, Title ------------ , Section ------------ and
under the Code of Federal Regulations, Title -------- , Section --------
. The jurisdiction of the Commission is (not) disputed. The question
of jurisdiction was decided as follows:
2. Stipulations and Statements. The following stipulation(s) and
statement(s) were submitted, attached to, and made a part of this order:
(a) A comprehensive written stipulation or statement of all
uncontested facts;
(b) A concise summary of the ultimate facts as claimed by each party.
(Complaint Counsel must set forth the claimed facts, specifically; for
example, if a violation is claimed, Complaint Counsel must assert
specifically the acts of violation complained of; each respondent must
reply with equal clarity and detail.)
(c) Written stipulation(s) or statement(s) setting forth the
qualifications of the expert witnesses to be called by each party;
(d) Written list(s) of the witnesses whom each party will call,
written list(s) of the additional witnesses whom each party may call,
and a statement of the subject matter on which each witness will
testify;
(e) An agreed statement of the contested issues of fact and of law,
or separate statements by each party of any contested issues of fact and
law not agreed to;
(f) A list of all depositions to be read into evidence and statements
of any objections thereto;
(g) A list and brief description of any charts, graphs, models,
schematic diagrams, and similar objects that will be used in opening
statements or closing arguments but will not be offered in evidence. If
any other such objects are to be used by any party, those objects will
be submitted to opposing counsel at least three days prior to the
hearing. If there is then any objection to their use, the dispute will
be submitted to the Presiding Officer at least one day prior to the
hearing;
(h) Written waivers of claims or defenses which have been abandoned
by the parties.
The foregoing were modified at the pretrial conference as follows:
(To be completed at the conference itself. If none, recite ''none''.)
3. Complaint Counsel's Evidence. 3.1 The following exhibits were
offered by Complaint Counsel, received in evidence, and marked as
follows:
(Identification number and brief description of each exhibit)
The authenticity of these exhibits has been stipulated.
3.2 The following exhibits were offered by Complaint Counsel and
marked for identification. There was reserved to the respondent(s) (and
party intervenors) the right to object to their receipt in evidence on
the grounds stated:
(Identification number and brief description of each exhibit. State
briefly ground of objection, e.g., competency, relevancy, materiality)
4. Respondent's Evidence. 4.1 The following exhibits were offered by
the respondent(s), received in evidence, and marked as herein indicated:
(Identification number and brief description of each exhibit)
The authenticity of these exhibits has been stipulated.
4.2 The following exhibits were offered by the respondent(s) and
marked for identification. There was reserved to Complaint Counsel (and
party intervenors) the right to object to their receipt in evidence on
the grounds stated:
(Identification number and brief description of each exhibit. State
briefly ground of objection, e.g., competency, relevancy, materiality)
5. Party Intervenor's Evidence. 5.1 The following exhibits were
offered by the party intervenor(s), received in evidence, and marked as
herein indicated:
(Identification number and brief description of each exhibit)
The authenticity of these exhibits has been stipulated.
5.2 The following exhibits were offered by the party intervenor(s)
and marked for identification. There was reserved to Complaint Counsel
and respondent(s) the right to object to their receipt in evidence on
the grounds stated:
(Identification number and brief description of each exhibit. State
briefly ground of objection, e.g., competency, relevancy, materiality)
Note: If any other exhibits are to be offered by any party, such
exhibits will be submitted to opposing counsel at least ten (10) days
prior to hearing, and a supplemental note of evidence filed into this
record.
6. Additional Actions. The following additional action(s) were
taken:
(Amendments to pleadings, agreements of the parties, disposition of
motions, separation of issues of liability and remedy, etc., if
necessary)
7. Limitations and Reservations. 7.1 Each of the parties has the
right to further supplement the list of witnesses not later than ten
(10) days prior to commencement of the hearing by furnishing opposing
counsel with the name and address of the witness and general subject
matter of his/her testimony and by filing a supplement to this pretrial
order. Thereafter, additional witnesses may be added only after
application to the Presiding Officer, for good cause shown.
7.2 Rebuttal witnesses not listed in the exhibits to this order may
be called only if the necessity of their testimony could not reasonably
be foreseen ten (10) days prior to trial. If it appears to counsel at
any time before trial that such rebuttal witnesses will be called,
notice will immediately be given to opposing counsel and the Presiding
Officer.
7.3 The probable length of hearing is ---- days. The hearing will
commence on the ---- day of -------- , 19 -- , at -- o'clock -- m. at
-------- .
7.4 Prehearing briefs will be filed not later than 5:00 p.m. on
-------- (Insert date not later than ten (10) days prior to the
hearing.) All anticipated legal questions, including those relating to
the admissibility of evidence, must be covered by prehearing briefs.
This prehearing order has been formulated after a conference at which
counsel for the respective parties appeared. Reasonable opportunity has
been afforded counsel for corrections or additions prior to signing. It
will control the course of the hearing, and it may not be amended except
by consent of the parties and the Presiding Officer, or by order of the
Presiding Officer to prevent manifest injustice.
--
Presiding Officer.
Dated:
Approved as to Form and Substance
Date:
--
Complaint Counsel.
--
Attorney for Respondent(s)
--
*Attorney for Intervenors
*Note: Where intervenors appear pursuant to 1025.17 of these Rules,
the prehearing order may be suitably modified; the initial page may be
modified to reflect the intervention.
16 CFR 1025.72 Pt. 1027
16 CFR 1025.72 PART 1027 -- SALARY OFFSET
Sec.
1027.1 Purpose and scope.
1027.2 Definitions.
1027.3 Applicability.
1027.4 Notice requirements before offset.
1027.5 Hearing.
1027.6 Written decision.
1027.7 Coordinating offset with another Federal agency.
1027.8 Procedures for salary offset.
1027.9 Refunds.
1027.10 Statute of limitations.
1017.11 Non-waiver of rights.
1027.12 Interest, penalties, and administrative costs.
Authority: 5 U.S.C. 5514, E.O. 11809 (redesignated E.O. 12107), and
5 CFR part 550, subpart K.
Source: 55 FR 34904, Aug. 27, 1990, unless otherwise noted.
16 CFR 1027.1 Purpose and scope.
(a) This regulation provides procedures for the collection by
administrative offset of a federal employee's salary without his/her
consent to satisfy certain debts owed to the Federal government. These
regulations apply to all federal employees who owe debts to the Consumer
Product Safety Commission (CPSC) and to current employees of CPSC who
owe debts to other Federal agencies. This regulation does not apply
when the employee consents to recovery from his/her current pay account.
(b) This regulation does not apply to debts or claims arising under:
(1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et
seq.;
(2) The Social Security Act, 42 U.S.C. 301 et seq. ;
(3) The tariff laws of the United States; or
(4) Any case where a collection of a debt by salary offset is
explicitly provided for or prohibited by another statute.
(c) This regulation does not apply to any adjustment to pay arising
out of an employee's selecton of coverage or a change in coverage under
a Federal benefits program requiring periodic deductions from pay if the
amount to be recovered was accumulated over four pay periods or less.
(d) This regulation does not preclude the compromise, suspension, or
termination of collection action where appropriate under the standards
implementing the Federal Claims Collection Act, 31 U.S.C. 3711 et seq.,
and 4 CFR parts 101 through 105.
(e) This regulation does not preclude an employee from requesting
waiver of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32
U.S.C. 716, or in any way questioning the amount or validity of the debt
by submitting a subsequent claim to the General Accounting Office. This
regulation does not preclude an employee from requesting a waiver
pursuant to other statutory provisions applicable to the particular debt
being collected.
(f) Matters not addressed in these regulations should be reviewed in
accordance with the Federal Claims Collection Standards at 4 CFR 101.1
et seq.
16 CFR 1027.2 Definitions.
For the purposes of this part the following definitions will apply:
Agency means an executive agency as defined at 5 U.S.C. 105,
including the U.S. Postal Service and the U.S. Postal Rate Commission;
a military department as defined at 5 U.S.C. 102; an agency or court in
the judicial branch; an agency of the legislative branch, including the
U.S. Senate and House of Representatives; and other independent
establishments that are entities of the Federal government.
Certification means a written debt claim received from a creditor
agency which requests the paying agency to offset the salary of an
employee.
CPSC or Commission means the Consumer Product Safety Commission.
Creditor agency means an agency of the Federal Government to which
the debt is owed.
Debt means an amount owed by a Federal employee to the United States
from sources which include loans insured or guaranteed by the United
States and all other amounts due the United States from fees, leases,
rents, royalties, services, sales of real or personal property,
overpayments, penalties, damages, interests, fines, forfeitures (except
those arising under the Uniform Code of Military Justice), and all other
similar sources.
Disposable pay means the amount that remains from an employee's
federal pay after required deductions for social security, Federal,
State or local income tax, health insurance premiums, retirement
contributions, life insurance premiums, Federal employment taxes, and
any other deductions that are required to be withheld by law.
Executive Director means the Executive Director of the Consumer
Product Safety Commission, who is the person designated by the Chairman
to determine whether an employee is indebted to the United States and to
take action to collect such debts.
Hearing official means an individual responsible for conducting a
hearing with respect to the existence or amount of a debt claimed, or
the repayment schedule of a debt, and who renders a decision on the
basis of such hearing. A hearing official may not be under the
supervision or control of the Chairman of the Commission.
Paying agency means the agency that employs the individual who owes
the debt and authorizes the payments of his/her current pay.
Salary offset means an administrative offset to collect a debt
pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially
established pay intervals from the current pay account of an employee
without his/her consent.
16 CFR 1027.3 Applicability.
(a) These regulations are to be followed when:
(1) The Commission is owed a debt by an individual who is a current
employee of the CPSC; or
(2) The Commission is owed a debt by an individual currently employed
by another Federal agency; or
(3) The Commission employs an individual who owes a debt to another
federal agency.
16 CFR 1027.4 Notice requirements before offset.
(a) Salary offset shall not be made against an employee's pay unless
the employee is provided with written notice signed by the Executive
Director of the debt at least 30 days before salary offset commences.
(b) The written notice shall contain:
(1) A statement that the debt is owed and an explanation of its
nature and amount;
(2) The agency's intention to collect the debt by deducting from the
employee's current disposable pay account;
(3) The amount, frequency, proposed beginning data, and duration of
the intended deduction(s);
(4) An explanation of interest, penalties, and administrative
charges, including a statement that such charges will be assessed unless
excused in accordance with the Federal Claims Collections Standards at 4
CFR 101.1 et seq.;
(5) The employee's right to inspect, request, and receive a copy of
government records relating to the debt;
(6) The employee's opportunity to establish a written schedule for
the voluntary repayment of the debt in lieu of offset;
(7) The employee's right to an oral hearing or a determination based
on a review of the written record (''paper hearing'') conducted by an
impartial hearing official concerning the existence or the amount of the
debt, or the terms of the repayment schedule;
(8) The procedures and time period for petitioning for a hearing;
(9) A statement that a timely filing of a petition for a hearing will
stay the commencement of collection proceedings;
(10) A statement that a final decision on the hearing (if requested)
will be issued by the hearing official not later than 60 days after the
filing of the petition requesting the hearing unless the employee
requests and the hearing official grants a delay in the proceedings;
(11) A statement that knowingly false or frivolous statements,
representations, or evidence may subject the employee to appropriate
disciplinary procedures and/or statutory penalties;
(12) A statement of other rights and remedies available to the
employee under statutes or regulations governing the program for which
the collection is being made;
(13) Unless there are contractual or statutory provisions to the
contrary, a statement that amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee; and
(14) A statement that the proceedings regarding such debt are
governed by section 5 of the Debt Collection Act of 1982 (5 U.S.C.
5514).
16 CFR 1027.5 Hearing.
(a) Request for hearing. (1) An employee may file a petition for an
oral or paper hearing in accordance with the instructions outlined in
the agency's notice to offset.
(2) A hearing may be requested by filing a written petition addressed
to the Executive Director stating why the employee disputes the
existence or amount of the debt or, in the case of an individual whose
repayment schedule has been established other than by a written
agreement, concerning the terms of the repayment schedule. The petition
for a hearing must be received by the Executive Director not later than
fifteen (15) calendar days after the employee's receipt of the offset
notice, or notice of the terms of the payment schedule, unless the
employee can show good cause for failing to meet the filing deadline.
(b) Hearing procedures. (1) The hearing will be presided over by an
impartial hearing official.
(2) The hearing shall conform to procedures contained in the Federal
Claims Collection Standards, 4 CFR 102.3(c). The burden shall be on the
employee to demonstrate that the existence or the amount of the debt is
in error.
16 CFR 1027.6 Written decision.
(a) The hearing official shall issue a final written opinion no later
than 60 days after the filing of the petition.
(b) The written opinion will include: A statement of the facts
presented to demonstrate the nature and origin of the alleged debt; the
hearing official's analysis, findings, and conclusions; the amount and
validity of the debt; and the repayment schedule.
16 CFR 1027.7 Coordinating offset with another Federal agency.
(a) The CPSC as the creditor agency.
(1) When the Executive Director determines that an employee of
another agency (i.e., the paying agency) owes a debt to the CPSC, the
Executive Director shall, as appropriate:
(i) Certify in writing to the paying agency that the employee owes
the debt, the amount and basis of the debt, the date on which payment
was due, and the date the Government's right to collect the debt
accrued, and that this part 1027 has been approved by the Office of
Personnel Management.
(ii) Unless the employee has consented to salary offset in writing or
signed a statement acknowledging receipt of the required procedures, and
the written consent is sent to the paying agency, the Executive Director
must advise the paying agency of the action(s) taken under this part
1027, and the date(s) they were taken.
(iii) Request the paying agency to collect the debt by salary offset.
If deductions must be made in installments, the Executive Director may
recommend to the paying agency the amount or percentage of disposable
pay to be collected in each installment;
(iv) Arrange for a hearing upon the proper petitioning by the
employee;
(v) If the employee is in the process of separating from the federal
service, the CPSC must submit its debt claim to the paying agency as
provided in this part. The paying agency must certify the total amount
collected, give a copy of the certification to the employee, and send a
copy of the certification and notice of the employee's separation to the
CPSC. If the paying agency is aware that the employee is entitled to
Civil Service Retirement and Disability Fund or other similar payments,
it must certify to the agency responsible for making such payments that
the debtor owes a debt, including the amount of the debt, and that the
provisions of 5 CFR 550.1108 have been followed; and
(vi) If the employee has already separated from federal service and
all payments due from the paying agency have been paid, the Executive
Director may request, unless otherwise prohibited, that money payable to
the employee from the Civil Service Retirement and Disability Fund or
other similar funds be collected by administrative offset.
(b) The CPSC as the paying agency.
(1) Upon receipt of a properly certified debt claim from another
agency, deductions will be scheduled to begin at the next established
pay interval. The employee must receive written notice that CPSC has
received a certified debt claim from the creditor agency, the amount of
the debt, the date salary offset will begin, and the amount of the
deduction(s). CPSC shall not review the merits of the creditor agency's
determination of the validity or the amount of the certified claim.
(2) If the employee transfers to another agency after the creditor
agency has submitted its debt claim to CPSC and before the debt is
collected completely, CPSC must certify the amount collected. One copy
of the certification must be furnished to the employee. A copy must be
furnished to the creditor agency with notice of the employee's transfer.
16 CFR 1027.8 Procedures for salary offset.
(a) Deductions to liquidate an employee's debt will be by the method
and in the amount stated in the Executive Director's notice of intention
to offset as provided in 1027.4. Debts will be collected in one lump
sum where possible. If the employee is financially unable to pay in one
lump sum, collection must be made in installments.
(b) Debts will be collected by deduction at officially established
pay intervals from an employee's current pay account unless alternative
arrangements for repayment are made.
(c) Installment deductions will be made over a period not greater
than the anticipated period of employment. The size of installment
deductions must bear a reasonable relationship to the size of the debt
and the employee's ability to pay. The deduction for the pay intervals
for any period must not exceed 15% of disposable pay unless the employee
has agreed in writing to a deduction of a greater amount.
(d) Unliquidated debts may be offset against any financial payment
due to a separated employee including but not limited to final salary or
leave payment in accordance with 31 U.S.C. 3716.
16 CFR 1027.9 Refunds.
(a) CPSC will promptly refund to an employee any amounts deducted to
satisfy debts owed to CPSC when the debt is waived, found not owed to
CPSC, or when directed by an administrative or judicial order.
(b) Another creditor agency will promptly return to CPSC any amounts
deducted by CPSC to satisfy debts owed to the creditor agency when the
debt is waived, found not owed, or when directed by an administrative or
judicial order.
(c) Unless required by law, refunds under this paragraph shall not
bear interest.
16 CFR 1027.10 Statute of limitations.
(a) If a debt has been outstanding for more than 10 years after
CPSC's right to collect the debt first accrued, the agency may not
collect by salary offset unless facts material to the Government's right
to collect were not known and could not reasonably have been known by
the official or officials who were charged with the responsibility for
discovery and collection of such debts.
16 CFR 1027.11 Non-waiver of rights.
An employee's involuntary payment of all or any part of a debt
collected under these regulations will not be construed as a waiver of
any rights that the employee may have under 5 U.S.C. 5514 or any other
provision of law.
16 CFR 1027.12 Interest, penalties, and administrative costs.
Charges may be assessed on a debt for interest, penalties, and
administrative costs in accordance with 31 U.S.C. 3717 and the Federal
Claims Collection Standards, 4 CFR 101.1 et seq.
16 CFR 1027.12 Pt. 1028
16 CFR 1027.12 PART 1028 PROTECTION OF HUMAN SUBJECTS
Sec.
1028.101 To what does this policy apply?
1028.102 Definitions.
1028.103 Assuring compliance with this policy -- research conducted
or supported by any Federal Department or Agency.
1028.104 (Reserved)
1028.105 (Reserved)
1028.106 (Reserved)
1028.107 IRB Membership.
1028.108 IRB functions and operations.
1028.109 IRB review of research.
1028.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.
1028.111 Criteria for IRB approval of research.
1028.112 Review by institution.
1028.113 Suspension or termination of IRB approval of research.
1028.114 Cooperative research.
1028.115 IRB records.
1028.116 General requirements for informed consent.
1028.117 Documentation of informed consent.
1028.118 Applications and proposals lacking definite plans for
involvement of human subjects.
1028.119 Research undertaken without the intention of involving human
subjects.
1028.120 Evaluation and disposition of applications and proposals for
research to be conducted or supported by a Federal Department or Agency.
1028.121 (Reserved)
1028.122 Use of Federal funds.
1028.123 Early termination of research support: Evaluation of
applications and proposals.
1028.124 Conditions.
Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).
Source: 56 FR 28012, 28019, June 18, 1991, unless otherwise noted.
16 CFR 1028.101 To what does this policy apply?
(a) Except as provided in paragraph (b) of this section, this policy
applies to all research involving human subjects conducted, supported or
otherwise subject to regulation by any federal department or agency
which takes appropriate administrative action to make the policy
applicable to such research. This includes research conducted by
federal civilian employees or military personnel, except that each
department or agency head may adopt such procedural modifications as may
be appropriate from an administrative standpoint. It also includes
research conducted, supported, or otherwise subject to regulation by the
federal government outside the United States.
(1) Research that is conducted or supported by a federal department
or agency, whether or not it is regulated as defined in 1028.102(e),
must comply with all sections of this policy.
(2) Research that is neither conducted nor supported by a federal
department or agency but is subject to regulation as defined in
1028.102(e) must be reviewed and approved, in compliance with 1028.101,
1028.102, and 1028.107 through 1028.117 of this policy, by an
institutional review board (IRB) that operates in accordance with the
pertinent requirements of this policy.
(b) Unless otherwise required by department or agency heads, research
activities in which the only involvement of human subjects will be in
one or more of the following categories are exempt from this policy:
(1) Research conducted in established or commonly accepted
educational settings, involving normal educational practices, such as
(i) research on regular and special education instructional strategies,
or (ii) research on the effectiveness of or the comparison among
instructional techniques, curricula, or classroom management methods.
(2) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures or observation of public behavior, unless:
(i) Information obtained is recorded in such a manner that human
subjects can be identified, directly or through identifiers linked to
the subjects; and (ii) any disclosure of the human subjects' responses
outside the research could reasonably place the subjects at risk of
criminal or civil liability or be damaging to the subjects' financial
standing, employability, or reputation.
(3) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures, or observation of public behavior that is not exempt under
paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed public officials or
candidates for public office; or (ii) federal statute(s) require(s)
without exception that the confidentiality of the personally
identifiable information will be maintained throughout the research and
thereafter.
(4) Research, involving the collection or study of existing data,
documents, records, pathological specimens, or diagnostic specimens, if
these sources are publicly available or if the information is recorded
by the investigator in such a manner that subjects cannot be identified,
directly or through identifiers linked to the subjects.
(5) Research and demonstration projects which are conducted by or
subject to the approval of department or agency heads, and which are
designed to study, evaluate, or otherwise examine:
(i) Public benefit or service programs; (ii) procedures for
obtaining benefits or services under those programs; (iii) possible
changes in or alternatives to those programs or procedures; or (iv)
possible changes in methods or levels of payment for benefits or
services under those programs.
(6) Taste and food quality evaluation and consumer acceptance
studies, (i) if wholesome foods without additives are consumed or (ii)
if a food is consumed that contains a food ingredient at or below the
level and for a use found to be safe, or agricultural chemical or
environmental contaminant at or below the level found to be safe, by the
Food and Drug Administration or approved by the Environmental Protection
Agency or the Food Safety and Inspection Service of the U.S. Department
of Agriculture.
(c) Department or agency heads retain final judgment as to whether a
particular activity is covered by this policy.
(d) Department or agency heads may require that specific research
activities or classes of research activities conducted, supported, or
otherwise subject to regulation by the department or agency but not
otherwise covered by this policy, comply with some or all of the
requirements of this policy.
(e) Compliance with this policy requires compliance with pertinent
federal laws or regulations which provide additional protections for
human subjects.
(f) This policy does not affect any state or local laws or
regulations which may otherwise be applicable and which provide
additional protections for human subjects.
(g) This policy does not affect any foreign laws or regulations which
may otherwise be applicable and which provide additional protections to
human subjects of research.
(h) When research covered by this policy takes place in foreign
countries, procedures normally followed in the foreign countries to
protect human subjects may differ from those set forth in this policy.
(An example is a foreign institution which complies with guidelines
consistent with the World Medical Assembly Declaration (Declaration of
Helsinki amended 1989) issued either by sovereign states or by an
organization whose function for the protection of human research
subjects is internationally recognized.) In these circumstances, if a
department or agency head determines that the procedures prescribed by
the institution afford protections that are at least equivalent to those
provided in this policy, the department or agency head may approve the
substitution of the foreign procedures in lieu of the procedural
requirements provided in this policy. Except when otherwise required by
statute, Executive Order, or the department or agency head, notices of
these actions as they occur will be published in the Federal Register or
will be otherwise published as provided in department or agency
procedures.
(i) Unless otherwise required by law, department or agency heads may
waive the applicability of some or all of the provisions of this policy
to specific research activities or classes of research activities
otherwise covered by this policy. Except when otherwise required by
statute or Executive Order, the department or agency head shall forward
advance notices of these actions to the Office for Protection from
Research Risks, Department of Health and Human Services (HHS), and shall
also publish them in the Federal Register or in such other manner as
provided in department or agency procedures. /1/
(56 FR 28012, 28019, June 18, 1991; 56 FR 29756, June 28, 1991)
/1/ Institutions with HHS-approved assurances on file will abide by
provisions of title 45 CFR part 46 subparts A-D. Some of the other
Departments and Agencies have incorporated all provisions of title 45
CFR part 46 into their policies and procedures as well. However, the
exemptions at 45 CFR 46.101(b) do not apply to research involving
prisoners, fetuses, pregnant women, or human in vitro fertilization,
subparts B and C. The exemption at 45 CFR 46.101(b)(2), for research
involving survey or interview procedures or observation of public
behavior, does not apply to research with children, subpart D, except
for research involving observations of public behavior when the
investigator(s) do not participate in the activities being observed.
16 CFR 1028.102 Definitions.
(a) Department or agency head means the head of any federal
department or agency and any other officer or employee of any department
or agency to whom authority has been delegated.
(b) Institution means any public or private entity or agency
(including federal, state, and other agencies).
(c) Legally authorized representative means an individual or judicial
or other body authorized under applicable law to consent on behalf of a
prospective subject to the subject's participation in the procedure(s)
involved in the research.
(d) Research means a systematic investigation, including research
development, testing and evaluation, designed to develop or contribute
to generalizable knowledge. Activities which meet this definition
constitute research for purposes of this policy, whether or not they are
conducted or supported under a program which is considered research for
other purposes. For example, some demonstration and service programs
may include research activities.
(e) Research subject to regulation, and similar terms are intended to
encompass those research activities for which a federal department or
agency has specific responsibility for regulating as a research
activity, (for example, Investigational New Drug requirements
administered by the Food and Drug Administration). It does not include
research activities which are incidentally regulated by a federal
department or agency solely as part of the department's or agency's
broader responsibility to regulate certain types of activities whether
research or non-research in nature (for example, Wage and Hour
requirements administered by the Department of Labor).
(f) Human subject means a living individual about whom an
investigator (whether professional or student) conducting research
obtains
(1) Data through intervention or interaction with the individual, or
(2) Identifiable private information.
Intervention includes both physical procedures by which data are
gathered (for example, venipuncture) and manipulations of the subject or
the subject's environment that are performed for research purposes.
Interaction includes communication or interpersonal contact between
investigator and subject. ''Private information'' includes information
about behavior that occurs in a context in which an individual can
reasonably expect that no observation or recording is taking place, and
information which has been provided for specific purposes by an
individual and which the individual can reasonably expect will not be
made public (for example, a medical record). Private information must
be individually identifiable (i.e., the identity of the subject is or
may readily be ascertained by the investigator or associated with the
information) in order for obtaining the information to constitute
research involving human subjects.
(g) IRB means an institutional review board established in accord
with and for the purposes expressed in this policy.
(h) IRB approval means the determination of the IRB that the research
has been reviewed and may be conducted at an institution within the
constraints set forth by the IRB and by other institutional and federal
requirements.
(i) Minimal risk means that the probability and magnitude of harm or
discomfort anticipated in the research are not greater in and of
themselves than those ordinarily encountered in daily life or during the
performance of routine physical or psychological examinations or tests.
(j) Certification means the official notification by the institution
to the supporting department or agency, in accordance with the
requirements of this policy, that a research project or activity
involving human subjects has been reviewed and approved by an IRB in
accordance with an approved assurance.
16 CFR 1028.103 Assuring compliance with this policy -- research
conducted or supported by any Federal Department or Agency.
(a) Each institution engaged in research which is covered by this
policy and which is conducted or supported by a federal department or
agency shall provide written assurance satisfactory to the department or
agency head that it will comply with the requirements set forth in this
policy. In lieu of requiring submission of an assurance, individual
department or agency heads shall accept the existence of a current
assurance, appropriate for the research in question, on file with the
Office for Protection from Research Risks, HHS, and approved for
federalwide use by that office. When the existence of an HHS-approved
assurance is accepted in lieu of requiring submission of an assurance,
reports (except certification) required by this policy to be made to
department and agency heads shall also be made to the Office for
Protection from Research Risks, HHS.
(b) Departments and agencies will conduct or support research covered
by this policy only if the institution has an assurance approved as
provided in this section, and only if the institution has certified to
the department or agency head that the research has been reviewed and
approved by an IRB provided for in the assurance, and will be subject to
continuing review by the IRB. Assurances applicable to federally
supported or conducted research shall at a minimum include:
(1) A statement of principles governing the institution in the
discharge of its responsibilities for protecting the rights and welfare
of human subjects of research conducted at or sponsored by the
institution, regardless of whether the research is subject to federal
regulation. This may include an appropriate existing code, declaration,
or statement of ethical principles, or a statement formulated by the
institution itself. This requirement does not preempt provisions of
this policy applicable to department- or agency-supported or regulated
research and need not be applicable to any research exempted or waived
under 1028.101 (b) or (i).
(2) Designation of one or more IRBs established in accordance with
the requirements of this policy, and for which provisions are made for
meeting space and sufficient staff to support the IRB's review and
recordkeeping duties.
(3) A list of IRB members identified by name; earned degrees;
representative capacity; indications of experience such as board
certifications, licenses, etc., sufficient to describe each member's
chief anticipated contributions to IRB deliberations; and any
employment or other relationship between each member and the
institution; for example: full-time employee, part-time employee,
member of governing panel or board, stockholder, paid or unpaid
consultant. Changes in IRB membership shall be reported to the
department or agency head, unless in accord with 1028.103(a) of this
policy, the existence of an HHS-approved assurance is accepted. In this
case, change in IRB membership shall be reported to the Office for
Protection from Research Risks, HHS.
(4) Written procedures which the IRB will follow (i) for conducting
its initial and continuing review of research and for reporting its
findings and actions to the investigator and the institution; (ii) for
determining which projects require review more often than annually and
which projects need verification from sources other than the
investigators that no material changes have occurred since previous IRB
review; and (iii) for ensuring prompt reporting to the IRB of proposed
changes in a research activity, and for ensuring that such changes in
approved research, during the period for which IRB approval has already
been given, may not be initiated without IRB review and approval except
when necessary to eliminate apparent immediate hazards to the subject.
(5) Written procedures for ensuring prompt reporting to the IRB,
appropriate institutional officials, and the department or agency head
of (i) any unanticipated problems involving risks to subjects or others
or any serious or continuing noncompliance with this policy or the
requirements or determinations of the IRB and (ii) any suspension or
termination of IRB approval.
(c) The assurance shall be executed by an individual authorized to
act for the institution and to assume on behalf of the institution the
obligations imposed by this policy and shall be filed in such form and
manner as the department or agency head prescribes.
(d) The department or agency head will evaluate all assurances
submitted in accordance with this policy through such officers and
employees of the department or agency and such experts or consultants
engaged for this purpose as the department or agency head determines to
be appropriate. The department or agency head's evaluation will take
into consideration the adequacy of the proposed IRB in light of the
anticipated scope of the institution's research activities and the types
of subject populations likely to be involved, the appropriateness of the
proposed initial and continuing review procedures in light of the
probable risks, and the size and complexity of the institution.
(e) On the basis of this evaluation, the department or agency head
may approve or disapprove the assurance, or enter into negotiations to
develop an approvable one. The department or agency head may limit the
period during which any particular approved assurance or class of
approved assurances shall remain effective or otherwise condition or
restrict approval.
(f) Certification is required when the research is supported by a
federal department or agency and not otherwise exempted or waived under
1028.101 (b) or (i). An institution with an approved assurance shall
certify that each application or proposal for research covered by the
assurance and by 1028.103 of this Policy has been reviewed and approved
by the IRB. Such certification must be submitted with the application
or proposal or by such later date as may be prescribed by the department
or agency to which the application or proposal is submitted. Under no
condition shall research covered by 1028.103 of the Policy be supported
prior to receipt of the certification that the research has been
reviewed and approved by the IRB. Institutions without an approved
assurance covering the research shall certify within 30 days after
receipt of a request for such a certification from the department or
agency, that the application or proposal has been approved by the IRB.
If the certification is not submitted within these time limits, the
application or proposal may be returned to the institution.
(Approved by the Office of Management and Budget under control number
9999-0020)
(56 FR 28012, 28019, June 18, 1991; 56 FR 29756, June 28, 1991)
1028.104 -- 1028.106 (Reserved)
16 CFR 1028.107 IRB membership.
(a) Each IRB shall have at least five members, with varying
backgrounds to promote complete and adequate review of research
activities commonly conducted by the institution. The IRB shall be
sufficiently qualified through the experience and expertise of its
members, and the diversity of the members, including consideration of
race, gender, and cultural backgrounds and sensitivity to such issues as
community attitudes, to promote respect for its advice and counsel in
safeguarding the rights and welfare of human subjects. In addition to
possessing the professional competence necessary to review specific
research activities, the IRB shall be able to ascertain the
acceptability of proposed research in terms of institutional commitments
and regulations, applicable law, and standards of professional conduct
and practice. The IRB shall therefore include persons knowledgeable in
these areas. If an IRB regularly reviews research that involves a
vulnerable category of subjects, such as children, prisoners, pregnant
women, or handicapped or mentally disabled persons, consideration shall
be given to the inclusion of one or more individuals who are
knowledgeable about and experienced in working with these subjects.
(b) Every nondiscriminatory effort will be made to ensure that no IRB
consists entirely of men or entirely of women, including the
institution's consideration of qualified persons of both sexes, so long
as no selection is made to the IRB on the basis of gender. No IRB may
consist entirely of members of one profession.
(c) Each IRB shall include at least one member whose primary concerns
are in scientific areas and at least one member whose primary concerns
are in nonscientific areas.
(d) Each IRB shall include at least one member who is not otherwise
affiliated with the institution and who is not part of the immediate
family of a person who is affiliated with the institution.
(e) No IRB may have a member participate in the IRB's initial or
continuing review of any project in which the member has a conflicting
interest, except to provide information requested by the IRB.
(f) An IRB may, in its discretion, invite individuals with competence
in special areas to assist in the review of issues which require
expertise beyond or in addition to that available on the IRB. These
individuals may not vote with the IRB.
16 CFR 1028.108 IRB functions and operations.
In order to fulfill the requirements of this policy each IRB shall:
(a) Follow written procedures in the same detail as described in
1028.103(b)(4) and, to the extent required by, 1028.103(b)(5).
(b) Except when an expedited review procedure is used (see
1028.110), review proposed research at convened meetings at which a
majority of the members of the IRB are present, including at least one
member whose primary concerns are in nonscientific areas. In order for
the research to be approved, it shall receive the approval of a majority
of those members present at the meeting.
16 CFR 1028.109 IRB Review of Research.
(a) An IRB shall review and have authority to approve, require
modifications in (to secure approval), or disapprove all research
activities covered by this policy.
(b) An IRB shall require that information given to subjects as part
of informed consent is in accordance with 1028. The IRB may require
that information, in addition to that specifically mentioned in
1028.116, be given to the subjects when in the IRB's judgment the
information would meaningfully add to the protection of the rights and
welfare of subjects.
(c) An IRB shall require documentation of informed consent or may
waive documentation in accordance with 1028.117.
(d) An IRB shall notify investigators and the institution in writing
of its decision to approve or disapprove the proposed research activity,
or of modifications required to secure IRB approval of the research
activity. If the IRB decides to disapprove a research activity, it
shall include in its written notification a statement of the reasons for
its decision and give the investigator an opportunity to respond in
person or in writing.
(e) An IRB shall conduct continuing review of research covered by
this policy at intervals appropriate to the degree of risk, but not less
than once per year, and shall have authority to observe or have a third
party observe the consent process and the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
16 CFR 1028.110 Expedited review procedures for certain kinds of
research involving no more than minimal risk, and for minor changes in
approved research.
(a) The Secretary, HHS, has established, and published as a Notice in
the Federal Register, a list of categories of research that may be
reviewed by the IRB through an expedited review procedure. The list
will be amended, as appropriate after consultation with other
departments and agencies, through periodic republication by the
Secretary, HHS, in the Federal Register. A copy of the list is
available from the Office for Protection from Research Risks, National
Institutes of Health, HHS, Bethesda, Maryland 20892.
(b) An IRB may use the expedited review procedure to review either or
both of the following:
(1) Some or all of the research appearing on the list and found by
the reviewer(s) to involve no more than minimal risk,
(2) Minor changes in previously approved research during the period
(of one year or less) for which approval is authorized.
Under an expedited review procedure, the review may be carried out by
the IRB chairperson or by one or more experienced reviewers designated
by the chairperson from among members of the IRB. In reviewing the
research, the reviewers may exercise all of the authorities of the IRB
except that the reviewers may not disapprove the research. A research
activity may be disapproved only after review in accordance with the
non-expedited procedure set forth in 1028.108(b).
(c) Each IRB which uses an expedited review procedure shall adopt a
method for keeping all members advised of research proposals which have
been approved under the procedure.
(d) The department or agency head may restrict, suspend, terminate,
or choose not to authorize an institution's or IRB's use of the
expedited review procedure.
16 CFR 1028.111 Criteria for IRB approval of research.
(a) In order to approve research covered by this policy the IRB shall
determine that all of the following requirements are satisfied:
(1) Risks to subjects are minimized: (i) By using procedures which
are consistent with sound research design and which do not unnecessarily
expose subjects to risk, and (ii) whenever appropriate, by using
procedures already being performed on the subjects for diagnostic or
treatment purposes.
(2) Risks to subjects are reasonable in relation to anticipated
benefits, if any, to subjects, and the importance of the knowledge that
may reasonably be expected to result. In evaluating risks and benefits,
the IRB should consider only those risks and benefits that may result
from the research (as distinguished from risks and benefits of therapies
subjects would receive even if not participating in the research). The
IRB should not consider possible long-range effects of applying
knowledge gained in the research (for example, the possible effects of
the research on public policy) as among those research risks that fall
within the purview of its responsibility.
(3) Selection of subjects is equitable. In making this assessment
the IRB should take into account the purposes of the research and the
setting in which the research will be conducted and should be
particularly cognizant of the special problems of research involving
vulnerable populations, such as children, prisoners, pregnant women,
mentally disabled persons, or economically or educationally
disadvantaged persons.
(4) Informed consent will be sought from each prospective subject or
the subject's legally authorized representative, in accordance with, and
to the extent required by 1028.116.
(5) Informed consent will be appropriately documented, in accordance
with, and to the extent required by 1028.117.
(6) When appropriate, the research plan makes adequate provision for
monitoring the data collected to ensure the safety of subjects.
(7) When appropriate, there are adequate provisions to protect the
privacy of subjects and to maintain the confidentiality of data.
(b) When some or all of the subjects are likely to be vulnerable to
coercion or undue influence, such as children, prisoners, pregnant
women, mentally disabled persons, or economically or educationally
disadvantaged persons, additional safeguards have been included in the
study to protect the rights and welfare of these subjects.
16 CFR 1028.112 Review by institution.
Research covered by this policy that has been approved by an IRB may
be subject to further appropriate review and approval or disapproval by
officials of the institution. However, those officials may not approve
the research if it has not been approved by an IRB.
16 CFR 1028.113 Suspension or termination of IRB approval of research.
An IRB shall have authority to suspend or terminate approval of
research that is not being conducted in accordance with the IRB's
requirements or that has been associated with unexpected serious harm to
subjects. Any suspension or termination of approval shall include a
statement of the reasons for the IRB's action and shall be reported
promptly to the investigator, appropriate institutional officials, and
the department or agency head.
(Approved by the Office of Management and Budget under control number
9999-0020)
16 CFR 1028.114 Cooperative research.
Cooperative research projects are those projects covered by this
policy which involve more than one institution. In the conduct of
cooperative research projects, each institution is responsible for
safeguarding the rights and welfare of human subjects and for complying
with this policy. With the approval of the department or agency head,
an institution participating in a cooperative project may enter into a
joint review arrangement, rely upon the review of another qualified IRB,
or make similar arrangements for avoiding duplication of effort.
16 CFR 1028.115 IRB records.
(a) An institution, or when appropriate an IRB, shall prepare and
maintain adequate documentation of IRB activities, including the
following:
(1) Copies of all research proposals reviewed, scientific
evaluations, if any, that accompany the proposals, approved sample
consent documents, progress reports submitted by investigators, and
reports of injuries to subjects.
(2) Minutes of IRB meetings which shall be in sufficient detail to
show attendance at the meetings; actions taken by the IRB; the vote on
these actions including the number of members voting for, against, and
abstaining; the basis for requiring changes in or disapproving
research; and a written summary of the discussion of controverted
issues and their resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the IRB and the
investigators.
(5) A list of IRB members in the same detail as described is
1028.103(b)(3).
(6) Written procedures for the IRB in the same detail as described in
1028.103(b)(4) and 1028.103(b)(5).
(7) Statements of significant new findings provided to subjects, as
required by 1028.116(b)(5).
(b) The records required by this policy shall be retained for at
least 3 years, and records relating to research which is conducted shall
be retained for at least 3 years after completion of the research. All
records shall be accessible for inspection and copying by authorized
representatives of the department or agency at reasonable times and in a
reasonable manner.
(Approved by the Office of Management and Budget under control number
9999-0020)
16 CFR 1028.116 General requirements for informed consent.
Except as provided elsewhere in this policy, no investigator may
involve a human being as a subject in research covered by this policy
unless the investigator has obtained the legally effective informed
consent of the subject or the subject's legally authorized
representative. An investigator shall seek such consent only under
circumstances that provide the prospective subject or the representative
sufficient opportunity to consider whether or not to participate and
that minimize the possibility of coercion or undue influence. The
information that is given to the subject or the representative shall be
in language understandable to the subject or the representative. No
informed consent, whether oral or written, may include any exculpatory
language through which the subject or the representative is made to
waive or appear to waive any of the subject's legal rights, or releases
or appears to release the investigator, the sponsor, the institution or
its agents from liability for negligence.
(a) Basic elements of informed consent. Except as provided in
paragraph (c) or (d) of this section, in seeking informed consent the
following information shall be provided to each subject:
(1) A statement that the study involves research, an explanation of
the purposes of the research and the expected duration of the subject's
participation, a description of the procedures to be followed, and
identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks or discomforts
to the subject;
(3) A description of any benefits to the subject or to others which
may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of
treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which
confidentiality of records identifying the subject will be maintained;
(6) For research involving more than minimal risk, an explanation as
to whether any compensation and an explanation as to whether any medical
treatments are available if injury occurs and, if so, what they consist
of, or where further information may be obtained;
(7) An explanation of whom to contact for answers to pertinent
questions about the research and research subjects' rights, and whom to
contact in the event of a research-related injury to the subject; and
(8) A statement that participation is voluntary, refusal to
participate will involve no penalty or loss of benefits to which the
subject is otherwise entitled, and the subject may discontinue
participation at any time without penalty or loss of benefits to which
the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one
or more of the following elements of information shall also be provided
to each subject:
(1) A statement that the particular treatment or procedure may
involve risks to the subject (or to the embryo or fetus, if the subject
is or may become pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the subject's participation
may be terminated by the investigator without regard to the subject's
consent;
(3) Any additional costs to the subject that may result from
participation in the research;
(4)The consequences of a subject's decision to withdraw from the
research and procedures for orderly termination of participation by the
subject;
(5) A statement that significant new findings developed during the
course of the research which may relate to the subject's willingness to
continue participation will be provided to the subject; and
(6) The approximate number of subjects involved in the study.
(c) An IRB may approve a consent procedure which does not include, or
which alters, some or all of the elements of informed consent set forth
above, or waive the requirement to obtain informed consent provided the
IRB finds and documents that:
(1) The research or demonstration project is to be conducted by or
subject to the approval of state or local government officials and is
designed to study, evaluate, or otherwise examine: (i) Public benefit
of service programs; (ii) procedures for obtaining benefits or services
under those programs; (iii) possible changes in or alternatives to
those programs or procedures; or (iv) possible changes in methods or
levels of payment for benefits or services under those programs; and
(2) The research could not practicably be carried out without the
waiver or alteration.
(d) An IRB may approve a consent procedure which does not include, or
which alters, some or all of the elements of informed consent set forth
in this section, or waive the requirements to obtain informed consent
provided the IRB finds and documents that:
(1) The research involves no more than minimal risk to the subjects;
(2) The waiver or alteration will not adversely affect the rights and
welfare of the subjects;
(3) The research could not practicably be carried out without the
waiver or alteration; and
(4) Whenever appropriate, the subjects will be provided with
additional pertinent information after participation.
(e) The informed consent requirements in this policy are not intended
to preempt any applicable federal, state, or local laws which require
additional information to be disclosed in order for informed consent to
be legally effective.
(f) Nothing in this policy is intended to limit the authority of a
physician to provide emergency medical care, to the extent the physician
is permitted to do so under applicable federal, state, or local law.
(Approved by the Office of Management and Budget under control number
9999-0020)
16 CFR 1028.117 Documentation of informed consent.
(a) Except as provided in paragraph (c) of this section, informed
consent shall be documented by the use of a written consent form
approved by the IRB and signed by the subject or the subject's legally
authorized representative. A copy shall be given to the person signing
the form.
(b) Except as provided in paragraph (c) of this section, the consent
form may be either of the following:
(1) A written consent document that embodies the elements of informed
consent required by 1028.116. This form may be read to the subject or
the subject's legally authorized representative, but in any event, the
investigator shall give either the subject or the representative
adequate opportunity to read it before it is signed; or
(2) A short form written consent document stating that the elements
of informed consent required by 1028.116 have been presented orally to
the subject or the subject's legally authorized representative. When
this method is used, there shall be a witness to the oral presentation.
Also, the IRB shall approve a written summary of what is to be said to
the subject or the representative. Only the short form itself is to be
signed by the subject or the representative. However, the witness shall
sign both the short form and a copy of the summary, and the person
actually obtaining consent shall sign a copy of the summary. A copy of
the summary shall be given to the subject or the representative, in
addition to a copy of the short form.
(c) An IRB may waive the requirement for the investigator to obtain a
signed consent form for some or all subjects if it finds either:
(1) That the only record linking the subject and the research would
be the consent document and the principal risk would be potential harm
resulting from a breach of confidentiality. Each subject will be asked
whether the subject wants documentation linking the subject with the
research, and the subject's wishes will govern; or
(2) That the research presents no more than minimal risk of harm to
subjects and involves no procedures for which written consent is
normally required outside of the research context.
In cases in which the documentation requirement is waived, the IRB
may require the investigator to provide subjects with a written
statement regarding the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
16 CFR 1028.118 Applications and proposals lacking definite plans for
involvement of human subjects.
Certain types of applications for grants, cooperative agreements, or
contracts are submitted to departments or agencies with the knowledge
that subjects may be involved within the period of support, but definite
plans would not normally be set forth in the application or proposal.
These include activities such as institutional type grants when
selection of specific projects is the institution's responsibility;
research training grants in which the activities involving subjects
remain to be selected; and projects in which human subjects'
involvement will depend upon completion of instruments, prior animal
studies, or purification of compounds. These applications need not be
reviewed by an IRB before an award may be made. However, except for
research exempted or waived under 1028.101 (b) or (i), no human
subjects may be involved in any project supported by these awards until
the project has been reviewed and approved by the IRB, as provided in
this policy, and certification submitted, by the institution, to the
department or agency.
16 CFR 1028.119 Research undertaken without the intention of involving
human subjects.
In the event research is undertaken without the intention of
involving human subjects, but it is later proposed to involve human
subjects in the research, the research shall first be reviewed and
approved by an IRB, as provided in this policy, a certification
submitted, by the institution, to the department or agency, and final
approval given to the proposed change by the department or agency.
16 CFR 1028.120 Evaluation and disposition of applications and
proposals for research to be conducted or supported by a Federal
Department or Agency.
The department or agency head will evaluate all applications and
proposals involving human subjects submitted to the department or agency
through such officers and employees of the department or agency and such
experts and consultants as the department or agency head determines to
be appropriate. This evaluation will take into consideration the risks
to the subjects, the adequacy of protection against these risks, the
potential benefits of the research to the subjects and others, and the
importance of the knowledge gained or to be gained.
(b) On the basis of this evaluation, the department or agency head
may approve or disapprove the application or proposal, or enter into
negotiations to develop an approvable one.
1028.121 (Reserved)
16 CFR 1028.122 Use of Federal funds.
Federal funds administered by a department or agency may not be
expended for research involving human subjects unless the requirements
of this policy have been satisfied.
16 CFR 1028.123 Early termination of research support: Evaluation of
applications and proposals.
(a) The department or agency head may require that department or
agency support for any project be terminated or suspended in the manner
prescribed in applicable program requirements, when the department or
agency head finds an institution has materially failed to comply with
the terms of this policy.
(b) In making decisions about supporting or approving applications or
proposals covered by this policy the department or agency head may take
into account, in addition to all other eligibility requirements and
program criteria, factors such as whether the applicant has been subject
to a termination or suspension under paragarph (a) of this section and
whether the applicant or the person or persons who would direct or has
have directed the scientific and technical aspects of an activity has
have, in the judgment of the department or agency head, materially
failed to discharge responsibility for the protection of the rights and
welfare of human subjects (whether or not the research was subject to
federal regulation).
16 CFR 1028.124 Conditions.
With respect to any research project or any class of research
projects the department or agency head may impose additional conditions
prior to or at the time of approval when in the judgment of the
department or agency head additional conditions are necessary for the
protection of human subjects.
16 CFR 1028.124 Pt. 1030
16 CFR 1028.124 PART 1030 -- EMPLOYEE STANDARDS OF CONDUCT
16 CFR 1028.124 Subpart A -- General Provisions
Sec.
1030.101 Purpose.
1030.102 Applicability.
1030.103 Responsibilities.
1030.104 Designation and functions of Ethics Counselor.
16 CFR 1028.124 Subpart B -- Proscribed Actions
1030.201 General.
16 CFR 1028.124 Subpart C -- Gifts, Entertainment and Favors
1030.301 Accepting gifts and expenses from outside sources.
1030.302 Gifts to official superiors.
1030.303 Acceptance of awards.
1030.304 Commission authority to accept gifts and voluntary and
uncompensated services.
16 CFR 1028.124 Subpart D -- Outside Employment and Other Activities
1030.401 General.
1030.402 Outside employment.
1030.403 Compensation from private sources for official services.
1030.404 Outside professional or consultative work.
1030.405 Outside writing and editing.
1030.406 Teaching and lecturing activities.
1030.407 Endorsement of a product or organization by a Commission
employee.
1030.408 Membership in organizations and professional societies.
1030.409 Union activities.
1030.410 Voluntary standards organizations.
16 CFR 1028.124 Subpart E -- Financial Interests
1030.501 General provisions.
1030.502 Special provisions applicable to Commissioners.
16 CFR 1028.124 Subpart F -- Statements of Employment and Financial
Interests
1030.601 Employees required to submit employment and financial
interest statement.
1030.602 Inclusion or removal of positions.
1030.603 Employee's complaint on filing requirement.
1030.604 Employees not required to submit statements.
1030.605 Submission of statements.
1030.607 Interest of employee's relatives.
1030.608 Information not known by employees.
1030.609 Confidentiality of employee's statement.
1030.610 Effects of employee statement on other requirements.
1030.611 Positions requiring submission of statement of employment
and financial interests.
16 CFR 1028.124 Subpart G -- Conduct on the Job
1030.701 General.
1030.702 Support of Commission programs.
1030.703 Use of government funds.
1030.704 Use of government property.
1030.705 Conduct in Federal buildings.
16 CFR 1028.124 Subpart H -- Financial Responsibility
1030.801 General.
16 CFR 1028.124 Subpart I -- Political Activity
1030.901 Applicability.
16 CFR 1028.124 Subpart J -- Disciplinary and Remedial Action
1030.1001 Disciplinary action.
1030.1002 Remedial action for conflicts of interest.
16 CFR 1028.124 Subpart K -- Provisions Relating to Special Government
Employees
1030.1101 Applicability.
1030.1102 Use of government employment.
1030.1103 Use of inside information.
1030.1104 Other activities.
1030.1105 Coercion.
1030.1106 Gifts, entertainment and favors.
1030.1107 Miscellaneous statutory provisions.
1030.1108 Statement of financial interests required.
1030.1109 Political activity.
16 CFR 1028.124 Subpart L -- Disciplinary Actions Concerning
Postemployment Conflict of Interest
1030.1201 Scope and applicability.
1030.1202 Nonpublic proceedings.
1030.1203 Initiation of investigation.
1030.1204 Referral to the Office of Government Ethics and to the
Department of Justice.
1030.1205 Conduct of investigation.
1030.1206 Disposition.
1030.1207 Order to show cause.
1030.1208 Answer and request for a hearing.
1030.1209 Presiding official.
1030.1210 Scheduling of hearing.
1030.1211 Prehearing procedures; motions; interlocutory appeals;
summary decision; discovery; compulsory process.
1030.1212 Hearing rights of respondent.
1030.1213 Hearing procedures; burden of proof.
1030.1214 Initial decision.
1030.1215 Review of initial decision.
1030.1216 Commission decision and reconsideration.
1030.1217 Sanctions.
1030.1218 Judicial review.
16 CFR 1028.124 Subpart M -- Disclosure of Information about an
Individual
1030.1301 Applicability.
Appendix A -- Code of Ethics for Government Service
Appendix B -- Index to Some Statutes and Executive Orders Related to
Conflict of Interest and Other Prohibited Activities
Appendix C -- Summarization of Restrictions Placed on Special
Government Employees
Appendix D -- Political Activity of Federal Employees
Appendix E -- (Reserved)
Appendix F -- GSA Regulations -- Conduct on Federal Property
Note: Appendices A, B, C, D and F filed as part of the original
document.
Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1964-1965 Comp., p. 306;
5 CFR 735.101 et seq.; Pub. L. 95-521, 92 Stat. 1824, as amended by
Pub. L. 96-19, 93 Stat. 37 (5 U.S.C. App.), unless otherwise noted.
Source: 41 FR 8018, Feb. 23, 1976, unless otherwise noted.
16 CFR 1028.124 Subpart A -- General Provisions
16 CFR 1030.101 Purpose.
In order to assure that the business of the Consumer Product Safety
Commission (hereinafter referred to as the Commission) is conducted
effectively, objectively, and without improper influence or the
appearance thereof, all Commission employees must observe the highest
standards of conduct and be guided by the Code of Ethics for Government
Service as outlined in appendix A. Commission employees must avoid any
real or apparent conflict between their private interests and their
public duties. This regulation meets the Commission's obligation to set
reasonable and fair safeguards for the prevention of employee conflicts
of interest in order to assure public confidence in the integrity of the
Commission's actions.
16 CFR 1030.102 Applicability.
These regulations apply to all officers and employees of the
Commission, including regular officers of the Public Health Service
Commission Corps assigned to the Commission and employees detailed to
the Commission from other Agencies, except that the regulations in this
part apply to special Government employees only to the extent stated in
subpart K of this regulation.
16 CFR 1030.103 Responsibilities.
(a) Each Commission employee shall be responsible for observing the
specific provisions of these regulations and the statutes referenced in
appendix B.
(b) Although each employee is accountable for his or her own conduct,
supervisors are responsible to a large degree for ensuring that the
standards set forth in this regulation are observed by employees under
their supervision. They must become familiar with the Commission's
regulations and ensure that all employees under their supervision are
made aware of the provisions of these regulations. Supervisors shall
take suitable action, including disciplinary action when necessary, when
violations occur.
16 CFR 1030.104 Designation and functions of Ethics Counselor.
(a) The General Counsel is designated the Commission's Ethics
Counselor for all matters pertaining to standards of conduct for
Commission employees. This function includes serving as the designated
agency ethics official under the Ethics in Government Act.
(b) The Assistant General Counsel for General Law is designated as
the alternate Commission Ethics Counselor and shall serve as acting
Ethics Counselor in the absence of the Ethics Counselor.
(c) The Ethics Counselor shall:
(1) Provide advice and guidance to employees on questions arising
under this part and under the Ethics in Government Act, including their
right to use the grievance system to challenge determinations of the
Ethics Counselor;
(2) Initiate and maintain ethics education and training programs;
(3) Review financial disclosure reports under this part and the
Ethics in Government Act;
(4) Make determinations as to the existence of conflicts of interest
or other proscribed actions under this part and the Ethics in Government
Act;
(5) Supervise and monitor administrative actions and sanctions under
this part and the Ethics in Government Act; and
(6) Provide liaison with the Office of Government Ethics.
(45 FR 82914, Dec. 17, 1980, as amended at 49 FR 35483, Sept. 10,
1984; 50 FR 13555, Apr. 5, 1985)
16 CFR 1030.104 Subpart B -- Proscribed Actions
16 CFR 1030.201 General.
An employee shall avoid any action which might result in or create
the appearance of:
(a) Using public office for private gain;
(b) Giving preferential treatment to any person, company, or
organization;
(c) Impeding efficiency or economy;
(d) Compromising independence or impartiality;
(e) Making a Government decision outside official channels; or
(f) Otherwise affecting adversely the confidence of the public in the
integrity of the Government.
16 CFR 1030.201 Subpart C -- Gifts, Entertainment and Favors
16 CFR 1030.301 Accepting gifts and expenses from outside sources.
(a) Except as provided in paragraph (b) of this section, an employee
shall not solicit or accept, directly or indirectly, any gift, gratuity,
favor, entertainment, loan, travel, or any other thing of monetary value
from a person or organization who:
(1) Conducts operations or activities that are regulated by the
Commission;
(2) Has, or is seeking to obtain, contractual or other business or
financial relations with the Commission;
(3) Has interests that may be substantially affected by the
performance or nonperformance of the employee's duties.
(b) The following are exceptions to the restrictions set forth in
paragraph (a) of this section:
(1) Acceptance of food and refreshments of nominal value on an
infrequent occasion in the ordinary course of a luncheon or dinner
meeting or other meeting or on an inspection tour where other
arrangements are not possible.
(2) Acceptance of modest entertainment, such as a meal or a
refreshment, in connection with attendance at widely attended gatherings
sponsored by industrial, technical, consumer, or professional
organizations; provided that the sponsor is not a private individual or
firm.
(3) Acceptance of gifts, favors, or entertainment, where there is an
obvious family or personal relationship between the employee, or between
his spouse, children, or parents, and the donor, and where the
circumstances make it clear that it is that relationship, rather than
the business of the persons concerned, which is the motivating factor
for the gift, favor, or entertainment.
(4) Purchase of articles at advantageous rates where such rates are
offered to Government employees as a class.
(5) Acceptance of loans from banks or other financial institutions on
customary terms to finance proper and usual activities of employees,
such as home mortgage loans.
(6) Acceptance of unsolicited advertising or promotional material,
such as pens, pencils, note pads, calendars, or other items of nominal
value.
(7) Acceptance of incidental, short-distance transportation in kind
from a private organization, provided it is furnished in connection with
the performance of the employee's official duties when other
transportation is not otherwise available or convenient.
(c) An employee shall not accept an honorarium, transportation
expenses, or per diem from a private source when the employee is on
official duty, under Commission orders, and the travel or per diem
expenses are payable by the Commission. However, the Commission may
accept gifts, including reimbursement for employee travel expenses,
pursuant to 1030.304 of this subpart.
(d) A gift or gratuity the receipt of which is prohibited under this
subpart shall be returned to the donor. If return is not possible, the
gift or gratuity shall be turned over to a public or charitable
institution and a report of such action, and the reasons why return was
not feasible, shall be made to the Ethics Counselor. When possible, the
donor also shall be informed of this action.
16 CFR 1030.302 Gifts to official superiors.
An employee shall not solicit a contribution from another employee
for a gift to an official superior, or make a donation as a gift to an
official superior. An employee in a superior official position shall
not accept a gift or contribution from employees receiving less salary
than himself or herself. However, this paragraph does not prohibit a
gift of nominal value or a donation in a nominal amount made on a
special occasion, such as marriage, illness, or retirement.
16 CFR 1030.303 Acceptance of awards.
(a) This subpart does not preclude an employee from accepting an
award or recognition of achievement from a charitable, religious,
professional, social, fraternal, educational, recreational, public
service, or civic organization, provided that such acceptance does not
create or appear to create a conflict of interest for the employee.
(b) An employee shall not accept a gift, present, decoration or other
thing from a foreign government unless authorized by Congress as
provided by the Constitution and in accordance with 5 U.S.C. 7342.
16 CFR 1030.304 Commission authority to accept gifts and voluntary and
uncompensated services.
Section 27(b)(6) of the Consumer Product Safety Act (15 U.S.C.,
section 2076(b)(6)) gives the Commission the authority to accept gifts
and voluntary and uncompensated services, notwithstanding the provisions
of Section 3679 of the Revised Statutes (31 U.S.C. 665(b)). The
authority of the Commission to accept gifts does not authorize employees
to accept gifts in their individual names. However, certain employees
of the Commission may accept such gifts and services on behalf of the
Commission in accordance with the Commission's directive on gifts and
voluntary services.
16 CFR 1030.304 Subpart D -- Outside Employment and Other Activities
16 CFR 1030.401 General.
(a) An employee shall not engage in any outside activity not
compatible with the full and proper discharge of the duties and
responsibilities of his or her government employment whether or not in
violation of any specific provision of a statute. As used in this part,
the term ''outside employment or other outside activity'' refers to any
work, service, or other activity performed by an employee other than in
the performance of his or her official duties. It includes such
activities as writing and editing, teaching, lecturing, consulting
services, self-employment, and other work or services with or without
compensation. Incompatible outside activities include, but are not
limited to:
(1) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in any circumstances in which
acceptance may result in, or create the appearance of a conflict of
interest;
(2) Outside employment which tends to impair the employee's mental or
physical capacity to perform his or her Commission duties and
responsibilities in an acceptable manner;
(3) Outside employment which might give the impression that the
employee's outside activities are official acts of the Commission or
represent official points of view;
(4) Outside employment that takes the employee's time and attention
during official work hours;
(5) Outside employment in an organization whose business activities
are subject to Commission regulation unless:
(i) The regulated activities of the organization are an insignificant
part of its total operations;
(ii) The outside employment is in non-regulated activities of the
organization.
16 CFR 1030.402 Outside employment.
(a) Employees considering engaging in outside employment shall be
guided by the limitations of 1030.401.
(b) An employee shall give advance notice of any outside employment
to the Office, Bureau, or Area Office Director. Notice shall be given
on CPSC Form 241. The Office, Bureau or Area Office Director shall
complete the form with appropriate recommendation and forward it to the
Ethics Counselor for approval.
(41 FR 8018, Feb. 23, 1976; 41 FR 25890, June 23, 1976)
16 CFR 1030.403 Compensation from private sources for official
services.
An employee shall not receive any salary or anything of monetary
value from a private source as compensation for his or her services to
the Government except as provided in 1030.303 of subpart C.
16 CFR 1030.404 Outside professional or consultative work.
(a) Employees may engage in outside professional or consultative work
only after meeting the following conditions:
(1) The work is not to be rendered to organizations, institutions, or
state or local governments with which the official duties of the
employee are directly related, and/or the work creates a conflict or
apparent conflict of interest.
(2) The work is not to be rendered for compensation to help
organizations, institutions, or state or local governments in the
preparation of offers to develop standards, grant applications, contract
proposals, program reports, or other materials which are intended to
become the subject of dealings with the Commission.
(b) All requests to perform consultative services, either compensated
or uncompensated, for organizations, institutions, or government units
which have or will be awarded contracts or grants in the near future
from the Commission must be carefully appraised to avoid any conflict or
apparent conflict of interest.
(c) Employees shall give advance notice of all outside professional
or consultative work to the Office, Bureau or Area Office Director.
Notice shall be given on CPSC Form 241. The Office Bureau, or Area
Office Director shall complete the form with appropriate recommendation
and forward it to the Ethics Counselor for approval.
(d) For the purpose of this section, ''professional and consultative
work'' is work performed in such occupations as those listed in chapter
300, appendix A of the Federal Personnel Manual.
(41 FR 8018, Feb. 23, 1976; 41 FR 25890, June 23, 1976)
16 CFR 1030.405 Outside writing and editing.
Employees are encouraged to engage in outside writing and editing,
whether or not done for compensation. Such outside writing and editing
may be on a subject related or unrelated to an employee's official
duties. Certain conditions must be met in either case, as set forth
below:
(a) The following conditions shall apply to all outside writing and
editing whether related or unrelated to the employee's official duties:
(1) Government-financed time or supplies shall not be used by an
employee in connection with the activity;
(2) Commission support must not be expressed or implied in the
material itself or in advertising or promotional material, including
book jackets and covers; and
(3) The activity must not involve approval or disapproval of
advertising matter.
(b) In addition to observing the conditions described in paragraph
(a) of this section, an employee should omit use of his or her official
title or affiliation with the Commission with respect to any writing and
editing activities unrelated to the employee's official duties or,
alternatively, use his or her official title and affiliation with a
disclaimer, as described in paragraph (c) of this section.
(c) A disclaimer shall be used in all publications in which an
employee uses his or her official title or affiliation with the
Commission unless the Executive Director, upon request, determines that
the nature of the publication is such that a disclaimer is not
necessary. The disclaimer shall read as follows: ''This (article,
book, etc.) was (written, edited) by (employee's name) in his/her
private capacity. It is not intended nor should it be inferred that
opinions expressed herein represent the official position of the
Consumer Product Safety Commission.''
(d) An employee shall not use Commission information which is exempt
from disclosure by the terms of the Freedom of Information Act in
outside writing activities unless, upon written request, the Secretary
determines that the exemption will be waived and the information may be
publicly disclosed.
(e) Employees shall give advance notice of all outside writing and
editing to the appropriate Office, Bureau or Area Office Director.
Notice shall be given on CPSC Form 241. The Office, Bureau or Area
Office Director shall complete the form with appropriate recommendations
and forward it to the Ethics Counselor for approval.
(41 FR 8018, Feb. 23, 1976, as amended at 41 FR 25890, June 23, 1976)
16 CFR 1030.406 Teaching and lecturing activities.
(a) Employees are encouraged to engage in teaching and lecturing
activities which are not part of their official duties under the
following conditions:
(1) Government-financed time and materials shall not be used in
connection with such activity;
(2) Government travel or per diem funds shall not be used for these
purposes;
(3) Such teaching or lecturing is not dependent on specific
information which would not otherwise be available to the public under
the Freedom of Information Act, unless upon written request, the
Secretary determines that the information may be publicly disclosed;
(4) Teaching or lecturing may not be for the purpose of the special
preparation of a person or class of persons for an examination of the
Civil Service Commission that depends on information obtained as a
result of Government employment, except when that information has been
made available to the general public or will be made available on
request.
(b) Employees shall give advance notice of all outside teaching and
lecturing activities to the appropriate Office, Bureau or Area Office
Director. Notice shall be given on CPSC Form 241. The Office, Bureau
or Area Office Director shall complete the form with appropriate
recommendation and forward it to the Ethics Counselor for approval.
(41 FR 8018, Feb. 23, 1976, as amended at 41 FR 25890, June 23, 1976)
16 CFR 1030.407 Endorsement of a product or organization by a
Commission employee.
Employees are prohibited from endorsing a product subject to the
jurisdiction of the Commission or the manufacturer of such a product or
endorsing a consumer group because it might create the appearance of:
(a) Giving preferential treatment;
(b) Compromising independence or impartiality, and
(c) Affecting adversely the confidence of the public in the integrity
of the Commission.
16 CFR 1030.408 Membership in organizations and professional societies.
(a) Employees may be members of professional, educational, public
service, consumer, civic, or similar organizations and be elected or
appointed to office in such an organization.
(b) Employees shall avoid any real or apparent conflict of interest
in connection with such membership. For example, they must not:
(1) Directly or indirectly commit the Commission on any matter;
(2) Permit their name(s) to be attached to documents, the
distribution of which would be likely to embarrass the Commission;
(3) Serve as representatives of such organizations in dealing with
the Government;
(4) Bring any claim or proceeding before a federal agency or against
the Federal Government in a court of law on behalf of the organization;
(5) Offer their views as the official views of the Commission unless
the Commission has officially stated its views on a particular matter
through an official Commission vote.
(c) In undertaking any office or function beyond ordinary membership
in a professional association, a Commission employee must obtain advance
approval from the Ethics Counselor in any situation in which the
responsibilities as an officer would create a real or apparent conflict
of interest with the responsibilities as a Commission employee.
16 CFR 1030.409 Union activities.
Notwithstanding the provisions of 1030.408, employees may
participate in union activities to the extent permitted by applicable
statutes, Executive Orders, regulations, and labor-management
agreements.
16 CFR 1030.410 Voluntary standards organization.
The Commission regulations governing employees' membership in
voluntary standards organizations are set forth in 16 CFR part 1031
(June 20, 1975; 40 FR 26023).
16 CFR 1030.410 Subpart E -- Financial Interests
16 CFR 1030.501 General provisions.
(a) An employee shall not have a direct or indirect financial
interest that conflicts substantially, or appears to conflict
substantially, with his or her Government duties and responsibilities.
The financial interest of a spouse, minor child, or other member of an
employee's immediate household, as defined in 1030.607, shall be
considered as the interest of the employee. In cases where a question
of outside financial interest arises, the employee shall request
guidance from the Ethics Counselor.
(b) An employee shall not engage directly or indirectly in financial
transactions as a result of, or primarily relying on information
obtained through Commission employment which is not otherwise available
to the general public.
(c) Ordinarily, the following types of financial interests are
considered too remote or inconsequential to affect the integrity of an
employee's service and therefore, would not necessarily constitute a
substantial conflict of interest:
(1) In an organization whose Commission-regulated activities are an
insignificant part of its total operation;
(2) In an organization whose Commission-regulated activities are a
significant part of its total business operations, provided: (i) The
holding is less than $5,000 (value or cost at time of initial
reporting), and (ii) the holding represents less than one (1) percent of
the total outstanding stock shares of that organization, and (iii) no
more than 50 percent of the employee's total investment value is
concentrated in significantly regulated industries; or
(3) In a widely held diversified mutual fund or regulated investment
company.
(d) While examples provided in paragraph (c) of this section may not
constitute a substantial conflict of interest, each employee designated
in subpart F and appendix E of this part, must report all such financial
interest regardless of how inconsequential.
(e) Employees who are required to submit employment and financial
interest statements in accordance with subpart F may not participate for
the Commission in any matter relating to an organization in which he or
she has a financial interest without full disclosure of the financial
interest to the Ethics Counselor and a written determination by the
Ethics Counselor in accordance with 18 U.S.C. 208(b)(1) that the
interest is not so substantial as to be likely to affect the integrity
of services which the Commission may expect from an employee.
(f) Employees not required to submit employment and financial
interest statements but who otherwise meet the requirement of 1030.601
regardless of grade, shall be bound by the provision of (e) of this
section.
16 CFR 1030.502 Special provisions applicable to Commissioners.
As provided by Section 4(c) of the Consumer Product Safety Act (15
U.S.C. 2053(c)), a Commissioner shall not: (1) be in the employ of, or
hold any official relations to, any person engaged in selling or
manufacturing consumer products as defined in Section 3(a)(1) of the
Consumer Product Safety Act (15 U.S.C. 2052 (a)(1)); or (2) own stock
or bonds of substantial value in a person so engaged; or (3) in any
other manner be pecuniarily interested in such a person, or in a
substantial supplier of such a person. In addition, a Commissioner may
not engage in any other business, vocation, or employment.
16 CFR 1030.502 Subpart F -- Statements of Employment and Financial Interest
16 CFR 1030.601 Employees required to submit employment and financial
interests statement.
Commission employees in certain positions have been determined to
have duties and responsibilities which require them to report their
employment and financial interests in order to ascertain possible
conflict of interest situations and to protect the integrity of the
Commission. Accordingly, employees in the following positions
(identified specifically in 1030.611) are required to submit a
Confidential Statement of Employment and Financial Interests (CPSC Form
219) in accordance with the provisions of this subpart:
(a) Employees paid at a level under the Executive Schedule in
subchapter II of chapter 53 of title 5, United States Code;
(b) Employees in positions which have basic duties and
responsibilities requiring the incumbent to exercise judgment in making
Government decisions or in taking Government action in regard to (1)
contracting or procurement, (2) administering or monitoring grants, (3)
standards development, (4) rulemaking, (5) compliance activities or (6)
other activities where the decision or action has an economic impact on
the interest of any non-Federal enterprise.
(41 FR 8018, Feb. 23, 1976, as amended at 48 FR 15, Jan. 3, 1983)
16 CFR 1030.602 Inclusion or removal of positions.
The Ethics Counselor shall, in accordance with the criteria in
1030.601 and after consultation with the Executive Director, identify
positions to be added to or removed from the listing in 1030.611.
(48 FR 15, Jan. 3, 1983)
16 CFR 1030.603 Employee's complaint on filing requirement.
An employee may complain and obtain review through the Commission's
grievance procedures if he or she believes that his or her position has
been improperly included under 1030.601 as one requiring the submission
of a statement of employment and financial interests.
16 CFR 1030.604 Employees not required to submit statements.
(a) Employees in positions that meet the criteria of 1030.601, as
listed in 1030.611, may be excluded from the reporting requirement when
the Ethics Counselor determines that:
(1) The duties of a position are at such a level of responsibility
that the submission of a statement of employment and financial interests
by the incumbent is not necessary because of the degree of supervision
and review over the incumbent; or
(2) The duties of a position are such that the likelihood of the
incumbent's involvement in a conflict of interest situation is remote.
(b) Exclusions under this provision must be documented in writing and
retained by the Ethics Counselor.
(c) Employees subject to the more detailed financial reporting
requirements of title II of the Ethics in Government Act of 1978 (Pub.
L. 95-521, 5 U.S.C. appendix), are excluded from the reporting
requirements of this subpart.
(48 FR 15, Jan. 3, 1983)
16 CFR 1030.605 Submission of statements.
(a) An employee required to submit a statement of employment and
financial interests under this subpart shall submit that statement to
the Ethics Counselor not later than:
(1) Thirty days after appointment or assignment to a position covered
by section 1030.611; and
(2) By June 30 of each succeeding year.
(b) Employees failing to submit a statement in accordance with this
section may be subject to disciplinary action.
(c) Notwithstanding the filing of the statements required by this
section, each employee shall at all times avoid acquiring a financial
interest that could result, or taking an action that would result, in a
violation of the conflict-of-interest provisions of 18 U.S.C. 208 or
this part.
(48 FR 15, Jan. 3, 1983)
16 CFR 1030.607 Interests of employees' relatives.
The interest of a spouse, minor child, or other member of an
employee's immediate household is considered to be an interest of the
employee. For the purpose of this section, ''member of an employee's
immediate household'' means those blood or in-law relations who are
residents of the employee's household.
16 CFR 1030.608 Information not known by employees.
If any information required to be included on a statement of
employment and financial interests or supplementary statement, including
holdings placed in trust, is not known to the employee but is known to
another person, the employee shall request that other person to submit
information in his or her behalf.
16 CFR 1030.609 Confidentiality of employees' statements.
The Commission shall hold each statement of employment and financial
interests, and each supplementary statement, in confidence in accordance
with the provisions of the Privacy Act of 1974 (5 U.S.C. 552a) and
subpart N of this part. Employees authorized to review and retain the
statements are responsible for maintaining the statements in confidence
and shall not allow access to, or allow information to be disclosed
from, a statement except to carry out the purpose of subpart E.
Disclosure of employment and financial interest statements (or
supplementary statements) to persons other than authorized Commission
personnel shall be governed by the Commission's regulations implementing
the Privacy Act (16 CFR part 1014).
16 CFR 1030.610 Effect of employee statement on other requirements.
The requirements of this subpart are in addition to the requirements
concerning administrative approval for certain activities as specified
in subpart E of this part. Also, the requirements of this subpart are
in addition to and not in substitution for or in derogation of, any
other requirement imposed by law, order or regulation. The submission
of a Statement of Employment and Financial Interests or supplementary
statement by an employee does not permit the employee to participate in
a matter which is otherwise prohibited by law or regulation.
16 CFR 1030.611 Positions requiring submission of statement of
employment and finanical interests.
(a) Commissioners' staffs. All positions grade 13 and above.
(b) Office of the General Counsel. All positions grade 11 and above.
(c) Office of Congressional Relations. All positions grade 15 and
above.
(d) Office of Public Affairs. All positions grade 14 and above.
(e) Office of the Secretary. All positions grade 13 and above.
(f) Office of Internal Audit. All positions grade 14 and above.
(g) Office of Equal Employment Opportunity and Minority Enterprise.
All positions grade 15 and above.
(h) Office of the Executive Director. All Merit Pay positions.
(i) Office of Program Management. All Merit Pay positions.
(j) Office of Budget, Program Planning and Evaluation. All positions
grade 15 and above.
(k) Office of Outreach Coordination. All positions grade 13 and
above.
(l) Directorate for Epidemiology. All Merit Pay positions and all
Physiologists grade 11 and above, all Engineering Psychologists grade 11
and above, all Statisticians grade 11 and above, and all Program
Analysts grade 12 and above.
(m) Directorate for Economics. All positions grade 12 and above.
(n) Directorate for Engineering Sciences. All Merit Pay positions.
(o) Directorate for Health Sciences. All positions grade 11 and
above.
(p) Directorate for Compliance and Administrative Litigation. All
positions grade 11 and above.
(q) Directorate for Administration. All Merit Pay positions and all
Contract Specialists, Purchasing Agents, and Procurement Assistants,
grade 5 and above.
(r) Regional Offices. All investigative positions grade 5 and above;
all compliance positions grade 12 and above; all other positions grade
13 and above.
(s) Computer-related positions. All CPSC computer-related positions
grade 9 and above classifiable as ADP-I or ADP-II under chapter 732 of
the Federal Personnel Manual, regardless of organizational unit.
(48 FR 15, Jan. 3, 1983, as amended at 49 FR 39292, Oct. 5, 1984)
16 CFR 1030.611 Subpart G -- Conduct on the Job
16 CFR 1030.701 General.
An employee's conduct on the job is, in all respects, of concern to
the Federal Government. Courtesy, consideration, and promptness in
dealing with others must be shown in carrying out official
responsibilities. In addition, specific rules and regulations have been
set which must be observed as discussed below.
16 CFR 1030.702 Support of Commission programs.
(a) When a Commission program is based on law or Executive Order,
every employee has an obligation to make it function as efficiently and
economically as possible and to support it as long as it is a part of
recognized public policy.
(b) An employee shall not, either directly or indirectly, use
appropriated funds to influence a Member of Congress to favor or oppose
legislation. However, an employee is not prohibited from:
(1) Testifying as a representative of the Commission on pending
legislative proposals before Congressional Committees on request; or
(2) Assisting Congressional Committees in drafting bills or reports
on request, when it is clear that the employee is serving solely as a
technical expert under the direction of committee leadership.
16 CFR 1030.703 Use of government funds.
Several laws carry penalties for misuse of Government funds. These
apply to:
(a) Improper use of official transportation forms (18 U.S.C. 508);
(b) Improper use of payroll and other vouchers and documents on which
Government payments are based (18 U.S.C. 285);
(c) Taking or failing to account for funds with which an employee is
entrusted in his or her official position (18 U.S.C. 643); and
(d) Taking Government funds, property or records for personal use (18
U.S.C. 641).
16 CFR 1030.704 Use of government property.
An employee shall not directly or indirectly use, or allow the use
of, Government property of any kind, including property leased to the
Government, for other than officially approved activities. An employee
has a positive duty to protect and conserve Government property,
including equipment, supplies, and other property, entrusted or issued
to him or her. For example:
(a) Only official documents and materials may be processed on
Government reproduction facilities.
(b) Government automobiles may be used only on official business and
may not be used for personal use or for travel to or from an employee's
place of residence.
(c) Government telephones may not be used to make personal long
distance calls.
16 CFR 1030.705 Conduct in Federal buildings.
(a) An employee shall not participate while on Government-owned or
leased property or while on duty for the Government, in any gambling
activity including the operation of a gambling device, in conducting a
lottery pool, in a game for money or property, or in selling or
purchasing a numbers slip or ticket. However, this section does not
preclude activities:
(1) Necessitated by an employee's law enforcement duties; or
(2) Involving fund raising within the federal service under Section 3
of Executive Order 10927 and similar Commission approved activities.
(b) General Services Administration regulations ''Conduct on Federal
Property'' (appendix F) are applicable to Commission employees inasmuch
as Commission buildings and space are under the control of the GSA.
These regulations prohibit, among other things, gambling and consumption
of intoxicating beverages on the premises.
16 CFR 1030.705 Subpart H -- Financial Responsibility
16 CFR 1030.801 General.
An employee shall pay each just financial obligation in a proper and
timely manner, especially one imposed by law such as Federal, State or
local taxes. For purposes of this section, a ''just financial
obligation'' means one acknowledged by the employee or reduced to
judgment by a court or one imposed by law such as Federal, State or
local taxes, and ''in a timely manner'' means in a manner which the
agency determines does not, under the circumstances, reflect adversely
on the Government as his or her employer. In the event of dispute
between an employee and an alleged creditor, this section does not
require an agency to determine the validity or amount of the disputed
debt.
16 CFR 1030.801 Subpart I -- Political Activity
16 CFR 1030.901 Applicability.
(a) All employees in the Executive Branch of the Federal Government
are subject to the basic political activity restrictions in subchapter
III of chapter 73 of title 5, U.S.C. (the Hatch Act) and Civil Service
Rule IV as summarized in appendix D. The Federal Personnel Manual
contains more detailed information on this subject and may be reviewed
in the Personnel Office.
(b) Intermittent employees are subject to the restrictions when in
active duty status only and for the entire 24 hours of any day of actual
employment.
(c) Employees on leave, on leave-with-out-pay or on furlough or
terminal leave, even though the employee's resignation has been
accepted, are subject to the restrictions. A separated employee who has
received a lump-sum payment for annual leave, however, is not subject to
the restriction during the period covered by the lump-sum payment or
thereafter, provided he or she does not return to federal employment
during that period. An employee is not permitted to take leave of
absence to work with a political candidate, committee, or organization
or become a candidate for office with the understanding that he or she
will resign his or her position if nominated or elected.
(d) An employee is accountable for political activity by another
person acting as his or her agent or under the employee's direction or
control if he or she is thus accomplishing indirectly what he or she may
not lawfully do directly and openly.
(e) Each Commission employee should be acquainted with the
restrictions placed on political activities as summarized in appendix D
and shall refrain from engaging in any political activity which is
prohibited.
16 CFR 1030.901 Subpart J -- Disciplinary and Remedial Action
16 CFR 1030.1001 Disciplinary action.
(a) Violation of these regulations may be cause for disciplinary
action which may be in addition to any penalty prescribed by law.
Disciplinary action shall be administered in accordance with the
Commissions' Directive on Adverse Actions.
(b) The type of disciplinary actions to be taken shall be determined
in relation to the specific violation. No standard table of penalties
has been established for application in the Commission. Those
responsible for recommending and for taking disciplinary action must
apply judgment in each case, taking into account the general objectives
of meeting any requirements of law, deterring similar offenses by the
employee and other employees and maintaining high standards of employee
conduct and public confidence. Some types of disciplinary actions to be
considered are:
(1) Oral admonishment;
(2) Written reprimand;
(3) Reassignment;
(4) Demotion;
(5) Suspension;
(6) Separation.
16 CFR 1030.1002 Remedial action for conflicts of interest.
Where a statement of employment and financial interest of an employee
or special Government employee shows a real or potential conflict of
interest with the employee's official responsibilities, consideration
should be given by the Ethics Counselor and, if necessary, the
employee's supervisor, to reconciling the conflict through remedial
action. The following are examples of such actions which may be
appropriate:
(a) Divestment by the employee or special Government employee of his
or her conflicting interest;
(b) Disqualification of the employee for a particular assignment;
(c) Changes in the employee's assigned duties.
16 CFR 1030.1002 Subpart K -- Provisions Relating to Special Government Employees
16 CFR 1030.1101 Applicability.
The requirements of this subpart apply to employees designated by law
(18 U.S.C. 202) as ''special Government employees''. The term includes
employees who are retained, designated, appointed, or employed to serve,
with or without compensation, for not more than 130 days during any
period of 365 consecutive days, either on a full-time or intermittent
basis. In addition, ''special Government employees'' shall adhere to
the standards of conduct made applicable to regular employees by this
part.
16 CFR 1030.1102 Use of Government employment.
A special Government employee shall not use his or her Commission
employment for a purpose that is, or gives the appearance for being,
motivated by the desire for private gain for himself or herself or for
another person, particularly one with whom he or she has family,
business, or financial ties.
16 CFR 1030.1103 Use of inside information.
A special Government employee shall not use inside information
obtained as a result of his or her Government employment for private
gain for himself or herself or another person either by direct action on
his or her part or by counsel, recommendation, or suggestion to another
person, particularly one with whom he or she has family, business, or
financial ties. For the purpose of this section, ''inside information''
means information obtained under Government authority which has not
become part of the body of public information.
16 CFR 1030.1104 Other activities.
A special Government employee may teach, lecture, write, or engage in
other non-Commission activities in a manner not inconsistent with
subpart D of this part.
16 CFR 1030.1105 Coercion.
A special Government employee shall not use his or her Commission
employment to coerce, or give the appearance of coercing, a person to
provide financial benefit to himself or herself or another person,
particularly one with whom he or she has family, business, or financial
ties.
16 CFR 1030.1106 Gifts, entertainment, and favors.
A special Government employee, while so employed or in connection
with his or her employment shall not receive or solicit from a person
having business with the Commission anything of value as a gift,
gratuity, loan, entertainment, or favor for himself or herself or
another person, particularly one with whom he or she has family,
business, or financial ties.
16 CFR 1030.1107 Miscellaneous statutory provisions.
Each special Government employee shall acquaint himself or herself
with the statutory provisions that relate to his or her conduct as a
special Government employee of the Commission (appendices B and C).
16 CFR 1030.1108 Statement of financial interests required.
(a) Each special Government employee shall submit a statement of
employment and financial interests which reports:
(1) All other employment; and
(2) The financial interests which relate whether directly or
indirectly to his or her duties and responsibilities.
(b) A statement of employment and financial interest required to be
submitted under this section shall be submitted not later than the time
of employment of a special Government employee by the Commission. Each
special Government employee shall submit a supplemental statement
whenever there is a significant change in financial interests as
reported in the prior statement.
(c) The statement of employment and financial interests shall be
submitted directly to the Ethics Counselor.
(d) The Ethics Counselor may waive the requirement for the submission
of a statement of employment and financial interests in the case of a
special Government employee if the duties of the position held by that
special Government employee are of a nature and at such a level of
responsibility that the submission of the statement by the incumbent is
not necessary to protect the integrity of the Commission. For the
purpose of this paragraph, ''consultant'' and ''expert'' have the
meanings given those terms by chapter 304 of the Federal Personnel
Manual.
16 CFR 1030.1109 Political activity.
Special Government employees and intermittent employees are subject
to the political activity restrictions of subchapter III of chapter 73
of title 5, U.S.C. (the Hatch Act) and Civil Service Rule IV when in
active duty status only and for the entire 24 hours of any day of actual
employment.
16 CFR 1030.1109 Subpart L -- Disciplinary Actions Concerning
Postemployment Conflict of Interest
Authority: 18 U.S.C. 207(j).
Source: 47 FR 18125, Apr. 28, 1982, unless otherwise noted.
16 CFR 1030.1201 Scope and applicability.
These regulations establish procedures for investigating and
determining alleged violations of 18 U.S.C. 207 (a), (b) and (c)
(Postemployment restrictions applicable to federal employees) or
regulations issued by the Office of Personnel Management set forth in 5
CFR part 737, reflecting the joint views of the Office of Government
Ethics and the Department of Justice as to the requirements of 18 U.S.C.
207.
16 CFR 1030.1202 Nonpublic proceedings.
Any investigation or proceedings held under this subpart shall be
nonpublic unless the respondent specifically requests otherwise, except
to the extent required by the Freedom of Information Act (5 U.S.C. 552)
or by the Government in the Sunshine Act (5 U.S.C. 552b). However, the
presiding official's initial decision and any final decision of the
Commission shall be placed on the public record, except that other
information may be designated in camera in accordance with 1025.45 of
the Commission's Rules of Practice for Adjudicative Proceedings, 16 CFR
1025.45.
16 CFR 1030.1203 Initiation of investigations.
(a) Investigations under this subpart may be initiated upon the
submission by any person of a written statement to the Secretary of the
Commission setting forth sufficient information to indicate a possible
violation of 18 U.S.C. 207 or by the Commission on its own initiative
when a possible violation is indicated by information within the
Commission's possession.
(b) At the direction of the Commission, the General Counsel, or his
or her designee, shall investigate any alleged violation of 18 U.S.C.
207.
16 CFR 1030.1204 Referral to the Office of Government Ethics and to the
Department of Justice.
(a) The General Counsel shall make a preliminary determination of
whether the matter appears frivolous and, if not, shall expeditiously
transmit any available information to the Director of the Office of
Government Ethics and to the Criminal Division, Department of Justice.
(b) Unless the Department of Justice communicates to the Commission
that it does not intend to initiate criminal prosecution, the General
Counsel shall coordinate any investigation or proceeding under this
subpart with the Department of Justice in order to avoid prejudicing
criminal proceedings.
16 CFR 1030.1205 Conduct of investigation.
The General Counsel may in connection with an investigation under
this subpart administer oaths pursuant to section 27(b)(2) of the
Consumer Product Safety Act, 15 U.S.C. 2076(b)(2) and may recommend that
the Commission issue subpoenas to compel testimony and the production of
evidence pursuant to section 27(b) (3) and (4) of the Consumer Product
Safety Act, 15 U.S.C. 2076(b) (3) and (4).
16 CFR 1030.1206 Disposition.
(a) Upon the conclusion of an investigation under this subpart, the
General Counsel shall forward to the Commission a summary of the facts
disclosed by the investigation along with a recommendation as to whether
the Commission should issue an order to show cause pursuant to
1030.1207.
(b) When the former government employees involved is an attorney, the
General Counsel shall also recommend whether the matter should be
referred to the disciplinary committee of the bar(s) of which the
attorney is a member.
16 CFR 1030.1207 Order to show cause.
(a) Upon a Commission determination that there exists reasonable
cause to believe a former government employee has violated 18 U.S.C.
207, the Commission may issue an order requiring the former employee to
show cause why sanctions should not be imposed.
(b) The show cause order shall contain (1) the statutory provisions
alleged to have been violated and a clear and concise description of the
acts of the former employee that are alleged to constitute the
violation; (2) notice of the respondent's right to submit an answer and
request a hearing, and the time and manner in which the request is to be
made; and (3) a statement of the sanctions that may be imposed pursuant
to 1030.1217 of this subpart.
(c) Subsequent to the issuance of an order to show cause, any
communications to or from the Commission or any member of the Commission
shall be governed by the ex parte provisions of 1025.68 of the
Commission's Rules of Practice for Adjudicative Procedures, 16 CFR
1025.68.
16 CFR 1030.1208 Answer and request for a hearing.
(a) An answer and request for a hearing must be filed with the
Secretary of the Commission within thirty (30) days after service of the
order to show cause.
(b) In the absence of good cause shown, failure to file an answer and
request for a hearing within the specified time limit (1) will be deemed
a waiver of the respondent's right to contest the allegations of the
show cause order or request a hearing and (2) shall authorize the
Commission to find the facts to be as alleged in the show cause order
and to enter a final decision providing for the imposition of such
sanctions specified in 1030.1217 as the Commission deems appropriate.
(c) An answer shall contain (1) a concise statement of the facts or
law constituting each ground of defense and (2) specific admission,
denial, or explanation of each fact alleged in the show cause order or,
if the respondent is without knowledge thereof, a statement to that
effect. Any allegations of a complaint not answered in this manner will
be deemed admitted.
(d) A hearing shall be deemed waived as to any facts in the show
cause order that are specifically admitted or deemed to be admitted as a
result of respondent's failure to deny them. Those portions of
respondent's answer, together with the show cause order, will provide a
record basis for initial decision by the Administrative Law Judge or for
final decision by the Commission.
(e) If all material factual allegations of the show cause order are
specifically admitted or have been deemed admitted in accordance with
paragraph (c) of this section, the Commission will decide the matter on
the basis of the allegations set forth in the show cause order and
respondent's answer.
16 CFR 1030.1209 Presiding official.
(a) Upon the receipt of an anwer and request for a hearing, the
Secretary shall refer the matter to an Administrative Law Judge, under
title 5, United States Code, section 3105, to preside over the hearing
and shall notify the respondent and the General Counsel, or his or her
designee, as to the person selected.
(b) The powers and duties of the presiding official shall be as set
forth in 1025.42 of the Commission's Rules of Practice for Adjudicatory
Proceedings, 16 CFR 1025.42.
16 CFR 1030.1210 Scheduling of hearing.
The presiding official shall fix the date, time and place of the
hearing. The hearing shall not be scheduled earlier than fifteen days
after receipt of the respondent's answer and request for a hearing. In
fixing the time, date and place of the hearing, the presiding official
shall give due regard to the respondent's need for adequate time to
prepare a defense and for expeditious resolution of allegations that may
be damaging to his or her reputation.
16 CFR 1030.1211 Prehearing procedures; motions; interlocutory
appeals; summary decision; discovery; compulsory process.
Because of the nature of the issues involved in proceedings under
this subpart the Commission anticipates that extensive motions,
prehearing proceedings and discovery will not be required in most cases.
For this reason, detailed procedures will not be established under this
subpart. However, to the extent deemed warranted by the presiding
official, prehearing conferences, motions, interlocutory appeals,
summary decisions, discovery and compulsory process shall be permitted
and shall be governed, where appropriate, by the provisions set forth in
the Commission's Rules of Practice for Adjudicatory Proceedings, 16 CFR
part 1025.
16 CFR 1030.1212 Hearing rights of respondent.
In any hearing under this subpart, the respondent shall have the
right (a) to be represented by counsel; (b) to present and
cross-examine witnesses and to submit evidence; (c) to present
objections, motions, and arguments, oral or written; and (d) to obtain
a transcript of the proceedings on request.
16 CFR 1030.1213 Hearing procedures; burden of proof.
(a) Sections 1025.43, 1025.45, 1025,46, 1025.47 of the Commission's
Rules of Practice for Adjudicatory Proceedings shall govern
respectively, the receipt and objections to admissibility of evidence,
in camera orders, the submission and consideration of proposed findings
of fact and conclusions of law, and the transcript of the hearing,
except that a copy of the hearing transcript shall be provided to the
respondent.
(b) The General Counsel has the burden of establishing, by a
preponderance of the evidence on the record as a whole, the allegations
stated in the order to show cause.
16 CFR 1030.1214 Initial decision.
Section 1025.51 of the Commission's Rules of Practice for
Adjudicative Proceedings shall govern the initial decision in
proceedings under this subpart, except that the determination of the
Administrative Law Judge must be supported by a preponderance of the
evidence.
16 CFR 1030.1215 Review of initial decision.
Appeals from the initial decision of the Administrative Law Judge or
review by the Commission in the absence of an appeal shall be governed
by 1025.52, 1025.53 and 1025.54 of the Commission's Rules of Practice
for Adjudicative Proceedings.
16 CFR 1030.1216 Commission decision and reconsideration.
The Commission's decision and any reconsideration or reopening of the
proceeding shall be governed by 1025.55, 1025.56 and 1025.58 of the
Commission's Rules of Practice for Adjudicative Proceedings.
16 CFR 1030.1217 Sanctions.
In the case of any respondent who fails to request a hearing after
receiving adequate notice of the allegations pursuant to 1030.1207 or
who is found in the Commission's final decision to have violated 18
U.S.C. 207(a), (b), or (c), the Commission may order such disciplinary
action as it deems warranted, including: (a) Reprimand; (b) suspension
from participating in a particular matter or matters before the
Commission; or (c) prohibiting the respondent from making, with the
intent to influence, any formal or informal appearance before, or any
oral or written communication to, the Commission or its staff on any
matter or business on behalf of any other person (except the United
States) for a period not to exceed five (5) years.
16 CFR 1030.1218 Judicial review.
A respondent against whom the Commission has issued an order imposing
disciplinary action under this part may seek judicial review of the
Commission's determination in an appropriate United States district
court by filing a petition for such review within sixty (60) days of
receipt of notice of the Commission's final decision.
16 CFR 1030.1218 Subpart M -- Disclosure of Information about an Individual
16 CFR 1030.1301 Applicability.
(a) Every officer and employee who is involved in the design,
development, operation, or maintenance of a system of records or who has
access to a system of records shall familiarize himself with the
requirements of the Privacy Act of 1974 (5 U.S.C. 552a) and the CPSC
regulations issued thereunder and apply these requirements to all
systems of records.
(b) No officer or employee 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 the disclosure is to a recipient specified in paragraph
(c) of this section. 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 or her education, financial
transactions, medical history, and criminal or employment history and
that contains his or her name or the identifying number, symbol, or
other identifying particular assigned to the individual, such as a
fingerprint, voiceprint, or photograph. The term system of records''
means a group of any records under the control of CPSC 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. The term routine use'' means, with respect to the
disclosure of a record, the use of that record for a purpose which is
compatible with the purpose for which it was collected. The term
individual'' means a citizen of the United States or an alien lawfully
admitted for permanent residence. The term agency'' is defined in 5
U.S.C. 552(e).
(c) An employee may disclose any record which is contained in a
system of records without a written request by and without the prior
written consent of the individual to whom the record pertains if the
disclosure is:
(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) Pursuant to section 552 of title 5 U.S.C.;
(3) For a routine use as defined in section (a)(7) of the Privacy Act
of 1974 (described in paragraph (b) of this section);
(4) To the Bureau of the Census for purposes of planning or carrying
out a census of survey or related activity pursuant to the provisions of
title 13, United States Code;
(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 that the record is to be transferred in
a form that is not individually identifiable;
(6) 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, or for evaluation by the
Administrator of General Services or his or her designee 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 the 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 a 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; or
(11) Pursuant to the order of a court of competent jurisdiction.
(d) No officer or employee shall maintain a 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.
(e) No officer or employee shall sell or rent an individual's name
and address unless such action is specifically authorized by law.
(f) An officer or employee:
(1) Who by virtue of his or her employment or official position has
possession of or access to agency records which contain individually
identifiable information the disclosure of which is prohibited by
paragraph (a) of this section or by any other rules or regulations
established under the Privacy Act of 1974, and who
(i) 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, or
(ii) Willfully maintains a system of records without meeting the
notice requirements of the Privacy Act of 1974, or
(iii) Knowingly and willfully requests or obtains any record
concerning an individual from an agency under false pretenses, is
subject to criminal penalties and administrative sanctions; or
(2) Who:
(i) Makes a determination not to amend an individual's record in
accordance with the Privacy Act of 1974; or
(ii) Refuses to comply with an individual's request to gain access to
review and to obtain a copy of any information pertaining to him or her;
or
(iii) Fails to maintain any record concerning any individual with
such accuracy, relevance, timeliness, and completeness as is necessary
to ensure 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
(iv) Fails to comply with any provision of the Privacy Act of 1974 or
any CPSC regulation implementing it, subjects CPSC to civil penalties
and himself or herself to administrative sanctions.
16 CFR 1030.1301 Appendix A -- Code of Ethics for Government Service1
16 CFR 1030.1301 Appendix B -- Index to Some Statutes and Executive
Orders Related to Conflict of Interest and Other Prohibited Activities1
1Appendices filed as part of the original document.
16 CFR 1030.1301 Appendix C -- Summarizations of Restrictions Placed on Special Government Employees1
16 CFR 1030.1301 Appendix D -- Political Activity of Federal Employees1
16 CFR 1030.1301 Appendix E -- (Reserved)
16 CFR 1030.1301 Appendix F -- GSA Regulations -- Conduct on Federal Property1
16 CFR 1030.1301 Pt. 1031
16 CFR 1030.1301 PART 1031 -- COMMISSION PARTICIPATION AND COMMISSION EMPLOYEE INVOLVEMENT IN VOLUNTARY STANDARDS ACTIVITIES
16 CFR 1030.1301 Subpart A -- General Policies
Sec.
1031.1 Purpose and scope.
1031.2 Background.
1031.3 Consumer Product Safety Act Amendments.
1031.4 Effect of voluntary standards activities on Commission
activities.
1031.5 Criteria for Commission participation in voluntary standards
activities.
1031.6 Extent and form of Commission involvement in the development
of voluntary standards.
1031.7 Commission support of voluntary standards activities.
1031.8 Voluntary Standards Coordinator.
16 CFR 1030.1301 Subpart B -- Employee Involvement
1031.9 Purpose and scope.
1031.10 Definitions.
1031.11 Procedural safeguards.
1031.12 Membership criteria.
1031.13 Participation and monitoring criteria.
1031.14 Observation criteria.
1031.15 Communication criteria.
Authority: 15 U.S.C. 2051-2083, 15 U.S.C. 1261-1276, 15 U.S.C.
1191-1204.
Source: 54 FR 6652, Feb. 14, 1989, unless otherwise noted.
16 CFR 1030.1301 Subpart A -- General Policies
16 CFR 1031.1 Purpose and scope.
(a) This part 1031 sets forth the Consumer Product Safety
Commission's guidelines and requirements on participating in the
activities of voluntary standards bodies. Subpart A sets forth general
policies on Commission participation, and subpart B sets forth policies
and guidelines on employee involvement in voluntary standards
activities.
(b) For purposes of both subpart A and subpart B of this part 1031,
voluntary standards bodies are private sector domestic or multinational
organizations or groups, or combinations thereof, such as, but not
limited to, all non-profit organizations, industry associations,
professional and technical societies, institutes, and test laboratories,
that are involved in the planning, development, establishment, revision,
review or coordination of voluntary standards. Voluntary standards
development bodies are voluntary standards bodies, or their sub-groups,
that are devoted to developing or establishing voluntary standards.
16 CFR 1031.2 Background.
(a) Congress enacted the Consumer Product Safety Act in 1972 to
protect consumers against unreasonable risks of injury associated with
consumer products. In order to achieve that goal, Congress established
the Consumer Product Safety Commission as an independent regulatory
agency and granted it broad authority to promulgate mandatory safety
standards for consumer products as a necessary alternative to industry
self regulation.
(b) In 1981, the Congress amended the Consumer Product Safety Act,
The Federal Hazardous Substances Act, and the Flammable Fabrics Act, to
require the Commission to rely on voluntary standards rather than
promulgate a mandatory standard when voluntary standards would eliminate
or adequately reduce the risk of injury addressed and it is likely that
there will be substantial compliance with the voluntary standards. (15
U.S.C. 2056(b), 15 U.S.C. 1262(g)(2), 15 U.S.C. 1193(h)(2)). The 1981
Amendments also require the Commission, after any notice or advance
notice of proposed rulemaking, to provide technical and administrative
assistance to persons or groups who propose to develop or modify an
appropriate voluntary standard. (15 U.S.C. 2054(a)(3)). Additionally,
the amendments encourage the Commission to provide technical and
administrative assistance to groups developing product safety standards
and test methods, taking into account Commission resources and
priorities (15 U.S.C. 2054(a)(4)). Although the Commission is required
to provide assistance to such groups, it may determine the level of
assistance in accordance with the level of its own administrative and
technical resources and in accordance with its assessment of the
likelihood that the groups being assisted will successfully develop a
voluntary standard that will preclude the need for a mandatory standard.
(c) In 1982, the Office of Management and Budget revised Circular No.
A-119, Federal Participation in the Development and Use of Voluntary
Standards. The Circular establishes the policy to be followed by
executive agencies, including the Commission, in working with voluntary
standards bodies and in adopting and using voluntary standards. The
Circular encourages government participation in the standards-related
activities of voluntary standards bodies and standards-developing groups
when such participation is in the public interest and is compatible with
the agencies, missions, authorities, priorities, and budget resources.
The Circular recognizes, however, that voluntary standards activities,
if improperly conducted, can suppress free and fair competition, impede
innovation and technical progress, exclude safer and less expensive
products, or otherwise adversely affect trade, commerce, health, or
safety. Thus, agencies are urged to take full account of the impact on
the economy, applicable Federal laws, policies and national objectives,
including, for example, laws and regulations relating to antitrust,
national security, small business, product safety, environment,
technological development, and conflicts of interest.
16 CFR 1031.3 Consumer Product Safety Act Amendments.
The Consumer Product Safety Act, as amended, contains several
sections pertaining to the Commission's participation in the development
and use of voluntary standards.
(a) Section 7(b) provides that the Commission shall rely on voluntary
consumer product safety standards 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. (15 U.S.C. 2056(b)).
(b) Section 5(a)(3) provides that the Commission shall, 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. (15 U.S.C. 2054(a)(3)).
(c) Section 5(a)(4) provides that the Commission shall, 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 of product safety standards and test methods. (15 U.S.C.
2054(a)(4)).
16 CFR 1031.4 Effect of voluntary standards activities on Commission
activities.
(a)(1) The Commission, in determining whether to begin proceedings to
develop mandatory standards under the acts it administers, considers
whether mandatory regulation is necessary or whether there is an
existing voluntary standard that adequately addresses the problem and
the extent to which that voluntary standard is complied with by the
affected industry.
(2) The Commission acknowledges that there are situations in which
adequate voluntary standards, in combination with appropriate
certification programs, may be appropriate to support a conclusion that
a mandatory standard is not necessary. The Commission may find that a
mandatory standard is not necessary where compliance with an existing
voluntary standard would eliminate or adequately reduce the risk of
injury associated with the product, contains requirements and test
methods that have been evaluated and found acceptable by the Commission,
and it is likely that there will be substantial and timely compliance
with the voluntary standard. Under such circumstances, the Commission
may agree to encourage industry compliance with the voluntary standard
and subsequently evaluate the effectiveness of the standard in terms of
accident and injury reduction for products produced in compliance with
the standard.
(3) In evaluating voluntary standards, the Commission will relate the
requirements of the standard to the identified risks of injury and
evaluate the requirements in terms of their effectiveness in eliminating
or reducing the risks of injury. The evaluation of voluntary standards
will be conducted by Commission staff members, including representatives
of legal, economics, engineering, epidemiological, health sciences,
human factors, other appropriate interests, and the Voluntary Standards
Coordinator. The staff evaluation will be conducted in a manner similar
to evaluations of standards being considered for promulgation as
mandatory standards.
(4) In the event that the Commission has evaluated an existing
voluntary standard and found it to be adequate in all but a few areas,
the Commission may defer the initiation of a mandatory rulemaking
proceeding and request the voluntary standards organization to revise
the standard to address the identified inadequacies expeditiously. In
such cases, the Commission may monitor or participate in the development
of these revisions.
(b) In the event the Commission determines that there is no existing
voluntary standard that will eliminate or adequately reduce a risk of
injury the Commission may commence a proceeding for the development of a
consumer product safety rule or a regulation in accordance with section
9 of the Consumer Product Safety Act, 15 U.S.C. 2058, section 3(f) of
the Federal Hazardous Substances Act, 15 U.S.C. 1262(f), or section 4(a)
of the Flammable Fabrics Act, 15 U.S.C. 1193(g), as may be applicable.
In commencing such a proceeding, the Commission will publish an advance
notice of proposed rulemaking which shall, among other things, invite
any person to submit to the Commission an existing standard or portion
of an existing standard, or to submit a statement of intention to modify
or develop, within a reasonable period of time, a voluntary standard to
address the risk of injury.
(c) The Commission will consider those provisions of a voluntary
standard that have been reviewed, evaluated, and deemed to be adequate
in addressing the specified risks of injury when initiating a mandatory
consumer product safety rule or regulation under the Consumer Product
Safety Act, the Federal Hazardous Substances Act, or the Flammable
Fabrics Act, as may be applicable. Comments will be requested in the
advance notice of proposed rulemaking on the adequacy of such voluntary
standard provisions.
16 CFR 1031.5 Criteria for Commission participation in voluntary
standards activities.
The Commission will consider the extent to which the following
criteria are met in considering Commission participation in the
development of voluntary safety standards for consumer products:
(a) The likelihood the voluntary standard will eliminate or
adequately reduce the risk of injury addressed and that there will be
substantial and timely compliance with the voluntary standard.
(b) The likelihood that the voluntary standard will be developed
within a reasonable period of time.
(c) Exclusion, to the maximum extent possible, from the voluntary
standard being developed, of requirements which will create
anticompetitive effects or promote restraint of trade.
(d) Provisions for periodic and timely review of the standard,
including review for anticompetitive effects, and revision or amendment
as the need arises.
(e) Performance-oriented and not design-restrictive requirements, to
the maximum practical extent, in any standard developed.
(f) Industry arrangements for achieving substantial and timely
industry compliance with the voluntary standard once it is issued, and
the means of ascertaining such compliance based on overall market share
of product production.
(g) Provisions in the standard for marking products conforming to the
standard so that future Commission investigation can indicate the
involvement of such products in accidents and patterns of injury.
(h) Provisions for insuring that products identified as conforming to
such standards will be subjected to a testing and certification
(including self-certification) procedure, which will provide assurance
that the products comply with the standard.
(i) The openness to all interested parties, and the establishment of
procedures which will provide for meaningful participation in the
development of such standards by representatives of producers,
suppliers, distributors, retailers, consumers, small business, public
interests and other individuals having knowledge or expertise in the
areas under consideration, and procedures for affording other due
process considerations.
16 CFR 1031.6 Extent and form of Commission involvement in the
development of voluntary standards.
(a) The Commission shall approve agency ''participation'', as defined
below, in the development and support of voluntary safety standards for
consumer products. The Executive Director shall approve Commission
activities that are defined below as ''monitoring.'' The extent of
Commission involvement will be dependent upon the Commission's interest
in the particular standards development activity and the commission's
priorities and resources.
(b) The Commission's interest in a specific voluntary standards
activity will be based in part on the frequency and severity of injuries
associated with the product, the involvement of the product in
accidents, the susceptibility of the hazard to correction through
standards, and the overall resources and priorities of the Commission.
Commission involvement in voluntary standards activities generally will
also be guided by the Commission's operating plan and budget.
(c) There are two levels of Commission involvement in voluntary
standards activities, each of which reflects a different level of
Commission involvement as set forth below:
(1) Monitoring. Monitoring involves maintaining an awareness of the
voluntary standards development process through oral or written
inquiries, receiving and reviewing minutes of meetings and copies of
draft standards, or attending meetings for the purpose of observing and
commenting during the standards development process in accordance with
subpart B of this part. For example, monitoring may involve responding
to requests from voluntary standards organizations, standards
development committees, trade associations and consumer organizations;
by providing information concerning the risks of injury associated with
particular products, NEISS data, summaries and analyses of in-depth
investigation reports; discussing Commission goals and objectives with
regard to voluntary standards and improved consumer product safety;
responding to requests for information concerning Commission programs;
and initiating contacts with voluntary standards organizations to
discuss cooperative voluntary standards activities.
(2) Participating. Participating involves regularly attending
meetings of a standard development committee or group and taking an
active part in the discussions of the committee and in developing the
standard, in accordance with subpart B of this part. Under certain
conditions, the Commission will contribute to the deliberations of the
committee by expending resources to provide technical assistance (e.g.,
research, engineering support, and information and education programs)
and administrative assistance (e.g., travel costs, hosting meetings, and
secretarial functions) which would support the development and
implementation of voluntary standards. Participating may also include
Commission support of voluntary standards activities as described in
1031.7.
(d) Normally, the total amount of Commission support given to a
voluntary standards activity shall be no greater than that of all
non-Federal participants in that activity, except where it is in the
public interest to do so.
(e) In the event of duplication of effort by two or more groups
(either inside or outside the Commission) in developing a voluntary
standard for the same product or class of products, the Commission shall
encourage the several groups to cooperate in the development of a single
voluntary standard.
16 CFR 1031.7 Commission support of voluntary standards activities.
(a) The Commission's support of voluntary safety standards
development activities may include any one or a combination of the
following actions:
(1) Providing epidemiological and health science information and
explanations of hazards for consumer products.
(2) Encouraging the initiation of the development of voluntary
standards for specific consumer products.
(3) Identifying specific risks of injury to be addressed in a
voluntary standard.
(4) Performing or subsidizing technical assistance, including
research, health science data, and engineering support, in the
development of a voluntary standard activity in which the Commission is
participating.
(5) Providing assistance on methods of disseminating information and
education about the voluntary standard or its use.
(6) Performing a staff evaluation of a voluntary standard to
determine its adequacy and efficacy in reducing the risks of injury that
have been identified by the Commission as being associated with the use
of the product.
(7) Encouraging state and local governments to reference or
incorporate the provisions of a voluntary standard in their regulations
or ordinances and to participate in government or industrial model code
development activities, so as to develop uniformity and minimize
conflicting State and local regulations.
(8) Monitoring the number and market share of products conforming to
a voluntary safety standard.
(9) Providing for the involvement of agency personnel in voluntary
standards activities as described in subpart B of this part.
(10) Providing administrative assistance, such as hosting meetings
and secretarial assistance.
(11) Providing funding support for voluntary standards development,
as permitted by the agency budget.
(12) Taking other actions that the Commission believes appropriate in
a particular situation.
(b) (Reserved)
16 CFR 1031.8 Voluntary Standards Coordinator.
(a) The Executive Director shall appoint a Voluntary Standards
Coordinator to coordinate agency participation in voluntary standards
bodies so that:
(1) The most effective use is made of agency personnel and resources,
and
(2) The views expressed by such personnel are in the public interest
and, at a minimum, do not conflict with the interests and established
views of the agency.
(b) The Voluntary Standards Coordinator is responsible for managing
the Commission's voluntary standards program, as well as preparing and
submitting to the Commission a semiannual summary of its voluntary
standards activities. The summary shall set forth, among other things,
the goals of each voluntary standard under development, the extent of
CPSC activity (monitoring or participation; the current status of
standards development and implementation) and, if any, recommendations
for additional Commission action. The Voluntary Standards Coordinator
shall also compile information on the Commission's voluntary standards
activities for the Commission's annual report.
16 CFR 1031.8 Subpart B -- Employee Involvement
16 CFR 1031.9 Purpose and scope.
(a) This subpart sets forth the Consumer Product Safety Commission's
criteria and requirements governing membership and involvement by
Commission officials and employees in the activities of voluntary
standards development bodies.
(b) The Commission realizes there are advantages and benefits
afforded by greater involvement of Commission personnel in the standards
activities of domestic and international voluntary standards
organizations. However, such involvement might present an appearance or
possibility of the Commission giving preferential treatment to an
organization or group or of the Commission losing its independence or
impartiality. Also, such participation may present real or apparent
conflict of interest situations.
(c) The purpose of this subpart is to further the objectives and
programs of the Commission and to do so in a manner that ensures that
such membership and participation:
(1) Is consistent with the intent of the Consumer Product Safety Act
and the other acts administered by the Commission, as well as with
federal policy as set forth in the current version of OMB Circular No.
A-119, Federal Participation in the Development and Use of Voluntary
Standards;
(2) Is not contrary to the public interest;
(3) Presents no real or apparent conflict of interest, and does not
result in or create the appearance of the Commission giving preferential
treatment to an organization or group or the Commission compromising its
independence or impartiality; and
(4) Takes into account Commission resources and priorities.
(d) In general, Commission employees must obtain approval from their
supervisor and appropriate agency management to be involved in voluntary
standards activities. They should also strive to apprise the Voluntary
Standards Coordinator, where practicable, as to their involvement in
voluntary standards activities.
(e) All Commission employees involved in voluntary standards
activities are subject to any restrictions for avoiding conflicts of
interest and for avoiding situations that would present an appearance of
bias.
16 CFR 1031.10 Definitions.
For purposes of describing the level of involvement in voluntary
standards activities for which Commission employees may be authorized,
the following definitions apply:
(a) Membership. Membership is the status of an employee who joins a
voluntary standards development or advisory organization or subgroup and
is listed as a member. It includes all oral and written communications
which are incidental to such membership.
(b) Participation. Participation is the active, ongoing involvement
of an official or employee in the development of a new or revised
voluntary standard pertaining to a particular consumer product or to a
group of products that is the subject of a Commission hazard project.
These projects should be one of those that are approved by the
Commission, either by virtue of the agency's annual budget or operating
plan, or by other specific agency authorization or decision, and are in
accord with subpart A. Participation includes regularly attending
meetings of a standards development committee or group, taking an active
part in discussions and technical debates, registering opinions and
expending other resources in support of a voluntary standard development
activity. It includes all oral and written communications which are
part of the participation process.
(c) Monitoring. Monitoring is involvement by an official or employee
in maintaining an awareness of the voluntary standards development
process by attendance at meetings, receiving and reviewing minutes of
standards development meetings and copies of draft standards, and
commenting during the standards development process. It involves all
oral and written communications which are part of the monitoring
process. These monitoring activities must be related to general
voluntary standards projects set forth in the agency's annual budget or
operating plan or otherwise approved by the agency.
(d) Observation. Observation is the attendance by an official or
employee at a meeting of a voluntary standards development group for the
purpose of observing and gathering information.
(e) Communication. Communication is the oral or written contact by
an official or employee with a representative or committee of a
voluntary standards organization or advisory group.
16 CFR 1031.11 Procedural safeguards.
(a) Subject to the provisions of this subpart and budgetary and time
constraints, Commission employees may be involved in voluntary standards
activities that will further the objectives and programs of the
Commission, are consistent with ongoing and anticipated Commission
regulatory programs as set forth in the agency's operating plan, and are
in accord with the Commission's policy statement on participation in
voluntary standards activities set forth in subpart A of this part.
(b) Commission employees who are involved in the development of a
voluntary standard and who later participate in an official evaluation
of that standard for the Commission shall describe in any information,
oral or written, presented to the Commission, the extent of their
involvement in the development of the standard. Any evaluation or
recommendation for Commission actions by such employee shall strive to
be as objective as possible and be reviewed by higher-level Commission
officials or employees prior to submission to the Commission.
(c) Involvement of a Commission official or employee in a voluntary
standards committee shall be predicated on an understanding by the
voluntary standards group that participation by Commission officials and
employees is on a non-voting basis.
(d) In no case shall Commission employees or officials vote or
otherwise formally indicate approval or disapproval of a voluntary
standard during the course of a voluntary standard development process.
(e) Commission employees and officials who are involved in the
development of voluntary standards may not accept voluntary standards
committee leadership positions, e.g., committee chairman or secretary.
Subject to prior approval by the Executive Director, a Commission
employee or official may accept other committee positions only if it
appears to be clearly in the public interest for the employee to carry
out the functions of that specific position.
(f) Attendance of Commission personnel at voluntary standards
meetings shall be noted in the public calendar and meeting summaries
shall be submitted to the Office of the Secretary as required by the
Commission's meetings policy, 16 CFR part 1012.
16 CFR 1031.12 Membership criteria.
(a) The Commissioners, their special assistants, and Commission
officials and employees holding the positions listed below, may not
become members of a voluntary standards group because they either have
the responsibility for making final decisions, or advise those who make
final decisions, on whether to rely on a voluntary standard, promulgate
a consumer product safety standard, or to take other action to prevent
or reduce an unreasonable risk of injury associated with a product.
(1) The Commissioners;
(2) The Commissioners' Special Assistants;
(3) The General Counsel and General Counsel Staff;
(4) The Executive Director, the Deputy Executive Director, and
special assistants to the Executive Director;
(5) The Associate Executive Directors and Office Directors;
(6) The Director of the Office of Program Management and Budget and
any Special Assistants to the Director.
(b) All other officials and employees not covered under 1031.12(a)
may be advisory, non-voting members of voluntary standards development
and advisory groups with the advance approval of the Executive Director.
In particular, the Commission's Voluntary Standards Coordinator may
accept such membership.
(c) Commission employees or officials who have the approval of the
Executive Director to accept membership in a voluntary standards
organization or group pursuant to paragraph (b) of this section shall
apprise the General Counsel and the Voluntary Standards Coordinator
prior to their acceptance.
(d) Commission officials or employees who desire to become a member
of a voluntary standards body or group in their individual capacity must
obtain prior approval of the Commission's Ethics Counselor for an
outside activity pursuant to the Commission's Employee Standards of
Conduct, 16 CFR part 1030.
16 CFR 1031.13 Participation and monitoring criteria.
(a) Commission officials, other than those positions listed in
1031.12(a), may participate in or monitor the development of voluntary
safety standards for consumer products, but only in their official
capacity as employees of the Commission and if permitted to do so by
their supervisor and any other person designated by agency management
procedures. Such participation or monitoring shall be in accordance
with Commission procedures.
(b) Employees in positions listed in 1031.12(a) (4), (5), and (6)
may, on a case-by-case basis, participate in or monitor the development
of a voluntary standard provided that they have the specific advance
approval of the Commission.
(c) Except in extraordinary circumstances and when approved in
advance by the Executive Director in accordance with the provisions of
the Commission's meetings policy, 16 CFR part 1012, Commission personnel
shall not become involved in meetings concerning the development of
voluntary standards that are not open to the public for attendance and
observation. Attendance of Commission personnel at a voluntary standard
meeting shall be noted in the public calendar and meeting logs filed
with the Office of the Secretary in accordance with the Commission's
meetings policy.
(d) Generally, Commission employees may become involved in the
development of voluntary standards only if they are made available for
comment by all interested parties prior to their use or adoption.
(e) Involvement by Commission officials and employees in voluntary
standards bodies or standards-developing groups does not, of itself,
connote Commission agreement with, or endorsement of, decisions reached,
approved or published by such bodies or groups.
16 CFR 1031.14 Observation criteria.
A Commission official or employee may, on occasion, attend voluntary
standards meetings for the sole purpose of observation, with the advance
approval of his or her supervisor and any other person designated by
agency management procedures. Commission officials and employees shall
notify the Voluntary Standard Coordinator, for information purposes,
prior to observing a voluntary standards meeting.
16 CFR 1031.15 Communication criteria.
(a) Commission officials and employees, who are not in the positions
listed in 1031.12(a), or who are not already authorized to communicate
with a voluntary standards group or representative incidental to their
approved membership in a voluntary standard organization or group or as
part of their participation or monitoring of a voluntary standard, may:
(1) Communicate, within the scope of their duties, with a voluntary
standard group, representative, or other committee member, on voluntary
standards matters which are substantive in nature, i.e., matters that
pertain to the formulation of the technical aspects of a specific
voluntary standard or the course of conduct for developing the standard,
only with the specific advance approval from the person or persons to
whom they apply to obtain approval for participation or monitoring
pursuant to 1031.13. The approval may indicate the duration of the
approval and any other conditions.
(2) Communicate, within the scope of their duties, with a voluntary
standard group, representative, or other committee member, concerning
voluntary standards activities which are not substantive in nature.
(b) Commission employees may communicate with voluntary standards
organizations only in accordance with Commission procedures.
(c) Commissioners can engage in substantive and non-substantive
written communications with voluntary standards bodies or
representatives, provided a disclaimer in such communications indicates
that any substantive views expressed are only their individual views and
are not necessarily those of the Commission. Where a previous official
Commission vote has taken place, that vote should also be noted in any
such communication. Copies of such communications shall thereafter be
provided to the other Commissioners, the Office of the Secretary, and
the Voluntary Standards Coordinator.
(d) The Voluntary Standards Coordinator shall be furnished a copy of
each written communication of a substantive nature and a report of each
oral communication of a substantive nature between a Commission official
or employee and a voluntary standards organization or representative
which pertains to a voluntary standards activity. The information shall
be provided to the Voluntary Standards Coordinator as soon as
practicable after the communication has taken place.
16 CFR 1031.15 PART 1033 -- DISPLAY OF CONTROL NUMBERS FOR COLLECTION
OF INFORMATION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT
Sec.
1033.1 Purpose.
1033.2 Display of control numbers.
16 CFR 1033.1 Purpose.
The purpose of this part 1033 is to display all control numbers
assigned by the Office of Management and Budget (OMB) to collection of
information requirements contained in rules enforced by the Consumer
Product Safety Commission. Display of OMB control numbers is required
by provisions of the Paperwork Reduction Act at 44 U.S.C. 3507(f) and by
regulations issued by OMB to implement that act at 5 CFR 1320.7(f)(2),
1320.12(d), 1320.13(j), and 1320.14(e).
(44 U.S.C. 3507(f); 5 U.S.C. 553)
(48 FR 57478, Dec. 30, 1983)
16 CFR 1033.2 Display of control numbers.
The following rules enforced by the Consumer Product Safety
Commission containing collection of information requirements are listed
with the control numbers assigned by the Office of Management and
Budget:
(44 U.S.C. 3507(f); 5 U.S.C. 553)
(48 FR 57478, Dec. 30, 1983)
16 CFR 1033.2 PART 1034 -- ENFORCEMENT OF NONDISCRIMINATION ON THE
BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE CONSUMER
PRODUCT SAFETY COMMISSION
Sec.
1034.101 Purpose.
1034.102 Application.
1034.103 Definitions.
1034.104 -- 1034.109 (Reserved)
1034.110 Self-evaluation.
1034.111 Notice.
1034.112 -- 1034.129 (Reserved)
1034.130 General prohibitions against discrimination.
1034.131 -- 1034.139 (Reserved)
1034.140 Employment.
1034.141 -- 1034.148 (Reserved)
1034.149 Program accessibility: Discrimination prohibited.
1034.150 Program accessibility: Existing facilities.
1034.151 Program accessibility: New construction and alterations.
1034.152 -- 1034.159 (Reserved)
1034.160 Communications.
1034.161 -- 1034.169 (Reserved)
1034.170 Compliance procedures.
1034.171 -- 1034.999 (Reserved)
Authority: 29 U.S.C. 794.
Source: 51 FR 4575, 4579, Feb. 5, 1986; 52 FR 405, Jan. 6, 1987,
unless otherwise noted.
16 CFR 1034.101 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
16 CFR 1034.102 Application.
This part applies to all programs or activities conducted by the
agency.
16 CFR 1034.103 Definitions.
For purposes of this part, the term --
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with hearing
aids, telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
As used in this definition, the phrase:
(l) Physical or mental impairment includes --
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one of more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addition and
alcholism.
(2) Major life activities includes functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified handicapped person means --
(1) With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can achieve the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature; or
(2) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity.
(3) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by 1034.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
(51 FR 4575, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986)
1034.104 -- 1034.109 (Reserved)
16 CFR 1034.110 Self-evaluation.
(a) The agency shall, by April 9, 1987, evaluate its current policies
and practices, and the effects thereof, that do not or may not meet the
requirements of this part, and, to the extent modification of any such
policies and practices is required, the agency shall proceed to make the
necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including handicapped persons or organizations representing handicapped
persons, to participate in the self-evaluation process by submitting
comments (both oral and written).
(c) The agency shall, until three years following the completion of
the self-evaluation, maintain on file and make available for public
inspections:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
16 CFR 1034.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the head of the agency
finds necessary to apprise such persons of the protections against
discrimination assured them by section 504 and this regulation.
1034.112 -- 1034.129 (Reserved)
16 CFR 1034.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap --
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualfied handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would --
(i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would --
(i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive order to a different
class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.
1034.131 -- 1034.139 (Reserved)
16 CFR 1034.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity
conducted by the agency. The definitions, requirements, and procedures
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613, shall apply to employment in federally conducted programs or
activities.
1034.141 -- 1034.148 (Reserved)
16 CFR 1034.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 1034.150, no qualified handicapped
person shall, because the agency's facilities are inaccessible to or
unusable by handicapped persons, be denied the benefits of, be excluded
from participation in, or otherwise be subjected to discrimination under
any program or activity conducted by the agency.
16 CFR 1034.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not --
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons; or
(2) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with 1034.150(a) would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
(b) Methods. The agency may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
handicapped persons. The agency is nor required to make structural
changes in existing facilities where other methods are effective in
achieving compliance with this section. The agency, in making
alterations to existing buildings, shall meet accessibility requirements
to the extent compelled by the Architectural Barriers Act of 1968, as
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In
choosing among available methods for meeting the requirements of this
section, the agency shall give priority to those methods that offer
programs and activities to qualified handicapped persons in the most
integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by June 6, 1986, except that
where structural changes in facilities are undertaken, such changes
shall be made by April 7, 1989, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by October 7, 1986, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall
be made available for public inspection. The plan shall, at a minimum
--
(1) Identify physical obstacles in the agency's facilities that limit
the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
(51 FR 4575, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986)
16 CFR 1034.151 Program accessibility: New construction and
alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
handicapped persons. The definitions, requirements, and standards of
the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in
41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
1034.152 -- 1034.159 (Reserved)
16 CFR 1034.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each primary entrance of an
accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with 1034.160 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the agency head or his or
her designee after considering all agency resources available for use in
the funding and operation of the conducted program or activity, and must
be accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maximum extent possible,
handicapped persons receive the benefits and services of the program or
activity.
1034.161 -- 1034.169 (Reserved)
16 CFR 1034.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Office of Equal Employment Opportunity and Minority
Enterprise shall be responsible for coordinating implementation of this
section. Complaints may be sent to the Director, Office of Equal
Employment Opportunity and Minority Enterprise, Consumer Product Safety
Commission, Washington, D.C. 20207.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing --
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found;
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by 1034.170(g). The agency may extend
this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the
agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
(51 FR 4575, 4579, Feb. 5, 1986, as amended at 51 FR 4575, Feb. 5,
1986)
1034.171 -- 1034.999 (Reserved)
16 CFR 1034.170 Pt. 1051
16 CFR 1034.170 PART 1051 -- PROCEDURE FOR PETITIONING FOR RULEMAKING
Sec.
1051.1 Scope.
1051.2 General.
1051.3 Place of filing.
1051.4 Time of filing.
1051.5 Requirements and recommendations for petitions.
1051.6 Documents not considered petitions.
1051.7 Statement in support of or in opposition to petitions; Duty
of petitioners to remain apprised of developments regarding petitions.
1051.8 Public hearings on petitions.
1051.9 Factors the Commission considers in granting or denying
petitions.
1051.10 Granting petitions.
1051.11 Denial of petitions.
Authority: 5 U.S.C. 553(e), 5 U.S.C. 555(e).
Source: 48 FR 57123, Dec. 28, 1983, unless otherwise noted.
16 CFR 1051.1 Scope.
(a) This part establishes procedures for the submission and
disposition of petitions for the issuance, amendment or revocation of
rules under the Consumer Product Safety Act (CPSA) (15 U.S.C. 2051 et
seq.) or other statutes administered by the Consumer Product Safety
Commission.
(b) Persons filing petitions for rulemaking shall follow as closely
as possible the requirements and are encouraged to follow as closely as
possible the recommendations for filing petitions under 1051.5.
(c) Petitions regarding products regulated under the Federal
Hazardous Substances Act (FHSA) (15 U.S.C. 1261 et seq.) are governed by
existing Commission procedures at 16 CFR 1500.82, 16 CFR 1500.201, and
21 CFR 2.65. Petitions regarding the exemption of products regulated
under the Poison Prevention Packaging Act of 1970 (PPPA) (15 U.S.C. 1471
et seq.) are governed by existing Commission procedures at 16 CFR part
1702. In addition, however, persons filing such petitions shall follow
the requirements and are encouraged to follow the recommendations for
filing petitions as set forth in 1051.5.
16 CFR 1051.2 General.
(a) Any person may file with the Commission a petition requesting the
Commission to begin a proceeding to issue, amend or revoke a regulation
under any of the statutes it administers.
(b) A petition which addresses a risk of injury associated with a
product which could be eliminated or reduced to a sufficient extent by
action taken under the Federal Hazardous Substances Act, the Poison
Prevention Packaging Act of 1970, or the Flammable Fabrics Act may be
considered by the Commission under those Acts. However, if the
Commission finds by rule, in accordance with section 30(d) of the CPSA,
as amended by Public Law 94-284, that it is in the public interest to
regulate such risk of injury under the CPSA, it may do so. Upon
determination by the Office of the General Counsel that a petition
should be considered under one of these acts rather than the CPSA, the
Office of the Secretary shall docket and process the petition under the
appropriate act and inform the petitioner of this determination. Such
docketing, however, shall not preclude the Commission from proceeding to
regulate the product under the CPSA after making the necessary findings.
16 CFR 1051.3 Place of filing.
A petition should be mailed to: Office of the Secretary, Consumer
Product Safety Commission, Washington, DC 20207. Persons wishing to
file a petition in person may do so in the Office of the Secretary, at
either, 5401 Westbard Avenue, (third floor) Bethesda, Maryland or 1111
18th Street, NW, (eighth floor), Washington, DC.
16 CFR 1051.4 Time of filing.
For purposes of computing time periods under this part, a petition
shall be considered filed when time-date stamped by the Office of the
Secretary. A document is time-date stamped when it is received in the
Office of the Secretary.
16 CFR 1051.5 Requirements and recommendations for petitions.
(a) Requirements. To be considered a petition under this part, any
request to issue, amend or revoke a rule shall meet the requirements of
this paragraph (a). A petition shall:
(1) Be written in the English language;
(2) Contain the name and address of the petitioner;
(3) Indicate the product (or products) regulated under the Consumer
Product Safety Act or other statute the Commission administers for which
a rule is sought or for which there is an existing rule sought to be
modified or revoked. (If the petition regards a procedural or other
rule not involving a specific product, the type of rule involved must be
indicated.)
(4) Set forth facts which establish the claim that the issuance,
amendment, or revocation of the rule is necessary (for example, such
facts may include personal experience; medical, engineering or injury
data; or a research study); and
(5) Contain an explicit request to initiate Commission rulemaking and
set forth a brief description of the substance of the proposed rule or
amendment or revocation thereof which it is claimed should be issued by
the Commission. (A general request for regulatory action which does not
reasonably specify the type of action requested shall not be sufficient
for purposes of this subsection.)
(b) Recommendations. The Commission encourages the submission of as
much information as possible related to the petition. Thus, to assist
the Commission in its evaluation of a petition, to the extent the
information is known and available to the petitioner, the petitioner is
encouraged to supply the following information or any other information
relating to the petition. The petition will be considered by the
Commission even if the petitioner is unable to supply the information
recommended in this paragraph (b). However, as applicable, and to the
extent possible, the petitioner is encouraged to:
(1) Describe the specific risk(s) of injury to which the petition is
addressed, including the degree (severity) and the nature of the risk(s)
of injury associated with the product and possible reasons for the
existence of the risk of injury (for example, product defect, poor
design, faulty workmanship, or intentional or unintentional misuse);
(2) State why a consumer product safety standard would not be
feasible if the petition requests the issuance of a rule declaring the
product to be a banned hazardous product; and
(3) Supply or reference any known documentation, engineering studies,
technical studies, reports of injuries, medical findings, legal
analyses, economic analyses and environmental impact analyses relating
to the petition.
(c) Procedural recommendations. The following are procedural
recommendations to help the Commission in its consideration of
petitions. The Commission requests, but does not require, that a
petition filed under this part:
(1) Be typewritten,
(2) Include the word ''petition'' in a heading preceding the text,
(3) Specify what section of the statute administered by the
Commission authorizes the requested rulemaking,
(4) Include the telephone number of the petitioner and
(5) Be accompanied by at least five (5) copies of the petition.
16 CFR 1051.6 Documents not considered petitions.
(a) A document filed with the Commission which addresses a topic or
involves a product outside the jurisdiction of the Commission will not
be considered to be a petition. After consultation with the Office of
the General Counsel, the Office of the Secretary, if appropriate, will
forward to the appropriate agency documents which address products or
topics within the jurisdiction of other agencies. The Office of the
Secretary shall notify the sender of the document that it has been
forwarded to the appropriate agency.
(b) Any other documents filed with the Office of the Secretary that
are determined by the Office of the General Counsel not to be petitions
shall be evaluated for possible staff action. The Office of the General
Counsel shall notify the writer of the manner in which the Commission
staff is treating the document. If the writer has indicated an
intention to petition the Commission, the Office of the General Counsel
shall inform the writer of the procedure to be followed for petitioning.
16 CFR 1051.7 Statement in support of or in opposition to petitions;
Duty of petitioners to remain apprised of developments regarding
petitions.
(a) Any person may file a statement with the Office of the Secretary
in support of or in opposition to a petition prior to Commission action
on the petition. Persons submitting statements in opposition to a
petition are encouraged to provide copies of such statements to the
petitioner.
(b) It is the duty of the petitioner, or any person submitting a
statement in support of or in opposition to a petition, to keep himself
or herself apprised of developments regarding the petition. Information
regarding the status of petitions is available from the Office of the
Secretary of the Commission.
(c) The Office of the Secretary shall send to the petitioner a copy
of the staff briefing package on his or her petition at the same time
the package is transmitted to the Commissioners for decision.
16 CFR 1051.8 Public hearings on petitions.
(a) The Commission may hold a public hearing or may conduct such
investigation or proceeding, including a public meeting, as it deems
appropriate to determine whether a petition should be granted.
(b) If the Commission decides that a public hearing on a petition, or
any portion thereof, would contribute to its determination of whether to
grant or deny the petition, it shall publish in the Federal Register a
notice of a hearing on the petition and invite interested persons to
submit their views through an oral or written presentation or both. The
hearings shall be informal, nonadversary, legislative-type proceedings
in accordance with 16 CFR part 1052.
16 CFR 1051.9 Factors the Commission considers in granting or denying
petitions.
(a) The major factors the Commission considers in deciding whether to
grant or deny a petition regarding a product include the following
items:
(1) Whether the product involved presents an unreasonable risk of
injury.
(2) Whether a rule is reasonably necessary to eliminate or reduce the
risk of injury.
(3) Whether failure of the Commission to initiate the rulemaking
proceeding requested would unreasonably expose the petitioner or other
consumers to the risk of injury which the petitioner alleges is
presented by the product.
(4) Whether, in the case of a petition to declare a consumer product
a ''banned hazardous product'' under section 8 of the CPSA, the product
is being or will be distributed in commerce and whether a feasible
consumer product safety standard would adequately protect the public
from the unreasonable risk of injury associated with such product.
(b) In considering these factors, the Commission will treat as an
important component of each one the relative priority of the risk of
injury associated with the product about which the petition has been
filed and the Commission's resources available for rulemaking activities
with respect to that risk of injury. The CPSC Policy on Establishing
Priorities for Commission Action, 16 CFR 1009.8, sets forth the criteria
upon which Commission priorities are based.
16 CFR 1051.10 Granting petitions.
(a) The Commission shall either grant or deny a petition within a
reasonable time after it is filed, taking into account the resources
available for processing the petition. The Commission may also grant a
petition in part or deny it in part. If the Commission grants a
petition, it shall begin proceedings to issue, amend or revoke the rule
under the appropriate provisions of the statutes under its
administration. Beginning a proceeding means taking the first step in
the rulemaking process (issuance of an advance notice of proposed
rulemaking or a notice of proposed rulemaking, whichever is applicable).
(b) Granting a petition and beginning a proceeding does not
necessarily mean that the Commission will issue, amend or revoke the
rule as requested in the petition. The Commission must make a final
decision as to the issuance, amendment, or revocation of a rule on the
basis of all available relevant information developed in the course of
the rulemaking proceeding. Should later information indicate that the
action is unwarranted or not necessary, the Commission may terminate the
proceeding.
16 CFR 1051.11 Denial of petitions.
(a) If the Commission denies a petition it shall promptly notify the
petitioner in writing of its reasons for such denial as required by the
Administrative Procedure Act, 5 U.S.C. 555(e).
(b) If the Commission denies a petition, the petitioner (or another
party) can refile the petition if the party can demonstrate that new or
changed circumstances or additional information justify reconsideration
by the Commission.
(c) A Commission denial of a petition shall not preclude the
Commission from continuing to consider matters raised in the petition.
16 CFR 1051.11 PART 1052 -- PROCEDURAL REGULATIONS FOR INFORMAL ORAL
PRESENTATIONS IN PROCEEDINGS BEFORE THE CONSUMER PRODUCT SAFETY
COMMISSION
Sec.
1052.1 Scope and purpose.
1052.2 Notice of opportunity for oral presentation.
1052.3 Conduct of oral presentation.
1052.4 Presiding officer; appointment, duties, powers.
Authority: 15 U.S.C. 1193(d), 15 U.S.C. 2058(d)(2), 15 U.S.C.
2076(a), and 5 U.S.C. 553(c).
Source: 48 FR 57122, Dec. 28, 1983, unless otherwise noted.
16 CFR 1052.1 Scope and purpose.
(a) Section 9(d)(2) of the Consumer Product Safety Act, 15 U.S.C.
2058(d)(2), and section 4(d) of the Flammable Fabrics Act, 15 U.S.C.
1193(d), provide that certain rules under those statutes shall be
promulgated pursuant to section 4 of the Administrative Procedure Act, 5
U.S.C. 553, except that the Commission shall give interested persons an
opportunity for the oral presentation of data, views or arguments in
addition to the opportunity to make written submissions. Several
rulemaking provisions of the statutes administered by the Commission are
subject only to the rulemaking procedures of the Administrative
Procedure Act. Section 4(c) of the Administrative Procedure Act
provides that the opportunity for oral presentations may or may not be
granted in rulemaking under that section. In addition, section 27(a) of
the Consumer Product Safety Act, 15 U.S.C. 2076(a), authorizes informal
proceedings that can be conducted in non-rulemaking investigatory
situations.
(b) This part sets forth rules of procedure for the oral presentation
of data, views or arguments in the informal rulemaking or investigatory
situations described in subsection (a) of this section. In situations
where the opportunity for an oral presentation is not required by
statute, the Commission will determine whether to provide the
opportunity on a case-by-case basis.
16 CFR 1052.2 Notice of opportunity for oral presentation.
The Commission will publish in the Federal Register notice of
opportunity for an oral presentation in each instance. The notice shall
be sufficiently in advance of the oral presentation to allow interested
persons to participate. If the oral presentation involves a proposed
rule, the notice of opportunity may be in the notice proposing the rule
or in a later, separate Federal Register notice.
16 CFR 1052.3 Conduct of oral presentation.
(a) The purpose of the oral presentation is to afford interested
persons an opportunity to participate in person in the Commission's
rulemaking or other proceedings and to help inform the Commission of
relevant data, views and arguments.
(b) The oral presentation, which shall be taped or transcribed, shall
be an informal, non-adversarial legislative-type proceeding at which
there will be no formal pleadings or adverse parties.
(c) The proceedings for the oral presentation shall be conducted
impartially, thoroughly, and expeditiously to allow interested persons
an opportunity for oral presentation of data, views or arguments.
16 CFR 1052.4 Presiding officer; appointment, duties, powers.
(a) For oral presentations, the presiding officer shall either be the
Chairman of the Commission or a presiding officer shall be appointed by
the Chairman with the concurrence of the Commission.
(b) The presiding officer shall chair the proceedings, shall make
appropriate provision for testimony, comments and questions, and shall
be responsible for the orderly conduct of the proceedings. The
presiding officer shall have all the powers necessary or appropriate to
contribute to the equitable and efficient conduct of the oral
proceedings including the following:
(1) The right to apportion the time of persons making presentations
in an equitable manner in order to complete the presentations within the
time period allotted for the proceedings.
(2) The right to terminate or shorten the presentation of any party
when, in the view of the presiding officer, such presentation is
repetitive or is not relevant to the purpose of the proceedings.
(3) The right to confine the presentations to the issues specified in
the notice of oral proceeding or, where no issues are specified, to
matters pertinent to the proposed rule or other proceeding.
(4) The right to require a single representative to present the views
of two or more persons or groups who have the same or similar interests.
The presiding officer shall have the authority to identify groups or
persons with the same or similar interests in the proceedings.
(c) The presiding officer and Commission representatives shall have
the right to question persons making an oral presentation as to their
testimony and any other relevant matter.
16 CFR 1052.4 PART 1061 -- APPLICATIONS FOR EXEMPTION FROM PREEMPTION
Sec.
1061.1 Scope and purpose.
1061.2 Definitions.
1061.3 Statutory considerations.
1061.4 Threshold requirements for applications for exemption.
1061.5 Form of applications for exemption.
1061.6 Contents of applications for exemption.
1061.7 Documentation of the state or local requirement.
1061.8 Information on the heightened degree of protection afforded.
1061.9 Information about the effect on interstate commerce.
1061.10 Information on affected parties.
1061.11 Incomplete or insufficient applications.
1061.12 Commission consideration on merits.
Authority: 15 U.S.C. 2075; 15 U.S.C. 1261n; 15 U.S.C. 1203; 15
U.S.C. 1476.
Source: 56 FR 3416, Jan. 30, 1991, unless otherwise noted.
16 CFR 1061.1 Scope and purpose.
(a) This part applies to the submission and consideration of
applications by State and local governments for exemption from
preemption by statutes, standards, and regulations of the Consumer
Product Safety Commission.
(b) This part implements section 26 of the Consumer Product Safety
Act (CPSA) (15 U.S.C. 2075), section 18 of the Federal Hazardous
Substances Act (FHSA) (15 U.S.C. 1261n), section 16 of the Flammable
Fabrics Act (FFA) (15 U.S.C. 1203), and section 7 of the Poison
Prevention Packaging Act (PPPA) (15 U.S.C. 1476), all as amended.
16 CFR 1061.2 Definitions.
For the purposes of this part:
(a) Commission means the Consumer Product Safety Commission.
(b) Commission's statutory preemption provisions and statutory
preemption provisions means section 26 of the CPSA (15 U.S.C. 2075),
section 18 of the FHSA (15 U.S.C. 1261n), section 16 of the FFA (15
U.S.C. 1203) and section 7 of the PPPA (15 U.S.C. 1476).
(c) Commission statute, standard, or regulation means a statute,
standard, regulation, or requirement that is designated as having a
preemptive effect by the Commission's statutory preemption provisions.
(d) State means a State, the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, Wake Island, Midway Island,
Kingman Reef, Johnston Island, the Canal Zone, American Samoa, or the
Trust Territory of the Pacific Islands.
(e) Local government means any political subdivision of a State
having the authority to establish or continue in effect any standard,
regulation, or requirement that has the force of law and is applicable
to a consumer product.
(f) State or local requirement means any statute, standard,
regulation, ordinance, or other requirement that applies to a product
regulated by the Commission, that is issued by a State or local
government, and that is intended to have the force of law when in
effect.
16 CFR 1061.3 Statutory considerations.
(a) The Commission's statutory preemption provisions provide,
generally, that whenever consumer products are subject to certain
Commission statutes, standards, or regulations, a State or local
requirement applicable to the same product is preempted, i.e.,
superseded and made unenforceable, if both are designed to protect
against the same risk of injury or illness, unless the State or local
requirement is identical to the Commission's statutory requirement,
standard, or regulation. A State or local requirement is not preempted
if the product it is applicable to is for the State or local
government's own use and the requirement provides a higher degree of
protection than the Commission's statutory requirement, standard, or
regulation.
(b) The Commission's statutory preemption provisions provide,
generally, that if a State or local government wants to enforce its own
requirement that is preempted, the State or local government must seek
an exemption from the Commission before any such enforcement. The
Commission may, by regulation, exempt a State or local requirement from
preemption if it finds that the State or local requirement affords a
significantly higher degree of protection than the Commission's statute,
standard, or regulation, and that it does not unduly burden interstate
commerce. Such findings must be included in any exemption regulation.
16 CFR 1061.4 Threshold requirements for applications for exemption.
(a) The Commission will consider an application for preemption on its
merits, only if the application demonstrates all of the following:
(1) The State or local requirement has been enacted or issued in
final form by an authorized official or instrumentality of the State or
local government. For purposes of this section, a State or local
requirement may be considered to have been enacted or issued in final
form even though it is preempted by a Commission standard or regulation.
(2) The applicant is an official or instrumentality of a State or
local government having authority to act for, or on behalf of, that
government in applying for an exemption from preemption for the safety
requirement referred to in the application.
(3) The State or local requirement is preempted under a Commission
statutory preemption provision by a Commission statute, standard, or
regulation. A State or local requirement is preempted if the following
tests are met:
(i) There is a Commission statute, standard, or regulation in effect
that is applicable to the product covered by the State or local
requirement.
(ii) The Commission statute, standard, or regulation is designated as
having a preemptive effect under a statutory preemption provision.
(iii) The State or local requirement is designed to protect against
the same risk of injury or illness as that addressed by the Commission
statute, standard, or regulation.
(iv) The State or local requirement is not identical to the
Commission statute, standard, or regulation.
(b) State and local governments may contact the Commission's Office
of the General Counsel to obtain informal advice on whether a State or
local requirement meets the threshold requirements of paragraph (a) of
this section.
16 CFR 1061.5 Form of applications for exemption.
An application for exemption shall:
(a) Be written in the English language.
(b) Clearly indicate that it is an application for an exemption from
preemption by a Commission statute, standard, or regulation.
(c) Identify the State or local requirement that is the subject of
the application and give the date it was enacted or issued in final
form.
(d) Identify the specific Commission statute, standard, or regulation
that is believed to preempt the State or local requirement.
(e) Contain the name and address of the person, branch, department,
agency, or other instrumentality of the State or local government that
should be notified of the Commission's actions concerning the
application.
(f) Document the applicant's authority to act for, or on behalf of,
the State or local government in applying for an exemption from
preemption for the particular safety requirement in question.
(g) Be signed by an individual having authority to apply for the
exemption from federal preemption on behalf of the applicant.
(h) Be submitted, in five copies, to the Secretary, Consumer Product
Safety Commission, Washington, DC 20207.
16 CFR 1061.6 Contents of applications for exemption.
Applications for exemption shall include the information specified in
1061.7 through 1061.10. More generally, a State or local government
seeking an exemption should provide the Commission with the most
complete information possible in support of the findings the Commission
is required to make in issuing an exemption regulation. If any of the
specified information is omitted becuase it is unavailable or not
relevent, such omission should be explained in the application.
16 CFR 1061.7 Documentation of the State or local requirement.
An application for an exemption from preemption shall contain the
following information:
(a) A copy of the State or local requirement that is the subject of
the application. Where available, the application shall also include
copies of any legislative history or background materials used in
issuing the requirement, including hearing reports or studies concerning
the development or consideration of the requirement.
(b) A written explanation of why compliance with the State or local
requirement would not cause the product to be in violation of the
applicable Commission statute, standard, or regulation.
16 CFR 1061.8 Information on the heightened degree of protection
afforded.
An application for an exemption from preemption shall also contain
information demonstrating that the State or local requirement provides a
significantly higher degree of protection from the risk of injury or
illness than the preempting Commission statute, standard, or regulation.
More specifically, an application shall contain:
(a) A description of the risk of injury or illness addressed by the
State or local requirement.
(b) A detailed explanation of the State or local requirement and its
rationale.
(c) An analysis of differences between the State or local requirement
and the Commission statute, standard, or regulation.
(d) A detailed explanation of the State or local test method and its
rationale.
(e) Information comparing available test results for the Commission
statute, standard, or regulation and the State or local requirement.
(f) Information to show hazard reduction as a result of the State or
local requirement, including injury data and results of accident
simulation.
(g) Any other information that is relevant to applicant's contention
that the State or local requirement provides a significantly higher
degree of protection than does the Commission statute, standard, or
regulation.
(h) Information regarding enforcement of the State or local
requirement and sanctions that could be imposed for noncompliance.
16 CFR 1061.9 Information about the effect on interstate commerce.
An application for exemption from preemption shall provide
information on the effect on interstate commerce a granting of the
requested exemption would be expected to cause, including the extent of
the burden and the benefit to public health and safety that would be
provided by the State or local requirement. More specifically,
applications for exemption shall include, where available, information
showing:
(a) That it is technologically feasible to comply with the State or
local requirement. Evidence of technological feasibility could take the
form of:
(1) Statements by affected persons indicating ability to comply with
the State or local government requirement.
(2) Statements indicating that other jurisdictions have established
similar requirements that have been, or could be, met by persons
affected by the requirement that is the subject of the application.
(3) Information as to technological product or process modifications
necessary to achieve compliance with the State or local requirement.
(4) Any other information indicating the technological feasibility of
compliance with the State or local requirement.
(b) That it is economically feasible to comply with the Sate or local
requirement, i.e., that there would not be significant adverse effects
on the production and distribution of the regulated products. Evidence
of economic feasibility could take the form of:
(1) Information showing that the State or local requirement would not
result in the unavailability (or result in a significant decline in the
availability) of the product, either in the interstate market or within
the geographic boundary of the State or local government imposing the
requirement.
(2) Statements from persons likely to be affected by the State or
local requirement concerning the anticipated effect of the requirement
on the availability or continued marketing of the product.
(3) Any other information indicating the economic impact of
compliance with the State or local requirement, such as projections of
the anticipated effect of the State or local requirement on the sales
and prices of the product, both in interstate commerce and within the
geographic area of the State or local government.
(c) The present geographic distribution of the product to which the
State or local requirement would apply, and projections of future
geographic distribution. Evidence of the geographic distribution could
take the form of governmental or private information or data (including
statements from manufacturers, distributors, or retailers of the
product) showing advertising in the interstate market, interstate
retailing, or interstate distribution.
(d) The probability of other States or local governments applying for
an exemption for a similar requirement. Evidence of the probability
that other States or local governments would apply for an exemption
could take the form of statements from other States or local governments
indicating their intentions.
(e) That specified local conditions require the State or local
government to apply with the exemption in order to adequately protect
the public health or safety of the State or local area.
16 CFR 1061.10 Information on affected parties.
An application for an exemption from preemption shall include a
statement which identifies in general terms, parties potentially
affected by the State or local requirement, especially small businesses,
including manufacturers, distributors, retailers, consumers, and
consumer groups.
16 CFR 1061.11 Incomplete or insufficient applications.
(a) If an application fails to meet the threshold requirements of
1061.4(a) of this part, the Office of General Counsel will inform the
applicant and return the application without prejudice to its being
resubmitted.
(b) If an application fails to provide all the information specified
in 1061.5 through 1061.10 of this part, and fails to fully explain why
it has not been provided, the Office of General Counsel will either:
(1) Return it to the applicant without prejudice to its being
resubmitted,
(2) Notify the applicant and allow it to provide the missing
information, or
(3) If the deficiencies are minor and the applicant concurs, forward
it to the Commission for consideration on its merits.
(c) If the Commission or the Commission staff believes that
additional information is necessary or useful for a proper evaluation of
the application, the Commission or Commission staff will promptly
request the applicant to furnish such additional information.
(d) If an application is not returned under paragraphs (a) or (b) of
this section, the Commission will consider it on its merits.
16 CFR 1061.12 Commission consideration on merits.
(a) If the Commission proposes to grant an application for exemption
it will, in accordance with 5 U.S.C. 553, publish a notice of that fact
in the Federal Register, including a proposed exemption regulation, and
provide an opportunity for written and oral comments on the proposed
exemption by any interested party.
(b) The Commission will evaluate all timely written and oral
submissions received from interested parties, as well as any other
available and relevant information on the proposal.
(c) The Commission's evaluation will focus on:
(1) Whether the State or local requirement provides a significantly
higher degree of protection than the Commission statute or regulation
from the risk of injury or illness that they both address.
(2) Whether the State or local requirement would unduly burden
interstate commerce if the grant of the exemption from preemption allows
it to go into effect. The Commission will evaluate these factors in
accordance with the Commission's statutory preemption provisions and
their legislative history.
(3) Whether compliance with the State or local requirements would not
cause the product to be in violation of the applicable Commission
statute, standard, or regulation.
(d) If, after evaluating the record, the Commission determines to
grant an exemption, it will publish a final exemption regulation,
including the findings required by the statutory preemption provisions,
in the Federal Register.
(e) If the Commission denies an application, whether or not published
for comment, it will publish its reasons for doing so in the Federal
Register.
16 CFR 1061.12 SUBCHAPTER B -- CONSUMER PRODUCT SAFETY ACT REGULATIONS
16 CFR 1061.12 Pt. 1101
16 CFR 1061.12 PART 1101 -- INFORMATION DISCLOSURE UNDER SECTION 6(b) OF THE CONSUMER PRODUCT SAFETY ACT
16 CFR 1061.12 Subpart A -- Background
Sec.
1101.1 General background.
1101.2 Scope.
16 CFR 1061.12 Subpart B -- Information Subject to Notice and Analysis
Provisions of Section 6(b)(1)
1101.11 General application of provisions of section 6(b)(1).
1101.12 Commission must disclose information to the public.
1101.13 Public ability to ascertain readily identity of manufacturer
or private labeler.
16 CFR 1061.12 Subpart C -- Procedure for Providing Notice and
Opportunity to Comment Under Section 6(b)(1)
1101.21 Form of notice and opportunity to comment.
1101.22 Timing; request for time extensions.
1101.23 Providing less than 30 days notice before disclosing
information.
1101.24 Scope of comments Commission seeks.
1101.25 Notice of intent to disclose.
1101.26 Circumstances when the Commission does not provide notice and
opportunity to comment.
16 CFR 1061.12 Subpart D -- Reasonable Steps Commission Will Take To
Assure Information It Discloses Is Accurate, and That Disclosure Is Fair
in the Circumstances and Reasonably Related to Effectuating the Purposes
of the Acts it Administers
1101.31 General requirements.
1101.32 Reasonable steps to assure information is accurate.
1101.33 Reasonable steps to assure information release is fair in the
circumstances.
1101.34 Reasonable steps to assure information release is
''reasonably related to effectuating the purposes of the Acts'' the
Commission administers.
16 CFR 1061.12 Subpart E -- Statutory Exceptions of Section 6(b)(4)
1101.41 Generally.
1101.42 Imminent hazard exception.
1101.43 Prohibited acts exception.
1101.44 Rulemaking proceeding exception.
1101.45 Adjudicatory proceeding exception.
1101.46 Other administrative or judicial proceeding exception.
16 CFR 1061.12 Subpart F -- Retraction
1101.51 Commission interpretation.
1101.52 Procedure for retraction.
16 CFR 1061.12 Subpart G -- Information Submitted Pursuant to Section
15(b) of the CPSA
1101.61 Generally.
1101.62 Statutory exceptions to section 6(b)(5) requirements.
1101.63 Information submitted pursuant to section 15(b) of the CPSA.
16 CFR 1061.12 Subpart H -- Delegation of Authority to Information
Group
1101.71 Delegation of authority.
Authority: Sec. 6(b) of Pub. L. 92-573, 86 Stat. 1212, as amended
by Pub. L. No. 97-35, 95 Stat. 703-25 (15 U.S.C. 2055(b)); 5 U.S.C.
553.
Source: 48 FR 57430, Dec. 29, 1983, unless otherwise noted.
16 CFR 1061.12 Subpart A -- Background
16 CFR 1101.1 General background.
(a) Basic purpose. This rule sets forth the Consumer Product Safety
Commission's policy and procedure under sections 6(b)(1)-(5) of the
Consumer Product Safety Act (CPSA) (15 U.S.C. 2055(b)(1)-(5)) which
relate to public disclosure of information from which the identity of a
manufacturer or private labeler of a product can be readily ascertained.
In addition, these rules provide for retraction of inaccurate or
misleading information the Commission has disclosed that reflects
adversely on the safety of a consumer product or class of products or on
the practices of any manufacturer, private labeler, distributor or
retailer of consumer products as required by section 6(b)(7) of the CPSA
(15 U.S.C. 2055(b)(7)).
(b) Statutory requirements. Section 6(b) establishes procedures that
the Commission must follow when it releases certain firm specific
information to the public and when it retracts certain information it
has released.
(1) Generally, section 6(b)(1) requires the Commission to provide
manufacturers or private labelers with advance notice and opportunity to
comment on information the Commission proposes to release, if the public
can readily ascertain the identity of the firm from the information.
Section 6(b)(1) also requires the Commission to take reasonable steps to
assure that the information is accurate and that disclosure is fair in
the circumstances and reasonably related to effectuating the purposes of
the Acts administered by the Commission. Disclosure of information may
not occur in fewer than 30 days after notice to the manufacturer or
private labeler unless the Commission finds the public health and safety
requires a lesser period of notice. Exceptions to these requirements
are established in section 6(b)(4). Additional limitations on the
disclosure of information reported to the Commission under section 15(b)
of the CPSA are established in section 6(b)(5).
(2) Section 6(b)(2) requires the Commission to provide further notice
to manufacturers or private labelers where the Commission proposes to
disclose product-specific information the firms have claimed to be
inaccurate.
(3) Section 6(b)(3) authorizes manufacturers and private labelers to
bring lawsuits against the Commission to prevent disclosure of
product-specific information after the firms have received the notice
specified.
(c) Internal clearance procedures. Section 6(b)(6) requires the
Commission to establish internal clearance procedures for Commission
initiated disclosures of information that reflect on the safety of a
consumer product or class of products, even if the information is not
product specific. This rule does not address section 6(b)(6) because
the Commission has internal clearance procedures in its directives
system. (Directive 1450.2 ''Clearance Procedures for Commission Staff
to Use in Providing Information to the Public.'' April 27, 1983.
16 CFR 1101.2 Scope.
Section 6(b) and these rules apply to information concerning products
subject to the CPSA (15 U.S.C. 2051-2085), and to the four other acts
the Commission administers (transferred acts). These transferred acts
are the Flammable Fabrics Act, 15 U.S.C. 1191-1204 (FFA); the Poison
Prevention Packaging Act of 1970, 15 U.S.C. 1471-1476 (PPPA); the
Federal Hazardous Substances Act, 15 U.S.C. 1261-1276 (FHSA); and the
Refrigerator Safety Act, 15 U.S.C. 1211-1214 (RSA). See section
6(b)(1) of the CPSA, 15 U.S.C. 2055(d)(1).
16 CFR 1101.2 Subpart B -- Information Subject to Notice and Analysis Provisions of Section 6(b)(1)
16 CFR 1101.11 General application of provisions of section 6(b)(1).
(a) Information subject to section 6(b)(1). To be subject to the
notice and analysis provisions of section 6(b)(1), information must meet
all the following criteria:
(1) The information must pertain to a specific product which is
either designated or described in a manner which permits its identity to
be ascertained readily by the public.
(2) The information must be obtained, generated or received by the
Commission as an entity or by individual members, employees, agents,
contractors or representatives of the Commission acting in their
official capacities.
(3) The Commission or its members, employees, agents or
representatives must propose to disclose the information to the public
(see 1101.12).
(4) The manner in which the product is designated or described in the
information must permit the public to ascertain readily the identity of
the manufacturer or private labeler. (See 1101.13.)
(b) Information not subject to section 6(b)(1). The requirements of
section 6(b)(1) do not apply to:
(1) Information described in the exclusions contained in section
6(b)(4) of the CPSA (see subpart E of this rule).
(2) Information the Commission is required by law to make publicly
available. This information includes, for example, Commission
notifications to foreign governments regarding certain products to be
exported, as required by section 18(b) of the CPSA, 15 U.S.C. 2068(b);
section 14(d) of the FHSA, 15 U.S.C. 1273(d); and section 15(c) of the
FFA, 15 U.S.C. 1202(c). (See the Commission's Export Policy Statement,
16 CFR part 1017.)
(3) Information required to be disclosed to the President and
Congress pursuant to section 27(j) of the CPSA, 15 U.S.C. 2076(j).
(4) Press releases issued by firms.
(5) Information filed or presented in administrative proceedings or
litigation to which the Commission is a party and which is not expressly
subject to the section 6(b)(4) exceptions.
16 CFR 1101.12 Commission must disclose information to the public.
Public. For the purposes of section 6(b)(1), the public includes any
person except:
(a) Members, employees, agents, representatives and contractors of
the Commission, in their official capacity.
(b) State officials who are commissioned officers under section
29(a)(2) of the CPSA, 15 U.S.C. 2078(a)(2), to the extent that the
Commission furnishes them information necessary for them to perform
their duties under that section. Such officials may not release to the
public copies of such information unless the Commission has complied
with section 6(b) or the information falls within an exception to
section 6(b).
(c) Members of a Commission Chronic Hazard Advisory Panel established
under section 28 of the CPSA (15 U.S.C. 2077). However, disclosures of
information by such a Panel are subject to section 6(b).
(d) The persons or firms to whom the information to be disclosed
pertains, or their legal representatives.
(e) The persons or firms who provided the information to the
Commission, or their legal representatives.
(f) Other Federal agencies or state or local governments to whom
accident and investigation reports are provided pursuant to section
29(e) of the CPSA (15 U.S.C. 2078(e)). However, as required by that
section, employees of Federal agencies or state or local governments may
not release to the public copies of any accident or investigation report
made under the CPSA by an officer, employee or agent of the Commission
unless CPSC has complied with the applicable requirements of section
6(b).
(g) The Chairman or ranking minority member of a committee or
subcommittee of Congress acting pursuant to committee business and
having jurisdiction over the matter which is the subject of the
information requested.
16 CFR 1101.13 Public ability to ascertain readily identity of
manufacturer or private labeler.
The advance notice and analysis provisions of section 6(b)(1) apply
only when a reasonable person receiving the information in the form in
which it is to be disclosed and lacking specialized expertise can
readily ascertain from the information itself the identity of the
manufacturer or private labeler of a particular product. The Commission
will provide the advance notice and opportunity to comment if there is a
question whether the public could readily ascertain the identity of a
manufacturer or private labeler.
16 CFR 1101.13 Subpart C -- Procedure for Providing Notice and Opportunity To Comment Under Section 6(b)(1)
16 CFR 1101.21 Form of notice and opportunity to comment.
(a) Notice may be oral or written. The Commission will generally
provide to manufacturers or private labelers written notice and
opportunity to comment on information subject to section 6(b)(1).
However, when the Commission makes a public health and safety finding
pursuant to section 6(b)(1) of the CPSA, the Commission may determine
that it is necessary to provide the notice and opportunity to comment
orally, either in person or by telephone.
(b) Content of notice. The Commission will provide the manufacturer
or private labeler with:
(1) Either the actual text of the information to be disclosed or, if
appropriate, a summary of the information.
(2) A general description of the manner in which the Commission will
disclose the information, including any other relevant information the
Commission intends to include with the disclosure. If the Commission
advises that the form of disclosure will be by press release, for
example, the Commission need not provide further notice to disclose a
summary of the press release.
(3) A request for comment with respect to the information, including
a request for explanatory data or other relevant information for the
Commission's consideration.
(4) A statement that, in the absence of a specific request by a firm
that its comments be withheld from disclosure, the Commission will
release to the public the firm's comments (or a summary thereof prepared
by the firm or, if the firm declines to do so, by the Commission).
(5) A statement that a request that comments be withheld from
disclosure will be honored.
(6) Notice that the firm may request confidential treatment for the
information, in accordance with section 6(a)(3) of the Consumer Product
Safety Act, 15 U.S.C. 2055(a)(3) (see 1101.24(b)).
(7) A statement that no further request for comment will be sought by
the Commission if it intends to disclose the identical information in
the same format, unless the firm specifically requests the opportunity
to comment on subsequent information disclosures.
(8) The name, address, and telephone number of the person to whom
comments should be sent and the time when any comments are due (see
1101.22).
16 CFR 1101.22 Timing: request for time extensions.
(a) Time for comment. (1) Generally firms will receive a minimum of
twenty (20) calendar days from the date of the letter in which the
Commission transmits the notice to furnish comments to the Commission.
Firms that receive requests for comments by mail will receive an
additional three (3) days to comment to account for time in the mail.
(2) Upon his or her own initiative or upon request, the Freedom of
Information Officer may provide a different amount of time for comment,
particularly for firms that receive voluminous or complex material. In
addition, the Commission may find that the public health and safety
requires a lesser period of notice and may require a response in a
shorter period of time (see 1101.24).
(b) No response submitted. (1) If the Commission has not received a
response within the time specified and if it has received no request for
extension of time, the Commission will analyze the information as
provided in subpart D. If no comments are submitted the Commission will
not give the further notice provided in section 6(b)(2).
(2) Unless the Commission finds that the public health and safety
requires a lesser period of notice (see 1101.23), the Commission will
not disclose the information in fewer than 30 days after providing a
manufacturer or private labeler notice and opportunity to comment.
(c) Requests for time extension. (1) Requests for extension of time
to comment on information to be disclosed must be made to the person who
provided the Commission's notice and opportunity to comment. The
request for time extension may be either oral or written. An oral
request for a time extension must be promptly confirmed in writing.
(2) Requests for extension of time must explain with specificity why
the extension is needed and how much additional time is required.
(3) The Commission will promptly respond to requests for extension of
time.
16 CFR 1101.23 Providing less than 30 days notice before disclosing
information.
There are two circumstances in which the Commission may disclose to
the public information subject to section 6(b)(1) in a time less than 30
days after providing notice to the manufacturer or private labeler.
(a) Firm agrees to lesser period or does not object to disclosure.
The Commission may disclose to the public information subject to section
6(b)(1) before the 30-day period expires when, after receiving the
Commission's notice and opportunity to comment, the firm involved agrees
to the earlier disclosure; notifies the Commission that it has no
comment; or notifies the Commission that it does not object to
disclosure.
(b) Commission finding a lesser period is required. Section 6(b)(1)
provides that the Commission may find that the public health and safety
requires a lesser period of notice than the 30 days advance notice that
section 6(b)(1) generally requires. The Commission may determine that
the public health and safety requires less than 30 days advance notice,
for example, to warn the public quickly because individuals may be in
danger from a product hazard or a potential hazard, or to correct
product safety information released by third persons, which
mischaracterizes statements made by the Commission about the product or
which attributes to the Commission statements about the product which
the Commission did not make.
(c) Notice of finding. The Commission will inform a manufacturer or
private labeler of a product which is the subject of a public health and
safety finding that the public health and safety requires less than 30
days advance notice either orally or in writing, depending on the
immediacy of the need for quick action; and the Commission will publish
the finding in the Federal Register. Disclosure may be made
concurrently with the filing of the Federal Register notice and need not
await its publication. However, where applicable, before releasing
information, the Commission will comply with the requirements of section
6(b) (1) and (2) by giving the firm the opportunity to comment on the
information, either orally or in writing depending on the immediacy of
the need for quick action, and by giving the firm advance notice before
disclosing information claimed by a manufacturer or private labeler to
be inaccurate (see 1101.25).
16 CFR 1101.24 Scope of comments Commission seeks.
(a) Comment in regard to the information. The section 6(b)
opportunity to comment on information is intended to permit firms to
furnish information and data to the Commission to assist the agency in
its evaluation of the accuracy of the information. A firm's submission,
therefore, must be specific and should be accompanied by documentation,
where available, if the comments are to assist the Commission in its
evaluation of the information. Comments of a general nature, such as
general suggestions or allegations that a document is inaccurate or that
the Commission has not taken reasonable steps to assure accuracy, are
not sufficient to assist the Commission in its evaluation of the
information or to justify a claim of inaccuracy. The weight accorded a
firm's comments on the accuracy of information and the degree of
scrutiny which the Commission will exercise in evaluating the
information will depend on the specificity and completeness of the
firm's comments and of the accompanying documentation. In general,
specific comments which are accompanied by documentation will be given
more weight than those which are undocumented and general in nature.
(b) Claims of confidentiality. If the manufacturer or private
labeler believes the information involved cannot be disclosed because of
section 6(a)(2) of the CPSA (15 U.S.C. 2055(a)(2)), which pertains to
trade secret or other confidential material, the firm may make claims of
confidentiality at the time it submits its comments to the Commission
under this section. Such claims must identify the specific information
which the firm believes to be confidential or trade secret material and
must state with specificity the grounds on which the firm bases it
claims. (See Commission's Freedom of Information Act regulation, 16 CFR
part 1015, particularly 16 CFR 1015.18.)
(c) Requests for nondisclosure of comments. If a firm objects to
disclosure of its comments or a portion thereof, it must notify the
Commission at the time it submits its comments. If the firm objects to
the disclosure of a portion of its comments, it must identify those
portions which should be withheld.
16 CFR 1101.25 Notice of intent to disclose.
(a) Notice to manufacturer or private labeler. In accordance with
section 6(b)(2) of the CPSA, if the Commission, after following the
notice provisions of section 6(b)(1), determines that information
claimed to be inaccurate by a manufacturer or private labeler in
comments submitted under section 6(b)(1) should be disclosed because the
Commission believes it has complied with section 6(b)(1), the Commission
shall notify the manufacturer or private labeler that it intends to
disclose the information not less than 10 working days after the date of
the receipt of notification by the firm. The notice of intent to
disclose will include an explanation of the reason for the Commission's
decision, copies of any additional materials, such as explanatory
statements and letters to Freedom of Information Act requesters, which
were not previously sent to the firm.
(b) Commission finding a lesser period is required. The Commission
may determine that the public health and safety requires less than 10
working days advance notice of its intent to disclose information
claimed to be inaccurate. For example, the Commission may determine it
is necessary to warn the public quickly because individuals may be in
danger from a product hazard or a potential hazard, or to correct
product safety information released by third persons, which
mischaracterized statements made by the Commission about the product or
which attributes to the Commission statements about the product which
the Commission did not make.
(c) Notice of findings. The Commission will inform a manufacturer or
private labeler of a product which is the subject of a public health and
safety finding that the public health and safety requires less than 10
days advance notice either orally or in writing, depending on the
immediacy of the need for quick action; and the Commission will publish
the finding in the Federal Register. Firms will be notified in advance
of the date and time, if possible, at which the Commission intends to
disclose the information. Disclosure may be concurrently with the
filing of the Federal Register notice and need not await its
publication. The Federal Register notice prepared under section 6(b)(2)
may be submitted simultaneously with or after a Federal Register notice
prepared under section 6(b)(1) (see 1101.23(c)).
16 CFR 1101.26 Circumstances when the Commission does not provide
notice and opportunity to comment.
(a) Notice to the extent practicable. Section 6(b)(1) requires that
''to the extent practicable'' the Commission must provide manufacturers
and private labelers notice and opportunity to comment before disclosing
information from which the public can ascertain readily their identity.
(b) Circumstances when notice and opportunity to comment is not
practicable. The Commission has determined that there are various
circumstances when notice and opportunity to comment is not practicable.
Examples include the following:
(1) When the Commission has taken reasonable steps to assure that the
company to which the information pertains is out of business and has no
identifiable successor.
(2) When the information is disclosed in testimony in response to an
order of the court during litigation to which the Commission is not a
party.
16 CFR 1101.26 Subpart D -- Reasonable Steps Commission Will Take To Assure Information It Discloses Is Accurate, and That Disclosure Is Fair in the Circumstances and Reasonably Related to Effectuating the Purposes of the Acts it Administers
16 CFR 1101.31 General requirements.
(a) Timing of decisions. The Commission will attempt to make its
decision on disclosure so that it can disclose information in accordance
with section 6(b) as soon as is reasonably possible after expiration of
the statutory thirty day moratorium on disclosure.
(b) Inclusion of comments. In disclosing any information under this
section, the Commission will include any comments or other information
submitted by the manufacturer or private labeler unless the manufacturer
or private labeler at the time it submits its section 6(b) comments
specifically requests the Commission not to include the comments or to
include only a designated portion of the comments and disclosure of the
comments on such a designated portion is not necessary to assure that
the disclosure of the information which is the subject of the comments
is fair in the circumstances.
(c) Explanatory statements. Where appropriate, the Commission will
accompany the disclosure of information subject to this subpart with an
explanatory statement that makes the nature of the information disclosed
clear to the public. Inclusion of an explanatory statement is in
addition to, and not a substitute for, taking reasonable steps to assure
the accuracy of information. To the extent it is practical the
Commission will also accompany the disclosure with any other relevant
information in its possession that places the released information in
context.
(d) Information previously disclosed. If the Commission has
previously disclosed, in accordance with section 6(b)(1), the identical
information it intends to disclose again in the same format, it will not
customarily take any additional steps to assure accuracy unless the
Commission has some reason to question its accuracy or unless the firm,
in its comments responding to the Commission's initial section 6(b)
notice, specifically requests the opportunity to comment on subsequent
disclosures, or unless the Commission determines that sufficient time
has passed to warrant seeking section 6(b) comment again. Before
disclosing the information the Commission will again review the
information to see if accuracy is called into question and will further
look to whether disclosure is fair in the circumstances and reasonably
related to effectuating the purposes of the Acts the Commission
administers.
16 CFR 1101.32 Reasonable steps to assure information is accurate.
(a) The Commission considers that the following types of actions are
reasonable steps to assure the accuracy of information it proposes to
release to the public:
(1) The Commission staff or a qualified person or entity outside the
Commission (e.g., someone with requisite training or experience, such as
a fire marshal, a fire investigator, an electrical engineer, or an
attending physician) conducts an investigation or an inspection which
yields or corroborates the product information to be disclosed; or
(2) The Commission staff conducts a technical, scientific, or other
evaluation which yields or corroborates the product information to be
disclosed or the staff obtains a copy of such an evaluation conducted by
a qualified person or entity; or
(3) The Commission staff provides the information to be disclosed to
the person who submitted it to the Commission for review and, if
necessary, correction, and the submitter confirms the information as
accurate to the best of the submitter's knowledge and belief, provided
that:
(i) The confirmation is made by the person injured or nearly injured
in an incident involving the product; or
(ii) The confirmation is made by a person who, on the basis of his or
her own observation or experience, identifies an alleged safety-related
defect in or problem with such a product even though no incident or
injury associated with the defect or problem may have occurred; or
(iii) The confirmation is made by an eyewitness to an injury or
safety-related incident involving such a product; or
(iv) The confirmation is made by an individual with requisite
training or experience who has investigated and/or determined the cause
of deaths, injuries or safety-related incidents involving such a
product. Such persons would include, for example, a fire marshal, a
fire investigator, an electrical engineer, an ambulance attendant, or an
attending physician; or
(v) The confirmation is made by a parent or guardian of a child
involved in an incident involving such a product, or by a person to whom
a child is entrusted on a temporary basis.
(b) The steps set forth below are the steps the Commission will take
to analyze the accuracy of information which it proposes to release to
the public.
(1) The Commission will review each proposed disclosure of
information which is susceptible of factual verification to assure that
reasonable steps have been taken to assure accuracy in accordance with
1101.32(a).
(2) As described in subpart C, the Commission will provide a
manufacturer or private labeler with a summary or text of the
information the Commission proposes to disclose and will invite comment
with respect to that information.
(3) If the Commission receives no comments or only general,
undocumented comments claiming inaccuracy, the Commission will review
the information in accordance with 1101.32(a) and release it, generally
without further investigating its accuracy if there is nothing on the
face of the information that calls its accuracy into question.
(4) If a firm comments on the accuracy of the information the
Commission proposes to disclose, the Commission will review the
information in light of the comments. The degree of review by the
Commission and the weight accorded a firm's comments will be directly
related to the specificity and completeness of the firm's comments on
accuracy and the accompanying docmentation. Documented comments will be
given more weight than undocumented comments. Specific comments will be
given more weight than general comments. Further steps may be taken to
determine the accuracy of the information if the Commission determines
such action appropriate.
16 CFR 1101.33 Reasonable steps to assure information release is fair
in the ciricumstances.
(a) The steps set forth below are the steps the Commission has
determined are reasonable to take to assure disclosure of information to
the public is fair in the circumstances:
(1) The Commission will accompany information disclosed to the public
with the manufacturer's or private labeler's comments unless the
manufacturer or private labeler asks in its section 6(b) comments that
its comments or a designated portion thereof not accompany the
information.
(2) The Commission generally will accompany the disclosure of
information with an explanatory statement that makes the nature of the
information disclosed clear to the public. The Commission will also
take reasonable steps to disclose any other relevant information it its
possession that will assure disclosure is fair in the circumstances.
(3) The Commission will limit the form of disclosure to that which it
considers appropriate in the circumstances. For example, the Commission
may determine it is not appropriate to issue a nationwide press release
in a particular situation and rather will issue a press release directed
at certain localities, regions, or user populations.
(4) The Commission may delay disclosure of information in some
circumstances. For example, the Commission may elect to postpone an
information release until an investigation, analysis or test of a
product is complete, rather than releasing information piecemeal.
(b) The Commission will not disclose information when it determines
that disclosure would not be fair in the circumstances. The following
are examples of disclosures which generally would not be fair in the
circumstances.
(1) Disclosure of information furnished by a firm to facilitate
prompt remedial action or settlement of a case when the firm has a
reasonable expectation that the information will be maintained by the
Commission in concidence.
(2) Disclosure of notes or minutes of meetings to discuss or
negotiate settlement agreements and of drafts of documents prepared
during settlement negotiations, where the firm has a reasonable
expectation that such written materials will be maintained by the
Commission in confidence.
(3) Disclosure of the work-product of attorneys employed by a firm
and information subject to an attorney/client privilege, if the
Comnmission has obtained the information from the client or the
attorney, the attorney or client advises the Commission of the
confidential nature of the information at the time it is submitted to
the Commission, and the information has been maintained in confidence by
the client and the attorney.
(4) Disclosure of a firm's comments (or a portion thereof) submitted
under section 6(b)(1) over the firm's objection.
16 CFR 1101.34 Reasonable steps to assure information release is
''reasonably related to effectuating the purposes of the Acts'' the
Commission administers.
(a) The steps set forth below are the steps the Commission has
determined are reasonable to take to assure that the disclosure of
information to the public effectuates the purposes of the Acts it
administers.
(1) Purposes of the CPSA. The Commission will review information to
determine whether disclosure would be reasonably related to effectuating
one or more of the specific purposes of the CPSA, as set forth in
sections 2(b) and 5, 15 U.S.C. 2051(b) and 2054.
(2) Purposes of the FHSA, FFA, PPPA and RSA. The Commission will
also review information concerning products subject to the transferred
acts it administers and to the Commission's specific functions under
those acts to determine whether disclosure of information would be
reasonably related to effectuating the purposes of those acts.
(3) Purposes of the FOIA. FOIA requests will be reviewed to
determine whether disclosure of the information is reasonably related to
effectuating one or more of the purposes of the acts administered by the
Commission. In the event of a close question on this issue, the
Commission will defer to the purposes of the FOIA. The FOIA establishes
a general right of the public to have access to information in the
Commission's possession, particularly information that reveals whether
the Commission is meeting its statutory responsibilities or information
upon which the Commission bases a decision that affects the public
health and safety.
(b) In reviewing proposed information disclosures, the Commission
will consider disclosing the material on the basis of whether release of
the information, when taken as a whole, was prepared or is maintained in
the course of or to support an activity of the Commission designed to
accomplish one or more of the statutory purposes.
16 CFR 1101.34 Subpart E -- Statutory Exceptions of Section 6(b)(4)
16 CFR 1101.41 Generally.
(a) Scope. This subpart describes and interprets the exceptions to
the requirements of section 6 (b)(1)-(b)(3) that are set forth in
section 6(b)(4). These exceptions apply to (1) information about a
product reasonably related to the subject matter of an imminent hazard
action in federal court; (2) information about a product which the
Commission has reasonable cause to believe violates the prohibited act
section of one of the acts the Commission administers and the
information is reasonably related to the alleged violations; (3)
information in the course of or concerning a rulemaking proceeding; or
(4) information in the course of or concerning an adjudicatory,
administrative or judicial proceeding.
(b) Application to transferred act. The Commission will apply the
exceptions contained in section 6(b)(4) to those provisions in the
transferred acts, comparable to the specific provisions in the CPSA to
which section 6(b)(4) applies.
16 CFR 1101.42 Imminent hazard exception.
(a) Statutory provision. Section 6(b)(4)(A) provides that the
requirements of section 6(b)(1) do not apply to public disclosure of
''information about any consumer product with respect to which product
the Commission has filed an action under section 12 (relating to
imminently hazardous products).''
(b) Scope of exception. This exception applies once the Commission
has filed an action under section 12 of the CPSA (15 U.S.C. 2061), in a
United States district court. Once the exception applies, information
may be disclosed to the public while the proceeding is pending without
following the requirements of section 6(b)(1) if the information
concerns or relates to the product alleged to be imminently hazardous.
Upon termination of the proceeding, information filed with the court or
otherwise made public is not subject to section 6(b). Information in
the Commission's possession which has not been made public is subject to
section 6(b).
16 CFR 1101.43 Prohibited acts exception.
(a) Statutory provision. Section (6)(b)(4)(A) provides that the
requirements of section 6(b)(1) do not apply to public disclosure of
information about any consumer product which the Commission has
reasonable cause to believe is in violation of a ''prohibited act''
section under any of the statutes administered by the Commission.
(b) Scope of exception. This exception applies once the Commission
has ''reason to believe'' there has occurred a violation of sections
19(a) (1), (2), and (5) or (10) of the CPSA which pertains to a consumer
product. This exception also applies once the Commission has
''reasonable cause to believe'' there has occurred a ''prohibited act''
pertaining to a product regulated under the transferred acts. Once the
exception applies, the Commission may disclose information to the public
without following the requirements of section 6(b)(1) if the information
concerning the product is reasonably related to the violative practice
or condition.
16 CFR 1101.44 Rulemaking proceeding exception.
(a) Statutory provision. Section 6(b)(4)(B) provides that the
requirements of section 6(b)(1) do not apply to public disclosure of
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) . . . under
this Act.''
(b) Scope of exception. This exception applies upon publication in
the Federal Register of an advance notice of proposed rulemaking or, if
no advance notice of proposed rulemaking is issued, upon publication in
the Federal Register of a notice of proposed rulemaking, under any of
the acts the Commission administers. Once the exception applies, the
Commission may publicly disclose information in the course of the
rulemaking proceeding which is presented during the proceeding or which
is contained or referenced in the public record of the proceeding and or
which concerns the proceeding without following the requirements of
section 6(b)(1). Documentation supporting the public record is also
excepted from section 6(b). A rulemaking proceeding includes a
proceeding either to issue, to amend, or to revoke a rule.
(c) The phrase ''in the course of'' refers to information disclosed
as part of the proceeding and may, therefore, include information
generated before the proceeding began and later presented as part of the
proceeding. A rulemaking proceeding ends once the Commission has
published the final rule or a notice of termination of the rulemaking in
the Federal Register.
(d) The phrase ''concerning'' refers to information about the
proceeding itself both after the proceeding has begun and indefinitely
thereafter. Therefore, the Commission may publicly disclose information
that describes the substance, process and outcome of the proceeding. By
issuing opinions and public statements, the Commissioners, and the
presiding official, who act as decisionmakers, may also publicly explain
their individual votes and any decision rendered.
16 CFR 1101.45 Adjudicatory proceeding exception.
(a) Statutory provision. Section 6(b)(4)(B) provides that the
requirements of section 6(b)(1) do not apply to public disclosure of
''information in the course of or concerning * * * (an) adjudicatory
proceeding * * * under this Act.''
(b) Scope of exception. This exception applies once the Commission
begins an administrative adjudication under the CPSA. The Commission
will also apply the exception to any administrative adjudicatory
proceeding under FHSA, FAA, or PPPA. An adjudicatory proceeding begins
with the filing of a complaint under section 15(c) or (d), 17(a)(1) or
(3), or 20 of the CPSA (15 U.S.C. 2064(c) or (d), 2066(a)(1), or (3), or
2069); section 15 of the FHSA (15 U.S.C. 1274); section 5(b) of the
FFA, (15 U.S.C. 1194(b)); or section 4(c) of the PPPA (15 U.S.C.
1473(c)). An adjudicatory proceeding ends when the Commission issues a
final order, 16 CFR 1025.51-1025.58.
(c) The phrase ''in the course of'' refers to information disclosed
as part of the adjudication, whether in documents filed or exchanged
during discovery, or in testimony given in such proceedings, and may
therefore, include information generated before the adjudication began.
(d) The phrase ''concerning'' refers to information about the
administrative adjudication itself, both once it begins and indefinitely
thereafter. Therefore, the Commission may publicly disclose information
that describes the substance, process and outcome of the proceeding
including, for example, the effectiveness of any corrective action such
as information on the number of products corrected as a result of a
remedial action. By issuing opinions and public statements, the
Commissioners and the presiding official, who act as decisionmakers, may
publicly explain their individual votes and any decision rendered.
(48 FR 57430, Dec. 29, 1983, as amended at 49 FR 8428, Mar 7, 1984)
16 CFR 1101.46 Other administrative or judicial proceeding exception.
(a) Statutory provision. Section 6(b)(4)(B) provides that the
requirements of section 6(b)(1) do not apply to public disclosure of
''information in the course of or concerning any * * * other
administrative or judicial proceeding under this Act.''
(b) Scope of exception. This exception applies to an administrative
or judicial proceeding, other than a rulemaking or administrative
adjudicatory proceeding, under the CPSA, FHSA, FFA, or PPPA.
Proceedings within this exception include:
(1) A proceeding to act on a petition to start a rulemaking
proceeding. This proceeding begins with the filing of a petition and
ends when the petition is denied or, if granted, when the rulemaking
proceeding begins. Information subject to the exception for petition
proceedings is the petition itself and the supporting documentation, and
information subsequently compiled by the staff and incorporated or
referenced in the staff briefing papers for and recommendation to the
Commission.
(2) A proceeding to act on a request for exemption from a rule or
regulation. This proceeding begins with the filing of a request for
exemption and ends when the request is denied or, if granted, when the
Commission takes the first step to implement the exemption, e.g., when
an amendment to the rule or regulation is proposed.
(3) A proceeding to issue a subpoena or general or special order.
This proceeding begins with a staff request to the Commission to issue a
subpoena or general or special order and ends once the request is
granted or denied.
(4) A proceeding to act on a motion to quash or to limit a subpoena
or general or special order. This proceeding begins with the filing
with the Commission of a motion to quash or to limit and ends when the
motion is granted or denied.
(5) Any judicial proceeding to which the Commission is a party. This
proceeding begins when a complaint is filed and ends when a final
decision (including appeal) is rendered with respect to the Commission.
(6) Any administrative proceeding to which the Commission is a party,
such as an administrative proceeding before the Merit Systems Protection
Board or the Federal Labor Relations Authority. This proceeding begins
and ends in accordance with the applicable regulations or procedures of
the administrative body before which the proceeding is heard.
(7) A proceeding to obtain a retraction from the Commission pursuant
to subpart F of these rules. This proceeding begins with the filing
with the Secretary of the Commission of a request for retraction and
ends when the request is denied or, if granted, when the information is
retracted.
(c) In the course of or concerning. The phrase ''in the course of or
concerning'' shall have the same meaning as set forth in either 1101.44
(c) and (d) or 1101.45 (c) and (d), whichever is applicable.
16 CFR 1101.46 Subpart F -- Retraction
16 CFR 1101.51 Commission interpretation.
(a) Statutory provisions. Section 6(b)(7) of the CPSA provides: 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.
(b) Scope. Section 6(b)(7) applies to inaccurate or misleading
information only if it is adverse -- i.e., if it reflects adversely
either on the safety of a consumer product or on the practices of a
manufacturer, private labeler, distributor or retailer. In addition,
the Commission will apply section 6(b)(7) to information about products,
and about manufacturers and private labelers of products, the Commission
may regulate under any of the statutes it administers. Section 6(b)(7)
applies to information already disclosed by the Commission, members of
the Commission, or the Commission employees, agents, contractors or
representatives in their official capacities.
16 CFR 1101.52 Procedure for retraction.
(a) Initiative. The Commission may retract information under section
6(b)(7) on the initiative of the Commission, upon the request of a
manufacturer, private labeler, distributor, or retailer of a consumer
product, or upon the request of any other person in accordance with the
procedures provided in this section.
(b) Request for retraction. Any manufacturer, private labeler,
distributor or retailer of a consumer product or any other person may
request a retraction if he/she believes the Commission or an individual
member, employee, agent, contractor or representative of the Commission
has made public disclosure of inaccurate or misleading information,
which reflects adversely either on the safety of a product with which
the firm deals or on the practices of the firm. The request must be in
writing and addressed to the Secretary, CPSC. Washington, D.C. 20207.
(c) Content of request. A request for retraction must include the
following information to the extent it is reasonably available:
(1) The information disclosed for which retraction is requested, the
date on which the information was disclosed, the manner in which it was
disclosed, who disclosed it, the type of document (e.g., letter,
memorandum, news release) and any other relevant information the firm
has to assist the Commission in identifying the information. A
photocopy of the disclosure should accompany the request.
(2) A statement of the specific aspects of the information the firm
believes are inaccurate or misleading and reflect adversely either on
the safety of a consumer product with which the firm deals or on the
firm's practices.
(3) A statement of the reasons the firm believes the information is
inaccurate or misleading and reflects adversely either on the safety of
a consumer product with which the firm deals or on the firm's practices.
(4) A statement of the action the firm requests the Commission to
take in publishing a retraction in a manner equivalent to that in which
disclosure was made.
(5) Any additional data or information the firm believes is relevant.
(d) Commission action on request. The Commission will act
expeditiously on any request for retraction within 30 working days
unless the Commission determines, for good cause, that a longer time
period is appropriate. If the Commission finds that the Commission or
any individual member, employee, agent contractor or representative of
the Commission has made public disclosure of inaccurate or misleading
information that reflects adversely either on the safety of the firm's
product or the practices of the firm, the Commission will publish a
retraction of information in a manner equivalent to that in which the
disclosure was made. If the Commission finds that fuller disclosure is
necessary, it will publish a retraction in the manner it determines
appropriate under the circumstances.
(e) Notification to requester. The Commission will promptly notify
the requester in writing of its decision on request for retraction.
Notification shall set forth the reasons for the Commission's decision.
16 CFR 1101.52 Subpart G -- Information Submitted Pursuant to Section 15(b) of the CPSA
16 CFR 1101.61 Generally.
(a) Generally. In addition to the requirements of section 6(b)(1),
section 6(b)(5) of the CPSA imposes further limitations on the
disclosure of information submitted to the Commission pursuant to
section 15(b) of the CPSA, 15 U.S.C. 2064(b).
(b) Criteria for disclosure. Under section 6(b)(5) the Commission
shall not disclose to the public information which is identified as
being submitted pursuant to section 15(b) or which is treated by the
Commission staff as being submitted pursuant to section 15(b). Section
6(b)(5) also applies to information voluntarily submitted after a firm's
initial report to assist the Commission in its evaluation of the section
15 report. However, the Commission may disclose information submitted
pursuant to section 15(b) in accordance with section 6(b)(1)-(3) if:
(1) The Commission has issued a complaint under section 15 (c) or (d)
of the CPSA alleging that such product presents a substantial product
hazard; or
(2) 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
(3) The person who submitted the information under section 15(b)
agrees to its public disclosure.
16 CFR 1101.62 Statutory exceptions to section 6(b)(5) requirements.
(a) Scope. The limitations established by section 6(b)(5) do not
apply to the public disclosure of:
(1) Information with respect to a consumer product which is the
subject of an action brought under section 12 (see 1101.42);
(2) Information about a consumer product which the Commission has
reasonable cause to believe is in violation of a ''prohibited act''
section under any of the statutes administered by the Commission (see
1101.43); or
(3) Information in the course of or concerning a judicial proceeding
(see 1101.45).
16 CFR 1101.63 Information submitted pursuant to section 15(b) of the
CPSA.
(a) Section 6(b)(5) applies only to information provided to the
Commission by a manufacturer, distributor, or retailer which is
identified by the manufacturer, distributor or retailer, or treated by
the Commission staff as being submitted pursuant to section 15(b).
(b) Section 6(b)(5)'s limitation also applies to the portions of
staff generated documents that contain, summarize or analyze such
information submitted pursuant to section 15(b).
(c) Section 6(b)(5) does not apply to information independently
obtained or prepared by the Commission staff.
16 CFR 1101.63 Subpart H -- Delegation of Authority to Information Group
16 CFR 1101.71 Delegation of authority.
(a) Delegation. Pursuant to section 27(b)(9) of the CPSA 15 U.S.C.
2076(b)(9) the Commission delegates to the General Counsel or his or her
senior staff designees, the authority to render all decisions under this
part concerning the release of information subject to section 6(b) when
firms have furnished section 6(b) comment except as provided in
paragraph (b). The Commission also delegates to the Secretary of the
Commission, or his or her senior staff designee, authority to make all
decisions under this part concerning the release of information under
section 6(b) when firms have failed to furnish section 6(b) comment or
have consented to disclosure except as provided in paragraph (b) of this
section. The General Counsel shall have authority to establish an
Information Group composed of the General Counsel and the Secretary of
the Commission or their designees who shall be senior staff members.
(b) Findings not deleted. The Commission does not delegate its
authority --
(1) To find, pursuant to section 6(b)(1) and 1101.23(b) of this
part, that the public health and safety requires less than 30 days
advance notice of proposed disclosures of information.
(2) To find, pursuant to section 6(b)(2) and 1101.25(b) of this
part, that the public health and safety requires less than ten (10) days
advance notice of its intent to disclose information claimed to be
inaccurate;
(3) To decide whether it should take reasonable steps to publish a
retraction of information in accordance with section 6(b)(7) and
1101.52 of this part.
(c) Final agency action; Commission decision. A decision of the
General Counsel or the Secretary or their designees shall be a final
agency decision and shall not be appealable as of right to the
Commission. However, the General Counsel or the Secretary may in his or
her discretion refer an issue to the Commission for decision.
16 CFR 1101.71 Pt. 1105
16 CFR 1101.71 PART 1105 -- CONTRIBUTIONS TO COSTS OF PARTICIPANTS IN
DEVELOPMENT OF CONSUMER PRODUCT SAFETY STANDARDS
Sec.
1105.1 Purpose.
1105.2 Factors.
1105.3 A more satisfactory standard.
1105.4 Eligibility.
1105.5 Applications.
1105.6 Criteria.
1105.7 Limits on compensation.
1105.8 Costs must be authorized and incurred.
1105.9 Itemized vouchers.
1105.10 Reasonable costs.
1105.11 Compensable costs.
1105.12 Advance contributions.
1105.13 Noncompensable cost.
1105.14 Audit and examination.
Authority: Sec. 7(c), Pub. L. 97-35, 95 Stat. 704 (15 U.S.C.
2056(c)).
Source: 48 FR 57121, Dec. 28, 1983, unless otherwise noted.
16 CFR 1105.1 Purpose.
The purpose of this part is to describe the factors the Commission
considers when determining whether or not to contribute to the cost of
an individual, a group of individuals, a public or private organization
or association, partnership or corporation (hereinafter ''participant'')
who participates with the Commission in developing standards. The
provisions of this part do not apply to and do not affect the
Commission's ability and authority to contract with persons or groups
outside the Commission to aid the Commission in developing proposed
standards.
16 CFR 1105.2 Factors.
The Commission may agree to contribute to the cost of a participant
who participates with the Commission in developing a standard in any
case in which the Commission determines:
(a) That a contribution is likely to result in a more satisfactory
standard than would be developed without a contribution; and
(b) That the participant to whom a contribution is made is
financially responsible.
16 CFR 1105.3 A more satisfactory standard.
In considering whether a contribution is likely to result in a more
satisfactory standard, the Commission shall consider:
(a) The need for representation of one or more particular interests,
expertise, or points of view in the development proceeding; and
(b) The extent to which particular interests, points of view, or
expertise can reasonably be expected to be represented if the Commission
does not provide any financial contribution.
16 CFR 1105.4 Eligibility.
In order to be eligible to receive a financial contribution, a
participant must request in advance a specific contribution with an
explanation as to why the contribution is likely to result in a more
satisfactory standard than would be developed without a contribution.
The request for a contribution shall contain, to the fullest extent
possible and appropriate, the following information:
(a) A description of the point of view, interest and/or expertise
that the participant intends to bring to the proceeding;
(b) The reason(s) that representation of the participant's interest,
point of view, or expertise can reasonably be expected to contribute
substantially to a full and fair determination of the issues involved in
the proceeding;
(c) An explanation of the economic interest, if any, that the
participant has (and individuals or groups comprising the participant
have) in any Commission determination related to the proceeding;
(d) A discussion, with supporting documentation, of the reason(s) a
participant is unable to participate effectively in the proceeding
without a financial contribution;
(e) A description of the participant's employment or organization, as
appropriate; and
(f) A specific and itemized estimate of the costs for which the
contribution is sought.
16 CFR 1105.5 Applications.
Applications must be submitted to the Office of the Secretary,
Consumer Product Safety Commission, Washington, D.C. 20207, within the
time specified by the Commission in its Federal Register notice
beginning the development proceeding.
16 CFR 1105.6 Criteria.
The Commission may authorize a financial contribution only for
participants who meet all of the following criteria:
(a) The participant represents particular interest, expertise or
point of view that can reasonably be expected to contribute
substantially to a full and fair determination of the issues involved in
the proceeding;
(b) The economic interest of the participant in any Commission
determination related to the proceeding is small in comparison to the
participant's costs of effective participation in the proceeding. If
the participant consists of more than one individual or group, the
economic interest of each of the individuals or groups comprising the
participant shall also be considered, if practicable and appropriate;
and
(c) The participant does not have sufficient financial resources
available for effective participation in the proceeding, in the absence
of a financial contribution.
16 CFR 1105.7 Limits on compensation.
The Commission may establish a limit on the total amount of financial
compensation to be made to all participants in a particular proceeding
and may establish a limit on the total amount of compensation to be made
to any one participant in a particular proceeding.
16 CFR 1105.8 Costs must be authorized and incurred.
The Commission shall compensate participants only for costs that have
been authorized and only for such costs actually incurred for
participation in a proceeding.
16 CFR 1105.9 Itemized vouchers.
The participant shall be paid upon submission of an itemized voucher
listing each item of expense. Each item of expense exceeding $15 must
be substantiated by a copy of a receipt, invoice, or appropriate
document evidencing the fact that the cost was incurred.
16 CFR 1105.10 Reasonable costs.
The Commission shall compensate participants only for costs that it
determines are reasonable. As guidelines in these determinations, the
Commission shall consider market rates and rates normally paid by the
Commission for comparable goods and services, as appropriate.
16 CFR 1105.11 Compensable costs.
The Commission may compensate participants for any or all of the
following costs:
(a) Salaries for participants or employees of participants;
(b) Fees for consultants, experts, contractural services, and
attorneys that are incurred by participants;
(c) Transportation costs;
(d) Travel-related costs such as lodging, meals, tipping, telephone
calls; and
(e) All other reasonable costs incurred, such as document
reproduction, postage, baby-sitting, and the like.
16 CFR 1105.12 Advance contributions.
The Commission may make its contribution in advance upon specific
request, and the contribution may be made without regard to section 3648
of the Revised States of the United States (31 U.S.C. 529).
16 CFR 1105.13 Noncompensable costs.
The items of cost toward which the Commission will not contribute
include:
(a) Costs for the acquisition of any interest in land or buildings;
(b) Costs for the payment of items in excess of the participant's
actual cost; and
(c) Costs determined not to be allowable under generally accepted
accounting principles and practices or part 1-15, Federal Procurement
Regulations (41 CFR part 1-15).
16 CFR 1105.14 Audit and examination.
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 pertinent books, documents, papers and
records of a participant receiving compensation under this section. The
Commission may establish additional guidelines for accounting,
recordkeeping, and other administrative procedures with which
participants must comply as a condition of receiving a contribution.
16 CFR 1105.14 PART 1115 -- SUBSTANTIAL PRODUCT HAZARD REPORTS
16 CFR 1105.14 Subpart A -- General Interpretation
Sec.
1115.1 Purpose.
1115.2 Scope and finding.
1115.3 Definitions.
1115.4 Defect.
1115.5 -- 1115.9 (Reserved)
1115.10 Persons who must report and where to report.
1115.11 Imputed knowledge.
1115.12 Information which should be reported; evaluating substantial
product hazard.
1115.13 Content and form of reports; delegations of authority.
1115.14 Time computations.
1115.15 Confidentiality and disclosure of data.
16 CFR 1105.14 Subpart B -- Remedial Actions and Sanctions
1115.20 Voluntary remedial actions.
1115.21 Compulsory remedial actions.
1115.22 Prohibited acts and sanctions.
Authority: Secs. 12, 15, 16, 17(a), 19, 20, 21, 22, 24, 27, 30 of
Pub. L. 92-573, as amended by Pub. L. 94-284; 86 Stat. 1218,
1221-1227, 1231, as amended, 90 Stat. 508-510 (15 U.S.C. 2061, 2064,
2065, 2066(a), 2068, 2069, 2070, 2071, 2073, 2076, 2079).
Source: 43 FR 34998, Aug. 7, 1978, unless otherwise noted.
16 CFR 1105.14 Subpart A -- General Interpretation
16 CFR 1115.1 Purpose.
The purpose of this part 1115 is to set forth the Consumer Product
Safety Commission's (Commission's) interpretation of the reporting
requirements imposed on manufacturers (including importers),
distributors, and retailers by section 15(b) of the Consumer Product
Safety Act, as amended (CPSA) (15 U.S.C. 2064(b)) and to indicate the
actions and sanctions which the Commission may require or impose to
protect the public from substantial product hazards, as that term is
defined in section 15(a) of the CPSA.
16 CFR 1115.2 Scope and finding.
(a) Section 15(a) of the CPSA (15 U.S.C. 2064(a)) defines substantial
product hazard as either (1) a failure to comply with an applicable
consumer product safety rule, which failure creates a substantial risk
of injury to the public, or (2) a product defect which (because of the
pattern of defect, the number of defective products distributed in
commerce, the severity of the risk, or otherwise) creates a substantial
risk of injury to the public.
(b) Section 15(b) of the CPSA requires every manufacturer (including
an importer), distributor, or retailer of a consumer product distributed
in commerce who obtains information which reasonably supports the
conclusion that the product either fails to comply with an applicable
consumer product safety rule or contains a defect which could create a
substantial product hazard immediately to inform the Commission, unless
the manufacturer (including an importer), distributor, or retailer has
actual knowledge that the Commission has been adequately informed. This
provision indicates that a broad spectrum of safety-related information
should be reported under section 15(b) of the CPSA.
(c) Sections 15(c) and 15(d) of the CPSA (15 U.S.C. 2064 (c) and (d))
empower the Commission to order a manufacturer (including an importer),
distributor, or retailer of a consumer product distributed in commerce
that presents a substantial product hazard to give various forms of
notice to the public of the defect or the failure to comply and/or to
order the subject firm to elect either to repair, to replace, or to
refund the purchase price of such product. However, information which
should be reported under section 15(b) of the CPSA does not
automatically indicate the presence of a substantial product hazard
since what must be reported are failures to comply with consumer product
safety rules and defects that could create a substantial product hazard.
(See 1115.12.)
(d) The provisions of this part 1115 deal with all consumer products
(including imports) subject to regulation under the Consumer Product
Safety Act, as amended (15 U.S.C. 2051-2081) (CPSA), and the
Refrigerator Safety Act (15 U.S.C. 1211-1214) (RSA). In addition, the
Commission has found that risks of injury to the public from consumer
products subject to regulation under the Flammable Fabrics Act (15
U.S.C. 1191-1204) (FFA), the Federal Hazardous Substances Act (15 U.S.C.
1261-1274) (FHSA), and the Poison Prevention Packaging Act of 1970 (15
U.S.C. 1471-1476) (PPPA) cannot be eliminated or reduced to a sufficient
extent in a timely fashion under those acts. Therefore, pursuant to
section 30(d) of the CPSA (15 U.S.C. 2079(d)), manufacturers (including
importers), distributors, and retailers of consumer products which are
subject to regulation under provisions of the FFA, FHSA, and PPPA must
comply with the reporting requirements of section 15(b).
16 CFR 1115.3 Definitions.
In addition to the definitions given in section 3 of the CPSA (15
U.S.C. 2052), the following definitions apply:
(a) Adequately informed under section 15(b) of the CPSA means that
the Commission staff has received the information requested under
1115.12 and/or 1115.13 of this part insofar as it is reasonably
available and applicable or that the staff has informed the subject firm
that the staff is adequately informed.
(b) Commission meeting means the joint deliberations of at least a
majority of the Commission where such deliberations determine or result
in the conduct or disposition of official Commission business. This
term is synonymous with ''Commission meeting'' as defined in the
Commission's regulation issued under the Government in the Sunshine Act,
16 CFR part 1012.
(c) Noncompliance means the failure of a consumer product to comply
with an applicable consumer product safety rule issued under the CPSA.
(d) A person means a corporation, company, association, firm,
partnership, society, joint stock company, or individual.
(e) Staff means the staff of the Consumer Product Safety Commission
unless otherwise stated.
(f) Subject firm means any manufacturer (including an importer),
distributor, or retailer of a consumer product.
16 CFR 1115.4 Defect.
Section 15(b)(2) of the CPSA requires every manufacturer (including
an importer), distributor, and retailer of a consumer product who
obtains information which reasonably supports the conclusion that the
product contains a defect which could create a substantial product
hazard to inform the Commission of such defect. Thus, whether the
information available reasonably suggests a defect is the first
determination which a subject firm must make in deciding whether it has
obtained information which must be reported to the Commission. In
determining whether it has obtained information which reasonably
supports the conclusion that its consumer product contains a defect, a
subject firm may be guided by the criteria the Commission and staff use
in determining whether a defect exists. At a minimum, defect includes
the dictionary or commonly accepted meaning of the word. Thus, a defect
is a fault, flaw, or irregularity that causes weakness, failure, or
inadequacy in form or function. A defect, for example, may be the
result of a manufacturing or production error; that is, the consumer
product as manufactured is not in the form intended by, or fails to
perform in accordance with, its design. In addition, the design of and
the materials used in a consumer product may also result in a defect.
Thus, a product may contain a defect even if the product is manufactured
exactly in accordance with its design and specifications, if the design
presents a risk of injury to the public. A design defect may also be
present if the risk of injury occurs as a result of the operation or use
of the product or the failure of the product to operate as intended. A
defect can also occur in a product's contents, construction, finish,
packaging, warnings, and/or instructions. With respect to instructions,
a consumer product may contain a defect if the instructions for assembly
or use could allow the product, otherwise safely designed and
manufactured, to present a risk of injury. To assist subject firms in
understanding the concept of defect as used in the CPSA, the following
examples are offered:
(a) An electric appliance presents a shock hazard because, through a
manufacturing error, its casing can be electrically charged by full-line
voltage. This product contains a defect as a result of manufacturing or
production error.
(b) Shoes labeled and marketed for long-distance running are so
designed that they might cause or contribute to the causing of muscle or
tendon injury if used for long-distance running. The shoes are
defective due to the labeling and marketing.
(c) A kite made of electrically conductive material presents a risk
of electrocution if it is long enough to become entangled in power lines
and be within reach from the ground. The electrically conductive
material contributes both to the beauty of the kite and the hazard it
presents. The kite contains a design defect.
(d) A power tool is not accompanied by adequate instructions and
safety warnings. Reasonably foreseeable consumer use or misuse, based
in part on the lack of adequate instructions and safety warnings, could
result in injury. Although there are no reports of injury, the product
contains a defect because of the inadequate warnings and instructions.
(e) An exhaust fan for home garages is advertised as activating when
carbon monoxide fumes reach a dangerous level but does not exhaust when
fumes have reached the dangerous level. Although the cause of the
failure to exhaust is not known, the exhaust fan is defective because
users rely on the fan to remove the fumes and the fan does not do so.
However, not all products which present a risk of injury are
defective. For example, a knife has a sharp blade and is capable of
seriously injuring someone. This very sharpness, how- ever, is
necessary if the knife is to function adequately. The knife does not
contain a defect insofar as the sharpness of its blade is concerned,
despite its potential for causing injury, because the risk of injury is
outweighed by the usefulness of the product which is made possible by
the same aspect which presents the risk of injury. In determining
whether the risk of injury associated with a product is the type of risk
which will render the product defective, the Commission and staff will
consider, as appropriate: The utility of the product involved; the
nature of the risk of injury which the product presents; the necessity
for the product; the population exposed to the product and its risk of
injury; the Commission's own experience and expertise; the case law
interpreting Federal and State public health and safety statutes; the
case law in the area of products liability; and other factors relevant
to the determination. If the information available to a subject firm
does not reasonably support the conclusion that a defect exists, the
subject firm need not report. However, if the information does
reasonably support the conclusion that a defect exists, the subject firm
must then consider whether that defect could create a substantial
product hazard. (See 1115.12(f) for factors to be assessed in
determining whether a substantial product hazard could exist.) If the
subject firm determines that the defect could create a substantial
product hazard, the subject firm must report to the Commission. Most
defects could present a substantial product hazard if the public is
exposed to significant numbers of defective products or if the possible
injury is serious or is likely to occur. Since the extent of public
exposure and/or the likelihood or seriousness of injury are ordinarily
not known at the time a defect first manifests itself, subject firms are
urged to report if in doubt as to whether a defect could present a
substantial product hazard. On a case-by-case basis the Commission and
the staff will determine whether a defect within the meaning of section
15 of the CPSA does, in fact, exist and whether that defect presents a
substantial product hazard. Since a consumer product may be defective
even if it is designed, manufactured, and marketed exactly as intended
by a subject firm, subject firms should report if in doubt as to whether
a defect exists. Defect, as discussed in this section and as used by
the Commission and staff, pertains only to interpreting and enforcing
the Consumer Product Safety Act. The criteria and discussion in this
section are not intended to apply to any other area of the law.
1115.5 -- 1115.9 (Reserved)
16 CFR 1115.10 Persons who must report and where to report.
(a) Every manufacturer (including importer), distributor, or retailer
of a consumer product that has been distributed in commerce who obtains
information that such consumer product contains a defect which could
create a substantial risk of injury to the public shall immediately
notify the Product Defect Correction Division, Consumer Product Safety
Commission, Washington, DC 20207 (telephone: 301-492-6608), or such
other persons as may be designated. Manufacturers (including
importers), distributors, and retailers of consumer products subject to
regulation by the Commission under provisions of the FFA, FHSA, PPPA, as
well as consumer products subject to regulation under the CPSA and RSA,
must comply with this requirement.
(b) Every manufacturer (including importer), distributor, or retailer
of a consumer product that has been distributed in commerce who obtains
information that such consumer product fails to comply with an
applicable consumer product safety standard or ban issued under the CPSA
shall immediately notify the Commission's Product Defect Correction
Division or such other persons as may be designated. A subject firm
need not report a failure to comply with a standard or regulation issued
under the provisions of the RSA, FFA, FHSA, or PPPA unless it can be
reasonably concluded that the failure to comply results in a defect
which could create a substantial product hazard. (See paragraph (a) of
this section.)
(c) A distributor or retailer of a consumer product (who is neither a
manufacturer nor an importer of that product) is subject to the
reporting requirements of section 15(b) of the CPSA but may satisfy them
by following the procedure detailed in 1115.13(b).
(d) A manufacturer (including an importer), distributor, or retailer
need not inform the Commission under section 15(b) of the CPSA if that
person has actual knowledge that the Commission has been adequately
informed of the defect or failure to comply. (See section 15(b) of the
CPSA.)
16 CFR 1115.11 Imputed knowledge.
(a) In evaluating whether or when a subject firm should have
reported, the Commission will deem a subject firm to have obtained
reportable information when the information has been received by an
official or employee who may reasonably be expected to be capable of
appreciating the significance of the information. (See 1115.14(b).)
(b) In evaluating whether or when a subject firm should have
reported, the Commission will deem a subject firm to know what a
reasonable person acting in the circumstances in which the firm finds
itself would know. Thus, the subject firm shall be deemed to know what
it would have known if it had exercised due care to ascertain the truth
of complaints or other representations. This includes the knowledge a
firm would have if it conducted a reasonably expeditious investigation
in order to evaluate the reportability of a death or grievous bodily
injury or other information. (See 1115.14.)
16 CFR 1115.12 Information which should be reported; evaluating
substantial product hazard.
(a) General. Subject firms should not delay reporting in order to
determine to a certainty the existence of a noncompliance or a defect
and the substantiality of a possible hazard. The obligation to report
arises upon receipt of information from which one could reasonably
conclude the existence of a noncompliance or of a defect which could
create a substantial product hazard. Thus an obligation to report may
arise when a subject firm receives the first information regarding a
potential hazard or noncompliance. (See 1115.14(c).) A subject firm in
its report to the Commission need not admit or may specifically deny
that the information it submits reasonably supports the conclusion that
its consumer product is noncomplying or contains a defect which could
create a substantial product hazard within the meaning of section 15(b)
of the CPSA. After receiving the report, the staff will preliminarily
determine whether the noncompliance or defect presents a substantial
product hazard. This determination can be based on information supplied
by a subject firm or from any other source. If the matter is
adjudicated, the Commission will ultimately make the decision as to
substantial product hazard or will seek to have a court make the
decision as to imminent product hazard.
(b) Failure to comply. Information indicating that a consumer
product fails to comply with an applicable consumer product safety
standard or ban issued under the CPSA must be reported.
(c) Death or grievous bodily injury. Information indicating that a
noncompliance or a defect in a consumer product has caused, may have
caused, or contributed to the causing, or could cause or contribute to
the causing of a death or grievous bodily injury (e.g., mutilation,
amputation/dismemberment, disfigurement, loss of important bodily
functions, debilitating internal disorders, severe burns, severe
electrical shocks, and injuries likely to require extended
hospitalization) must be reported, unless the subject firm has
investigated and determined that the information is not reportable.
(d) Other information indicating a defect or noncompliance. Even if
there are no reports of a potential for or an actual death or grievous
bodily injury, other information may indicate a reportable defect or
noncompliance. In evaluating whether or when a subject firm should have
reported, the Commission will deem a subject firm to know what a
reasonable and prudent manufacturer (including an importer),
distributor, or retailer would know. (See 1115.11.)
(e) Information which should be studied and evaluated. The following
are examples of information which a subject firm should study and
evaluate in order to determine whether it is obligated to report under
section 15(b) of the CPSA:
(1) Information about engineering, quality control, or production
data suggesting the existence of a noncompliance or of a defect which
could create a substantial product hazard.
(2) Information about safety-related production or design change(s)
suggesting the existence of a noncompliance or of a defect which could
create a substantial product hazard.
(3) Product liability suit(s) suggesting the existence of a
noncompliance or of a defect which could create a substantial product
hazard.
(4) Information from an independent testing laboratory suggesting the
existence of a noncompliance or of a defect which could create a
substantial product hazard.
(5) Complaint(s) from a consumer or consumer group indicating the
exist- ence of a noncompliance or of a defect which could create a
substantial product hazard.
(6) Information received from the Commission or another governmental
agency indicating the existence of a noncompliance or of a defect which
could create a substantial product hazard.
(7) Information received from other firms, including requests to
return a product or for replacement or credit, indicating the existence
of a noncompliance or of a defect which could create a substantial
product hazard. This includes both requests made by distributors and
retailers to the manufacturer and requests from the manufacturer that
products be returned.
(f) Evaluating substantial risk of injury. Information which should
be or has been reported under section 15(b) of the CPSA does not
automatically indicate the presence of a substantial product hazard. On
a case-by-case basis the Commission and the staff will determine whether
a defect or noncompliance exists and whether it results in a substantial
risk of injury to the public. In deciding whether to report, subject
firms may be guided by the following criteria the staff and the
Commission use in determining whether a substantial product hazard
exists:
(1) Hazard created by defect. Section 15(a)(2) of the CPSA lists
factors to be considered in determining whether a defect creates a
substantial risk of injury. These factors are set forth in the
disjunctive. Therefore, the exist- ence of any one of the factors could
create a substantial product hazard. The Commission and the staff will
consider some or all of the following factors, as appropriate, in
determining the substantiality of a hazard created by a product defect:
(i) Pattern of defect. The Commission and the staff will consider
whether the defect arises from the design, composition, contents,
construction, finish, packaging, warnings, or instructions of the
product or from some other cause and will consider the conditions under
which the defect manifests itself.
(ii) Number of defective products distributed in commerce. Even one
defective product can present a substantial risk of injury and provide a
basis for a substantial product hazard determination under section 15 of
the CPSA if the injury which might occur is serious and/or if the injury
is likely to occur. However, a few defective products with no potential
for causing serious injury and little likelihood of injuring even in a
minor way will not ordinarily provide a proper basis for a substantial
product hazard determination.
(iii) Severity of the risk. A risk is severe if the injury which
might occur is serious and/or if the injury is likely to occur. In
considering the likelihood of any injury the Commission and the staff
will consider the number of injuries reported to have occurred, the
intended or reasonably foreseeable use or misuse of the product, and the
population group exposed to the product (e.g., children, elderly,
handicapped).
(iv) Other considerations. The Commission and the staff will
consider all other relevant factors.
(2) Hazard presented by noncompliance. Section 15(a)(1) of the CPSA
states that a substantial product hazard exists when a failure to comply
with an applicable consumer product safety rule creates a substantial
risk of injury to the public. Therefore, the Commission and staff will
consider whether the noncompliance is likely to result in injury when
determining whether the noncompliance creates a substantial product
hazard. As appropriate, the Commission and staff may consider some or
all of the factors set forth in paragraph (f)(1) of this section in
reaching the substantial product hazard determination.
16 CFR 1115.13 Content and form of reports; delegations of authority.
(a) Written reports. The chief executive officer of the subject firm
should sign any written reports to the Commission under section 15(b) of
the CPSA unless this responsibility has been delegated by filing a
written delegation of authority with the Commission's Product Defect
Correction Division. Delegations of authority filed with the Commission
under 1115.9 of the previous regulations interpreting section 15 of the
CPSA will remain in effect until revoked by the chief executive officer
of the subject firm. The delegation may be in the following form:
(Name of company) ------------------ .
I ---------------- hereby certify that I am Chief Executive Officer
of the above-named company and that as such I am authorized to sign
documents and to certify on behalf of said company the accuracy and
completeness of information in such documents.
Pursuant to the power vested in me, I hereby delegate all or, to the
extent indicated below, a portion of that authority to the person listed
below.
This delegation is effective until revoked in writing. Authority
delegated to:
(Name)
(Address)
(Title)
Extent of authority: ----------------------
Signed:
(Name)
(Address)
(Title)
(b) Distributors and retailers. A distributor or retailer of a
possibly defective or noncomplying consumer product (who is neither a
manufacturer nor an importer of that product) satisfies the initial
reporting requirements either by telephoning or writing the Product
Defect Correction Division, Consumer Product Safety Commission,
Washington, DC 20207; by sending a letter describing the defective or
noncomplying product to the manufacturer (or importer) of the product
and sending a copy of the letter to the Commission's Product Defect
Correction Division; or by forwarding to the Commission's Product
Defect Correction Division reportable information received from another
firm. A distributor or retailer who receives reportable information
from a manufacturer (or importer) shall report to the Commission unless
the manufacturer (or importer) informs the distributor or retailer that
a report has been made to the Commission. A report under this
subsection should contain the information detailed in paragraph (c) of
this section insofar as it is known to the distributor or retailer.
Unless further information is requested by the staff, this action will
constitute a sufficient report insofar as the distributor or retailer is
concerned.
(c) Initial report. Immediately after a subject firm has obtained
information which reasonably supports the conclusion that a product
fails to comply with an applicable consumer product safety rule or
contains a defect which could create a substantial risk of injury to the
public, the subject firm should provide the Product Defect Correction
Division, Consumer Product Safety Commission, Washington, DC 20207
(telephone: 301-492-6608), with an initial report containing the
information listed below. This initial report may be made by any means;
but if it is not in writing, it should be confirmed in writing within
48 hours of the initial report. (See 1115.14 for time computations.)
The initial report should contain, insofar as is reasonably available
and/or applicable:
(1) An identification and description of the product.
(2) The name and address of the manufacturer (or importer) or, if the
manufacturer or importer is not known, the names and addresses of all
known distributors and retailers of the product.
(3) The nature and extent of the possible defect or the failure to
comply with an applicable consumer product safety rule.
(4) The nature and extent of the injury or risk of injury associated
with the product.
(5) The name and address of the person informing the Commission.
(6) To the extent such information is then reasonably available, the
data specified in 1115.13(d).
(d) Full report. Subject firms which file initial reports are
required to file full reports in accordance with this subsection.
Retailers and distributors may satisfy their reporting obligations in
accordance with 1115.13(b). At any time after an initial report, the
staff may modify the requirements detailed in this section with respect
to any subject firm. If the staff preliminarily determines that there
is no substantial product hazard, it may inform the firm that its
reporting obligation has been fulfilled. However, a subject firm would
be required to report if it later became aware of new information
indicating a reportable defect or noncompliance, whether the new
information related to the same or another consumer product. Unless
modified by staff action, the following information, to the extent that
it is reasonably available and/or applicable, constitutes a ''full
report,'' must be submitted to the staff, and must be supplemented or
corrected as new or different information becomes known:
(1) The name, address, and title of the person submitting the ''full
report'' to the Commission.
(2) The name and address of the manufacturer (or importer) of the
product and the addresses of the manufacturing plants for that product.
(3) An identification and description of the product(s). Give retail
prices, model numbers, serial numbers, and date codes. Describe any
identifying marks and their location on the product. Provide a picture
or a sample of the product.
(4) A description of the nature of the defect or failure to comply
with an applicable consumer product safety rule. If technical drawings,
test results, schematics, diagrams, blueprints, or other graphic
depictions are available, attach copies.
(5) The nature of the injury or the possible injury associated with
the product defect or failure to comply with an applicable consumer
product safety rule.
(6) The manner in which and the date when the information about the
defect or noncompliance (e.g., complaints, reported injuries, quality
control testing) was obtained. If any complaints related to the safety
of the product or any allegations or reports of injuries associated with
the product have been received, copies of such complaints or reports (or
a summary thereof) shall be attached. Give a chronological account of
facts or events leading to the report under section 15(b) of the CPSA,
beginning with receipt of the first information which ultimately led to
the report. Also included may be an analysis of these facts or events.
(7) The total number of products and units involved.
(8) The dates when products and units were manufactured, imported,
distributed, and sold at retail.
(9) The number of products and units in each of the following: in
the possession of the manufacturer or importer, in the possession of
private labelers, in the possession of distributors, in the possession
of retailers, and in the possession of consumers.
(10) An explanation of any changes (e.g., designs, adjustments,
additional parts, quality control, testing) that have been or will be
effected to correct the defect or failure to comply and of the steps
that have been or will be taken to prevent similar occurrences in the
future together with the timetable for implementing such changes and
steps.
(11) Information that has been or will be given to purchasers,
including consumers, about the defect or noncompliance with a
description of how this information has been or will be communicated.
This shall include copies or drafts of any letters, press releases,
warning labels, or other written information that has been or will be
given to purchasers, including consumers.
(12) The details of and schedule for any contemplated refund,
replacement, or repair actions, including plans for disposing of
returned products (e.g., repair, destroy, return to foreign
manufacturer).
(13) A detailed explanation and description of the marketing and
distribution of the product from the manufacturer (including importer)
to the consumer (e.g., use of sales representatives, independent
contractors, and/or jobbers; installation of the product, if any, and
by whom).
(14) Upon request, the names and addresses of all distributors,
retailers, and purchasers, including consumers.
(15) Such further information necessary or appropriate to the
functions of the Commission as is requested by the staff.
16 CFR 1115.14 Time computations.
(a) General. Weekends and holidays are excluded from the computation
of the time periods in this part.
(b) Imputing knowledge. In evaluating whether or when a firm should
have reported, the Commission shall impute to the subject firm knowledge
of product safety related information received by an official or
employee of a subject firm capable of appreciating the significance of
the information. Under ordinary circumstances, 5 days should be the
maximum reasonable time for information to reach the Chief Executive
Officer or the official or employee responsible for complying with the
reporting requirements of section 15(b) of the CPSA. The Commission
will impute knowledge possessed by the Chief Executive Officer or by the
official or employee responsible for complying with the reporting
requirements of section 15(b) of the CPSA simultaneously to the subject
firm.
(c) Time when obligation to report arises. The obligation to report
under section 15(b) of CPSA may arise upon receipt by a subject firm of
the first information regarding a noncompliance or a potential hazard
presented by a product defect. Information giving rise to a reporting
obligation may include, but is not limited to, complaints, injury
reports, quality control and engineering data. A subject firm should
not await complete or accurate risk estimates before reporting under
section 15(b) of CPSA. However, if information is not clearly
reportable, a subject firm may spend a reasonable time for investigation
and evaluation. (See 1115.14(d).)
(d) Time for investigation and evaluation. A subject firm may
conduct a reasonably expeditious investigation in order to evaluate the
reportability of a death or grievous bodily injury or other information.
This investigation and evaluation should not exceed 10 days unless a
firm can demonstrate that a longer period is reasonable. The Commission
will deem that, at the end of 10 days, a subject firm has received and
considered all information which would have been available to it had a
reasonable, expeditious, and diligent investigation been undertaken.
(e) Time to report. Immediately, that is, within 24 hours, after a
subject firm has obtained information which reasonably supports the
conclusion that its consumer product fails to comply with an applicable
consumer product safety rule or contains a defect which could create a
substantial risk of injury to the public, the firm should report. (See
1115.13.) If a firm elects to conduct an investigation in order to
evaluate the existence of reportable information, the 24-hour period
begins when the subject firm has information which reasonably supports
the conclusion that its consumer product fails to comply with an
applicable consumer product safety rule or contains a defect which could
create a substantial product hazard. Thus, a firm could report to the
Commission before the conclusion of a reasonably expeditious
investigation and evaluation if the reportable information becomes known
during the course of the investigation. In lieu of conducting an
investigation, the firm may report the information immediately.
16 CFR 1115.15 Confidentiality and disclosure of data.
(a) General. The Commission does not routinely make reports
available to the public until the staff has made a preliminary hazard
determination. Copies of reports will not be available to the public in
the Commission's public reading room, and information contained in
reports will not ordinarily be disclosed to the public in the absence of
a formal request.
(b) Freedom of Information Act. Any person who submits information
to the Commission who believes that any portion of the information is
entitled to exemption from public disclosure under the provisions of the
Freedom of Information Act, as amended (15 U.S.C. 552(b)), of the CPSA,
as amended, or of another Federal statute must accompany the submission
with a written request that the information be considered exempt from
disclosure or indicate that a written request will be submitted within
10 working days of the submission. The request shall (1) identify the
portions of the information for which exemption is claimed, which may
include the identity of the reporting firm and the fact that it is
making a report, and (2) state the facts and reasons which support the
claimed exemption. After the staff has made its preliminary hazard
determination, and regardless of whether or not the staff preliminarily
determines that a product presents a substantial product hazard, the
Commission will no longer honor requests for exempt status for the
identity of the reporting firm, the identity of the consumer product,
and the nature of the reported alleged defect or noncompliance. This
information, together with the staff's preliminary hazard determination,
will be made available to the public in the Commission's public reading
room. Information for which exempt status is claimed (such as alleged
trade secrets, confidential commercial or financial information, or
information the disclosure of which would constitute an unwarranted
invasion of personal privacy) shall not be released to the public except
in accordance with the applicable statute or the Commission's Freedom of
Information Act regulations (16 CFR part 1015).
(c) Section 6(b) of the CPSA. The Commission believes that the first
two sentences in section 6(b)(1) of the CPSA (15 U.S.C. 2055(b)(1))
apply to affirmative dissemination of information by the Commission
(such as press releases or fact sheets distributed to the public) from
which the public may ascertain readily the identity of the product's
manufacturer and/or private labeler. Manufacturers and private labelers
will ordinarily be given 30 days' notice before the Commission makes
such affirmative disseminations. However, this 30-day notice will not
apply if the Commission finds that a lesser notice period is required in
the interest of public health and safety.
16 CFR 1115.15 Subpart B -- Remedial Actions and Sanctions
16 CFR 1115.20 Voluntary remedial actions.
As appropriate, the Commission will attempt to protect the public
from substantial product hazards by seeking one or more of the following
voluntary remedies:
(a) Corrective action plans. A corrective action plan is a document,
signed by a subject firm, which sets forth the remedial action which the
firm will voluntarily undertake to protect the public, but which has no
legally binding effect. The Commission reserves the right to seek
broader corrective action if it becomes aware of new facts or if the
corrective action plan does not sufficiently protect the public.
(1) Corrective action plans shall include, as appropriate:
(i) A statement of the nature of the alleged hazard associated with
the product, including the nature of the alleged defect or noncompliance
and type(s) of injury or potential injury presented.
(ii) A detailed statement of the means to be employed to notify the
public of the alleged product hazard (e.g., letter, press release,
advertising), including an identification of the classes of persons who
will receive such notice and a copy or copies of the notice or notices
to be used.
(iii) A specification of model number and/or other appropriate
descriptions of the product.
(iv) Any necessary instructions regarding use or handling of the
product pending correction.
(v) An explanation of the specific cause of the alleged substantial
product hazard, if known.
(vi) A statement of the corrective action which will be or has been
taken to eliminate the alleged substantial product hazard. The firm
should indicate whether it is repairing or replacing the product or
refunding its purchase price. If products are to be returned to a
subject firm, the corrective action plan should indicate their
disposition (e.g., reworked, destroyed, returned to foreign
manufacturer). Samples of replacement products and relevant drawings
and test data for repairs or replacements should be available.
(vii) A statement of the steps that will be, or have been, taken to
reasonably prevent recurrence of the alleged substantial product hazard
in the future.
(viii) A statement of the action which will be undertaken to correct
product units in the distribution chain, including a timetable and
specific information about the number and location of such units.
(ix) The signatures of representatives of the subject firm.
(x) An acknowledgment by the subject firm that the Commission may
monitor the corrective action and that the firm will furnish necessary
information, including customer lists.
(xi) An agreement that the Commission may publicize the terms of the
plan to the extent necessary to inform the public of the nature and
extent of the alleged substantial product hazard and of the actions
being undertaken to correct the alleged hazard presented.
(xii) Additional points of agreement, as appropriate.
(xiii) If desired by the subject firm, the following statement or its
equivalent: ''The submission of this corrective action plan does not
constitute an admission by (the subject firm) that either reportable
information or a substantial product hazard exists.''
(xiv) An acknowledgment that the corrective action plan becomes
effective only upon its final acceptance by the Commission.
(2) In determining whether to recommend to the Commission acceptance
of a corrective action plan, the staff shall consider favorably both the
promptness of the subject firm's reporting and any remedial actions
taken by the subject firm in the interest of public safety. The staff
also shall consider, insofar as possible, prior involvement by the
subject firm in corrective action plans and Commission orders if such
involvement bears on the likelihood that the firm will comply fully with
the terms of the corrective action plan.
(3) Upon receipt of a corrective action plan and staff
recommendation, the Commission may: (i) Approve the plan; (ii) reject
the plan and issue a complaint (in which case an administrative and/or
judicial proceeding will be commenced); or (iii) take any other action
necessary to insure that the plan is adequate.
(4) When time permits and where practicable in the interest of
protecting the public, a summary of the plan shall be published in the
Commission's Public Calendar. Those portions of the plan that are not
restricted will be made available to the public in the Commission's
public reading room as much in advance of the Commission meeting as
practicable. Any interested person wishing to comment on the plan must
file a Notice of Intent to Comment at least forty-eight (48) hours prior
to the commencement of the Commission meeting during which the plan will
be discussed. If no notices of intent are received, the Commission may
take final action on the plan. If such notice is received within the
time limits detailed above, the plan will, if practicable, be docketed
for the following week's agenda. All comments must be in writing, and
final written comments must be submitted at least forty-eight (48) hours
before that session.
(b) Consent Order Agreements Under section 15 of CPSA. The consent
order agreement (agreement) is a document executed by a subject firm
(Consenting Party) and a Commission staff representative which
incorporates both a proposed complaint setting forth the staff's charges
and a proposed order by which such charges are resolved.
(1) Consent order agreements shall include, as appropriate:
(i) An admission of all jurisdictional facts by the Consenting Party.
(ii) A waiver of any rights to an administrative or judicial hearing
and of any other procedural steps, including any rights to seek judicial
review or otherwise challenge or contest the validity of the
Commission's Order.
(iii) A statement that the agreement is in settlement of the staff's
charges.
(iv) A statement that the Commission's Order is issued under section
15 of the CPSA (15 U.S.C. 2064) and that a violation is a prohibited act
within the meaning of section 19(a)(5) of the CPSA (15 U.S.C.
2068(a)(5)) and may subject a violator to civil and/or criminal
penalties under sections 20 and 21 of the CPSA (15 U.S.C. 2069 and
2070).
(v) An acknowledgment that the Commission reserves its right to seek
sanctions for any violations of the reporting obligations of section
15(b) of CPSA (15 U.S.C. 2064(b)) and its right to take other
appropriate legal action.
(vi) An acknowledgment that the agreement becomes effective only upon
its final acceptance by the Commission and its service upon the
Consenting Party.
(vii) An acknowledgment that the Commission may disclose terms of the
consent order agreement to the public.
(viii) A listing of the acts or practices from which the Consenting
Party will refrain.
(ix) A statement that the Consenting Party shall perform certain acts
and practices pursuant to the agreement.
(x) An acknowledgment that any interested person may bring an action
pursuant to section 24 of the CPSA (15 U.S.C. 2073) in any U.S.
district court for the district in which the Consenting Party is found
or transacts business to enforce the order and to obtain appropriate
injunctive relief.
(xi) A description of the alleged substantial product hazard.
(xii) If desired by the Consenting Party, the following statement or
its equivalent: ''The signing of this consent order agreement does not
constitute an admission by (the Consenting Party) that either reportable
information or a substantial product hazard exists.''
(xiii) The elements of a corrective action plan as set forth in
1115.20(a).
(2) At any time in the course of an investigation, the staff may
propose to a subject firm which is being investigated that some or all
of the allegations be resolved by a consent order agreement.
Additionally, such a proposal may be made to the staff by a subject
firm.
(3) Upon receiving an executed agreement, the Commission may: (i)
Provisionally accept it; (ii) reject it and issue a complaint (in which
case an administrative and/or judicial proceeding will be commenced);
or (iii) take such other action as it may deem appropriate.
(4) If the consent order agreement is provisionally accepted, the
Commission shall place the agreement on the public record and shall
announce provisional acceptance of the agreement in the Commission's
public calendar and in the Federal Register. Any interested person may
request the Commission not to accept the agreement by filing a written
request in the Office of the Secretary. Such written request must be
received in the Office of the Secretary no later than the close of
business of the fifteenth (15th) calendar day following the date of
announcement in the Federal Register.
(5) If the Commission does not receive any requests not to accept the
agreement within the time period specified above, the consent order
agreement shall be deemed finally accepted by the Commission on the
twentieth (20th) calendar day after the date of announcement in the
Federal Register, unless the Commission determines otherwise. However,
if the Commission does receive a request not to accept the consent order
agreement, then it will consider such request and vote on the
acceptability of such agreement or the desirability of further action.
After the consent order agreement is finally accepted, the Commission
may then issue its complaint and order in such form as the circumstances
may require. The order is a final order in disposition of the
proceeding and is effective immediately upon its service upon the
Consenting Party pursuant to the Commission's Rules of Practice for
Adjudicative Proceedings (16 CFR part 1025). The Consenting Party shall
thereafter be bound by and take immediate action in accordance with such
final order.
(6) If the Commission does not accept the consent order agreement on
a final basis, it shall so notify the Consenting Party. Such
notification constitutes withdrawal of the Commission's provisional
acceptance unless the Commission orders otherwise. The Commission then
may: (i) Issue a complaint, in which case an administrative and/or
judicial proceeding will be commenced; (ii) order further
investigation; or (iii) take such other action as it may deem
appropriate.
16 CFR 1115.21 Compulsory remedial actions.
As appropriate, the Commission will attempt to protect the public
from hazards presented by consumer products by seeking one or more of
the following:
(a) Adjudicated Commission Order. An adjudicated Commission Order
under section 15 (c) or (d) of the CPSA may be issued after parties and
interested persons have had an opportunity for a hearing in accordance
with section 554 of title 5, United States Code, and with section 15(f)
of the CPSA. This hearing is governed by the Commission's Rules of
Practice for Adjudicative Proceedings (16 CFR part 1025).
(b) Injunctive relief. The Commission may apply to a U.S. district
court in accordance with the provisions of section 15(g) of the CPSA for
a preliminary injunction to restrain the distribution in commerce of a
product it has reason to believe presents a substantial product hazard.
The Commission may seek enforcement of its orders issued under sections
15 (c) and (d) of the CPSA in accordance with provisions of sections 22
and 27(b)(7) of the CPSA (15 U.S.C. 2071 and 2076(b)(7)).
(c) Judicial determination of imminent hazard. The Commission may
file a complaint in a U.S. district court in accordance with the
provisions of section 12 of the CPSA (15 U.S.C. 2061).
(d) Orders of the Secretary of the Treasury. The Commission staff
may inform the Secretary of the Treasury that a consumer product offered
for importation into the customs territory of the United States fails to
comply with an applicable consumer product safety rule and/or has a
product defect which constitutes a substantial product hazard. The
Commission may request the Secretary of the Treasury under section 17 of
the CPSA (15 U.S.C. 2066) to refuse admission to any such consumer
product.
16 CFR 1115.22 Prohibited acts and sanctions.
(a) Statements generally. Whoever knowingly and willfully falsifies,
or conceals a material fact in a report under the CPSA and rules
thereunder, is subject to criminal penalties under 18 U.S.C. 1001.
(b) Timeliness and adequacy of reporting. A failure to inform the
Commission immediately and adequately, as required by section 15(b) of
the CPSA, is a prohibited act within section 19(a)(4) of the CPSA (15
U.S.C. 2068(a)(4)).
(c) Failure to make reports. The failure or refusal to make reports
or provide information as required under the CPSA is a prohibited act
within the meaning of section 19(a)(3) of the CPSA (15 U.S.C.
2068(a)(3)).
(d) Noncomplying products. The manufacture for sale, offering for
sale, distribution in commerce, and/or importation into the United
States of a consumer product which is not in conformity with an
applicable consumer product safety rule under CPSA is a prohibited act
within the meaning of sections 19 (a)(1) and (a)(2) of the CPSA (15
U.S.C. 2068 (a)(1) and (a)(2)).
(e) Orders issued under section 15 (c) and/or (d). The failure to
comply with an order issued under section 15 (c) and/or (d) of the CPSA
is a prohibited act within the meaning of section 19(a)(5) of the CPSA
(15 U.S.C. 2068(a)(5)).
(f) Consequences of engaging in prohibited acts. A knowing violation
of section 19(a) of the CPSA subjects the violator to a civil penalty in
accordance with section 20 of the CPSA (15 U.S.C. 2069). ''Knowing,''
as defined in section 20(c) of the CPSA (15 U.S.C. 2069(c)), means the
having of actual knowledge or 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. A knowing and willful violation
of section 19(a), after the violator has received notice of
noncompliance, subjects the violator to criminal penalties in accordance
with section 21 of the CPSA (15 U.S.C. 2070).
16 CFR 1115.22 PART 1118 -- INVESTIGATIONS, INSPECTIONS AND INQUIRIES UNDER THE CONSUMER PRODUCT SAFETY ACT
16 CFR 1115.22 Subpart A -- Procedures for Investigations, Inspections,
and Inquiries
Sec.
1118.1 Definitions, initiation of investigations, inspections, and
inquiries delegations.
1118.2 Conduct and scope of inspections.
1118.3 Compulsory processes and service.
1118.4 Subpoenas.
1118.5 Investigational hearings.
1118.6 Depositions.
1118.7 Rights of witnesses at investigational hearings and of
deponents at depositions.
1118.8 General or special orders seeking information.
1118.9 Motions to limit or quash subpoenas and general or special
orders and delegation to modify terms for compliance.
1118.10 Remedies for failure to permit authorized investigations.
1118.11 Nonexclusive delegation of power.
16 CFR 1115.22 Subpart B -- Consent Order Agreements
1118.20 Procedures for consent order agreements.
Authority: Sec. 16, Pub. L. 92-573, 86 Stat. 1222 (15 U.S.C.
2065); sec. 19, Pub. L. 92-573, 86 Stat. 1224 (15 U.S.C. 2068); sec.
27, Pub. L. 92-573, 86 Stat. 1227 (15 U.S.C. 2076); as amended by
Pub. L. 94-284, 90 Stat. 509.
Source: 44 FR 34929, June 18, l979, unless otherwise noted.
16 CFR 1115.22 Subpart A -- Procedures for Investigations, Inspections, and Inquiries
16 CFR 1118.1 Definitions, initiation of investigations, inspections,
and inquiries and delegations.
(a) Definitions. For the purpose of these rules, the following
definitions apply:
(1) Act means the Consumer Product Safety Act (15 U.S.C. 2051, et
seq.).
(2) Commission means the Consumer Product Safety Commission.
(3) Firm means a manufacturer, private labeler, distributor, or
retailer of a consumer product, except as otherwise provided by section
16(b) of the Act.
(4) Investigation is an undertaking by the Commission to obtain
information for implementing, enforcing, or determining compliance with
the Consumer Product Safety Act and the regulations, rules, and orders
issued under the Act. The term investigation includes, but is not
limited to, inspections ( 1118.2), investigational hearings ( 1118.5),
and inquiries; employing subpoenas ( 1118.4), depositions ( 1118.6),
and general or special orders ( 1118.9).
(5) The definition of the terms set forth in section 3 of the
Consumer Product Safety Act (15 U.S.C. 2052) shall apply to this part
1118.
(b) Initiation of Investigations and Inquiries. Investigations and
inquiries will be initiated by the Commission in any manner authorized
by law.
(c) Initiation of Inspections. An inspection as described in 1118.2
is initiated when the Commission or its delegate authorizes the issuance
of a written notice of inspection, described in 1118.2(c).
(d) Delegations of Authority. The Commission hereby delegates to the
Associate Executive Director for Compliance and Enforcement; the
Solicitor, the Directors of the Divisions of Enforcement; the
Solicitor, the Directors of the Divisions of Enforcement, Product Defect
Correction, and Regulatory Management; and the directors of area
offices, the power to initiate inspections in the same manner as the
Commission.
16 CFR 1118.2 Conduct and scope of inspections.
(a) After an inspection is initiated as set forth in 1118.1, an
officer or employee duly designated by the Commission shall issue the
notice of inspection (hereinafter: notice). Upon presenting the notice,
along with appropriate credentials, to the person or agent in charge of
the firm to be inspected, the Commission officer or employee is
authorized for the purposes set forth in 1118.1(a):
(1) To enter, at reasonable times, any factory, warehouse, or
establishment in which consumer products are manufactured or held, in
connection with distribution in commerce, or 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, any
conveyance or those areas of the factory, warehouse, or establishment
where consumer products are manufactured, held, or transported and which
may relate to the safety of those products; and
(3) To have access to and to copy all relevant records, books,
documents, papers, packaging or labeling which: (i) Are required by the
Commission to be established, made or maintained, or (ii) show or relate
to the production, inventory, testing, distribution, sale,
transportation, importation, or receipt of any consumer product, or that
are otherwise relevant to determining whether any person or firm has
acted or is acting in compliance with the Act and regulations, rules and
orders promulgated under the Act, and
(4) To obtain: (i) Information, both oral and written, concerning
the production, inventory, testing, distribution, sale, transportation,
importation, or receipt of any consumer product, and the organization,
business, conduct, practices, and management of any person or firm being
inspected and its relation to any other person or firm; (ii) samples of
items, materials, substances, products, containers, packages and
packaging, and labels and labeling, or any component at manufacturer's,
distributor's or retailer's cost unless voluntarily provided; and (iii)
information, both oral and written, concerning any matter referred to in
the Act and these rules.
(b) A separate notice shall be given for each inspection, but a
notice is not required for each entry made during the course of the same
inspection. Each inspection shall be commenced at and completed within
a reasonable period of time.
(c) The notice of inspection shall include the name and address of
the person or firm being inspected; the name and title of the
Commission officer or employee; the date and time of the anticipated
entry; pertinent extracts from the statutory provisions upon which the
right to access is based; pertinent extracts from 1118.2 of these
rules setting forth the authority of Commission officers or employees
and the types of information and items they are authorized to obtain; a
statement that the inspection will be conducted and the information will
be provided with the cooperation of the person or firm being inspected;
a statement which sets forth the purposes of the inspection and the
nature of the information and items to be obtained and/or copied; and a
statement that those from whom information is requested should state in
writing whether any of the information submitted is believed to contain
or relate to a trade secret or other matter which should be considered
by the Commission to be confidential in accordance with section 6(a)(2)
of the Act (15 U.S.C. 2055(a)(2)) and whether any of the information is
believed to be entitled to exemption from disclosure by the Commission
under the provisions of the Freedom of Information Act (5 U.S.C. 552)
and the Commission's regulations under that Act, 16 CFR part 1015 (42 FR
10496, February 22, 1977) or as amended. Any statement asserting this
claim of confidentiality must be in writing, and any request for
exemption of the information from disclosure must be made in accordance
with the Commission's Freedom of Information Act regulations, 16 CFR
part 1015 (42 FR 10490, February 22, 1977) or as amended.
(d) If upon being presented with a notice by an officer or employee
duly designated by the Commission, the person or agent-in-charge of the
firm being inspected refuses to allow entry or inspection, the
Commission may then seek a search warrant or take other appropriate
legal action. If the person refuses to provide information, to allow
access to or the copying of records, or to supply samples as provided in
these rules, the officer or employee of the Commission shall complete
the investigation to the extent that voluntary cooperation is provided.
The Commission may take such additional action, including but not
limited to seeking an ex parte search warrant, employing the compulsory
process provided for in these rules, and/or taking other suitable legal
action. If the person or agent in charge refuses to accept the notice
upon its presentation, the officer or employee may affix the notice to a
public entrance way on the premises and this shall constitute
presentation of the notice.
16 CFR 1118.3 Compulsory processes and service.
(a) In addition to or in lieu of authorizing the issuance of a
notice, the Commission may elect either to seek an ex parte search
warrant and/or use any other reasonable means authorized by law to
initiate investigations, inspections, or inquires to obtain information
for the purposes set forth in 1118.1(a), including but not limited to
the following compulsory processes:
(1) Subpoenas;
(2) Investigational hearings;
(3) Depositions; and
(4) General or special orders.
(b) Service in connection with any of the compulsory processes in
1118.3(a) shall be effected:
(1) By personal service upon the person or agent in charge of the
firm being investigated, inspected or inquired of; or
(2) By certified mail or delivery to the last known residence or
business address of anyone being investigated, inspected or inquired of;
or
(3) In the case of general or special orders where personal service,
mailing or delivery has been unsuccessful, service may also be effected
by publication in the Federal Register.
(c) The date of service of any form of compulsory process shall be
the date on which the document is received by mail, delivered in person
or published in the Federal Register. In computing a period of time in
which a party is required or permitted to act, the day from which the
time begins to run shall not be included. The last day of the period
shall be included, unless it is a Saturday, Sunday or legal holiday, in
which event the period runs until the end of the next day that is not a
Saturday, Sunday or legal holiday.
(d) These rules shall be referred to in any notice of compulsory
process served upon a person or firm.
(e) Anyone submitting information in response to any of the
compulsory processes referred to in 1118.3(a) should state whether any
of the information submitted is believed to contain or relate to a trade
secret or other matter which should be considered by the Commission to
be confidential in accordance with section 6(a)(2) of the Consumer
Product Safety Act (15 U.S.C. 2055(a)(2)) and whether any of the
information is believed to be exempt from disclosure by the Commission
under the provisions of the Freedom of Information Act (5 U.S.C. 552)
and the Commission's regulations under that Act, 16 CFR part 1015 (42 FR
10490, February 22, 1977) or as amended. Any claim of confidentiality
must be in writing, and any request for exemption from disclosure must
be made in accordance with the Commission's Freedom of Information Act
regulations, 16 CFR part 1015 (42 FR 10490, February 22, 1977), or as
amended.
16 CFR 1118.4 Subpoenas.
The Commission may issue to any person or firm a subpoena requiring
the production of documentary evidence (subpoena duces tecum) and/or
attendance and testimony of witnesses (subpoena ad testificandum)
relating to any matter under investigation. Procedures regarding
compliance with subpoenas and motions to limit or quash subpoenas are
provided for in 1118.9.
16 CFR 1118.5 Investigational hearings.
(a) The Commission by subpoena may require any person or firm to
provide information at an investigational hearing. These hearings shall
be for the purpose of taking the testimony, under oath, of witnesses and
receiving documents and other data relating to any subject under
investigation. The hearings shall be presided over by the Commission,
by one or more of the Commissioners, by an administrative law judge, or
by a duly designated officer or employee, who shall be referred to as
the presiding official. The hearings shall be stenographically
reported, and the transcript shall be made a part of the record.
(b) A Commissioner who participates in a hearing or other
investigation, inspection, or inquiry shall not be disqualified solely
by reason of that participation from subsequently participating in a
Commission decision in the same matter.
(c) Investigational hearings shall be closed to the public, unless
otherwise ordered by the Commission.
(d) The release of the record of the hearing shall be governed by the
Freedom of Information Act (5 U.S.C. 552), the Commission's regulations
under that Act, 16 CFR part 1015 (42 FR 10490, February 22, 1977) or as
amended and/or other applicable laws or regulations, except that a
person required to give testimony or a deposition may, in accordance
with 1118.7(d), obtain a copy of his or her testimony or deposition.
16 CFR 1118.6 Depositions.
(a) The Commission by subpoena may require testimony to be taken by
deposition at any stage of any investigation. Depositions may be taken
before any person who is designated by the Commission and has the power
to administer oaths. The person before whom the deposition is taken
shall put the deponent under oath. The testimony given shall be reduced
to writing by the person taking the deposition or under that person's
direction and shall then be submitted to the deponent for signature
unless the deponent waives the right to sign the deposition. All
depositions shall be closed to the public, unless otherwise ordered by
the Commission. The release of the record of such depositions shall be
governed by the Freedom of Information Act (5 U.S.C. 552), the
Commission's regulations under that Act, 16 CFR part 1015 (42 FR 10490,
February 22, 1977) or as amended and/or other applicable laws or
regulations, except that the deponent may, in accordance with
1118.7(d), obtain a copy of his or her deposition.
(b) Any changes which the deponent desires to make shall be entered
on the face of the deposition and shall state the reasons for such
changes. The deposition shall then be signed by the deponent, unless
the deponent waives the right to sign, cannot be found, or is unable or
refuses to sign. The deponent must sign the deposition within 30 days
of its submission to him or her, or within such shorter time period as
the Commission may designate. Whenever a deponent is required to sign
in less than ten days, the Commission shall notify the deponent of the
reasons for such shorter time period.
If the deponent does not sign the deposition within the prescribed
time period, the Commission designee shall sign it and state on the
record the fact of the waiver of the right to sign or of the illness or
absence of the deponent, or the deponent's inability or refusal to sign,
together with the reason if any is given. The deposition may be used in
any administrative proceeding, as provided by these rules, or any other
proceeding, as allowed by applicable rules.
16 CFR 1118.7 Rights of witnesses at investigational hearings and of
deponents at depositions.
(a) Any person, agent, or officer of a firm, who is required to
produce documentary evidence or give testimony as a witness at an
investigational hearing conducted under provisions of 1118.5 or as a
deponent at a deposition taken under provisions of 1118.6 may be
accompanied by an attorney, or an officer or partner of the firm, who
may act as representative for the witness or the deponent. However, a
person who is subpoenaed to produce documentary evidence or give
testimony at an investigational hearing or deposition cannot act as
attorney or representative for another witness or deponent at the same
proceeding. The term attorney refers to members of the bar of a Federal
court or the courts of any State or Territory of the United States, the
Commonwealth of Puerto Rico, or the District of Columbia. The witness
or deponent and his or her attorney or representative may act as follows
during the course of an investigational hearing or deposition:
(1) A witness or deponent may confer, in confidence, with his or her
attorney or representative concerning any questions asked of the witness
or deponent. If the witness, deponent, or his or her attorney or
representative objects to a question or any other matter relevant to the
investigational hearing or deposition, the objection and basis for it
shall be stated on the record. In the case of an objection based upon
self-incrimination, the privilege must be asserted by the witness or
deponent. If a witness at an investigational hearing refuses to answer
a question or provide other information, the presiding official shall
have the authority to immediately order the witness to answer the
question or provide the information requested, except in circumstances
where, in the discretion of the presiding official an immediate ruling
would be unwarranted and except where a refusal is based upon the
privilege against self-incrimination. Otherwise all objections shall be
ruled upon by presiding official at the time the objection is made.
(2) Objections timely made under the provisions of 1118.7(a) shall
be noted on the record, shall be treated as continuing, and shall be
preserved throughout the proceeding without the necessity of repetition
during similar lines of inquiry.
(3) Except as provided by 1118.7(a), counsel for a witness or
deponent may not interrupt the examination of the witness or the
deponent by making objections or statements on the record.
(4) Upon completion of the examination, any witness at an
investigational hearing may clarify on the record any of his or her
answers, or, if the witness is accompanied by an attorney or
representative, the attorney or representative may examine the witness
on the record as to answers previously given. In addition, the witness
or his or her attorney or representative may make a brief statement at
the conclusion of the hearing giving his, her or the firm's position
with regard to matters under investigation. In order to prevent abuse
of the investigational process, the presiding official shall have the
authority to impose reasonable limitations on the period of time allowed
for objections, clarification of answers, and statements of position.
(5) Upon completion of all testimony, a deponent may clarify on the
record any of his or her answers. The attorney or representative for a
deponent may examine that deponent on the record to clarify answers
previously given.
(b) Any person, agent, or officer who is required to appear in person
at an investigational hearing or at a deposition shall testify as to
matters and information known and/or reasonably available to the person
or firm involved.
(c) Any person, agent or officer who is compelled by subpoena to
appear in person at an investigational hearing or at a deposition shall
receive the same fees and mileage allowances as are paid witnesses in
the courts of the United States.
(d) Any person, agent, or officer who is required to appear at an
investigational hearing or at a deposition shall be entitled to retain a
copy of any document submitted by him or her and, upon payment of
lawfully prescribed costs, in accordance with the Commission's
regulations under the Freedom of Information Act, shall be entitled to
procure a copy of his or her own testimony as recorded.
(e) The presiding official shall take all necessary action to
regulate the course of the hearing, to avoid delay and to assure that
reasonable standards of orderly and ethical conduct are maintained. The
presiding official, for reasons stated on the record, shall immediately
report to the Commission any instance in which a witness or his or her
attorney or representative has refused to comply with the presiding
official's directions or to adhere to reasonable standards of orderly
and ethical conduct in the course of the hearing. The Commission shall
take whatever action is appropriate under the circumstances.
16 CFR 1118.8 General or special orders seeking information.
The Commission may require by the issuance of general or special
orders any person or firm to submit in writing any reports and answers
to questions as the Commission may prescribe. The reports or answers
shall be made under oath, and shall be filed within the time prescribed
by the Commission. Procedures regarding compliance with general or
special orders and motions to limit or quash such orders are provided
for in 1118.9.
16 CFR 1118.9 Motions to limit or quash subpoenas and general or
special orders and delegation to modify terms for compliance.
(a) The Commission hereby delegates to the Associate Executive
Director for Compliance and Enforcement; the Solicitor; the Directors
of Divisions of Enforcement, Product Defect Correction, and Regulatory
Management; and the General Counsel the authority:
(1) To negotiate and approve the terms of satisfactory compliance
with subpoenas and general or special orders; (2) to impose conditions
upon compliance with such compulsory processes; (3) and to extend the
time for compliance and the time for filing motions to limit or quash.
(b) The person or firm served with a subpoena or general or special
order may file a motion to limit or quash the subpoena or order. Any
motion to limit or quash shall set forth the reasons why the subpoena or
order should be limited or quashed and may be accompanied by memoranda,
affidavits, or other documents submitted in support of the motion. The
motion must be received in the Office of the Secretary of the Commission
within 10 calendar days of receipt of the subpoena or order unless: (1)
The subpoena or order provides for a different time; or (2) the
Commission, for good cause shown, grants an extension of time to file a
motion.
(c) Upon receipt of a motion to limit or quash, the Office of the
Secretary shall immediately notify and transmit a copy to the
appropriate staff member. Unless a different period of time is
specified in the subpoena or order, the staff shall file an answer with
the Office of the Secretary within 10 calendar days after receipt of the
motion. A copy of the answer shall be served upon the moving party or
the counsel of the moving party. No reply to the answer will be
permitted.
(d) All motions to limit or quash shall be ruled upon by the
Commision. The Office of the Secretary shall serve the decision on a
motion to limit or quash upon the moving party or the counsel for the
moving party and shall furnish a copy of the decision to the appropriate
staff member. The Commission's decision is a final decision. Motions
for reconsideration will not be received.
16 CFR 1118.10 Remedies for failure to permit authorized
investigations.
In the event a person or firm fails to comply with any investigative
process authorized by these rules, the Commission may seek appropriate
action within its authority under the Consumer Product Safety Act (15
U.S.C. 2051, et seq.)
16 CFR 1118.11 Nonexclusive delegation of power.
No provision contained herein delegating any of the Commission's
powers shall be construed as limiting the authority of the Commission to
exercise the same powers.
16 CFR 1118.11 Subpart B -- Consent Order Agreements
16 CFR 1118.20 Procedures for consent order agreements.
(a) For the procedure to be followed regarding consent order
agreements involving section 15 of the Act (15 U.S.C. 2064), refer to
the Commission's regulations relating to substantial product hazards (16
CFR part 1115). For all other consent order agreements under the
Consumer Product Safety Act, the provisions set forth below are
applicable.
(b) The consent order agreement is a document executed by a person,
or firm (consenting party) and a Commission staff representative which
incorporates both a proposed complaint setting forth the staff's charges
and a proposed order by which such charges are resolved. A consent
order agreement shall contain the following provisions, as appropriate:
(1) An admission of all jurisdictional facts by the consenting
parties;
(2) A waiver of any rights to an administrative or judicial hearing
and of any other procedural steps including any rights to seek judicial
review or otherwise challenge or contest the validity of the
Commission's order;
(3) A statement that the agreement is in settlement of the staff's
charges and does not constitute an admission by the consenting party
that the law has been violated;
(4) A statement describing the alleged hazard, non-compliance or
violation.
(5) A statement that the Commission's order is issued under the
provisions of the Act (15 U.S.C. 2051, et seq.); and that a violation
of such order may subject the consenting party to appropriate legal
action.
(6) An acknowledgment that the consent order agreement only becomes
effective upon its final acceptance by the Commission and its service
upon the consenting party;
(7) An acknowledgment that the Commission may disclose terms of the
consent order agreement to the public;
(8) A statement that the consenting party shall comply with the
provisions of the agreement and order;
(9) A statement that the requirements of the order are in addition to
and not to the exclusion of other remedies under the Act.
(c) At any time in the course of an investigation, the staff, with
the approval of the Commission, may propose to the person or firm being
investigated that any alleged violation be resolved by an agreement
containing a consent order. Additionally, such a proposal may be made
to the Commission staff by such person or firm.
(d) Upon receiving an executed agreement, the Commission may: (1)
Provisionally accept it; (2) reject it and issue the complaint (in
which case the matter will be scheduled for hearing in accordance with
the Commission's Rules of Practice for Adjudicative Proceedings, 16 CFR
part 1025, June 21, 1977 or as amended) and/or (3) take such other
action as it may deem appropriate.
(e) If the agreement is provisionally accepted, the Commission shall
place the agreement on the public record and shall announce provisional
acceptance of the agreement in the Federal Register. Any interested
person may ask the Commission not to accept the agreement by filing a
written request in the Office of the Secretary. Any request must be
received in the Office of the Secretary no later than the close of
business of the 15th calendar day following the date of announcement in
the Federal Register.
(f) If no requests are received, the agreement shall be deemed
finally accepted by the Commission on the 16th calendar day after the
date of the announcement in the Federal Register. Notice of final
acceptance will be given and the order issued within a reasonable time.
(g) If the Commission receives one or more requests that it not
finally accept an agreement, it shall, within a reasonable time, either
finally accept or reject the agreement after considering the requests.
The Commission shall promptly issue and serve an order indicating its
decision.
(1) If the agreement is accepted, the Commission shall issue the
complaint and order. The order is a final order in disposition of the
proceeding and is effective immediately upon its service on the
consenting party under these rules. The consenting party shall
thereafter be bound by and take immediate action in accordance with the
final order.
(2) If the agreement is rejected, the order so notifying the
consenting party shall constitute withdrawal of the Commission's
provisional acceptance. The Commission may then issue its complaint,
may order further investigation, or may take any action it considers
appropriate.
(h) An agreement that has been finally accepted may be vacated or
modified upon petition of any party or the Commission's own initiative.
The petition shall state the proposed changes in the agreement and the
reasons for granting the petition. The Commission may modify or vacate
where (1) false statements were relied upon in accepting the agreement
or (2) there are changed conditions of fact or law. In deciding whether
to grant a petition, the Commission shall consider the public interest.
A petitioner, or the Commission when acting on its own initiative, shall
serve a copy of the petition or notice of reconsideration, respectively,
on all parties. Parties affected by the petition or notice of
reconsideration may file a response within 10 calendar days. No replies
shall be accepted. The Commission shall decide the petition or notice
of reconsideration within a reasonable time and, by order, shall
indicate its decision and its reasons.
16 CFR 1118.20 Pt. 1145
16 CFR 1118.20 PART 1145 -- REGULATION OF PRODUCTS SUBJECT TO OTHER
ACTS UNDER THE CONSUMER PRODUCT SAFETY ACT
Sec.
1145.1 Scope.
1145.2 Paint (and other similar surface-coating materials) containing
lead; toys, children's articles, and articles of furniture bearing such
paint (or similar surface-coating materials); risk of lead poisoning.
1145.3 Extremely flammable contact adhesives; risk of burns from
explosive vapor ignition and flashback fire.
1145.4 Consumer patching compounds containing respirable free-form
asbestos; risk of cancer associated with inhalation of asbestos fibers.
1145.5 Emberizing materials (embers and ash) containing respirable
free-form asbestos; risk of cancer associated with inhalation of
asbestos fibers.
1145.9 Certain stuffed toys; risk of strangulation injury.
1145.10 Certain squeeze toys; risk of choking and /or suffocation
injury from lodging in the throat.
1145.11 Certain play yards (playpens) with mesh sides; risk of
asphyxia from airway blockage or chest compression.
1145.12 Certain portable cribs with mesh sides; risk of asphyxia
from airway blockage or chest compression.
1145.13 Certain expandable children's enclosures; risk
strangulation.
1145.14 Baby cribs with certain hardware failures or omissions;
risks of death or injury.
1145.15 Baby bassinets having legs that collapse; risks of death or
injury.
Authority: Sec. 30(d), Pub. L. 92-573, 86 Stat. 1231, as amended
90 Stat. 510; 15 U.S.C. 2079(d).
16 CFR 1145.1 Scope.
In this part 1145, the Commission establishes rules which provide
that risks of injury associated with consumer products that could be
eliminated or reduced to a sufficient extent by action under the Federal
Hazardous Substances Act (FHSA) (15 U.S.C. 1261-1274), the Poison
Prevention Packaging Act of 1970 (PPPA) (15 U.S.C. 1471-1476), or the
Flammable Fabrics Act (FFA) (15 U.S.C. 1191-1204) will be regulated
under the Consumer Product Safety Act (CPSA) (15 U.S.C. 2051-2081).
Section 30(d) of the CPSA, as amended, provides that 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 FHSA,
PPPA, or the FFA may be regulated under this act only if the Commission
by rule finds it is in the public interest to regulate such risk of
injury under this act.
(42 FR 44192, Sept. 1, 1977)
16 CFR 1145.2 Paint (and other similar surface-coating materials)
containing lead; toys, children's articles, and articles of furniture
bearing such paint (or similar surface-coating materials); risk of lead
poisoning.
(a) The Commission finds that it is in the public interest to reduce
the risk of lead poisoning to young children from the ingestion of paint
and other similar surface-coating materials by action under the Consumer
Product Safety Act rather than under the Federal Hazardous Substances
Act because of the desirability of consolidating the public procedures
related to such regulation with the proceeding to determine a safe level
of lead under the Lead-Based Paint Poisoning Prevention Act (42 U.S.C.
4801 -- 4846), as amended by the National Consumer Health Information
and Health Promotion Act of 1976 (Pub. L. 94-317; 90 Stat. 705-706).
Consolidation of these proceedings facilitates greater public
participation and a more expeditious resolution of the issues.
(b) Paint and other similar surface-coating materials containing lead
and toys, children's articles, and articles of furniture bearing such
paint or other similar surface-coating materials that present a risk of
lead poisoning to young children by ingestion shall therefore be
regulated under the Consumer Product Safety Act. Such regulation shall
include all directly related pending and future rulemaking, as well as
all directly related pending and future action on petitions.
(42 FR 44192, Sept. 1, 1977)
16 CFR 1145.3 Extremely flammable contact adhesives; risk of burns
from explosive vapor ignition and flashback fire.
(a) The Commission finds that it is in the public interest to
regulate the risk of burns from explosive vapor ignition and flashback
fire associated with certain extremely flammable contact adhesives under
the Consumer Product Safety Act rather than under the Federal Hazardous
Substances Act because of the desirability of avoiding possibly lengthy,
resource consuming, and inefficient rulemaking proceedings under the
Federal Hazardous Substances Act and because of the availability of
civil penalties under the CPSA. The Commission also believes that the
complexity and formality of the rulemaking proceedings under the FHSA,
in contrast to rulemaking proceedings under the CPSA may make it
difficult for interested persons to participate.
(b) Extremely flammable contact adhesives and other similar liquid or
semi-liquid products in containers over one-half pint that present a
risk of burns from explosive vapor ignition and flashback fire shall
therefore be regulated under the Consumer Product Safety Act. Such
regulation shall include all directly related pending and future
rulemaking, as well as all directly related future action on petitions.
However, such action shall not include labeling that may be required
under the Federal Hazardous Substances Act to address flammability
hazards associated with other adhesives not subject to the ban.
(42 FR 63731, Dec. 19, 1977)
16 CFR 1145.4 Consumer patching compounds containing respirable
free-form asbestos; risk of cancer associated with inhalation of
asbestos fibers.
(a) The Commission finds that it is in the public interest to
regulate the risk of cancer associated with inhalation of asbestos
fibers from consumer patching compounds containing respirable free-form
asbestos under the Consumer Product Safety Act (CPSA) rather than under
the Federal Hazardous Substances Act (FHSA) because of the desirability
of avoiding possibly lengthy resource-consuming, inefficient rulemaking
proceedings under the FHSA and because of the availability of civil
penalties under the CPSA for knowing noncompliance.
(b) Therefore, consumer patching compounds containing respirable
free-form asbestos are regulated under CPSA.
(42 FR 63354, Dec. 15, 1977)
16 CFR 1145.5 Emberizing materials (embers and ash) containing
respirable free-form asbestos; risk of cancer associated with
inhalation of asbestos fibers.
(a) The Commission finds that it is in the public interest to
regulate the risk of cancer associated with inhalation of asbestos
fibers from artificial emberizing materials (embers and ash) containing
respirable free-form asbestos under the Consumer Product Safety Act
(CPSA) rather than under the Federal Hazardous Substances Act (FHSA)
because of the desirability of avoiding possibly lengthy,
resource-consuming, inefficient rulemaking proceedings under the FHSA,
and because of the availability of civil penalties under the CPSA for
knowing noncompliance.
(b) Therefore, artificial emberizing materials (embers and ash)
containing respirable free-form asbestos are regulated under the CPSA.
(42 FR 63354, Dec. 15, 1977)
16 CFR 1145.9 Certain stuffed toys; risk of strangulation injury.
(a) The Commission finds that it is in the public interest to
regulate under the Consumer Product Safety Act, rather than under the
Federal Hazardous Substances Act, the risk of strangulation that may be
presented by stuffed toys suspended from one or more strings, elastic,
springs or other cords when such cords, in conjunction with the product,
form a loop.
(b) Therefore, if the Commission finds regulation necessary, any such
toys shall be regulated only under one or more provisions of the
Consumer Product Safety Act.
(Sec. 30(d), Pub. L. 92-573, 86 Stat. 1231, as amended Pub. L.
94-284, 90 Stat. 3472, Pub. L. 97-35, 95 Stat. 703, 752; (15 U.S.C.
2079(d)))
(47 FR 13516, Mar. 31, 1982)
16 CFR 1145.10 Certain squeeze toys; risk of choking and /or
suffocation injury from lodging in the throat.
(a) The Commission finds that it is in the public interest to
regulate under the Consumer Product Safety Act, rather than under the
Federal Hazardous Substance Act, the risk of choking and/or suffocation
injury from lodging in the throat that is associated with squeeze toys
made of compressible material, other than the risk of choking,
aspiration, or ingestion of the entire toy or small parts which may
become detached from, or break off any such toys, which is the subject
of regulations published at 16 CFR 1500.18(a)(9) and part 1501.
(b) Therefore, if the Commission finds regulation to be necessary,
the risk of choking and/or suffocation injury from lodging in the throat
which is associated with the toys described in 1145.10(a), above, shall
be regulated only under one or more provisions of the Consumer Product
Safety Act. Any risk of injury which may be associated with those toys
other than the possible risk described in 1145.10(a) above, shall
remain subject to regulation only under one or more provisions of the
Federal Hazardous Substances Act.
(49 FR 9722, Mar. 15, 1984)
16 CFR 1145.11 Certain play yards (playpens) with mesh sides; risk of
asphyxia from airway blockage or chest compression.
(a) The Commission finds that it is in the public interest to
regulate under the Consumer Product Safety Act, rather than under the
Federal Hazardous Substances Act, risks of asphyxia from airway blockage
or chest compression that are associated with play yards (playpens) with
mesh sides.
(b) Therefore, if the Commission finds regulation to be necessary,
any such play yards (playpens) shall be regulated under one or more
provisions of the Consumer Product Safety Act.
(48 FR 34023, July 27, 1983)
16 CFR 1145.12 Certain portable cribs with mesh sides; risk of
asphyxia from airway blockage or chest compression.
(a) The Commission finds that it is in the public interest to
regulate under the Consumer Product Safety Act, rather than the Federal
Hazardous Substances Act, the risks of asphyxia from airway blockage or
chest compression that are associated with portable cribs with mesh
sides.
(b) Therefore, if the Commission finds regulation to be necessary,
any such portable cribs shall be regulated only under one or more
provisions of the Consumer Product Safety Act.
(48 FR 34023, July 27, 1983)
16 CFR 1145.13 Certain expandable children's enclosures; risk
strangulation.
(a) The Commission finds that it is in the public interest to
regulate under the Consumer Product Safety Act, rather than under the
Federal Hazardous Substances Act, the risk of strangulation that may be
associated with expandable children's enclosures made from criss-crossed
slats of solid material.
(b) Therefore, if the Commission finds regulation to be necessary,
any such expandable children's enclosure shall be regulated only under
one or more provisions of the Consumer Product Safety Act.
(49 FR 7993, Mar. 5, 1984)
16 CFR 1145.14 Baby cribs with certain hardware failures or omissions;
risks of death or injury.
(a) The Commission finds that it is in the public interest to
regulate under the Consumer Product Safety Act, rather than under the
Federal Hazardous Substances Act, risks of death or injury that are
associated with baby cribs having items of hardware which break, become
loose, detach, or otherwise fail to perform their intended function, or
which have been omitted; except those risks of injuries associated with
baby cribs which are addressed by provisions of 16 CFR 1500.18(a)(13),
part 1508; 1500.18(a)(14), part 1509.
(b) Therefore, if the Commission finds regulation to be necessary,
such risks of death or injury which are associated with baby cribs
having any of the hardware failures or omissions described in
1145.14(a) shall be regulated only under one or more provisions of the
Consumer Product Safety Act.
(49 FR 14101, Apr. 10, 1984)
16 CFR 1145.15 Baby bassinets having legs that collapse; risks of
death or injury.
(a) The Commission finds that it is in the public interest to
regulate under the Consumer Product Safety Act, rather than under the
Federal Hazardous Substances Act, risks of death or injury associated
with baby bassinets having legs that collapse when the braces on such
legs give way, become loose, detach, bend, or otherwise fail to perform
their intended function of keeping the legs fully extended until such
time as the user desires to fold the legs.
(b) Therefore, if the Commission finds regulation to be necessary,
the risks of death or injury associated with baby bassinets having any
of the failures described in 1145.15(a) shall be regulated only under
one or more provisions of the Consumer Product Safety Act.
(49 FR 30171, July 27, 1984)
16 CFR 1145.15 PART 1201 -- SAFETY STANDARD FOR ARCHITECTURAL GLAZING MATERIALS
16 CFR 1145.15 Subpart A -- The Standard
Sec.
1201.1 Scope, application and findings.
1201.2 Definitions.
1201.3 General requirements.
1201.4 Test procedures.
1201.5 Certification and labeling requirements.
1201.6 Prohibited stockpiling.
1201.7 Effective date.
16 CFR 1145.15 Subpart B -- (Reserved)
16 CFR 1145.15 Subpart C -- Statements of Policy and Interpretation
1201.40 Interpretation concerning bathtub and shower doors and
enclosures.
Figures 1 -- 5
Authority: Secs. 2, 3, 7, 9, 14, 19, Pub. L. 92-573, 86 Stat.
1212-17; (15 U.S.C. 2051, 2052, 2056, 2058, 2063, 2068).
Source: 42 FR 1441, Jan. 6, 1977, unless otherwise noted.
16 CFR 1145.15 Subpart A -- The Standard
16 CFR 1201.1 Scope, application and findings.
(a) Scope. This part 1201, a consumer product safety standard,
prescribes the safety requirements for glazing materials used or
intended for use in any of the following architectural products:
(1) Storm doors or combination doors.
(2) Doors.
(3) Bathtub doors and enclosures.
(4) Shower doors and enclosures.
(5) (Reserved)
(6) Sliding glass doors (patio-type).
It also requires that these architectural products which incorporate
glazing materials be constructed with glazing materials that meet the
requirements of this part. The safety requirements are designed to
reduce or eliminate unreasonable risks of death or serious injury to
consumers when glazing material is broken by human contact.
(b) Application. This part 1201 shall apply to glazing materials, as
that term is defined in 1201.2(a)(11), for use in the architectural
products listed in paragraph (a) of this section; and to those
architectural products listed in paragraph (a) of this section if they
are made with, or incorporate glazing materials as that term is defined
in 1201.2(a)(11). The standard applies to glazing materials and
architectural products incorporating glazing materials that are produced
or distributed for sale to or for the personal use, consumption or
enjoyment of consumers in or around a permanent or temporary household
or residence or in recreational, school, public, or other buildings or
parts thereof. This part 1201 applies only to those glazing materials
manufactured after the effective date of the standard; and to those
architectural products identified in paragraph (a) of this section that
are manufactured after the effective date of the standard. Thus,
architectural products identified in paragraph (a) of this section
manufactured after the effective date of the standard must incorporate
glazing materials that comply with the standard. For purposes of this
standard, fabricators are considered to be manufacturers of the
architectural products listed in paragraph (a) of this section.
Architectural glazing materials used in the products listed in paragraph
(a) of this section and used in mobile homes are not subject to the
provisions of this part 1201. While this part 1201 prescribes a test
method to determine whether glazing materials subject to this part 1201
standard meet the requirements of the standard, the standard itself does
not require that a manufacturer test any glazing materials or products
subject to the standard. All obligations of manufacturers to perform
testing are imposed by section 14 of the Consumer Product Safety Act and
certification regulations which will be established by a separate
rulemaking proceeding. However, the Commission intends to use the test
procedures set forth in this part 1201 to determine whether materials
and products subject to the standard meet the requirements of the
standard.
(c) Exemptions. The following products, materials and uses are
exempt from this part 1201:
(1) Wired glass used in doors or other assemblies to retard the
passage of fire, where such door or assembly is required by a federal,
state, local, or municipal fire ordinance.
(2) Louvers of jalousie doors;
(3) Openings in doors through which a 3 inch diameter sphere is
unable to pass;
(4) Carved glass (as defined in 1201.2(a)(36)), dalle glass (as
defined in 1201.2(a)(37)), or leaded glass (as defined in
1201.2(a)(14)), which is used in doors and glazed panels (as defined in
1201.2(a)(7) and (a)(10)) if the glazing material meets all of the
following criteria:
(i) The coloring, texturing, or other design qualities or components
of the glazing material cannot be removed without destroying the
material; and
(ii) The primary purpose of such glazing is decorative or artistic;
and
(iii) The glazing material is conspicuously colored or textured so as
to be plainly visible and plainly identifiable as aesthetic or
decorative rather than functional (other than for the purpose of
admitting or controlliing admission of light components or heat and
cold); and
(iv) The glazing material, or assembly into which it is incorporated,
is divided into segments by conspicuous and plainly visible lines.
(5) Glazing materials used as curved glazed panels in revolving
doors;
(6) Commercial refrigerated cabinet glazed doors.
(d) Findings /1/ -- (1) The degree and nature of the risk of injury
the rule is designed to eliminate or reduce. The Commission finds that
the nature of the risks of injury this standard is designed to eliminate
or reduce are as follows:
(i) Lacerations, contusions, abrasions, and other injury or death
resulting from walking or running into glazed doors or sliding glass
doors believed to be open or glazed panels mistaken as a means of
ingress or egress, or pushing against glazing material in doors or
glazed panels in an attempt to open a door.
(ii) Lacerations, contusions, abrasions, and other injury or death
resulting from accidentally falling into or through glazed doors,
sliding glass doors, glazed panels, bathtub doors and enclosures and
shower doors and enclosures.
(iii) Lacerations, contusions, abrasions, and other injury or death
resulting from the act of installing, replacing, storing or otherwise
manipulating glazing material in doors, sliding glass doors, glazed
panels, bathtub doors and enclosures and shower doors and enclosures, or
from broken glazing material in doors, sliding glass doors, glazed
panels, bathtub doors and enclosures and shower doors and enclosures.
The Commission estimates that 73,000 injuries associated with
architectural glazing materials in the architectural products within the
scope of this standard were treated in hospital emergency rooms during
1975, and that about 2,400 of these injuries required the patients to be
hospitalized. Extrapolating to total injuries in the United States the
Commission further estimates that approximately 190,000 injuries were
associated with architectural glazing products covered by this standard.
Although injuries occur at any age, children aged 14 and under appear
to be at particular risk of injury since as a group they represent
approximately half the injuries while comprising less than 30 percent of
the population. Lacerations are the most common injuries associated
with architectural glazing materials and account for 72 percent to 93
percent of the injuries associated with the architectural products
identified in paragraph (a) of this section. These lacerative injuries
span a broad spectrum of severity and extent of body part affected.
During 1975, an estimated 200 injuries were treated in emergency rooms
for lacerations over 25 to 50 percent of the victims' bodies and over
7,000 persons were treated for lacerations to the head or face. On the
basis of all injury information available to the Commission, it is
apparent that the severity of the injuries associated with architectural
glazing materials ranges from minor cuts to damage to tendons, nerves,
muscles, and blood vessels resulting in extensive surgery. Peripheral
nerve injuries result in varying degress of loss in sensation and motion
which may never be restored completely. Tendon and muscle injuries may
involve loss of movement. Some victims of architectural glazing
material incidents are disfigured, and sustain emotional trauma as well.
Severing of arteries and veins has led to death. One way of
quantifying the extent of the public health problem relating to injuries
associated with products is to estimate the total number of disability
days resulting from the injuries. Using average days of restricted
activity by age for specific injuries and body parts (Vital and Health
Statistics, Series 10, Number 57, National Center for Health Statistics,
U.S. Department of Health, Education, and Welfare), it is estimated that
about 230,000 days of restricted activity resulted from injuries
associated with architectural products which were treated in emergency
rooms alone.
(2) The approximate number of consumer products, or types or classes
thereof, subject to the standard. The types of glazing materials
affected by or subject to the standard are laminated glass, tempered
glass, wired glass, organic-coated glass, annealed glass, and plastics.
Architectural products that incorporate the aforementioned glazing
materials that are also affected by or subject to the standard are:
storm doors or combination doors, doors, bathtub doors, and enclosures,
shower doors and enclosures, glazed panels and sliding glass doors
(patio-type) (see paragraph (a) of this section). The Commission has
estimated that 13 to 16 percent of the total market for glazing material
incorporated in products within the scope of the standard will be
affected by the standard. Most of the glazing subject to the standard
is currently covered by state safety glazing legislation. To date, more
than 30 states have enacted safety glazing legislation, but this
legislation is neither consistent nor completely uniform among states.
Annual markets for the architectural products which incorporate glazing
material and that are within the scope of the standard have been
estimated by the Commission in terms of square feet of glazed area and
number of units. The market for glazing material incorporated in
products within the scope of the standard was estimated to be 234.8
million square feet in 1975. These figures are discussed in the
Economic Impact Statement, pp. 3-7, and Appendix A to the Economic
Impact Statement, pp. 18-30, which are available for review in the
Office of the Secretary of the Commission, Washington, D.C. 20207.
(3) The need of the public for the architectural glazing material and
products incorporating that glazing material subject to the standard,
and the probable effect of the standard upon the utility, cost or
availability of those products to meet the need of the public -- (i) The
need of the public for the architectural glazing materials and products
incorporating that glazing material. The need of the public for
architectural products within the scope of the standard incorporating
glazing material is substantial since these products serve such
functions as transmission of light, visual communication, protection
from weather, ventilation, and indoor climate control, and since
reasonable substitutes for these products do not exist as a group. Each
of the types of glazing material subject to the standard has individual
properties which meet public needs, although one type of glazing
material is often an acceptable substitute for another.
(ii) Probable effect of the standard upon the cost of architectural
glazing materials and architectural products incorporating the glazing
material to meet the need of the public for the products. The probable
cost effects of the standard for architectural glazing materials are
listed below.
(A) The cost impact of the standard on consumers will be concentrated
in those states with no present state safety glazing legislation. In
those states, the average increase in cost per housing start resulting
from the standard is estimated to range from $30 to $50, or
approximately one-tenth of one percent of the price of a typical new
house; and the cost for residential remodeling and replacement is
expected to be in the range of $0.25 to $0.30 per household annually.
(B) The increased cost of glazing material for nonresidential uses
will be paid ultimately by consumers through higher prices of goods and
services. Generally, the increased cost of glazing is not passed to
consumers immediately, but is spread over the life of the nonresidential
structure. Therefore, the increased cost to consumers for glazing
material in nonresidential structures will probably rise slowly over
time to an annual level of approximately $1.10 per household in states
with no safety glazing legislation and $0.20 to $0.50 per household in
the other states. In many of the states with state regulations, the
impact of the standard on residential construction and new housing
prices will be near zero, since most of the glazing is currently covered
by the state glazing legislation.
(C) The probable effect of the standard on the various glazing
materials within the scope of the standard will differ. The retail
price of laminated glass used in some Category II applications will
probably increase by 10 to 15 percent per square foot. The incremental
cost to consumers for ungraded laminated glass is estimated to be
approximately $0.14 per household, annually. The cost to consumers for
tempered glass, organic-coated glass, and plastics is not expected to
increase because of the standard. Information available to the
Commission indicates that the technology needed for producing wired
glass which can comply with the standard is not readily available. See
Appendix A of the Economic Impact Statement, pp. 45-56, for the
incremental cost calculation by product category and application.
(iii) Probable effect of the standard upon the utility of
architectural glazing materials and architectural products incorporating
the glazing materials to meet the need of the public for the products.
The probable effect of the standard in regard to the utility of
architectural glazing materials and the architectural products
incorporating glazing material should be to increase the utility of the
products. The basic effect of the standard would be the substitution of
certain safer glazing materials for annealed glass in certain
architectural products. The Commission believes that such a
substitution would increase utility for most consumers because of the
usually increased durability of the glazing material that complies with
the Commission's standard, and the knowledge that the product
incorporating the glazing material is safer. There will be disutility
for those consumers who prefer non-complying wired glass and
organic-coated glass when these materials become unavailable for certain
applications due to their likely inability to comply with the standard.
However, the share of the glazing material market claimed by
organic-coated and wired glass is small.
(iv) Probable effect of the standard upon the availability of
architectural glazing materials and architectural products incorporating
the glazing materials to meet the need of the public for the products.
The Commission finds that the proposed standard should not have impacts
of significant magnitude on the availability of architectural products
within the scope of the standard, since domestic production capacity
appears to be sufficient to handle any increased demand for glazing
material to be used in those products. In addition, an increased demand
for raw materials necessary to manufacture glazing materials that comply
with the standard will be small in comparison to the volume of raw
materials currently used for glazing for the products that will be
subject to the standard. Furthermore, no major change in demand for the
architectural products subject to the standard incorporating glazing
materials which would affect production is expected. The Commission
finds that, in the absence of technological advances, certain glazing
materials will no longer be available for particular applications.
Unless technological advances are made, wired glass will be unavailable
for use in the architectural products within the scope of the standard
with the exception of fire door applications where special provisions of
the standard apply. Similarly, organic-coated glass which has the film
applied to annealed glass at the factory may no longer be available for
Category II products due to an inability to pass those impact test
provisions of the standard. The availability of glass replacement
glazing in residential applications may be reduced, since plastic
glazing often will be the only economical material available to
consumers when immediate replacement is needed.
(4) Any means of achieving the objectives of the standard while
minimizing adverse effects on competition or disruption or dislocation
of manufacturing and other commercial practices consistent with the
public health and safety. The Commission has considered other means of
achieving the objective of the standard, but has found none that it
believes would have fewer adverse effects on competition or that would
cause less disruption or dislocation of manufacturing and other
commercial practices, consistent with the public health and safety. For
the glazing industry in general, the disruptions and dislocations of
existing manufacturing and commercial practices due to the standard are
expected to be minor. However, it is possible that individual segments
of the glazing materials industry are likely to be adversely affected by
the standard. Specifically, there is likely to be disruption to the
wired glass market, the organic-coated glass market and, to a lesser
extent, to the laminated glass market. Manufacturers of wired glass
will face a serious problem because technological improvements in the
product will need to be made before wired glass can be used in Category
I applications and because it probably will not be usable at all in
Category II applications (see 1201.2(a) (3) and (4) of the standard),
since there appears to be little prospect at this time of developing a
wired glass product capable of withstanding the Category II, 400 foot
pound impact test prescribed in 1201.4 of the standard. Laminated
glass currently used for Category I applications can meet the 150 foot
pound impact test requirements, but not all laminated glass currently
used for Category II applications can meet the 400 foot pound impact
test requirements. The price increase for technologically upgrading
laminated glass will be borne by consumers. The Commission believes,
however, that the competitive impact of the proposed changes would not
severely weaken the position of laminated glass in the market place.
The wired glass, organic-coated glass, and laminated glass markets
affected by the standard are small in relation to the entire industry.
The standard is not expected to have an appreciable impact on foreign or
domestic competition. Increased competition is expected between primary
glass temperers and regional temperers, with primary temperers taking an
increased share of the original storm door, sliding door, bathtub
enclosure and shower door markets. Sales of nonresidential glazing for
major nonresidential buildings will remain with the primary glass
companies. The regional temperers are expected to handle almost all the
tempering of glazing for smaller nonresidential buildings. Thus, they
will gain some of this market at the expense of local dealers and
distributors. However, the distributors and dealers probably will
operate as order takers for the smallest jobs. It is expected that
glazing distributors and dealers will experience reduced market shares
in both the residential and nonresidential new glazing markets. This
will occur as a result of the transfer of business to the primary glass
manufacturers and regional temperers, since tempered glass must be
produced to size and it is not feasible to keep in inventory all sizes
which might be needed.
(5) Summary finding. The Commission finds that there are
unreasonable risks of injury associated with architectural glazing
materials used in the architectural products listed in paragraph(a) of
this section. In assessing the question of whether unreasonable risks
of injury or injury potential are associated with architectural glazing
materials, the Commission has balanced the degree, nature and frequency
of injury against the potential effect of the standard on the ability of
architectural glazing materials to meet the need of the public and the
effect of the standard on the cost, utility, and availability of
architectural glazing materials to meet that need. The Commission finds
that this standard, including its effective date, is reasonably
necessary to eliminate or reduce the unreasonable risks of injury
associated with architectural glazing materials and that promulgation of
the standard is in the public interest.
(Sec. 9(e), Pub. L. 92-573, 86 Stat. 1215 (15 U.S.C. 2058(e)) (5
U.S.C. 553)
(42 FR 1441, Jan. 6, 1977, as amended at 43 FR 57246 Dec. 7, 1978;
45 FR 57389, Aug. 28, 1980; 47 FR 27856, June 28, 1982; 49 FR 7107,
Feb. 27, 1984)
/1/ The Commission's findings apply to the architectural glazing
standard as issued at 42 FR 1426, on January 6, 1977. Since that date,
the Commission has revoked portions of the standard which prescribed
requirements for ''glazed panels'' (45 FR 57383, August 28, 1980); an
accelerated environmental durability test for plastic glazing materials
intended for outdoor exposure (45 FR 66002, October 6, 1980); and a
modulus of elasticity test, a hardness test, and an indoor aging test
applicable to plastic glazing materials (47 FR 27856, June 28, 1982).
However, the findings have not been revised and they are therefore, not
fully applicable to the remaining requirements of the standard.
16 CFR 1201.2 Definitions.
(a) As used in this part 1201:
(1) Annealed glass means glass that has been subjected to a slow,
controlled cooling process during manufacture to control residual
stresses so that it can be cut or subjected to other fabrication.
Regular polished plate, float, sheet, rolled, and some patterned surface
glasses are examples of annealed glass.
(2) Bathtub doors and enclosures means assemblies of panels and/or
doors that are installed on the lip of or immediately surrounding a
bathtub.
(3) Category I products means any of the following architectural
products:
(i) Storm doors or combination doors that contain no single piece of
glazing material greater than 9 square feet (0.83 square meters) in
surface area of one side of the piece of glazing material.
(ii) Doors that contain no single piece of glazing material greater
than 9 square feet (0.83 square meters) in surface area of one side of
the piece of glazing material.
(4) Category II products means any of the following architectural
products:
(i) Shower doors and enclosures.
(ii) Bathtub doors and enclosures.
(iii) Sliding glass doors (patio type).
(iv) Storm doors or combination doors that contain any piece of
glazing material greater than 9 square feet (0.83 square meters) in
surface area of one side of the piece of glazing material.
(v) Doors that contain any piece of glazing material greater than 9
square feet (0.83 square meters) in surface area of one side of the
piece of glazing material.
(5) Distributor means a person to whom a consumer product is
delivered or sold for purposes of distribution in commerce, including
persons cutting glazing material to size, except that such term does not
include a manufacturer or retailer of such product.
(6) 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.
(7) Door means an assembly that is installed in an interior or
exterior wall; that is movable in a sliding, pivoting, hinged, or
revolving manner of movement; and that is used by consumers to produce
or close off an opening for use as a means of human passage.
(8) Fabricator means any person who assembles or otherwise
incorporates glazing materials into an architectural product listed in
1201.1(a). A fabricator is considered a manufacturer as defined in
paragraph (a)(16) of this section.
(9) Glass means a hard, brittle, amorphous substance produced by
fusion, usually consisting of mutually dissolved silica and silicates
that also contains sods and lime. It may be transparent, translucent,
or opaque.
(10) (Reserved)
(11) Glazing material means glass, including annealed glass, organic
coated glass, tempered glass, laminated glass, wired glass; or
combinations thereof where these are used:
(i) In openings through the architectural products listed in
1201.1(a), or
(ii) As the architectural products themselves, e.g. unframed doors.
(12) Jalousie door means a door (as ''door'' is defined in paragraph
(a)(7) of this section) having an opening glazed with operable,
overlapping louvers. Each louver is one of a series of overlapping
pieces of glazing material designed to admit ventilation and light but
exclude rain and is typically operated by a crank and gear mechanism.
(13) Laminated glass means glazing material composed of two or more
pieces of glass, each piece being either tempered glass, heat
strengthened glass, annealed glass or wired glass, bonded to an
intervening layer or layers of resilient plastic material.
(14) Leaded glass means a decorative composite glazing material made
of individual pieces of glass whose perimeter is enclosed by lengths of
durable metal such as lead or zinc and the pieces of glass are
completely held together and supported by such metal. Such pieces of
glass can be clear, colored, beveled, painted, or flashed and etched.
(15) Manufacture means to manufacture, produce or assemble.
(16) Manufacturer means any person who manufactures, fabricates or
imports a glazing material or architectural product listed in 1201.1(a)
that incorporates glazing material.
(17) Mirror means a treated, polished or smooth glazing material that
forms images by the reflection of light.
(18) Mobile home means a structure transportable in one or more
sections, which is eight body feet (2.4 body meters) or more in width
and is thirty-two body feet (9.7 body meters) or more in length, and
which is built on a permanent chassis and designed to be used as a
dwelling with or without a permanent foundation when connected to the
required utilities.
(19) Other buildings or parts thereof means buildings or parts
thereof (other than residential, school, public, or recreational
buildings) in which all or part of the building is open to the public
with or without specific invitation. Included are buildings or parts
thereof such as banks and recreational or retail facilities in a
building and multiuse buildings that contain residential units.
(20) Organic-coated glass means a glazing material consisting of a
piece of glass, coated and bonded on one or both sides with an applied
polymeric coating, sheeting, or film.
(21) Patio door (See ''sliding glass doors (patio-type)'' in
paragraph (a)(31) of this section).
(22) Permanent label means a label that will remain permanently
legible and visible after installation of the glazing material and that
would be destroyed in attempts to remove it from the glazing material
and includes (but is not limited to) sandblast, acid etch, hot-stamp,
and destructible polyester labels.
(23) (Reserved)
(24) Private labeler means an owner of a brand or trademark on the
label of a consumer product which bears a private label, and includes
any fabricator, distributor, or installer who cuts certified and
permanently labeled glazing materials into smaller pieces.
(25) Public building means a building of public assembly or meeting
including (but not limited to) a museum, place of worship, or
restaurant.
(26) Recreational building means a building used for recreational
purposes including (but not limited to) a theater, stadium, gymnasium,
amusement park building or library.
(27) Residential building means a building, permanent or temporary,
such as a single or multifamily residence, including (but not limited
to) a house, apartment building, lodging home, dormitory, hotel, motel,
hospital, sanitarium, and nursing home, used as a dwelling for one or
more persons or families and any structure which is attached to, a part
of, or appurtenant to such a building. Public areas of all residential
buildings, such as lobbies and other common facilities, are included
within the definition of ''other buildings or parts thereof'' in
paragraph (a)(19) of this section. For purposes of this part 1201, a
mobile home as defined in paragraph (a)(18) of this section is not
considered to be a residential building.
(28) 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; the term retailer includes a person who cuts glazing material
to size for consumers.
(29) School building means a building designed primarily for the
conduct of educational instruction and includes the classrooms,
libraries, administrative offices, auditoriums, eating and sanitary
facilities, stadiums, gymnasiums and all other structures associated
with such buildings.
(30) Shower door and enclosure means an assembly of one or more
panels installed to form all or part of the wall and or door of a shower
stall.
(31) Sliding glass door (patio-type) means an assembly of one or more
panels, at least one of which is suitably movable for use as a means of
human ingress or egress. The term includes the nonmovable and movable
panels of such assembly.
(32) Storm door (or combination door) means a movable assembly, used
in tandem with an exterior door to protect the exterior door against
weather elements and/or to improve indoor climate control.
(33) Tempered glass means a piece of specially heat treated or
chemically treated glass that cannot be cut, drilled, ground, or
polished after treatment without fracture. When fractured at any point,
if highly tempered, the entire piece breaks into small particles.
(34) Wired glass means a single piece of annealed glass that contains
wire embedded in the body of the glass.
(35) Commission means the Consumer Product Safety Commission.
(36) Carved glass means a decoration glazing material in which a
permanent visible design has been produced by polishing, grinding, or
otherwise removing portions of the surface.
(37) Dalle glass or dalle de verre (including faceted glass) means a
decorative composite glazing material made of individual pieces of glass
which are imbedded in a cast matrix of concrete or epoxy.
(b) Definitions given in the Consumer Product Safety Act, and not
repeated in this section, are applicable to this part.
(c) Test methods and recommended practices published by the American
Society for Testing and Materials (ASTM) /1/ , and referred to in this
part 1201, are hereby incorporated by reference into this part.
(d) Test methods and recommended practices published by the American
National Standards Institute (ANSI) and referred to in this part 1201,
are hereby incorporated by reference into this part.
(Sec. 9(e), Pub. L. 92-573, 86 Stat. 1215; (15 U.S.C. 2058(e); (5
U.S.C. 553))
(42 FR 1441, Jan. 6, 1977, as amended at 42 FR 61860, Dec. 7, 1977;
43 FR 50422, Oct. 30, 1978; 43 FR 57247, Dec. 7, 1978; 45 FR 57389,
Aug. 28, 1980; 47 FR 27856, June 28, 1982)
/1/ ASTM test methods and recommended practices are approved by,
published by, and available for purchase from the American Society for
Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania
19103.
16 CFR 1201.3 General requirements.
(a) All glazing materials to which this standard applies, as
described in 1201.1, shall meet the impact and environmental test
requirements in 1201.4, and shall be labeled by manufacturers in
accordance with 1201.5.
(b) Glazing materials used in architectural products not listed in
1201.1(a) are not subject to this part. Any material not listed in the
definition of ''glazing material'' in 1201.2(a)(11) is not subject to
this part 1201.
(42 FR 1441, Jan. 6, 1977, as amended at 47 FR 27856, June 28, 1982)
16 CFR 1201.4 Test procedures.
(a) Types of tests -- (1) Impact test. Specimens shall be struck as
prescribed by paragraph (d)(1) of this section using equipment specified
by paragraphs (b) (1) and (2) of this section. Results of the impact
test are to be interpreted in accordance with paragraph (e)(1) of this
section. The test specimens shall be selected in accordance with
paragraphs (c) (1) and (2) of this section.
(2) Accelerated environmental durability tests. Each specimen of
glazing material subject to this part 1201 shall be tested in accordance
with the accelerated tests referenced in Table 1, ''Accelerated Tests''
of this section. However, tempered glass, wired glass, and annealed
glass are not required to be subjected to the accelerated environmental
durability tests.
(3) Separate testing is required for different glazing materials or
for differences within a type of glazing material that could noticeably
affect performance in the impact or environmental durability tests.
Such differences could include (but are not limited to): Nominal
thickness or thicknesses, method of manufacture (in appropriate cases),
types and amounts of additives, and composition of base materials and
adhesives.
(b) Test equipment -- (1) Impact test frame and subframe. (See
figures 1, 2, 3, and 4.) (i) The impact test frame shall be constructed
to minimize movement and deflection of its members during testing. For
this purpose, the structural framing and bracing members shall be steel
angles 3 inches by 5 inches by 1/4 inch (7.7 centimeters by 12.7
centimeters by 0.7 centimeters) or other sections and materials of equal
or greater rigidity.
(ii) The structural framing shall be welded or securely bolted at the
corners and braced by one of the alternate methods shown in figure 1 and
shall be securely bolted to the floor.
(iii) The inner subframe (see figures 2, 3, and 4) for securing the
test specimen on all four edges shall be reinforced at each corner. The
material is shown as wood in figure 3, but other materials may be used:
Provided, The test specimen will contact only the neoprene strips, which
shall have a shore A durometer hardness of 30 to 50.
(iv) Any reasonable means may be used to secure the subframe to the
test frame so long as the mounting is secure and the pressure on the
glazing in the subframe is not significantly altered when the subframe
is removed.
(v) Pressures on the test specimen shall be controlled, and the
compression of the neoprene strips shall be between 10 and 15 percent of
the original thickness of the neoprene. Securing methods such as wing
bolts and clamps shall be uniformly spaced no greater than 18 inches (45
centimeters) apart with no fewer than two on any edge. To limit the
compression of the neoprene and prevent distortion of the subframe,
metal shims of an appropriate thickness shall be used as shown in
figures 3 and 4.
(2) Impactor. (i) The impactor shall be a leather punching bag as
shown in figure 5 on this section. The bag shall be filled with No. 7
1/2 chilled lead shot to a total weight of completed assembly as shown
in figure 5, of 100 pounds 4 ounces (45.36 0.11 kilograms). The rubber
bladder shall be left in place and filled through a hole cut into the
upper part. After filling the rubber bladder, the top should be either
twisted around the threaded metal rod below the metal sleeve or pulled
over the metal sleeve and tied with a cord or leather thong. Note that
the hanging strap must be removed. The bag should be laced in the
normal manner. The exterior of the bag shall be completely covered by
1/2 inch (1.3 centimeters) wide glass filament reinforced pressure
sensitive tape. (Figure 5.)
(ii) Provisions shall be made for raising the impactor or to drop
heights of up to 48 inches (1.22 meters). At its release it shall have
been supported so that the rod going through its center was in line with
the steel support cable in a manner designed to minimize wobble or
oscillation after its release.
(3) Environmental durability test equipment -- (i) Boil test. Two
containers of water shall be provided with means to maintain one at 150
5 F (66 2 C) and the second at a slow boil at atmospheric pressure.
The containers shall be large enough to accept a rack holding three
specimens, each 12 inches (30 centimeters) square, of the glazing
material in a vertical position. The rack shall be positioned so that
each specimen is surrounded by at least one inch (2.5 centimeters) of
water.
(ii) Simulated weathering test. The equipment shall be a xenon arc
(water-cooled) Weather-Ometer employing a lamp rated at 6500 watts and
automatic light monitoring and control systems. Borosilicate inner and
outer filters shall be used. An appropriate water spray cycle shall be
used. Operating procedures shall be in accordance with ASTM G 26-70,
''Standard Recommended Practice for Operating Light -- and
Water-Exposure Apparatus (Xenon-Arc Type) for Exposure of Nonmetallic
Materials,'' April 13, 1970, as augmented for plastics by ASTM D
2565-70, ''Standard Recommended Practice for Operating Xenon-Arc Type
(Water-Cooled) Light- and Water-Exposure Apparatus for Exposure of
Plastics,'' Procedure B, June 12, 1970, which are incorporated by
reference. Copies of both documents are available from the American
Society for Testing and Materials, 1916 Race Street, Philadelphia,
Pennsylvania 19103. They are also available for inspection at the
Office of the Federal Register, Room 8401, 1100 L Street NW.,
Washington, D.C. 20408. This incorporation by reference was approved by
the Director of the Federal Register. These materials are incorporated
as they exist in the edition which has been approved by the Director of
the Federal Register and which has been filed with the Office of the
Federal Register.
(c) Test specimens -- (1) Condition of specimens. All specimens
shall be tested as supplied by the manufacturer, following removal of
any temporary protective masking materials. No tests shall be commenced
before the specimens have been stored in the laboratory for 4 hours.
Specimens shall be arranged to permit free circulation of air to all
surfaces during this period.
(2) Impact specimens. Impact specimens shall be of the largest size
manufactured up to a maximum width of 34 inches (86 centimeters) and a
maximum height of 76 inches (1.9 meters). Specimens shall be tested for
each nominal thickness offered by the manufacturer.
(3) Environmental durability specimens -- (i) Boil test. Three
pieces 12 inches by 12 inches (30 centimeters by 30 centimeters) with
nominal thickness identical to those submitted for the impact test shall
be used.
(ii) Weathering tests -- (A) (Reserved)
(B) Organic-coated glass -- (1) Orientation specified. Six
organic-coated glass specimens 2 inches by 6 inches (5 centimeters by 15
centimeters) by nominal thickness identical to those submitted for the
impact test shall be used.
(2) Orientation unspecified. Nine organic-coated glass specimens, 2
inches by 6 inches (5 centimeters by 15 centimeters) by nominal
thickness identical to those submitted for the impact test shall be used
except that when the glazing material is symmetric across its thickness,
six specimens may be used.
(iii) Indoor service. Four additional samples identical to those
submitted for the impact test.
(d) Test procedures -- (1) Impact test procedure. Each specimen
shall be struck within 2 inches (5 centimeters) of its geometric center
with the impactor dropped from a single height, designated according to
the product category. Specimens for Category I shall be impacted one
time from a drop height of 18 to 18 1/2 inches (458 to 470 millimeters).
Specimens for Category II shall be impacted one time from drop height
of 48 to 48 1/2 inches (1.22 to 1.23 meters). For all specimens that
are not symmetric from surface to surface, an equal number of specimens
shall be impacted on each side. For glazing materials which will be
evaluated by paragraph (e)(1)(iii) of this section, this impact test
procedure is not required.
(2) Environmental durability test procedures -- (i) Boil test. The
specimens shall be immersed in the 150 F (66 C) water for 3 minutes.
They shall then be quickly removed and immersed in the boiling water and
left there for 2 hours. The specimens shall then be removed, cooled,
and dried for examination as specified in paragraph (e)(2)(i) of this
section.
(ii) Accelerated weathering test. The specimens shall be retained in
the Weather-Ometer (paragraph (b)(3)(ii) of this section) for a period
of 1200 1 hours, and exposed to a radiant flux of 50 microwatts per
square centimeter (12 calories per second per square centimeter) while
monitoring at a wavelength of 340 nanometers.
(A) (Reserved)
(B) Organic-coated glass -- (1) Orientation specified. Three
specimens shall be mounted with the surface that is intended to be
oriented indoors faced away from the radiation source; the other three
specimens shall be kept in darkness at 73 F (23 C) for use as
controls. Materials so tested shall be labeled according to 1201.5(c)
of this part 1201.
(2) Orientation unspecified. Three specimens shall be mounted with
one of the surfaces toward the radiation; three specimens shall be
mounted with the other surface toward the radiation, and three specimens
shall be kept in darkness at 73 F (23 C) for use as controls. When
the glazing material is symmetric across its thickness, three specimens
shall be irradiated.
(e) Interpretation of results -- (1) Impact test. A glazing material
may be qualified for use in both Category I and Category II products if
it meets the impact requirements for Category II. A glazing material
shall be judged to pass the impact test if the specimen tested meets any
one of the criteria listed in paragraphs (e)(1) (i) through (v) of this
section:
(i) When breakage occurs (numerous cracks and fissures may occur) no
opening shall develop in the test sample through which a 3 inch (76
millimeter) diameter solid steel sphere, weighing 4 pounds 3 oz (1.81
0.08 kilograms), passes when placed (not dropped) in the opening and
permitted to remain for a period of one second. For this criterion, the
sample after being impacted shall be placed, while remaining in the
subframe, in a horizontal, impact side up position with a minimum of one
foot (31 centimeters) of free space immediately beneath the specimen.
(ii) When breakage occurs, what appear to be the 10 largest particles
shall be selected within 5 minutes subsequent to the test and shall
weight no more than the equivalent weight of 10 square inches (64 square
centimeters) of the original specimen. For the purposes of this section
particle means a portion of a broken test specimen which is determined
by identifying the smallest possible perimeter around all points in the
portion of the broken test specimen, always passing along cracks or
exposed surfaces.
(iii) (Reserved)
(iv) The specimen does not remain within the subframe and no breakage
is caused by the impactor.
(v) The specimen does not break.
(2) Environmental durability tests -- (i) Boil test. The glass
itself may crack in this test, but no bubbles or other defects shall
develop more than 1/2 inch (12 millimeters) from the outer edge of the
specimen or from any crack that may develop. Any specimen in which the
glass cracks to an extent that confuses the interpretation of the
results shall be discarded, and another specimen shall be tested in its
stead.
(ii) Accelerated weathering test -- (A) (Reserved)
(B) Organic-coated glass. Specimens shall be judged satisfactory if
they pass both the adhesion test and the tensile test described below in
paragraph (e)(ii)(B) (1) and (2) of this section.
(1) Adhesion test (organic-coated glass only) -- (i) Specimens. The
specimens for this test are the 2 inch by 6 inch (5 centimeters by 15
centimeters) weathered specimens and the control specimens. The
specimens shall be conditioned just prior to the performance of the
adhesion test at 73 6 F (23 3 C) and 50 5 percent relative
humidity for 24 hours.
(ii) Apparatus. The test apparatus shall consist of a
constant-rate-of-extension-type (CRE) tensile tester with the moving
crosshead set to move at 12 inches per minute (5 millimeters per second)
and load range such that the average pull force will fall at 30 to 50
percent of full scale. A cutter shall be used containing new razor
blades for cutting 1 inch (25 millimeter) wide specimens of the organic
coating on the glass. The razor blades shall be used one time only.
(iii) Procedure. Using the razor cutter, cut a straight, 1 inch (25
millimeter) wide strip of the organic coating in the lengthwise
direction of the glass specimen along and within 1/4 inch (6
millimeters) of one edge. Peel back, cleanly and evenly, about 2 inches
(50 millimeters) of one end of the 1 inch (25 millimeters) wide organic
strip. Attach a strip of reinforced pressure sensitive tape to the side
of the organic strip opposite the adhesive, to extend this free end to
about 8 inches (200 millimeters) in length. Place the end of the glass
panel from which the organic strip was removed in the lower clamp of the
tensile tester and and the free end of the tape in the upper clamp.
Peel the remainder of the organic strip from the glass mechanically and
obtain a record of the pull force value. Determine and record the
average pull force value for each specimen from the chart. Weathered
and control specimens are to be tested alternately.
(iv) Interpretation of results. The organic-coated glass adhesion
shall be judged satisfactory if the average pull force for the weathered
specimens is no less than 90 percent of the average pull force for the
control specimens.
(2) Tensile strength test (organic-coated glass only). (i) The
specimens for this test are the same 2 inch by 6 inch (5 centimeter by
15 centimeter) specimens used in the adhesion test.
(ii) Apparatus. The CRE tensile tester shall be used with the moving
crosshead set to move at 2 inches per minute (0.8 millimeter per second)
and the load range such that the specimens will break at 30 to 60% of
full scale. A cutter shall be used containing new razor blades for
cutting 1/2 inch (12 millimeter) wide specimens of the organic coating
on the glass. The razor blades shall be used one time only.
(iii) Procedure. Using the 1/2 inch (12 millimeter) razor cutter,
cut a straight strip of the organic coating in the lengthwise direction
of the glass specimen for the full 6 inch (15 centimeter) length.
Carefully peel this strip from the glass panel and test it for breaking
strength in the tensile tester.
(iv) Interpretation of results. The organic coating tensile strength
shall be judged satisfactory if the average tensile value of the
weathered specimens is no less than 75 percent of the average of the
control specimens. Weathered and control specimens are to be tested
alternately.
(Sec. 9(e) Pub. L. 92-573, 86 Stat. 1215; (15 U.S.C. 2058(e)); (5
U.S.C. 553); sec. 9(h), Consumer Product Safety Act, as amended by the
Consumer Product Safety Amendments of 1981 (Pub. L. 92-673, as amended
by Pub. L. 97-35, 15 U.S.C. 2057(h)) and 5 U.S.C. 553)
(42 FR 1441, Jan. 6, 1977, as amended at 43 FR 43708, Sept. 27, 1978;
43 FR 57594, Dec. 8, 1978; 45 FR 66007, Oct. 6, 1980; 46 FR 63250,
Dec. 31, 1981; 47 FR 27857, June 28, 1982)
16 CFR 1201.5 Certification and labeling requirements.
(a) Manufacturers and private labelers of glazing materials covered
by this part 1201 shall comply with the requirements of section 14 CPSA
(15 U.S.C. 2063) and regulations issued under section 14.
(b) (Reserved)
(c) Organic-coated glass that has been tested for environmental
exposure from one side only must bear a permanent label on the coating
stating ''GLAZE THIS SIDE IN'' and shall bear in the central 50 percent
of the surface area the following message in letters at least 1/4 inch
(7 millimeters) high: ''SEE PERMANENT LABEL FOR IMPORTANT MOUNTING
INSTRUCTION.'' The latter message shall be attached to either side of
the glazing by any means which shall ensure the message will remain in
place until installation.
(42 FR 1441, Jan. 6, 1977, as amended at 45 FR 66007, Oct. 6, 1980)
16 CFR 1201.6 Prohibited stockpiling.
(a) Stockpiling. For the purposes of this section, the term
stockpiling means manufacturing or importing the affected products
between the date of issuance of this part in the Federal Register and
the effective date set out below in 1201.7 at a rate significantly
greater (prescribed in paragraph (b) of this section) than the rate at
which the affected products were produced or imported during a base
period (prescribed in paragraph (c)(2) of this section).
(b) Prohibited acts. Manufacturers and importers of glazing
materials, fabricators, and manufacturers or importers of architectural
products specified in 1201.1(a) who incorporate glazing material shall
not incorporate glazing materials which do not comply with the
requirements of this part 1201 into such products between the date of
issuance of this part in the Federal Register and the effective date set
out in 1201.7 below at a rate greater than the rate of production or
importation during the base period (defined in paragraph (c)(2) of this
section) plus ten percent. For wired glass used in doors or other
assemblies subject to this part 1201 and intended to retard the passage
of fire, when such doors or other assemblies are required by a Federal,
State, local or municipal fire ordinance, the rate of production during
the base period may be increased annually by no more than 10 percent.
(c) Definitions. As used in this section:
(1) Rate of production (or importation) means the total number of
affected architectural products incorporating glazing material not
complying with this part manufactured or imported during a stated base
period.
(2) Base period means, at the option of the manufacturer or importer,
any period of 180 consecutive days prior to January 6, 1977, said period
to be selected within an interval which begins July 6, 1975.
16 CFR 1201.7 Effective date.
The effective date of this part 1201 shall be July 6, 1977 except:
(a) For glazing materials used in doors or other assemblies subject
to this part and intended to retard the passage of fire when such doors
or other assemblies are required by a Federal, State, or local or
municipal fire ordinance, the effective date shall be January 6, 1980.
(b) Architectural glazing materials manufactured before July 6, 1977
may be incorporated into architectural products listed in 1201.1(a)
through July 5, 1978 if:
(1) The architectural glazing material conforms to ANSI Standard
Z97.1-1972 or 1975, ''Performance Specifications and Methods of Test for
Safety Glazing Material Used in Buildings,'' 1972 or 1975 /2/ , which is
incorporated by reference, and
(2) The architectural glazing material is permanently labeled to
indicate it conforms to ANSI Z97.1-1972 or 1975 or is accompanied by a
certificate certifying conformance to ANSI Z97.1 1972 or 1975.
(c) Tempered glass manufactured before July 6, 1977 may be
incorporated into architectural products listed in 1201.1(a) through
July 5, 1981 if:
(1) The tempered glass conforms to ANSI Z97.1-1972 or 1975; and
(2) The tempered glass is permanently labeled to indicate it conforms
to ANSI Z97.1-1972 or 1975 or is accompanied by a certificate certifying
conformance to ANSI Z97.1-1972 or 1975.
(d) Laminated glass manufactured on or after July 6, 1977 through
December 3, 1977 may be incorporated into category II products as
defined in 1201.2(a)(4) through July 5, 1978 if:
(1) The laminated glass conforms to ANSI Z97.1-1972 or 1975; and
(2) The laminated glass is permanently labeled to indicate that it
conforms to ANSI Z97.1-1972 or 1975 or is accompanied by a certificate
in accordance with section 14(a) of the CPSA certifying conformance to
ANSI Z97.1-1972 or 1975.
(e) Architectural products manufactured between July 6, 1977 and July
5, 1978 incorporating glazing material in accordance with paragraph (b)
of this section, may be distributed and sold without restriction.
(f) Architectural products manufactured between July 6, 1977 and July
5, 1981 incorporating tempered glass in accordance with paragraph (c) of
this section, may be distributed and sold without restriction.
(g) Architectural products identified in 1201.2(a)(4) manufactured
between July 6, 1977 and July 5, 1978 incorporating laminated glass in
accordance with 1201.7(d) may be distributed and sold without
restriction.
(h) Patinaed glass manufactured between July 6, 1977 and January 8,
1979, in accordance with the Commission's stay order published in the
Federal Register of August 9, 1977 (42 FR 40188), may be sold without
restriction. Architectural products incorporating such glazing may also
be sold without restriction.
(43 FR 50422, Oct. 30, 1978, as amended at 43 FR 57247, Dec. 7, 1978;
46 FR 63250, Dec. 31, 1981)
/2/ Copies of ANSI Standard Z97.1-1972 or 1975 are available from the
American National Standards Institute, 1430 Broadway, New York, New York
10018. They are also available for inspection at the Office of the
Federal Register, Room 8401, 1100 L Street NW., Washington, D.C. 20408.
This incorporation by reference was approved by the Director of the
Federal Register. These materials are incorporated as they exist in the
editions which have been approved by the Director of the Federal
Register and which have been filed with the Office of the Federal
Register.
16 CFR 1201.7 Pt. 1201, Subpt. A, Fig. 1
Insert Illus. 1
16 CFR 1201.7 Pt. 1201, Subpt. A, Fig. 2
Insert Illus. 2
16 CFR 1201.7 Pt. 1201, Subpt. A, Fig. 4
Insert Illus. 3
16 CFR 1201.7 Pt. 1201, Subpt. A, Fig. 5
Insert Illus. 4
16 CFR 1201.7 Subpart B -- (Reserved)
16 CFR 1201.7 Subpart C -- Statements of Policy and Interpretation
16 CFR 1201.40 Interpretation concerning bathtub and shower doors and
enclosures.
(a) Purpose and background. The purpose of this section is to
clarify the scope of the terms ''bathtub doors and enclosures'' and
''shower door and enclosure'' as they are used in the Standard in
subpart A. The Standard lists the products that are subject to it (
1201.1(a)). This list includes bathtub doors and enclosures, a term
defined in the Standard to mean ''assemblies of panels and/or doors that
are installed on the lip of or immediately surrounding a bathtub'' (
1201.2(a)(2)). The list also includes shower doors and enclosures, a
term defined to mean ''(assemblies) of one or more panels installed to
form all or part of the wall and/or door of a shower stall'' (
1201.2(a)(30)). Since the Standard became effective on July 6, 1977, the
question has arisen whether the definitions of these products include
glazing materials in a window that is located over a bathtub or within a
shower stall and in the exterior wall of a building. The definitions of
the terms ''bathtub doors and enclosures'' and ''shower door and
enclosure'' contain no specific exemption for glazing materials in such
windows. If read literally, the Standard could include glazing
materials in an exterior wall window located above a bathtub because
that window could be interpreted as being ''immediately surrounding''
the bathtub. Similarly, the Standard, if read literally, could include
glazing materials in an exterior wall window because that window could
be interpreted as forming ''all or part of the wall * * * of a shower
stall.''
(b) Interpretation. When the Consumer Product Safety Commission
issued the Standard, it did not intend the standard to apply to any item
of glazing material in a window that is located over a bathtub or within
a shower stall and in the exterior wall of a building. The Commission
clarifies that the Standard does not apply to such items of glazing
material or such windows. This interpretation applies only to the term
''bathtub doors and enclosures'' and ''shower door and enclosure'' and
does not affect the applicability of the Standard to any other product.
(46 FR 45751, Sept. 15, 1981)
16 CFR 1201.40 PART 1202 -- SAFETY STANDARD FOR MATCHBOOKS
Sec.
1202.1 Scope and effective date.
1202.2 Findings.
1202.3 Definitions.
1202.4 Matchbook general requirements.
1202.5 Certification.
1202.6 Marking.
1202.7 Prohibited stockpiling.
Authority: Secs. 2, 3, 7, 9, 14, 16, and 19. Pub. L. 92-573, 86
Stat. 1212-17 (15 U.S.C. 2051, 2052, 2056, 2058, 2063, 2065, and 2068).
Source: 43 FR 53709, Nov. 17, 1978, unless otherwise noted.
16 CFR 1202.1 Scope and effective date.
(a) Scope. This part 1202, a consumer product safety standard,
prescribes the safety requirements, including labeling requirements, for
the matchbook. This part 1202 applies to all matchbooks manufactured in
or imported into the United States after its effective date.
(b) Effective date. The effective date shall be May 4, 1978.
16 CFR 1202.2 Findings. /1/
(a) Risk of injury. The Commission finds that unreasonable risks of
injury from accidents are associated with matchbooks. These
unreasonable risks, which this part 1202 is intended to reduce or
eliminate, are:
(1) Burn injuries, sustained by children and others, including
mentally or physically impaired persons, who play with or otherwise
improperly use bookmatches.
(2) Burn injuries sustained by persons who use bookmatches that
fragment or have delayed ignition.
(3) Eye injuries sustained by persons who use bookmatches that
fragment and cause particles from such matches to lodge in a person's
eye.
(4) Burn injuries sustained by persons who use bookmatches that, when
struck, ignite the remaining matches in the matchbook.
(5) Burn injuries sustained by persons from fires that have resulted
from unexpected ignition of bookmatches with no deliberate action by the
user.
(6) Burn injuries that have been sustained by persons from fires that
have been set by the afterglow of extinguished bookmatches.
(b) Products subject to this standard. (1) The products subject to
this standard are those kinds of manufactured ignition devices known as
matchbooks. The matchbook consists of a group of bookmatches joined
together and fastened within a cover. Although matchbooks are commonly
referred to as paper matches or paper-stem matches to distinguish them
from individual stick matches such as wooden stem matches packaged in
boxes, all matchbooks, regardless of the materials of manufacture of the
covers or of the bookmatches fastened within, are subject to this
standard.
(2) Matchbooks subject to this standard can be divided into two basic
categories: Resale matchbooks and special reproduction matchbooks.
Resale matchbooks can be subdivided into advertising and nonadvertising
matchbooks. Nonadvertising matchbooks are generally sold by large chain
stores, and constitute a small portion of the total resale matchbook
volume. Resale matchbooks with advertising are generally given away by
tobacco shops, drug stores, vending firms, and other mass distribution
outlets. Special reproduction matchbooks, characterized by their
distinctive and unique cover designs, are purchased and distributed for
promotional purposes by hotels, restaurants, financial institutions, and
other business enterprises, and are given free to users.
(3) The Commission estimates that resale matchbooks accounted for
almost 75 percent of the volume of matchbooks in 1975, or about 15
billion matchbooks, while special reproduction matchbooks accounted for
just over 25 percent, or about 5.5 billion matchbooks.
(c) Effects on utility, cost, and availability. (1) The Commission
finds that the public need for ignition devices which are small,
portable, and can be used to provide a source of fire, is substantial
since such products meet basic requirements for a source of fire to
ignite tobacco products, fires, candles, or other products, and are also
used for miscellaneous other purposes such as providing short term
illumination. Three types of products: Matchbooks, individual stick
matches, and lighters, predominantly supply the source of fire to meet
these requirements.
(i) The Commission estimates that in 1976 U.S. consumers required
approximately 645 billion such fire sources or ''lights,'' as they are
known, with almost 98 percent of this total required for tobacco
products. In the aggregate, the requirements by U.S. consumers for a
source of fire has been growing at an annual rate of approximately 3
percent. Matchbooks, the products regulated in this standard, are
estimated to have supplied about 65 percent of the source of lights,
lighters accounted for about 25 percent, and individual stick matches
(primarily wooden-stem type) accounted for the remainder.
(ii) The Commission also finds that matchbooks fulfill a need by
institutions and business enterprises for a particular form of specialty
advertising that is both relatively inexpensive and effective in
reaching a specified audience or population segment with the
advertiser's message. Various studies of matchbooks as a form of
advertising have found that readership can average 3 to 15 times higher
than average readership, listenership, and viewership figures from
competing media such as magazines, newspapers, radio, and television,
and that readership retention of the matchbook advertising message was
extremely high, about 45 percent. In addition, matchbooks tend to be
considerably less expensive than other forms of specialty advertising,
including those competing advertising items such as address books, key
cases, litterbags, and the like, which are themselves relatively
inexpensive.
(2) The Commission finds that the standard will have no adverse
effects on the utility that consumers derive from matchbooks. To the
extent that injuries and property damage associated with the use of
matchbooks is reduced or eliminated as a result of this standard, the
utility of matchbooks as a source of fire will be increased.
(3) The Commission estimates that manufacturing cost increases as a
direct or indirect effect of this standard will be modest for the
industry as a whole. Such increases will tend to be concentrated in
one-time costs to complete changeover to reverse friction, and in costs
to establish and implement testing programs and certification
procedures.
(i) Because some 80-90 percent of the matchbooks produced annually
are given free to consumers, there is not likely to be any direct cost
impact on the consumer as a result of the standard. Some proportion of
increased manufacturing costs will be passed on to the institutions and
business enterprises that purchase matchbooks for promotional purposes.
To the extent that increases in advertising and promotional costs may be
reflected in higher prices for goods and services sold by these
businesses, there may be indirect cost effects on consumers. If so,
such impacts would likely be small, if not imperceptible.
(ii) For the 12-20 percent of matchbooks that are purchases at retail
by consumers, some proportion of any manufacturing cost increases may be
passed on to the consumer. A resulting increase in retail prices for
such matchbooks will be small, no more than a few cents per box of 50
matchbooks.
(4) The Commission finds that the standard will not have impacts of
significant magnitude on the availability of matchbooks. Although some
institutions and business enterprises may reduce their matchbook
purchases or eliminate them in response to any increased price of
matchbooks, the large number of such purchasers, and the large volume
purchased annually, are such that curtailment of purchases by some
businesses is likely to have very small effects on the total number of
matchbooks available to U.S. consumers.
(d) Alternatives. (1) The Commission has considered other means of
achieving the objective of the standard throughout the course of its
development. Certain other more elaborate test requirements were
considered and were shown to have the potential for severe adverse
effects on competition and estimated to result in disruptions and
dislocations of manufacturing and commercial practices. Therefore,
having considered and rejected such other means of achieving the
objective of the standard, the Commission has found none that would
cause less disruption or dislocation of manufacturing and other
commercial practices, consistent with the public health and safety than
this standard.
(2) Because of competition from substitute products such as
inexpensive disposable butane lighters and because of other prevailing
business and economic conditions, the industry manufacturing matchbooks
has been in a state of contraction in recent years. This contraction,
marked by the exit of some firms and by plant closings or
consolidations, is likely to continue in the future; but this will
neither be the result of, nor significantly accelerated by, effects of
the standard. Currently, aggressive price and service competition
prevails among firms vying for customer accounts. It is anticipated
that this competition for sales may increase as an indirect effect of
the standard. To the extent that this occurs, there may be some
disruption or dislocation of manufacturing, sales, or distribution
practices in certain matchbook product categories and market segments.
Marginal firms and firms producing limited product categories or for
limited market segments may be affected to a greater degree than
multiproduct category or multimarket firms.
(e) Conclusion. The Commission finds that this standard, including
its effective date, is reasonably necessary to eliminate or reduce the
unreasonable risks of injury associated with matchbooks and that the
issuance of the standard is in the public interest.
/1/ The Commission's findings apply to the matchbook standard that it
published on May 4, 1977 (42 FR 22656-70). On Mar. 31, 1978, the U.S.
Court of Appeals for the First Circuit set aside portions of that
standard (D. D. Bean & Sons, Co. v. CPSC, 574 F. 2d 643). On Nov. 17,
1978, the Commission published a revised version of the standard which
reflects the court's decision. However, the findings have not been
revised and they are therefore not fully applicable to the revised
matchbook requirements. For example, the revised standard does not
address the unreasonable risk of injury of ''(b)urn injuries that have
been sustained by persons from fires that have been set by the afterglow
of extinguished bookmatches'' ( 1202.2(a)(6)) because the court set
aside the afterglow performance requirement.
16 CFR 1202.3 Definitions.
In addition to the definitions given in section 3 of the Consumer
Product Safety Act (15 U.S.C. 2052), the following definitions apply for
the purpose of this standard:
(a) Bookmatch means a single splint, with a matchhead attached, that
comes from a matchbook.
(b) Bridge means the matchhead material held in common by two or more
splints.
(c) Broken bridge means a bridge that has become separated.
(d) Caddy means a package of two or more matchbooks wrapped or boxed
together at a production plant.
(e) Comb means a piece of wood, paper, or other suitable material
that has been formed into splints, that remain joined at their base, and
that are designed to have matchheads attached to their tips.
(f) Cover means the paperboard or other suitable material that is
wrapped around and fastened to the comb(s).
(g) Friction means the dried chemical mixture on the matchbook cover
used to ignite the bookmatch.
(h) Match means a single splint with matchhead attached.
(i) Matchbook means one or more combs with matchheads attached and a
cover that is wrapped around and fastened to those combs.
(j) Matchhead means the dried chemical mixture on the end of a
splint.
(k) Splint means the support for the matchhead or that portion
normally held when using the bookmatch.
16 CFR 1202.4 Matchbook general requirements.
A matchbook shall meet the following general requirements:
(a) The friction shall be located on the outside back cover near the
bottom of the matchbook.
(b) The cover shall remain closed without external force.
(c) No friction material shall be located on the inside of the cover
where possible contact with the matchheads may occur during ordinary
use.
(d) There shall be no bridge(s) or broken bridge(s).
(e) No matchhead in the matchbook shall be split, chipped, cracked,
or crumbled.
(f) No portion of any matchhead shall be outside the matchbook cover
when the cover is closed.
(g) No part of a staple or other assembly device for securing the
cover and combs shall be within or touching the friction area.
(h) A staple used as an assembly device for securing the cover and
combs shall be fully clinched so that the ends are flattened or turned
into the cover.
16 CFR 1202.5 Certification.
Certification shall be in accordance with section 14(a) of the
Consumer Product Safety Act (15 U.S.C. 2063(a)). Under this provision,
manufacturers and private labelers of products subject to safety
standards must certify that their products conform to the standard,
based on either a test of each product or on a reasonable testing
program.
16 CFR 1202.6 Marking.
(a) The manufacturer's or private labeler's name and city or a symbol
which will identify the name and city shall appear on the matchbook. In
addition, every private labeler must label the matchbook with a code
which enables it to identify, if requested, the manufacturer of the
product.
(b) Boxes or cartons in which two or more caddies are shipped shall
be marked ''For safety, store in a cool, dry place.''
16 CFR 1202.7 Prohibited stockpiling.
Section 9(d)(2) of the Consumer Product Safety Act (15 U.S.C.
2058(d)(2)) authorizes the Commission to prohibit manufacturers and
importers from stockpiling a product subject to a consumer product
safety standard between its date of issuance and its effective date. A
manufacturer or importer is in violation of Section 9(d)(2) and of this
section if it fails to comply with the following:
(a) Definitions. (1) Base period means, at the option of the
manufacturer or importer concerned, any period of 365 consecutive days
beginning on or after January 1, 1973, and ending on or before December
31, 1975.
(2) Rate of production (or importation) means the total number of
matchbooks manufactured (or imported) during a stated time period. In
determining whether a matchbook was manufactured during a stated time
period, the date on which the cover and combs were assembled to form a
matchbook shall be used. In the event that a manufacturer currently
operates a matchbook manufacturing plant that it did not operate during
the base period, or that it did not operate for an entire base period,
that manufacturer shall use, as the rate of production during the base
period for that plant, either (i) the average daily rate of production
(including nonproduction days such as Sundays, holidays, and vacations)
for the part of the base period he did operate that plant, multiplied by
365 or (ii) the rate of production during the base period of his most
nearly similar matchbook manufacturing plant.
(b) Prohibited act. Manufacturers and importers of matchbooks, as
these products are defined in 1202.3(i), shall not manufacture or
import matchbooks that do not comply with the requirements of this part
between the date that this part is issued and the date that it becomes
effective at a rate that is greater than the rate of production or
importation during the base period plus 15 percent of that rate.
(c) Documentation. Manufacturers and importers shall maintain, for a
period of six (6) months after the effective date specified in
1202.1(b), appropriate documentation to be able to substantiate to the
Commission that they are in compliance with the provisions of this
section.
16 CFR 1202.7 PART 1204 -- SAFETY STANDARD FOR OMNIDIRECTIONAL CITIZENS BAND BASE STATION ANTENNAS
16 CFR 1202.7 Subpart A -- The Standard
Sec.
1204.1 Scope of the standard.
1204.2 Definitions.
1204.3 Requirements.
1204.4 Electric shock protection tests.
1204.5 Manufacturer's instructions.
1204.6 Findings.
16 CFR 1202.7 Subpart B -- Certification
1204.11 General.
1204.12 Definitions.
1204.13 Certificate of compliance.
1204.14 Certification tests.
1204.15 Qualification testing.
1204.16 Production testing.
1204.17 Records.
Figures 1 through 4
Authority: Secs. 2, 3, 5, 7, 9, 14, 16, 19, 25, Pub. L. 92-573, 86
Stat. 1207, 1208, 1211-17, 1220, as amended Pub. L. 95-319, sec. 1,
92 Stat. 386, Pub. L. 94-284, 90 Stat. 503; 15 U.S.C. 2051, 2052,
2054, 2056, 2058, 2063, 2065, 2068, 2074.
Source: 47 FR 36201, Aug. 19, 1982, unless otherwise noted.
16 CFR 1202.7 Subpart A -- The Standard
16 CFR 1204.1 Scope of the standard.
(a) General. This subpart A of part 1204 is a consumer product
safety standard which prescribes safety requirements for Citizens Band
omnidirectional base station antennas. The standard is intended to
reduce the risk of electrocution or serious injuries occurring if the
antenna contacts an electric power line while the antenna is being put
up or taken down. One way that this can be accomplished is to insulate
the antenna so that if it contacts the power line, there is less of a
likelihood that a harmful electric current will be transmitted from the
power line through the antenna and mast and ultimately through a person
holding the antenna mast. Another possible way to provide this
protection is to incorporate an insulating barrier between the antenna
and the mast or other supporting structure, so that a harmful electric
current will not pass from the antenna to a person in contact with the
mast. (If this alternative were chosen, the feed cable from the antenna
would have to be insulated or otherwise protected so that it would not
provide an electrical path to the mast or a person touching the cable.)
(b) Description of the standard -- (1) Performance tests. The
standard describes two performance tests to determine if the means
chosen by the manufacturer to protect against the shock hazard will
provide adequate protection.
(i) First, there is an Insulating Material Effectiveness Test (
1204.4(d) of this subpart) in which a high voltage electrode or test rod
is brought into contact with the antenna at any point within the
protection zone established by 1204.2(k) of this subpart to ensure that
the insulation can withstand the voltage for 5 minutes without
transmitting more than 5 milliamperes (mA) root-mean-square (rms) of
electric current.
(ii) The other test is an Antenna-Mast System Test ( 1204.4(e) of
this subpart) which is intended to determine whether the means provided
to protect against electrocution will withstand the stress imposed when
an antenna-mast system falls onto a power line. This test consists of
mounting the antenna to be tested on a specified mast and allowing the
assembled antenna and mast to fall onto a power line of 14,500 volts rms
phase to ground.
(2) Recommended materials. (i) Since a substantial portion of the
accidents addressed by this standard occur when the antenna is being
taken down after it has been installed in an outdoor environment for a
number of years, the materials selected to provide protection from shock
should be weather resistant.
(ii) Although other materials may also be suitable, materials meeting
the following criteria should be reasonably weather resistant:
(A) Material composition includes an ultraviolet stabilizer or
screen.
(B) Heat resistance of 212 F (100 C) without loss of elasticity
(ANSI/ASTM D 746-79).
(C) Moisture absorption of not more than 0.2 percent (ANSI/ASTM D
570-77).
(D) For heat shrinkable sleeving, temperature flexibility to ^40 F
(^40 C) with no cracks (Mil Spec. MIL-I-23053C, 20 May 1976).
(3) Warning: Section 1204.5 of this subpart requires a statement in
the instructions that the standard will not protect in every instance
against electrocution caused by contact with power lines. This is
because the standard is intended to provide protection for power line
voltages of up to 14,500 volts. Some power lines carry more voltage
than this. In addition, not all portions of the antenna are required to
be insulated, and the antenna's mast is not required to be insulated.
If the power line were to contact one of these uninsulated areas, an
electrocution could occur. Furthermore, when the antenna was
manufactured it may not in fact have complied with the standard, or the
insulation may have deteriorated or been damaged since the antenna was
manufactured. In addition, the insulation cannot withstand high
voltages indefinitely, and, after a period of time, the current may
penetrate the insulation. Therefore, even if a harmful amount of
current is not transmitted immediately, the user should not attempt to
remove an antenna that falls into electric power lines, since the
insulation could break down while the antenna is being removed. For
these reasons, persons handling these antennas should ensure that the
antennas are kept away from power lines so that the antenna cannot
contact the line while being transported, installed, or removed, even if
the antenna is dropped. The Commission recommends that antennas be
located at least twice the combined length of the antenna and mast from
the nearest power line.
(c) Scope. (1) Except as noted below, the standard applies to all
omnidirectional CB base station antennas that are consumer products and
are manufactured or imported on or after May 24, 1983.
(2) The Commission may extend the effective date of the standard for
as long as an additional 90 days for any firm which has 750 employees or
fewer and, is not a subsidiary or division of a firm having more than
750 employees, and which manufactures or imports products subject to the
standard, upon written application, addressed to the Associate Executive
Director for Compliance and Administrative litigation, Consumer Product
Safety Commission, Washington, D.C. 20207, received not later than
January 17, 1983. An application for extension of the effective date
shall:
(i) Identify the requesting firm as a manufacturer or importer of
products subject to the standard.
(ii) State the total number of employees of the firm, including all
employees of any subsidiary or division, and all employees of any firm
of which the requesting firm is a subsidiary or division.
(iii) Request extension of the effective date to a specific date not
later than May 27, 1983.
(iv) Explain why the requested extension of the effective date is
needed.
(v) Describe all activities undertaken by the requesting firm to
achieve compliance with the requirements of the standard.
(vi) State that the requesting firm will market complying products
after the extended effective date.
(3) The Associate Executive Director for Compliance and
Administrative Litigation will evaluate each request for extension of
the effective date. The following criteria will be used in determining
whether to grant an application for extension of the effective date:
(i) Does the application demonstrate that the requesting firm cannot
meet the general effective date,
(ii) Does the application demonstrate that the requesting firm has
made a good faith effort to achieve compliance with the requirements of
the standard by the general effective date.
(iii) Does the application demonstrate that the firm is likely to
produce or market complying products if the requested extension is
granted.
(4) The Associate Executive Director will advise each requesting firm
in writing if the requested extension is granted or denied. If the
Associate Executive Director for Compliance and Administrative
Litigation denies a request for extension of the effective date, the
firm may request the Commission to reconsider the denial.
(5) Section 3(a)(1) of the Consumer Product Safety Act (CPSA, 15
U.S.C. 2052(a)(1) defines the term consumer product as an ''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.'' The term does not include products that are not
customarily produced or distributed for sale to, or for the use or
consumption by, or enjoyment of, a consumer. A limited exception from
coverage of the standard is provided by section 18(a) of the CPSA, 15
U.S.C. 2067, for certain products intended for export and meeting the
requirements of section 18(b) of the CPSA.
(d) Prohibited acts. It is unlawful to manufacture for sale, offer
for sale, distribute in commerce, or import into the United States any
product subject to this standard that does not conform with the
standard.
(Sec. 9(h), Pub. L. 92-573, 86 Stat. 1207, as amended, Pub. L.
95-319, 92 Stat. 386, Pub. L. 95-631, 92 Stat. 3742, Pub. L. 96-373, 94
Stat. 1366, Pub. L. 97-35, 95 Stat. 703, 15 U.S.C. 2058(h))
(47 FR 36201, Aug. 19, 1982, as amended at 48 FR 29683, June 28,
1983)
16 CFR 1204.2 Definitions.
In addition to the definitions given in section 3 of the Consumer
Product Safety Act (15 U.S.C. 2052), the following definitions apply for
the purposes of this standard.
(a) Antenna system means a device for radiating and/or receiving
radio waves. Where they are present, the antenna system includes active
elements, ground plane elements, matching networks, element-connecting
hardware, mounting hardware, feed cable, and other functional or
non-functional elements.
(b) Antenna-mast system means the completed assembly of the antenna
system and the mast.
(c) Base station means a transmitter and/or receiver in a fixed
location.
(d) Citizens Band (CB) means the frequency band allocated for
citizen's band radio service.
(e) Current means the total rate at which electrical charge is
transported through the antenna-mast system in response to the applied
test voltage, including both capacitive and resistive components.
(f) Electrical breakdown means a failure of the insulating material
used with the antenna, such that in the Antenna-Mast System Test of
1204.4(e) of this subpart, the current flowing through the antenna-mast
system is sufficient to actuate the automatic internal cut-off of the
high voltage source or exceeds the current that can be measured by the
current monitoring device.
(g) Feed cable means the electrical cable that connects the antenna
system to the transmitter and/or receiver.
(h) Field joint means any joint between antenna system sections or
parts, or between the antenna system and the mast, that is not assembled
by the antenna manufacturer.
(i) Insulating material and insulation mean a material that has a
very small electric conductivity.
(j) Omnidirectional antenna means an antenna system designed or
intended primarily to exhibit approximately equal signal transmission or
reception capabilities in all horizontal directions simultaneously.
(k) Protection zone means that portion of an antenna system which can
contact the test rod during the Insulating Material Effectiveness Test
or can contact the power line during the Antenna-Mast System Test. This
zone consists of those elements of the antenna system extending from the
uppermost tip of an upright antenna downward to a point that is 12.0
inches (30.5 cm) above the top of the mast when the antenna system is
mounted according to the manufacturer's instructions.
(l) Voltage, phase to ground, means that voltage which exists between
a single phase of a three phase power system and ground.
16 CFR 1204.3 Requirements.
All omnidirectional CB base station antennas are required to comply
with the following requirements.
(a) Field joints. Parts or accessories intended to protect a field
joint so that it will meet any other requirement of this standard, and
that must be put into place by the person assembling the antenna system,
shall be integral with, or not readily removable from, at least one of
the antenna sections or parts involved in the joint or shall be
necessary in order to complete the joint.
(b) Feed cable. When compliance with the requirements of this
standard depends on the insulating or other properties of the feed
cable, at least 50 feet of the cable shall be supplied by the
manufacturer with the antenna system.
(c) Electrical protection. Antenna systems shall be manufactured so
that if all points within the protection zone of an antenna system were
tested by the Insulating Material Effectiveness Test of 1204.4(d) of
this subpart, and the Antenna-Mast System Test of 1204.4(e) of this
subpart, the current measured by the current monitoring device connected
to the mast would be no greater than 5.0 milliamperes rms and no
electrical breakdown of the antenna system's insulating material would
occur.
16 CFR 1204.4 Electric shock protection tests.
(a) Safety precautions. For tests involving high voltage, the
following recommended minimum safety precautions should be followed:
(1) At least one test operator and one test observer (preferably one
with cardiopulmonary resusitation (CPR) training) should be present at
every test.
(2) The test area (outdoors or indoors) should secure against
accidental intrusion by other persons during tests.
(3) Test areas located indoors should be ventilated to avoid buildup
of potentially hazardous concentrations of gaseous byproducts which may
result from the tests.
(4) Fire extinguishers should be easily accessible in case materials
on the test specimen ignite.
(5) ''High Voltage Test'' warning devices should be activated before
start of a test.
(6) Emergency phone numbers should be posted.
(b) Test conditions. (1) Specimens. All specimens shall be tested
as supplied by the manufacturer, following assembly in accordance with
the manufacturer's instructions except as provided in paragraph (e)(2)
of this section.
(2) Temperature. Ambient temperature shall be in the range from 32 F
(0 C) to 104 F (40 C)
(3) Relative humidity. Ambient relative humidity shall be in the
range of from 10 to 90 percent.
(4) Voltage. Voltage, phase to ground, of the power line or test
probe shall be 14.5 kilovolts rms, 60 hertz.
(5) Conditioning. Prior to testing, all specimens shall be exposed
for at least 4 hours to the ambient test area environment.
(c) Test equipment. (1) High voltage source capable of delivering at
least 15 mA rms at 14.5 kV rms, 60 Hz. The source should have an
automatic internal cut-off actuated by a preset current level.
(2) Instrumentation to measure the rms voltage applied to the antenna
system.
(3) Current monitoring device to indicate hazardous components of the
total rms current flowing to ground through the mast. One configuration
of the circuitry for the current monitoring device (shown in Figure 1)
consists of three parallel branches as follows. One branch consists of
a resistor in series with a true-rms milliammeter with a maximum error
of 5% of the reading in the frequency range of 50Hz to 10MHz (the total
of the resistor and the internal resistance of the milliammeter is to be
1000 ohms). A parallel branch consists of a 1000 ohm resistor in series
with a 0.08 microfarad capacitor. Another parallel branch should
consist of a spark gap rated at 50 to 100 volts as a meter protection
device. A different current monitoring device may be used if the
measured value of the rms current corresponds to that indicated by the
configuration described above.
(4) For the Insulating Material Effectiveness Test:
(i) High voltage electrode or test rod consisting of 1/4 in. (6.4
mm) diameter aluminum rod.
(ii) Support jig, structure, or hanger made of insulating material
which is capable of holding antenna system test specimens electrically
isolated from all surrounding structures or ground.
(5) For the Antenna-Mast System Test, a high voltage test facility,
as shown in Figures 2 and 3, which includes a single power line spanning
between two poles 95 to 105 feet (29 to 32 meters) apart, a tensioning
device to adjust the cable sag to from 9 to 12 inches (23 to 30 cm), and
a pivot fixture (Figure 2), for holding the base of an antenna-mast
system, which can be moved horizontally to adjust the distance to the
cable. The cable consists of 1/4 in. diameter 7 by 19 galvanized steel
aircraft cable. The low point of the cable shall be between 28 and 29
feet (8.5 to 8.8 meters) above a horizontal plane through the pivot axis
of the pivot fixture.
(d) Insulating Material Effectiveness Test procedure. (1) A short
piece of typical tubular mast shall be attached to the antenna system to
be tested, in accordance with mounting instructions provided with the
antenna system by the manufacturer.
(2) If a feed cable is provided with the antenna system, it shall be
used in the test. If no cable is provided with the antenna system, a
RG-213 cable shall be used in the test (Mil Spec. MIL-C-17/75C, 15 March
1977). In either case, the cable shall be connected to the antenna
system, installed parallel to the mast, and secured by taping or similar
means at one point on the mast. The side of the bottom end of the cable
also shall be secured to the mast.
(3) With the antenna system properly supported and isolated from
ground and with the current monitoring device connected to the mast, the
test rod shall be connected to the high voltage source and brought into
contact with the antenna system at any point within the protection zone
(see 1204.2(k) of this subpart). For each contact point, the voltage
shall be increased from 0 to 14.5 kV at a rate of at least 2 kV per
second and held at 14.5 kV for 5.0 minutes. Current shall be monitored
and the maximum recorded.
(e) Antenna-Mast System Test procedure. (1) The antenna system to be
tested shall be attached to a mast in accordance with mounting
instructions provided by the manufacturer. The mast shall be assembled
of commercially available 1 1/4 inch outside diameter 16 gauge tubular
steel sections, commonly sold for antenna-mast installations in 5 and 10
feet lengths. The slip joints between the mast sections shall be
secured (as with screws) to prohibit rotational or longitudinal movement
at the joint. The length of the mast shall be such that when it is
mounted in the pivot fixture of the high voltage test facility, the
distance from the pivot to the uppermost point on the antenna system is
41.75 to 42.25 feet (12.7 to 12.9 meters).
(2) If a feed cable is provided with the antenna system, it shall be
used in the test. If no cable is provided with the antenna system, a
RG-213 feed cable shall be used in the test for specification of an
RG-213 cable see (Mil. Spec. MIL-C-17/75C, 15 March 1977). In either
case, the cable shall be connected to the antenna system, installed
parallel to the mast, and secured by taping or similar means every two
feet along the length of the mast. The side of the bottom end of the
cable also shall be secured to the mast.
(3) The antenna-mast system shall be mounted in the pivot fixture.
The pivot fixture shall be adjusted so that the point of impact between
the antenna and the power line takes place at any desired point within
the antenna's protection zone. The antenna-mast system shall then be
erected to a position of up to 5 from the vertical, leaning toward the
simulated power line (see Figure 4). The antenna-mast system shall then
be released and allowed to fall against the power line. The test may be
performed with different test positions such that the antenna system
flexes after impact and slides off the power line and or so that it
remains in contact with the power line for 5.0 minutes. Current flow
from the antenna-mast system to ground shall be monitored and recorded
for each test.
(f) Interpretation of Results. An antenna shall pass the Insulating
Material Effectiveness Test or the Antenna-Mast System Test if no
electrical breakdown occurs and if no current reading exceeds 5 mA rms.
16 CFR 1204.5 Manufacturer's instructions.
(a) For all antennas covered under this part 1204, the following
statement shall be included in the manufacturer's instructions, in
addition to the material required by 16 CFR 1402.4(a)(1)(ii):
Under some conditions, this antenna may not prevent electrocution.
Users should keep antenna away from any overhead wires. If antenna
contacts a power line, any initial protection could fail at any time.
IF ANTENNA NEARS ANY OVERHEAD WIRES, IMMEDIATELY LET GO, STAY AWAY, AND
CALL UTILITY COMPANY.
(b) This warning statement shall be in a separate paragraph
immediately following the warning statement required by 16 CFR
1402.4(a)(1)(ii)(A).
(c) This warning statement shall be legible and conspicuous and shall
be in type that is at least as large as the largest type used on the
remainder of the page, with the exception of the logo and any
identification of the manufacturer, brand, model, or similar
designations, and that is preferably no smaller than 10 point type.
16 CFR 1204.6 Findings.
As required by section 9 (b) and (c) of the Consumer Product Safety
Act, 15 U.S.C. 2058 (b) and (c), the Commission makes the following
findings:
(a) The degree and nature of the risk of injury the rule is designed
to reduce. (1) The rule addresses the risk of injury or death caused by
electric shock occuring when the antenna comes into contact with
electrical power lines while the antenna is being put up or taken down.
(2) About 175 fatalities were estimated to be associated with
omnidirectional CB antennas in 1976. The estimated number of fatalities
declined to about 125 in 1977 and to about 55 in 1978. Since then, the
number of fatalities appears to have leveled off at about 45-50 each
year. In addition to the 45-50 deaths, it is estimated that a somewhat
greater number of injuries occur annually and that about half of them
are serious enough to require surgery, amputation, skin grafts, etc. It
is common for multiple deaths or injuries to occur in a single accident.
(3) The Commission's staff has estimated that since 1979 about 20
percent of the accidents involved antennas less than a year old,
resulting in about 8 deaths in 1980.
(4) Since a substantial portion of the accidents associated with
these antennas occur when the antenna is being taken down after it has
been installed in an outdoor environment for a number of years, the
standard recommends that materials selected to provide protection from
shock be weather resistant.
(5) The standard specifies that protection shall be provided against
voltages of 14,500 volts phase-to-ground. Voltages of this level or
less are involved in 98 percent of the accidents and 95 percent of the
total circuit mileage of distribution circuits.
(b) The approximate number of consumer products, or types or classes
thereof, subject to the rule.
(1) The standard applies to omnidirectional CB base station antennas.
The Commission estimates that there were approximately 5 million
omnidirectional base station antennas in use in 1981, and at that time
as many as 75,000 of these antennas were expected to be sold each year
for the next several years.
(c)(1) The need of the public for the consumer products subject to
the rule. Omnidirectional CB base station antennas are used in
non-mobile applications to obtain essentially uniform receiving and
transmitting capabilities in all directions simultaneously. Although
directional antennas can obtain greater reception and transmitting
capabilities in one or more directions than can omnidirectionals,
directionals are generally more expensive and must be oriented so that
they point in the desired direction. Therefore, omnidirectional
antennas are preferred by many base station operators, and they can also
be used in conjunction with a directional antenna to locate another
station to which the directional antenna can then be oriented.
(2) CB stations are used by individuals as a communications device
for both practical and personal enjoyment purposes. Some operators
volunteer to monitor the commonly used and/or emergency channels for
distress calls and summon aid where appropriate, relay messages, and aid
local authorities and motorists in monitoring traffic conditions and
accidents.
(3) Although operators can fabricate their own antennas, and antennas
made for other purposes can be adapted for CB use, for most operators
there is no adequate substitute for the commercial CB base station
antennas subject to this rule.
(d) The probable effect of the rule upon the utility, cost, and
availability of the product -- (1) Utility. Tests performed for the
Commission have shown that an external layer of insulation that will
enable the antenna to comply with this standard can be provided that
will have no significant effect on the performance of the antenna that
cannot be compensated for by minor changes in the antenna. It is also
likely that an insulated antenna's useful life would be somewhat longer
than that of an uninsulated antenna. To the extent that manufacturers
minimize the number of antenna elements in the protection zone, antennas
should become less complex and bulky, and installation may also be
eased. This may tend to make installation and removal of the antenna
somewhat safer as well. If the isolation technique were used to comply
with the standard, there should be no effect on the performance of the
antenna.
(2) Cost. For the simpler designs of omnidirectional CB base station
antennas, the manufacturers' production costs will be increased by
approximately 20 percent, or $4 per antenna. For a few models, the
production cost increase could be as much as 50 percent. Some models of
antennas for which cost increases could be expected to be substantially
greater will likely be discontinued. Some manufacturers already make
antennas that either comply with the standard or can be made to do so
with changes that involve no significant cost increases. The average
rise in retail prices due to the standard is expected to be from 20
percent, or about $10 per antenna.
(3) Availability. The 30 or more different models of omnidirectional
CB base station antennas available to consumers in 1981 are expected to
be reduced in number substantially, perhaps by as much as half, after
product line changes are made to meet the standard. The difference
among some of the models likely to be discontinued are small (often
relating only to primarily cosmetic features that provide a certain
degree of product differentiation but do not significantly affect
performance). Changes in product lines may be discernible to some
consumers, however, since different brands and models of antennas will
tend to look more alike (i.e., without upper radials, ''hats'' or other
physical appendages previously incorporated). The availability of
replacement components for older antennas may also be restricted
somewhat if new, complying components are not compatible with some older
models. Production of complying antennas is expected to be sufficient
to satisfy demand; no overall ''shortage'' of antennas is anticipated
as a result of the standard. Sales will, instead, shift from relatively
low levels for each of many models to relatively higher levels for fewer
models.
(e) 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. (1) The standard may have significant adverse
effects on competition among antenna producers. The additional costs
associated with the standard, coupled with the recent history of
decreasing sales, may cause a number of manufacturers, including one or
two of the major producers, to abandon production of omnidirectional CB
base station antennas. The standard is likely to impact most heavily on
smaller manufacturers, which may have smaller and fewer capital sources
from which to draw funds for product design and production changes and
for product testing.
(2) Concentration of sales among the two largest manufacturers will
probably increase as a result of the standard. However, the shrinking
size of the market itself may prompt some major firms to drop this
product line. Companies currently making antennas that substantially
comply with the standard will probably gain a significant short-run
competitive advantage over other producers whose products do not already
comply with the standard's basic provisions.
(3) Compliance with the standard may be relatively more burdensome
for the smaller firms in the producing industry. Several small firms
which entered the market in the early- and mid-1970's have already left
the market due to the overall decrease in demand for the product. Those
that remain account for less than 10 percent of annual unit shipments.
None of these small firms is expected to go out of business as a result
of issuance of the standard because most also produce directional CB and
other base and mobile communications antennas and equipment. However,
the Commission anticipates that most of these small firms will probably
discontinue omnidirectional CB base station antenna production, at least
temporarily, until a supplier of complying components is found, or until
a decision can be made about long-term prospects.
(4) In order to minimize the adverse effects on competition and
manufacturing and other commercial practices, the standard is a
performance standard defined in terms of the factors the Commission
determined to be significant for the protection of consumers. Thus,
manufacturers have a maximum degree of flexibility in how to meet the
standard, since the standard does not specify how the protection
performance is to be obtained.
(5) The Commission also considered alternative technical approaches
to reducing or eliminating unreasonable risks of injury associated with
omnidirectional CB base station antennas, including incorporation of
provisions in the standard which would allow the antenna to meet its
requirements by grounding. The Commission rejected this approach
because of the absence of any practical means for a consumer to ensure
that the ground system will be adequate to dissipate the large amounts
of power involved in a powerline contact accident. Additionally the
Commission considered the possibility that the standard might require CB
base station antennas to incorporate a device to sense the
electromagnetic field of a powerline. The Commission rejected this
alternative because of the cost involved in such an approach, and
because consumers could install an antenna even though the presence of a
powerline is indicated.
(6) The Commission considered making the provisions of the standard
less stringent and eliminating requirements applicable to the antenna's
feed cable, in order to lessen the adverse impact of the standard on
competition and manufacturing practices. However, it was determined
that such changes to the standard would reduce the effectiveness of the
standard and thus were not consistent with the public health and safety.
Furthermore, these changes would not significantly reduce the adverse
effects on competition and manufacturing practices. The elimination of
requirements applicable to the feed cable would, with known technology,
result in almost completely negating the benefits of the standard and is
thus not consistent with the public health and safety.
(7) The Commission also considered the possibility of issuing the
requirements of the standard as a voluntary test method rather than as a
mandatory standard. The Commission estimated that if the provisions of
the standard were issued as a voluntary test method, the total cost of
such a voluntary test method to consumers during the first year after
issuance would be about 30 per cent of the total cost to consumers
expected to result from promulgation of a mandatory standard. However,
the Commission estimated that a voluntary test method would prevent only
about 25 per cent of the deaths and injuries which may be avoided by
issuance of a mandatory standard. The Commission declined to issue the
provisions of the standard as a voluntary test method because it
concluded that such an approach would not only prevent fewer deaths and
injuries each year than a mandatory standard, but would also have a less
favorable ratio of benefits to costs than a mandatory standard.
(8) The Commission also considered the possibility of undertaking a
joint effort with a trade association to inform all users of CB antennas
of the dangers which can result from contact with overhead powerlines as
an alternative to issuance of a mandatory standard. The Commission
observed that this alternative would have a relatively small economic
impact on the industry. The Commission also observed that extensive
efforts to promote public awareness of the dangers of contacting
overhead powerlines have been conducted in the past by the Commission,
antenna manufacturers, and utility companies, and that electrocutions
and serious injuries continue to occur during installation and removal
of CB base station antennas. For this reason, the Commission concluded
that a public information campaign would prevent fewer deaths and
injuries than issuance of a mandatory standard, and rejected such a
campaign as an alternative to issuance of the standard.
(f) The rule, including its effective date, is reasonably necessary
to eliminate or reduce an unreasonable risk of injury associated with
the product. (1) The provisions of the standard constitute a related
system of performance parameters which are needed as a group to ensure
that the performance of new antennas will provide the degree of safety
which the Commission has determined is reasonably necessary. Minor
changes in the value of each parameter would not significantly reduce
the costs of the standard, although in some cases they could
substantially reduce the standard's effectiveness.
(2) The Commission estimates that increased retail prices due to the
standard will cost consumers up to about $750,000 per year. The
Commission also estimates that the standard will prevent approximately 8
deaths and 8 or more injuries during the first year the standard is in
effect. Thus, if the standard saves 8 lives per year, the cost of the
standard will be about $94,000 for each life saved. /1/
(3) As to the benefits from reduced injuries, the Commission
estimates that, if 8 injuries are prevented during the first year the
standard is in effect, the actual costs saved by the accidents prevented
by the standard will amount to up to $21,000 to $37,000, exclusive of
pain, suffering, or disability. If a monetary factor for these less
quantifiable components is included, annual injury reduction benefits
could be about $288,000 to $1,680,000.
(4) The effective date of the standard was selected after balancing
the increased costs to manufacturers and consumers that are associated
with shorter effective dates against the benefits to the public that
would be caused by having the effective date as soon as possible.
(5) The requirement for the cautionary statement in the instructions
for the antenna is intended to ensure the effectiveness of the standard
by discouraging any relaxation of present safety practices involving
staying away from power lines. Since instructions for this product are
already required by 16 CFR part 1402, the additional statement should
have little or no adverse economic impact.
(6) After considering the costs and benefits associated with the
standard, the Commission concludes that the standard, including its
effective date, is reasonably necessary to eliminate or reduce an
unreasonable risk of electric shock injury associated with
omnidirectional CB base station antennas and that promulgation of the
rule is in the public interest.
/1/ The Commission believes that, in the area of consumer product
safety, it is not generally necessary or appropriate to assign a
specific monetary value to human life. However, several studies on the
costs of injuries and deaths have been conducted in recent years.
Value-of-life estimates based on discounted future earnings and the
willingness-to-pay approach range from about $200,000 to about $3
million. The estimated costs of the CB antenna standard per life saved
fall below or within the range suggested by these value-of-life
estimating methodologies.
16 CFR 1204.6 Subpart B -- Certification
16 CFR 1204.11 General.
Section 14(a) of the Consumer Product Safety Act (''the act''), 15
U.S.C. 2063(a), requires each manufacturer, private labeler, or importer
of a product which is subject to a Consumer Product Safety Standard and
which is distributed in commerce to issue a certificate of compliance
with the applicable standard and to base that certificate upon a test of
each item or upon a reasonable testing program. The purpose of this
subpart B of part 1204 is to establish requirements that manufacturers
and importers must follow to certify that their products comply with the
Safety Standard for Omnidirectional CB base Station Antennas (16 CFR
part 1204, subpart A). Private labelers of CB antennas subject to the
standard need not issue a certificate of compliance if they have been
furnished a certificate issued by the manufacturer or importer of the
antennas. This subpart B describes the minimum features of a reasonable
testing program and includes requirements for recordkeeping.
16 CFR 1204.12 Definitions.
In addition to the definitions set forth in section 3 of the act, and
in 1204.2 of the standard, the following definitions shall apply to
this subpart B of part 1204:
(a) Private labeler means an owner of a brand or trademark which is
used on the label of a CB antenna subject to the standard, which bears a
private label as defined in section 3(a)(7) of the act, 15 U.S.C.
2052(a)(7).
(b) Production interval means a period of time determined by the
manufacturer or importer that is appropriate for conducting a test on
one or more samples of the CB antennas produced during that period in
order to provide a high degree of assurance that all of the products
manufactured during that period meet the requirements of the standard.
An appropriate production interval may vary depending on the
construction of the antenna, the likelihood of variations in the
production process, and the severity of the test that is used. The time
period for a production interval shall be short enough to provide a high
degree of assurance that if the samples selected for testing pass the
test, all other CB antennas produced during the period will meet the
standard.
16 CFR 1204.13 Certificate of compliance.
(a) The manufacturer or importer of any product subject to the
standard must issue the certificate of compliance required by section
14(a) of the act. If the testing required by this subpart B of part
1204 has been performed by or for the foreign manufacturer of a product,
the importer may rely on such tests to support the certificate of
compliance if the importer is a resident of the United States or has a
resident agent in the U.S., and the records are maintained in the U.S.
The importer is responsible for ensuring that the foreign manufacturer's
records show that all testing used to support the certificate of
compliance has been performed properly with passing or acceptable
results and that the records provide a reasonable assurance that all
antennas imported comply with the standard.
(b) A certificate of compliance must accompany each product or
otherwise be furnished to any distributor or retailer to whom the
product is delivered by the manufacturer or importer.
(c) The certificate shall state:
(1) That the product ''complies with all applicable consumer product
safety standards (16 CFR part 1204)'',
(2) The name and address of the manufacturer or importer issuing the
certificate, and
(3) The date of manufacture and, if different from the address in
paragraph (c)(2) of this section, the place of manufacture.
16 CFR 1204.14 Certification tests.
(a) General. As explained in 1204.11 of this subpart, certificates
of compliance required by section 14(a) of the act must be based on
either a test of each item or on a reasonable testing program.
(b) Tests of each item. If the certificate is based on tests of each
item, the tests may be either those prescribed by the standard or any
other test procedure that will determine that the item tested will
comply with the standard.
(c) Reasonable testing programs -- (1) Requirements. (i) A
reasonable testing program for a particular model of CB antennas is one
which demonstrates with a high degree of assurance that all the antennas
of that model will meet all requirements of the standard. Manufacturers
and importers shall determine the types and frequency of testing for
their own reasonable testing programs. A reasonable testing program
which does not test each item produced should be sufficiently stringent
that any variations in production, etc., over the production interval
would not cause any antenna to fail if tested according to the
requirements of the standard.
(ii) All reasonable testing programs shall include qualification
tests, which must be performed on one or more samples of the CB antennas
representative of each model produced, or to be produced, to demonstrate
that the product is capable of passing the tests prescribed by the
standard and shall also include production tests, which must be
performed during appropriate production intervals as long as the product
is being manufactured.
(iii) Corrective action and/or additional testing must be performed
whenever certification tests of samples of the product give results that
do not provide a high degree of assurance that all antennas manufactured
during the applicable production interval will pass the tests of the
standard.
(2) Testing by third parties. At the option of the manufacturer or
importer, some or all of the testing of each item or of the reasonable
testing program may be performed by a commercial testing laboratory or
other third party. However, the manufacturer or importer is responsible
for ensuring that all certification testing has been properly performed
with passing or acceptable results and for maintaining all records of
such tests in accordance with 1204.17 of this subpart.
16 CFR 1204.15 Qualification testing.
(a) Testing. Before any manufacturer or importer of CB antennas
which are subject to the standard distributes them in commerce, one or
more samples of each model shall be tested to determine that all such
antennas manufactured after the effective date of the standard will
comply with the standard. The type of tests and the manner of selecting
samples shall be determined by the manufacturer or importer to provide a
reasonable assurance that all antennas subject to the standard will
comply with the standard. Any or all of the qualification testing
required by this paragraph may be performed before the effective date of
the standard.
(b) Product modifications. If any changes are made to a product,
after initial qualification testing, that could affect the ability of
the product to meet the requirements of the standard, additional
qualification tests must be made before the changed antennas are
manufactured for sale or distributed in commerce.
16 CFR 1204.16 Production testing.
(a) General. Manufacturers and importers shall test antennas subject
to the standard periodically as they are manufactured, to demonstrate
that the antennas meet the requirements of the standard.
(b) Types and frequency of testing. Manufacturers and importers
shall determine the types of tests for production testing. Each
production test shall be conducted at a production interval short enough
to provide a high degree of assurance that, if the samples selected for
testing pass the production tests, all other antennas produced during
the interval will meet the standard.
(c) Test failure. (1) Sale of antennas. If any test yields results
which do not indicate that all antennas manufactured during the
production interval will meet the standard, production must cease and
the faulty manufacturing process or design must be corrected. In
addition, products manufactured before the appropriate corrective action
is taken may not be distributed in commerce unless they meet the
standard. It may be necessary to modify the antennas or perform
additional tests to ensure that only complying antennas are distributed
in commerce. Antennas which are subject to the standard but do not
comply with the requirements of the standard cannot be offered for sale,
distributed in commerce, or imported in the United States.
(2) Corrective actions. When any production test fails to provide a
high degree of assurance that all antennas comply with the standard,
corrective action must be taken. Corrective action may include changes
in the manufacturing and/or assembly process, equipment adjustment,
repair or replacement, or other action deemed appropriate by the
manufacturer or importer to achieve passing production test results.
16 CFR 1204.17 Records.
Each manufacturer or importer of CB antennas subject to the standard
shall maintain the following records, which shall be maintained for 3
years after the creation of the records and shall be available to any
designated officer or employee of the Commission in accordance with
section 16(b) of the Consumer Product Safety Act (15 U.S.C. 2065(b)):
(a) Records of the qualification and production testing required by
this subpart B, including a description of the types of tests conducted,
the dates and results of the tests, and the production interval selected
for the performance of the production testing.
(b) Records of all corrective actions taken, including the specific
actions taken to improve the design or manufacture and to correct any
noncomplying antenna produced during the period, the date the action was
taken, and the test failure which necessitated the action.
(Information collection requirements contained in paragraph (a) were
approved by the Office of Management and Budget under control number
3041-0006)
Insert illus 5A & 5B
Insert illustrations 6A & 6B
(47 FR 36201, Aug. 19, 1982; 48 FR 57125, Dec. 28, 1983)
16 CFR 1204.17 PART 1205 -- SAFETY STANDARD FOR WALK-BEHIND POWER LAWN MOWERS
16 CFR 1204.17 Subpart A -- The Standard
Sec.
1205.1 Scope of the standard.
1205.2 Effective date.
1205.3 Definitions.
1205.4 Walk-behind rotary power mower protective shields.
1205.5 Walk-behind rotary power mower controls.
1205.6 Warning labels for reel-type and rotary power mowers.
1205.7 Prohibited stockpiling.
1205.8 Findings.
16 CFR 1204.17 Subpart B -- Certification
1205.30 Purpose, scope, and application.
1205.31 Effective date.
1205.32 Definitions.
1205.33 Certification testing.
1205.34 Recordkeeping requirements.
1205.35 Product certification and labeling by manufacturers.
1205.36 Product certification and labeling by importers.
Authority: Secs. 2, 3, 7, 9, 14, 19, Pub. L. 92-573, 86 Stat.
1207, 1208, 1212-1217, 1220, 1224; 15 U.S.C. 2051, 2052, 2056, 2058,
2063, 2068; sec. 1212, Pub. L. 97-35, 95 Stat. 357.
Source: 44 FR 10024, Feb. 15, 1979, unless otherwise noted.
16 CFR 1204.17 Subpart A -- The Standard
16 CFR 1205.1 Scope of the standard.
(a) General. This subpart A of part 1205 is a consumer product
safety standard which prescribes safety requirements for certain
walk-behind power lawn mowers, including labeling and performance
requirements. The performance requirements of the standard apply to
rotary mowers. The labeling requirements apply to both rotary and
reel-type mowers. The standard is intended to reduce the risk of injury
to consumers caused by contact, primarily of the foot and hand, with the
rotating blade of the mower. A detailed discussion of the risk of
injury and of the anticipated costs, benefits, and other factors
associated with the standard is contained in 1205.8 Findings.
(b) Scope. (1) Except as provided in paragraph (c) of this section,
all walk-behind rotary and reel-type power lawn mowers manufactured or
imported on or after the effective date of the standard are subject to
the requirements of this standard if they are ''consumer products''.
''Walk behind power lawn mower'' is defined as a grass cutting machine
with a minimum cutting width of 12 in (305 mm) that employs an engine or
motor as a power source. Section 3(a)(1) of the Consumer Product Safety
Act (''CPSA''), 15 U.S.C. 2052(a)(1), defines the term consumer product
as an ''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.'' The term does not include products that are
not customarily produced or distributed for sale to, or for the use or
consumption by, or enjoyment of, a consumer.
(2) It is unlawful to manufacture for sale, offer for sale,
distribute in commerce, or import into the United States any product
subject to this standard that is not in conformity with the standard.
The Commission is not applying the standard to rental transactions or to
the ultimate sale of used rental mowers by rental firms.
(c) Exclusions -- (1) General. Mowers that have all three of the
following characteristics are not covered by the standard:
(i) A cutting width of 30 in (762 mm) or greater,
(ii) A weight of 200 lb (90.7 kg) or more, and
(iii) For engine-powered mowers, an engine of 8 horsepower (6 kw) or
more.
(2) Reel-type mowers. Reel-type power lawn mowers need not meet the
performance requirements of the standard but they must be labeled as
required by 1205.6.
16 CFR 1205.2 Effective date.
This standard applies to all rotary walk behind power lawn mowers
manufactured after June 30, 1982, except 1205.6 Warning labels, applies
to rotary and reel-type walk-behind power lawn mowers manufactured after
December 31, 1979.
(44 FR 10024, Feb. 15, 1979, as amended 45 FR 86417, Dec. 31, 1980)
16 CFR 1205.3 Definitions.
(a) As used in this part 1205:
(1) Blade means any rigid or semi-rigid device or means that is
intended to cut grass during mowing operations and includes all blades
of a multi-bladed mower.
(2) Blade tip circle means the path described by the outermost point
of the blade as it moves about its axis.
(3) Crack means a visible external fissure in a solid body caused by
tensile, compressive, or shear forces.
(4) Cutting width means the blade tip circle diameter or, for a
multi-bladed mower, the width, measured perpendicular to the forward
direction, of a composite of all blade tip circles.
(5) Deform means any visible alteration of shape or dimension of a
body caused by stresses induced by external forces.
(6) Engine means a power producing device which converts thermal
energy from a fuel into mechanical energy.
(7) Manual starting means starting the mower engine with power
obtained from the physical efforts of the operator.
(8) Maximum operating speed means the maximum revolutions per minute
(rpm) obtainable by the engine or motor under the conditions of the
particular test where the term is used. For an electrically powered
mower, it is the speed attained when the mower is energized from a 60 Hz
alternating current source that delivers a voltage no greater than 120 V
and no less than 115 V at the power input to the mower, with the mower
running. For a battery-powered mower, it is the speed attained after
the battery has been fully charged in accordance with the mower
manufacturer's instructions.
(9) Motor means a power producing device that converts electrical
energy into mechanical energy.
(10) Normal starting means is the primary mechanism intended to be
actuated by the operator to start a mower's engine or motor (e.g., the
cord mechanism of a manual start engine, the switch of an electric
motor, or a power start mechanism).
(11) Operating control zone means the space enclosed by a cylinder
with a radius of 15 in (381 mm) having a horizontal axis that is (1)
perpendicular to the fore-aft centerline of the mower and (2) tangent to
the rearmost part of the mower handle, extending 4 in (102 mm) beyond
the outermost portion of each side of the handle (See Fig. 1).
INSERT ILLUS. 8A
(12) Power source means an engine or motor.
(13) Reel-type mower means a lawn mower which cuts grass by rotating
one or more helically formed blades about a horizontal axis to provide a
shearing action with a stationary cutter bar or bed knife.
(14) Rotary mower means a power lawn mower in which one or more
cutting blades rotate in essentially a horizontal plane about at least
one vertical axis.
(15) Separate means to cause to have any apparent relative
displacement induced by external forces.
(16) Shield means a part or an assembly which restricts access to a
hazardous area. For the purposes of this part 1205, the blade housing
is considered a shield.
(17) Stress means a force acting across a unit area in a solid
material in resisting separation, compacting, or sliding that tends to
be induced by external forces.
(18) Top of the mower's handles means the uppermost portion(s) of the
handle that would be gripped by an operator in the normal operating
position.
(19) Walk-behind power lawn mower means a grass cutting machine
either pushed or self-propelled, with a minimum cutting width of 12 in
(305 mm) that employs an engine or a motor as a power source and is
normally controlled by an operator walking behind the mower.
(b) Where applicable, the definitions in section 3 of the Consumer
Product Safety Act (15 U.S.C. 2052) apply to this part 1205.
(44 FR 10024, Feb. 15, 1979, as amended at 46 FR 54934, Nov. 5, 1981)
16 CFR 1205.4 Walk-behind rotary power mower protective shields.
(a) General requirements. Walk-behind rotary power mowers shall meet
the following requirements:
(1) When the foot probe of Fig. 2 is inserted under any point within
the areas to be probed during the foot probe test of paragraph (b)(1) of
this section, the shields shall prevent the foot probe from entering the
path of the blade or causing any part of the mower to enter the path of
the blade.
16 CFR 1205.4
(2) Any shield located totally or partly within the areas to be
probed, as defined in paragraph (b)(1)(ii) of this section, shall not
permanently separate, crack, or deform when the shield is subjected to a
50 lb (222 N) static tensile force, uniformly distributed over not less
than half the length of the shield. The force shall be applied for at
least 10 seconds in the direction which produces the maximum stress on
the shield. While being tested, a shield shall be attached to the mower
in the manner in which it is intended to be used. (This requirement
does not apply to the housing.)
(3) During the obstruction test of paragraph (b)(2) of this section,
shields shall not (i) stop the mower as a result of contact with the
raised obstacle, (ii) enter the path of the blade, or (iii) cause more
than one wheel at a time to be lifted from the fixture surface.
(b) Shield tests -- general -- (1) Foot probe test. (i) The
following test conditions shall be observed:
(A) The test shall be performed on a smooth level surface.
(B) Pneumatic tires, when present, shall be inflated to the cold
pressures recommended by the mower manufacturer.
(C) The mower housing shall be adjusted to its highest setting
relative to the ground.
(D) The blade shall be adjusted to its lowest position relative to
the blade housing.
(E) The mower shall be secured so that the mower may not move
horizontally but is free to move vertically.
(ii) Areas to be probed. (A) (1) The minimum area to be probed shall
include an area both 60 degrees to the right and 60 degrees to the left
of the rear of the fore-aft centerline of the cutting width. For
single-blade mowers, these angles shall be measured from a point on this
fore-aft centerline which is at the center of the blade tip circle (see
Fig. 3). For multi-blade mowers, these angles shall be measured from a
point on the fore-aft centerline of the cutting width which is one half
of the cutting width forward of the rearmost point of the composite of
all the blade tip circles (See Fig. 4).
Insert Illus. 10A
Insert Illus. 11A
(2) For a mower with a swing-over handle, the areas to be probed
shall be determined as in paragraph (b)(1)(ii)(A)(1) of this section
from both possible rear positions. (See Fig. 5.)
Insert illus. 12A
(B) Where a 360 degree foot protective shield is required by
1205.5(a)(1)(iv)(B) or 1205.5(c), the entire periphery of the mower
shall be probed (including any discharge chute comprising part of the
periphery).
(iii) Procedure. Within the areas specified in paragraph (b)(1)(ii),
the foot probe of Fig. 2 shall be inserted under the bottom edge of the
blade housing and shields. During each insertion, the ''sole'' of the
probe shall be kept in contact with the supporting surface. Insertion
shall stop when the mower housing lifts or the horizontal force used to
insert the probe reaches 4 lb (17.8 N), whichever occurs first. As the
foot probe is withdrawn after each insertion, the ''toe'' shall be
pivoted upward around the ''heel'' as much as possible without lifing
the mower.
(2) Obstruction test. (i) The following test conditions shall be
observed:
(A) Pneumatic tires, when present, shall be inflated to the cold
pressure recommended by the mower manufacturer.
(B) The mower housing shall be at its highest setting relative to the
ground.
(ii) The test shall be performed on the fixture of Fig. 6, which
consists of a level surface having (A) a 0.99 in (25 mm) deep depression
with a 5.90 in (150 mm) radius of curvature and (B) a raised obstacle
0.60 in (15 mm) square, each extending the full width of the fixture.
The depression shall be lined with a material having a surface
equivalent to a 16- to 36-grit abrasive. The depression and the
obstacle shall be located a sufficient distance apart so that the mower
contacts only one at a time.
INSERT ILLUS. 13A
(iii) The test fixture may be relieved, only to the extent necessary,
to prevent interference with any blade retaining device.
(iv) The mower shall be pushed forward and pulled rearward
perpendicular to and across the depression and the raised obstacle on
the fixture. The mower shall be pulled and pushed, without lifting,
with a horizontal force sufficient to transit the obstruction fixture at
a speed not to exceed 2.2 ft/sec (0.7 m/sec).
(c) Movable shields -- (1) General. Movable shields must meet the
general shield requirements of paragraph (a) of this section. In
addition, movable shields which are in any of the areas to be probed
defined in paragraph (b)(1)(ii) of this section and which are intended
to be movable for the purpose of attaching auxiliary equipment, when
deflected to their extreme open position in the manner intended by the
manufacturer and released, shall either:
(i) Return automatically to a position that meets the requirements of
subpart A of this part 1205 when the attached equipment is not present,
or
(ii) Prevent operation of the blade(s) unless the attached equipment
is present or the movable shield is returned to a position that meets
the requirements of subpart A of this part 1205.
(2) Tests. (i) Automatic return of a movable shield shall be
determined by manually deflecting the shield to its extreme open
position, then releasing the shield and visually observing that it
immediately returns to the closed position.
(ii) Prevention of operation of the blade(s) shall be determined,
first by manually deflecting the shield to its extreme open position,
then, following the appropriate manufacturer's instructions, completing
the procedures necessary to operate the blade. Observe, using any safe
method, that the blade(s) has been prevented from operating.
(44 FR 10024, Feb. 15, 1979, as amended at 45 FR 86417, 86418, Dec.
31, 1980; 46 FR 54934, Nov. 5, 1981; 48 FR 6328, Feb. 11, 1983)
16 CFR 1205.5 Walk-behind rotary power mower controls.
(a) Blade control systems -- (1) Requirements for blade control. A
walk-behind rotary power mower shall have a blade control system that
will perform the following functions:
(i) Prevent the blade from operating unless the operator actuates the
control.
(ii) Require continuous contact with the control in order for the
blade to continue to be driven.
(iii) Cause the blade motion in the normal direction of travel to
come to a complete stop within 3.0 seconds after release of the control.
(iv) For a mower with an engine and with only manual starting
controls, this blade control shall stop the blade without stopping the
engine, unless:
(A) The engine starting controls for the lawn mower are located
within 24 inches from the top of the mower's handles, or
(B) The mower has a protective foot shield which extends 360 degrees
around the mower housing (see 1205.4 (b)(1)(ii)(B)).1
(2) All walk-behind rotary power mowers shall have, in addition to
any blade control required by paragraph (a)(1) of this section, another
means which must be manually actuated before a stopped blade can be
restarted. This additional means may be either a control which is
separate from the control required by paragraph (a)(1) of this section,
or may be incorporated into the control required by paragraph (a)(1) of
this section as a double-action device requiring two distinct actions to
restart the blade.
(b) Blade stopping test -- (1) General. Any test method that will
determine the time between the release of the blade control and the
complete stop of the blade motion in the normal direction of travel may
be used.
(2) Conditions. (i) The mower shall be operated at maximum operating
speed for at least 6 minutes immediately prior to the test.
(ii) The blade must be at maximum operating speed when the blade
control is released.
(c) Starting controls location. Walk-behind mowers with blades that
begin operation when the power source starts shall have their normal
starting means located within the operating control zone unless the
requirements of paragraphs (a)(1)(iv) (A) or (B) of this section apply
to the mowers.
(44 FR 10024, Feb. 15, 1979, as amended at 46 FR 54934, Nov. 5, 1978)
1Paragraphs (A) and (B) of 1205.5(a)(1)(iv), permitting mowers that
stop the blade by stopping the engine but that do not have power
restart, were added to the standard as directed by Sec. 1212 of the
Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35, 95 Stat.
357.
16 CFR 1205.6 Warning label for reel-type and rotary power mowers.
(a) General. Walk-behind power lawn mowers shall be labeled on the
blade housing or, in the absence of a blade housing, on other blade
shielding or on an adjacent supporting structure or assembly, with the
warning label shown in Fig. 7. The label shall be at least 3.25 in
(82.5 mm) high and 4 in (102 mm) wide, and the lettering and symbol
shall retain the same size relation to each other and to the label as
shown in Fig. 7.
INSERT ILLUS. 14A
(b) Rotary mowers. Walk-behind rotary mowers shall have one label as
shown in Fig. 7, on the blade housing. The label shall be located as
close as possible to any discharge opening, or, if there is no discharge
opening, in a position that is conspicuous to an operator in the normal
operating position.
(c) Reel-type mowers. Walk-behind power reel-type mowers shall have
one label as shown in Fig. 7, located as close to the center of the
cutting width of the blade as possible. However, in the absence of a
suitable mounting surface near the center of the cutting width, the
label shall be placed on the nearest suitable mounting surface to the
center of the cutting width.
(44 FR 10024, Feb. 15, 1979, as amended at 45 FR 86417, Dec. 31,
1980)
16 CFR 1205.7 Prohibited stockpiling.
(a) Stockpiling. Stockpiling means manufacturing or importing a
product which is the subject of a consumer product safety rule between
the date of issuance of the rule and its effective date at a rate that
is significantly greater than the rate at which such product was
produced or imported during a base period prescribed by the Consumer
Product Safety Commission.
(b) Prohibited acts. Stockpiling of power lawn mowers that do not
comply with this subpart A of part 1205 at a rate that exceeds by 20%
the rate at which the product was produced or imported during the base
period described in paragraph (c) of this section is prohibited.
(c) Base period. The base period for power lawn mowers is, at the
option of each manufacturer or importer, any period of 365 consecutive
days beginning on or after September 1, 1971, and ending on or before
August 31, 1978.
16 CFR 1205.8 Findings.
(a) General. In order to issue a rule such as part 1205, the
Consumer Product Safety Act requires the Commission to consider and make
appropriate findings with respect to a number of topics. These findings
are discussed below.
(b) The degree and nature of the risk of injury part 1205 is designed
to eliminate or reduce. (1) The Commission estimates that there are
approximately 77,000 injuries to consumers each year caused by contact
with the blades of power lawn mowers. From 1977 data, the Commission
estimates that each year there are approximately 7,300 finger
amputations, 2,600 toe amputations, 2,400 avulsions (the tearing of
flesh or a body part), 11,450 fractures, 51,400 lacerations, and 2,300
contusions. Among the lacerations and avulsions, 35,800 were to hands
and fingers and 18,000 were to toes and feet. The estimated costs
caused by these injuries are $253 million, not counting any monetary
damages for pain and suffering. These injuries are caused when
consumers accidentally contact the blade, either inadvertently while in
the vicinity of the mower, or while intentionally performing some task
which they erroneously believe will not bring their hand or foot into
the path of the blade.
(2) Part 1205 is expected to eliminate or reduce the severity of
about 60,000 blade contact injuries per year, or 77% of all such
injuries. The Commission estimates that if all mowers had been in
compliance with the standard in 1977, about 6,800 finger amputations,
1,500 toe amputations, 11,000 fractures, 1,800 avulsions, 38,400
lacerations, and several hundred contusions would not have occurred. Of
the lacerations and avulsions, 28,300 were finger injuries and 9,400
were toe injuries.
(c) Consumer products subject to the rule. The products subject to
this standard are walk-behind power mowers. Power mowers with rigid or
semi-rigid rotary blades are subject to all the provisions of the
standard while reel-type and rotary mowers are subject to the labeling
requirements. Mowers that in combination have engines of 8 hp or
greater, weigh 200 lb or more, and have a cutting width of 30 in or more
are excluded from the standard. The Commission estimates that at least
98% of the total annual market (by unit volume) for walk-behind mowers
will be affected by the standard, and the Commission estimates that in
1978 this market was 5.4 million units.
(d) Need of the public for the products subject to the rule. The
Commission finds that the public need for walk-behind power mowers,
which provide a relatively quick and effective way to cut grass, is
substantial. Riding mowers, lawn and garden tractors, hand reel mowers,
trimmers and edgers, and sickle-bar mowers also provide grass-cutting
services, but walk-behind power rotary mowers are by far the most
commonly used devices for maintaining household lawns. There are no
devices that can completely substitute for walk-behind power mowers as a
group, since they have applications for which other products are not as
suitable. Each type of walk-behind power mower has individual
properties which meet public needs, although one type of walk-behind is
often an acceptable substitute for another. The newly developed
monofilament line mower is not included within the scope of the standard
and could be a substitute for mowers using rigid or semi-rigid blades
under some conditions.
(e) Probable effect of the rule upon the utility of the product. (1)
The Commission finds that the probable overall effect of the standard on
the utility of mowers should be to increase their utility. In the first
place, consumers are likely to experience an increased sense of security
from having a safer mower. A study of brake-clutch mowers conducted by
the Federal Supply Service (GSA) shows that almost all users appreciated
the safety features on brake-clutch mowers. In addition, by releasing
the blade control and stopping the blade, the operator can then travel
over gravel or other surfaces without fear of thrown objects or of the
blade striking objects that might damage the mower. Brake-clutch type
mowers would also give an increase in utility by virtue of enabling the
operator to use the clutch to prevent stalling when the mower bogs down
in heavy grass. On the other hand, there may be some minor adverse
effects on utility caused by some aspects of complying mowers. For
example, in very heavy mowing conditions, there may be some difficulty
in engaging the blade in a blade-clutch mower. (However, mowers that
are currently on the market that are not equipped with a blade clutch
may have difficulty in starting the engine in heavy grass.) Complying
mowers may require slightly more time and a few additional actions to
operate. Since complying mowers may have more electrical and mechanical
parts than current mowers, they may weigh more and require more
maintenance than current mowers. No significant increase in mowing time
is expected if a brake-clutch device is used to comply with the standard
since each engagement of the blade would require only a few seconds.
The amount of additional time and expense required for maintenance, if
any, will be dependent on the design solution used. Such disutilities
are expected to be slight and to be more than balanced by the increased
sense of security consumers are likely to experience from having a safer
mower.
(2) During the development of the rule, questions were raised about
whether changes in the shields necessitated by the foot probe
requirements would adversely affect utility by causing mowers to be hard
to push in grass or to be unable to mow close to walls. At the time of
issuance of this rule, mowers are available that will pass a 360 foot
probe and others are available that will pass rear and side foot probing
without any significant loss of utility caused by shielding. Therefore,
the Commission concludes that this requirement will not adversely affect
the utility of mowers. Mowers with swing-over handles, however, may be
more difficult to design in this regard, since 120 at each end of the
mower are subject to the foot probe requirement. However, since mowers
meeting this requirement have already been built without apparent loss
of utility, the Commission concludes that shielding can be designed so
that there should be no loss of utility even for mowers with swing-over
handles.
(3) As required by section 9(b) of the CPSA, the Commission, in
considering the issues involved in issuing a power lawn mower safety
standard, has considered and taken into account the special needs of
elderly and handicapped persons to determine the extent to which such
persons may be adversely affected by the rule. The Commission has
determined that there will be no significant adverse effect on such
persons as a result of this part 1205. In the first place, the rule can
affect only those persons who are physically capable of using a power
lawn mower. None of the rule's provisions will make it more difficult
to operate a mower that complies with the standard. On the contrary,
complying mowers should be easier to use because the need for manually
restarting the mower will be less and because, if the mower uses a
brake-clutch to comply with the blade control requirement, use of the
brake-clutch can reduce the tendency of the engine to stall in heavy
grass. Although a person's ability to hold a device such as a blade
control for a long period of time will decline with age, the force
required to hold the blade control can be made low enough that it will
not be a problem during the length of time that it takes for consumers
to mow a lawn.
(4) After considering the possible adverse effects on mowers that
could be caused by the standard and balancing them against the increase
in utility that is expected, the Commission concludes that, for a
typical consumer, the increases in utility should more than offset any
decreases.
(f) Probable effect of the rule upon the cost of the product. The
Commission estimates that the retail price impact of the standard will
be about $35 for the average walk-behind mower. Based on an average
useful mower-life of about 8 years, the additional annual cost to the
purchaser is expected to average about $4.40. The probable effect of the
standard will differ on the various types of mowers within its scope.
Percentage increases in price will vary from about a 7 percent increase
for power-restart self-propelled mowers to about a 30 percent increase
for gasoline-powered manual start push mowers. The costs attributable
to individual requirements of the standard are discussed in paragraph
(i) of this section.
(g) Probable effect of the rule upon the availability of the product.
(1) The Commission finds that the standard is not expected to have a
significant impact on the availability of walk-behind rotary mowers,
since domestic production capacity appears to be sufficient to handle
any increased demand for safety-related components or materials.
Although adapting some types of power mowers to the standard may be more
costly than others, the effects of the standard on the price or utility
of a particular category of power mowers are not expected to cause
radical shifts in demand among types of mowers. The Commission finds
that all types of power mowers subject to the standard will be
available, although some, such as house-current-powered mowers, may
increase their market shares becauses they can be brought into
compliance with the standard at a lesser cost.
(2) Because some manufacturers may not revise their entire product
line before the effective date of the standard, individual mower
manufacturers may initially have less varied lines than at present, but
there should be no decrease in the overall types and features of mowers
available to consumers.
(h) Alternative methods. (1) The Commission has considered other
means of achieving the objective of the standard. For example,
alternatives were considered such as hand probes, ''blade harmless''
tests, and blade control by engine kill but allowing manual restart.
These alternatives have been rejected by the Commission as being either
unfeasible or not as effective as the rule which is being issued.
(2) Similarly, the Commission has found no alternative means of
achieving the objective of the standard that it believes would have
fewer adverse effects on competition or that would cause less disruption
or dislocation of manufacturing and other commercial practices,
consistent with the public health and safety.
(i) Unreasonable risk of injury. (1) The determination of whether a
consumer product safety rule is reasonably necessary to reduce an
unreasonable risk of injury involves a balancing of the degree and
nature of risk of injury addressed by the rule against the probable
effect of the rule on the utility, cost, or availability of the product.
The factors of utility and availability of the products, adverse
effects on competition, and disruption or dislocation of manufacturing
and other commercial practices have been discussed above. The following
discussion concerns the relationship of anticipated injury reduction and
costs for various requirements of the standard. (See the report,
Economic Impact of Blade Contact Requirements for Power Mowers, January
1979, for a detailed analysis of the possible effects of discounting and
inflation on the computation of the quantifiable benefits associated
with this regulation.)
(2) The foot probe and related requirements are expected to reduce
the number of blade contact injuries to the foot by 13,000 each year.
It is not possible to apportion this injury reduction among the
respective requirements. The cost of these requirements is estimated to
be about $4.00 per mower, mostly for redesign of the shields. The
shield strength requirement is similar to a requirement in the existing
voluntary standard that is almost universally complied with, and should
comprise only a small portion of the $4.00 retail cost increase compared
to pre-standard mowers that is attributable to this related group of
requirements. Also, shields complying with the movable shield
requirement are featured in some currently produced mowers.
(3) The foot probe and related requirements should result in a cost
increase of about $22,000,000 and undiscounted injury savings of about
$46,000,000, exclusive of any allowance for pain and suffering.
(4) The starting location control requirement would apply only to
mowers with a power restart capability using engine kill to stop the
blade. The cost for relocating the power restart switch, if necessary,
should be very minor, and more than offset by the elimination of a
clutch, as discussed below.
(5) The requirement that the blade stop within 3 seconds of the
release of the blade control is supported by (i) the requirement that
those mowers that stop the blade by stopping the engine must have a
power restart (to remove the motivation to disable the blade control
because of the inconven- ience of manually starting the mower each time
the control is released) and by (ii) the requirement for an additional
control that must be actuated before the blade can resume operation (to
prevent accidental starting of the blade). Together, these requirements
are expected to reduce the number of blade contact injuries by 46,500
per year for an undiscounted savings in injury costs of about
$165,000,000 per year, exclusive of pain and suffering.
(6) Virtually all mowers will be subjected to a cost increase of
about $3 for the blade control actuating means and $1 for the second
control required to restart the blade. (The $1 cost could be eliminated
for power restart-engine kill mowers that do not start when the blade
control is actuated.)
(7) Also, most mowers would require a brake for the blade in order to
achieve a 3 second stop time. This would add another $6.50-$8.50,
depending on the type of mower. Mowers with power restart capability
could stop the blade by killing the engine and thus would not need to
provide a clutch to disconnect the engine from the blade. Mowers using
manual restart would have to provide a clutch or other blade
disengagement devices, which would probably be combined with the brake
in a unitary brake-clutch mechanism.
(8) The following are the Commission's estimates of the probable
retail price increases associated with certain types of currently
produced mowers that will be caused by the blade control requirements.
(9) The weighted average retail price increase of the blade stop
requirements is expected to be about $31 per mower for a total retail
cost increase of $167,000,000.
(10) The foot probe and blade stop requirements of the standard will
obviously not completely protect the users of mowers under all
circumstances. It is still essential for consumers to be aware of the
hazard of blade contact and take the proper precautions to protect
themselves. It is especially important that users not become complacent
with the knowledge that the mower incorporates blade contact safety
requirements. Accordingly, the Commission has determined that it is
desirable that mowers complying with the standard bear a label warning
of the danger of blade contact. Such a requirement would result in
practically no effect on on the retail price of mowers since labels are
very inexpensive and practically all currently produced mowers bear some
type of warning label. In view of the hazard that will be associated
with power mowers even after the effective date of the standard, and the
low cost of the label, the Commission concludes there is an unreasonable
risk of injury that can be addressed by the label requirements in this
part 1205.
(j) Conclusion. Therefore, after considering the anticipated costs
and benefits of part 1205 and the other factors discussed above, and
having taken into account the special needs of elderly and handicapped
persons to determine the extent to which such persons may be adversely
affected by the rule, the Commission finds that part 1205 (including the
effective dates) is reasonably necessary to eliminate or reduce the
unreasonable risk of injury associated with walk-behind power lawn
mowers and that promulgation of the rule is in the public interest.
(44 FR 10024, Feb. 15, 1979, as amended at 45 FR 86417, Dec. 31,
1980)
16 CFR 1205.8 Subpart B -- Certification
Source: 44 FR 70386, Dec. 6, 1979, unless otherwise noted.
16 CFR 1205.30 Purpose, scope, and application.
(a) Purpose. Section 14(a) of the Consumer Product Safety Act, 15
U.S.C. 2063(a), requires every manufacturer (including importer) and
private labeler of a product which is subject to a consumer product
safety standard to issue a certificate that the product conforms to the
applicable standard, and to base that certificate either on a test of
each product or on a ''reasonable testing program.'' The purpose of this
subpart B of part 1205 is to establish requirements that manufacturers
and importers of walk-behind rotary power lawn mowers subject to the
Safety Standard for Walk-Behind Power Lawn Mowers (16 CFR part 1205,
subpart A), shall issue certificates of compliance in the form of
specified labeling and shall keep records of the testing program on
which the certificates are based.
(b) Scope and application. (1) The provisions of this rule apply to
all rotary walk-behind power lawn mowers which are subject to the
requirements of the Safety Standard for Walk-Behind Power Lawn Mowers.
This rule does not apply to reel-type mowers, which are subject only to
the labeling requirements of the standard.
(2) As authorized by section 14(a)(2) of the act, the Commission
exempts manufacturers who manufacture or import only component parts,
and private labelers, from the requirement to issue certificates.
(Private labelers who are also importers must still certify.)
16 CFR 1205.31 Effective date.
Any walk-behind rotary power mower manufactured after December 31,
1981, must meet the standard and must be certified as complying with the
standard in accordance with this rule.
16 CFR 1205.32 Definitions.
In addition to the definitions set forth in section 3 of the act (15
U.S.C. 2052) and in 1205.3 of the standard, the following definitions
shall apply to this subpart B of part 1205:
(a) ''Manufacturer'' means any person or firm that manufactures or
imports power lawn mowers subject to this standard, and includes those
that assemble power lawn mowers from parts manufactured by other firms.
(b) ''Manufactured'' means the earliest point at which the mower is
in the form in which it will be sold or offered for sale to the consumer
or is in the form in which it will be shipped to a distributor or
retailer. In these forms, a ''manufactured'' mower may still require
partial assembly by the consumer or the lawn mower dealer.
(c) ''Private labeler'' means an owner of a brand or trademark which
is used on a power lawn mower subject to the standard and which is not
the brand or trademark of the manufacturer of the mower, provided the
owner of the brand or trademark has caused or authorized the mower to be
so labeled and the brand or trademark of the manufacturer of such mower
does not appear on the label.
(d) ''Production lot'' means a quantity of mowers from which certain
mowers are selected for testing prior to certifying the lot. All mowers
in a lot must be essentially identical in those design, construction,
and material features which relate to the ability of a mower to comply
with the standard.
(e) ''Reasonable testing program'' means any test or seriles of tests
which are identical or equivalent to, or more stringent than, the tests
defined in the standard and which are performed on one or more mowers of
the production lot for the purpose of determining whether there is
reasonable assurance that the mowers in that lot comply with the
requirements of the standard.
16 CFR 1205.33 Certification testing.
(a) General. Manufacturers and importers shall either test each
individual rotary walk-behind power lawn mower (or have it tested) or
shall rely upon a reasonable testing program to demonstrate compliance
with the requirements of the standard.
(b) Reasonable testing program. (1) a reasonable testing program for
rotary walk-behind power mowers is one that provides reasonable
assurance that the mowers comply with the standard. Manufacturers and
importers may define their own reasonable testing programs. Such
reasonable testing programs may, at the option of manufacturers and
importers, be conducted by an independent third party qualified to
perform such testing programs.
(2) To conduct a reasonable testing program, the mowers shall be
divided into production lots. Sample mowers from each production lot
shall be tested in accordance with the reasonable testing program so
that there is a reasonable assurance that if the mowers selected for
testing meet the standard, all mowers in the lot will meet the standard.
Where there is a change in parts, suppliers of parts, or production
methods that could affect the ability of the mower to comply with the
requirements of the standard, the manufacturer should establish a new
production lot for testing.
(3) The Commission will test for compliance with the standard by
using the test procedures contained in the standard. However, a
manufacturer's reasonable testing program may include either tests
prescribed in the standard or any other reasonable test procedures.
(For example, in the shield strength test ( 1205.4), the manufacturer
might choose to use a force higher than the 50 lb force specified in the
standard.)
(4) If the reasonable testing program shows that a mower does not
comply with one or more requirements of the standard, no mower in the
production lot can be certified as complying until the noncomplying
mowers in the lot have been identified and destroyed or altered by
repair, redesign, or use of a different material or components to the
extent necessary to make them conform to the standard. The sale or
offering for sale of mowers that do not comply with the standard is a
prohibited act and a violation of section 19(a)(1) of the CPSA,
regardless of whether the mower has been validly certified.
16 CFR 1205.34 Recordkeeping requirements.
(a) General. Every person issuing certificates of compliance for
walk-behind rotary power lawn mowers subject to the standard shall
maintain written records which show that the certificates are based on a
test of each mower or on a reasonable testing program. The records
shall be maintained for a period of at least 3 years from the date of
certification of each mower or each production lot. These records shall
be available to any designated officer or employee of the Commission
upon request in accordance with section 16(b) of the act (15 U.S.C.
2065(b)).
(b) Content of records. Records shall identify the mower tested and
the production lot and describe the tests the mowers have been subjected
to and the results of the tests.
(c) Format for records. The records required to be maintained by
this section may be in any appropriate form or format that clearly
provides the required information.
16 CFR 1205.35 Product certification and labeling by manufacturers.
(a) Form of permanent label of certification. Manufacturers
(including importers) shall issue certificates of compliance for
walk-behind rotary power lawn mowers manufactured after the effective
date of the mower standard in the form of a label which can reasonably
be expected to remain on the mower during the period the mower is
capable of being used. Such labeling shall be deemed to be a
''certificate'' of compliance as that term is used in section 14 of the
act. (15 U.S.C. 2063.)
(b) Contents of certification label. The certification labels
required by this section shall clearly and legibly contain the following
information:
(1) The statement ''Meets CPSC blade safety requirements.''
(2) An identification of the production lot.
(3) The name of the person or firm issuing the certificate.
(4) The location where the product was principally assembled.
(5) The month and year the product was manufactured.
(c) Coding. Except for the requirements of paragraphs (b)(1) and
(b)(3) of this section, all of the information required by 1205.35 may
be in code, provided the person or firm issuing the certificate
maintains a written record of the meaning of each symbol used in the
code that will be made available to the distributor, retailer, consumer,
and the Commission upon request. If a mower is manufactured for sale by
a private labeler, and if the name of the private labeler is also on the
certification label, the name of the manufacturer or importer issuing
the certificate may also be in such a code.
(d) Placement of label. The label required by this section must be
visible and legible to the ultimate purchaser of the lawn mower. For
mowers manufactured before January 1, 1984, where the label is not
visible to the consumer at the time of sale because of packaging or
marketing practices, an additional label or notice, which may be
temporary, stating ''Meets CPSC blade safety requirements'' shall also
appear on the container, or, if the container is not so visible, the
promotional material, used in connection with the sale of the mowers.
(44 FR 70386, Dec. 6, 1979, as amended at 49 FR 28241, July 11, 1984)
16 CFR 1205.36 Product certification and labeling by importers.
(a) General. The importer of any rotary walk-behind power lawn mower
subject to the standard must issue the certificate of compliance
requried by section 14(a) of the Act and 1205.35 of this regulation.
If testing of each mower, or a reasonable testing program, meeting the
requirements of this subpart B of part 1205 has been performed by or for
the foreign manufacturer of the product, the importer may rely in good
faith on such tests to support the certificate of compliance provided
the importer is a resident of the United States or has a resident agent
in the United States and the records of such tests required by 1205.34
of this part are maintained in the United States.
(b) Responsibility of importer. If the importer relies on tests by
the foreign manufacturer to support the certificate of compliance, the
importer bears the responsibility for examining the records supplied by
the manufacturer to determine that the records of such tests appear to
comply with 1205.34 of this part.
16 CFR 1205.36 PART 1207 -- SAFETY STANDARD FOR SWIMMING POOL SLIDES
Sec.
1207.1 Scope, purpose, and findings.
1207.2 Effective date.
1207.3 Definitions.
1207.4 Recommended standards for materials of manufacture.
1207.5 Design.
1207.6 -- 1207.8 (Reserved)
1207.9 Product certification.
1207.10 Handling, storage, and marking.
1207.11 References.
1207.12 Stockpiling.
Authority: Secs. 2, 7, 9, 14, 30, Pub. L. 92-573; 86 Stat. 1207,
1212, 1215, 1220, 1236; (15 U.S.C. 2051, 2056, 2058, 2063, 2079).
Source: 41 FR 2751, Jan. 19, 1976, unless otherwise noted.
16 CFR 1207.1 Scope, purpose, and findings.
(a) Scope and purpose. This part 1207 sets forth the consumer
product safety standard issued by the Consumer Product Safety Commission
for the manufacture and construction of slides for use in swimming
pools. The requirements of this standard are designed to reduce or
eliminate the unreasonable risks of death or injury associated with
swimming pool slides. This standard also makes certain recommendations
regarding the installation, maintenance, and intended use of swimming
pool slides that supplement its mandatory requirements. This standard
is applicable to all swimming pool slides manufactured after July 17,
1976. Paragraph (b) of this section sets forth the findings which the
Commission is required to make by section 9(c) of the Consumer Product
Safety Act (15 U.S.C. 2058(c)).
(b) Findings. 1 (1) The Commission finds that unreasonable risks of
death or injury from accidents are associated with swimming pool slides.
These risks are (i) quadriplegia and paraplegia resulting from users
(primarily adults using the swimming pool slide for the first time)
sliding down the slide in a head first position and striking the bottom
of the pool, (ii) leg fractures resulting from feet first entry, (iii)
impact of sliders with other people in the pool, and (iv) falls from the
slide ladder.
(2) The Commission finds that the types or classes of products that
are subject to this standard are those swimming pool slides
manufactured, constructed, or imported for use in connection with all
swimming pools, whether in-ground, on-ground, or above-ground,
regardless of the materials of manufacture or structural characteristics
of the slides. It is estimated that 350,000 of these slides are
currently in service and that each year the number of slides in use may
increase by 5 to 10 percent.
(3) The Commission finds that the public uses swimming pool slides in
recreation at both public and private swimming pools, and it is
estimated that 75% of these slides are located at residential pools. It
is anticipated that public demand for the products will decline slightly
for a time following issuance of this standard as a result of consumer
awareness of hazards associated with the product caused by the mandatory
signs placed on the slides and as a result of recommendations regarding
the installation and intended use of the products. The decline in
demand is expected to be short-term. It is anticipated that the utility
of the slides as a recreational device will be increased to the extent
that injury or death associated with the use of the product is
eliminated or reduced.
(4) The Commission also finds that manufacturing cost increases as a
direct result of this standard and promotional cost increases as an
indirect result of this standard are expected to be modest for the
industry as a whole. Any resulting increase in the cost of slides to
consumers attributable directly or indirectly to the requirements of
this standard will be small. No adverse effect on the availability of
the product to consumers is expected.
(5) The Commission has considered other means of achieving the
objective of the standard, but has found none that would have fewer
adverse effects on competition or that would cause less disruption or
dislocation of manufacturing and other commercial practices, consistent
with the public health and safety.
(6) The Commission also finds that this standard, including its
effective date, is reasonably necessary to eliminate or reduce the
unreasonable risks of injury associated with swimming pool slides and
that promulgation of the standard is in the public interest.
(41 FR 2751, Jan. 19, 1976; 41 FR 9307, Mar. 4, 1976, as amended at
41 FR 23187, June 9, 1976; 43 FR 58813, Dec. 18, 1978)
1The Commission's findings apply to the swimming pool slide standard
that it published on January 19, 1976 (42 FR 2751). On March 3, 1978
the U.S. Court of Appeals for the Fifth Circuit set aside portions of
that standard (Aqua Slide 'N' Drive Corporation v. CPSC, 569 F.2d 831
(5th Cir. 1978)). On December 18, 1978, the Commission published
revisions to the standard which reflect the court's decision. However,
the findings have not been revised and they are therefore not fully
applicable to the revised swimming pool slide requirements. For
example, the revised standard does not address the risk of quadriplegia
and paraplegia (except insofar as the standard specifies a low angle of
attack of the slider into the water) because the court set aside the
provisions concerning installation instructions and warning signs.
16 CFR 1207.2 Effective date.
This part 1207 shall become effective July 17, 1976. All swimming
pool slides manufactured after that date must meet the requirements of
this part 1207.
(41 FR 23187, June 9, 1976)
16 CFR 1207.3 Definitions.
(a) As used in this part 1207:
(1) ''Aboveground pool slide ladder'' means a slide ladder that is
not anchored in the ground or support deck and that can be removed from
the slide or hinged and locked so that unauthorized or unsupervised use
of the slide is prevented.
(2) ''Abrasion hazard'' means a sharp or rough surface of a swimming
pool slide that would scrape the skin upon casual contact.
(3) ''Assembled product'' means all parts, components, and fasteners
as defined in and assembled according to the manufacturer's assembly and
installation instructions.
(4) ''Bracing'' means members providing structural support to the
assembled, installed slide.
(5) ''Casual contact'' means contact of any body part with the slide
occurring by chance or nonchalant encounters.
(6) ''Center of gravity'' means the point that represents the mean
position of the concentrated mass of a body.
(7) ''Curved slide'' means a slide whose runway curves out of the
vertical plane at any point along the slide path.
(8) ''Cutting hazard'' means a slide surface that would cut the skin
under casual contact.
(9) ''Designated waterline'' means the horizontal line through
whichever of the following is applicable: (i) The midpoint of the
operating range of the skimmers, or (ii) on pools with overflow systems,
the height of the overflow rim.
(10) ''Edge guards'' means shields designed to cover sharp edges on
slides.
(11) (Reserved)
(12) ''Freestanding slide'' means a slide designed for aboveground
pools that is not fastened to the pool deck or the ground. This slide
may have attachments to the aboveground pool to prevent misalignment.
(13) ''Friction'' means the force tending to reduce the velocity of
the slider on the slide.
(14) (Reserved)
(15) ''Intended use'' means behavior on swimming pool slides as
disclosed by the manufacturer, as specified in this part 1207, or to
which the slide may be subjected by a reasonable user (including
reasonably foreseeable misuse).
(16) ''Ladder angle'' means the angle of the ladder measured from a
plumbline.
(17) ''Ladder platform'' means a platform built into the slide
ladder.
(18) ''Operational strength'' means the strength of the slide and/or
its components after installation according to the manufacturer's
instructions.
(19) ''Performance test'' means a test to measure the functional or
structural characteristics of the slide and may include:
(i) Observations and measurements of the slide's functioning in the
''intended use'' mode, installed according to the manufacturer's
installation instructions, and/or
(ii) Observations and measurements of the slide's response to dynamic
and static loads.
(20) (Reserved)
(21) ''Pinching hazard'' means any configuration of slide components
that would pinch or entrap the fingers or toes of a child or an adult.
(22) ''Puncture hazard'' means any slide surface or protrusion that
would puncture a child's skin under casual contact.
(23) ''Runway'' means the surface on which the user slides in the
intended use of a slide.
(24) ''Runway rail'' means a raised edge or guard that keeps the
slider on the runway.
(25) ''Runway length'' means the length of the runway measured along
its centerline.
(26) ''Slide width'' means the width of the slide runway measured
between the inside of the left and right runway rails.
(27) ''Straight slide'' means a slide whose runway curves only in the
vertical plane.
(28) ''Swimming pool slide'' means any device used to enter a
swimming pool by sliding down an inclined plane.
(29) ''Tamperproof'' means that tools are required to alter or remove
portions of the slide such as guards, treads, etc.
(30) ''Trajectory'' means the path of a slider's center of gravity
from start to finish.
(31) (Reserved)
(32) ''Tread contact surface'' means foot contact surfaces of ladder,
step, stair, or ramp.
(41 FR 2751, Jan. 19, 1976, as amended at 43 FR 58813, Dec. 18, 1978)
16 CFR 1207.4 Recommended standards for materials of manufacture.
(a) General. The materials used in swimming pool slides should be
compatible with man and compatible with the environment in which they
are installed. These materials should be capable of fulfilling the
design requirements prescribed by 1207.5.
(b) Effects of environment. The choice of materials for swimming
pool slides should be such that the operational strength of the entire
slide assembly, as defined by the performance tests in 1207.5, should
not be adversely affected by exposure to rain, snow, ice, sunlight,
local, normal temperature extremes, local normal wind variations,
expected local air pollution products, and the mechanical, electrical,
and chemical environment in and around swimming pools. For purposes of
this part 1207, ''local normal'' temperature extremes and wind
variations are defined as the average annual record limits for the past
10 years at any slide installation point in the U.S.A. where such
statistical information exists (see reference (a) in 1207.11)
(c) Materials selection. The selection of all materials for swimming
pool slides should be such that all surfaces and edges that may come in
contact with the user are assembled, arranged, and/or finished
(deburred, polished, etc.) so that they will not constitute a cutting,
pinching, puncturing, or abrasion hazard under casual contact and
intended use by children or adults.
(d) Toxicity. The selection of materials used in swimming pool
slides should be such that the assembled and installed products should
not be toxic to man or harmful to the environment under intended use and
reasonably foreseeable abuse or disposal. All paints and finishes used
on swimming pool slides shall comply with 16 CFR 1303.2(b)(2) and
1303.4(a).
(e) Chemical compatibility. The selection of materials for swimming
pool slides should be such that the assembled and installed product, and
the parts, are chemically compatible with the materials and environment
contacted under intended use and reasonably foreseeable abuse.
(41 FR 2751, Jan. 19, 1976, as amended at 43 FR 58813, Dec. 18, 1978)
16 CFR 1207.5 Design.
(a) Strength. The strength of the assembled and installed swimming
pool slide shall be such that no structural failures of any component
part shall cause failures of any other component part of the slide as
described in the performance tests in paragraphs (d)(4) and (f)(9) of
this section.
(b) Edges. Edges of swimming pool slide runways, ladders, handrails,
and deck anchor flanges shall be designed, finished (deburred, polished,
etc.), or protected in such a manner as to prevent cutting human tissue
on casual contact and intended use. If edge guards are used, they shall
be permanently affixed to the structure in a tamper-proof fashion.
(c) Ladders, steps, stairs, or ramps -- (1) General. Swimming pool
slide ladders, steps, stairs, or ramps shall have treads, not rungs, if
the angle of the incline is 15 or greater from a plumbline.
(2) Angle. Swimming pool slide ladders not using rungs shall be
designed and installed in such a manner that the user's center of
gravity will be approximately positioned directly over each step during
the use of the ladder. When tread design ladders are used, the minimum
installed angle shall be not less than 15 from a plumbline dropped from
a ladder step as shown in figure A. If stairs or ramps are used to
ascent to the top of the slide, they shall be designed in accordance
with reference (c) of 1207.11, pages 457-463.
(Note: To convert the English system values given in the figures to
metric values, the following conversion factors should be used: 1
inch=2.54 cm., 1 foot=30.48 cm., 1 square inch=6.452 sq. cm., 1 lb.
(mass)=0.4536 kg., 1 lb. (force)=4.448 newtons, and 1 ft.-lb.=1.356
newton-meters.)
Insert Illus. 15A
(3) Steps -- (i) Dimensions. Slide ladder treads may have flat or
curved tread surfaces and shall be designed so that they have a minimum
tread width of 2 inches (5.08 cm) and a minimum length of 12 inches
(30.48 cm) (reference (c) of 1207.11). The riser height of slide ladder
treads shall be no more than 12 inches (30.5 cm) nor less than 7 inches
(17.8 cm) and shall be constant over the entire height of the ladder
(reference (c) of 1207.11).
Insert Illus. 16A
(ii) Tread curvature. If slide ladder tread surfaces are curved,
they shall not have a radius of curvature less than seven times the
tread width.
(iii) Slip resistant surfaces -- (A) General. The tread surface of
all swimming pool slide ladders shall have a slip-resistant surface that
is either an integral part of or permanently attached to the ladder
steps. The performance test is designed to insure that all tread
slip-resistant surfaces shall have the ability to maintain a barefooted
50-percentile adult male (reference (d) of 1207.11) at an angle of
repose of 33 1 without movement with a safety factor of 2.0. The angle
of repose is the angle formed by the intersection of the ladder rails
and the line connecting the user's feet and center of gravity. The
tread and the foot shall be wet for this test.
(B) Performance test. A wooden block shall be prepared in accordance
with figure C. The contact surface area of the block shall be 8 square
inches (51.61 square cm) to simulate the ball of the foot (reference (d)
of 1207.11). It shall be covered with 1/4 1/8 inch (.64 .32 cm) of
natural or silicone rubber sponge capped with porous soft leather as
shown in figure C.
Insert Illus. 17A
The tests shall be carried out on a slide assembled and installed
according to the manufacturer's instructions. The block shall be soaked
in pool water for at least 3 minutes and placed at the midpoint of the
wet step with the centroid of load of the block on the longitudinal axis
of the step. The block shall be loaded symmetrically on its upper
bearing surface with a weight of 300 2 pounds (136.1 .9 kg). A
controlled and measured force shall be applied at the tangential load
ring of the block tangent to the horizontal and increased at a rate of
no more than 20 pounds (88.96 newtons) per second. If the block does
not move at the point that the tangential load is equal to 105 pounds
(467.1 newtons), the tread surface passes this performance test. Other
force-creating means that produce equal forces on the block (300 2lbs,
1,334 newtons) may be substituted for weights if they result in
substantially identical slip-resistance measurements.
(iv) Fastener requirements. Ladder treads shall be attached to the
ladder rails in such a manner that continued intended use or reasonably
foreseeable abuse shall not cause any fastener to loosen, crack, or
break. All attachment methods that are used to hold the ladder tread to
the ladder rails shall be permanent and tamperproof. If fasteners are
used for the tread-rail attachment, the number and placement of such
fasteners shall not cause a failure of the tread under the ladder
loading conditions specified in this paragraph (c)(3).
(v) Aboveground pool ladders. Above-ground pool slides equipped with
swing-up ladders shall be designed so that the ladders may be fixed in
the up position by a tamperproof lock.
(vi) Ladder platforms. Swimming pool slides whose height above the
surface upon which the slide is mounted is greater than 7.5 feet (2.29
meters) shall have a platform built into the ladder. This platform
shall be located at least 6 feet (1.83 meters) above the deck and shall
have minimum dimensions of 12 by 12 inches (30.48 30.48 cm.). The floor
of the platform shall have a slip-resistant surface whose performance
exceeds the requirements of the tests specified in paragraph
(c)(3)(iii)(B) of this section. A minimum dimension of two times the
riser height shall be maintained from the platform to the top of the
slide runway. Transitional handrails shall be provided when a platform
is used.
(vii) Static load performance test. Ladder treads or rungs shall be
capable of supporting a 300-pound (1,334-newton) static load in the
center without failure or permanent deformation.
(d) Handrails. Swimming pool slide ladders shall be equipped with
handrails to aid the slider in safely making the transition to the
runway. The handrails shall extend no more than 18 inches (45.72 cm)
above the top of the slide runway platform (see figure D1).
Insert Illus. 18A
(1) Size. The outside diameter of handrails shall be between 1.00
and 1.90 inches (2.54 and 4.83 cm) (references (c) and (d) of 1207.11).
(2) Extent of handrails -- (i) Maximum angle ladder. If ladder
handrails for a ladder inclined 15 degrees or less from the vertical
extend below the slide transition area, they shall be parallel to the
ladder rails at a perpendicular distance from them of 4 to 6 inches
(10.16 to 15.24 cm) (see figure D2).The handrail shall begin 3 to 5 feet
(0.91 to 1.52 meters) above the pool deck. Handrails should not provide
a means of entrapment.
Insert Illus. 19A
(ii) Extent of handrails for ladders, steps, stairs, or ramps. For
slides not using the minimum angle ladder (15 degrees or less from the
vertical), the perpendicular distance between the ladder handrails and
the ladder rails below the slide transition area shall be the distance
''l'' as shown in table 1.
(3) Bracing of handrails. If handrail braces are used, they shall
withstand intended use and reasonably foreseeable abuse.
(4) Attachment and strength of handrails. Handrails and their
fasteners shall withstand allowable shear, bending, and cyclical loading
in intended use and reasonably foreseeable abuse. All fasteners for
handrail connections shall be vibrationproof, selflocking, and
tamperproof. Threaded fasteners shall be capable of withstanding a
1-foot-pound (1,356-newton meter) back-off torque.
(i) Sockets performance test. If handrail sockets are used, the
handrail end shall be permanently fixed in the socket so that it cannot
be pulled out or bent at the socket by a moment of 233 foot-pounds (316
newton-meters) applied clockwise around point A in figure E. The socket
shall not permanently deform under the maximum applied loads.
Insert Illus. 20A
(ii) Side forces. If the handrail is in a socket or attached to the
side of the slide runway rail, the attachment methods must be capable of
withstanding all shear and bending forces induced by a 172-foot-pound
(233-newton-meter) moment counterclockwise around point A in figure F.
Insert Illus. 21A
(iii) Performance tests -- (A) Strength for climbing and falls. (1)
Attach a pull loop to point C of the upper handrail (figure E). Point C
is the point where a perpendicular to the axis of the handrail passes
through point A, the socket, or other attachment point. Attach a
stranded steel cable or wire rope to point C. All cables and ropes
shall have at least a 1,000-pound (4,448-newton) tensile capacity.
Attach a 162-pound (73.5-kg) weight to this cable at least 4 feet (1.22
meters) below point C. Observe any permanent deformation or bending on
the hand-rail at point A. If none exists, the handrail passes this
performance test.
(2) Lift the weight one foot (30.48 cm) from its maximum static
position and drop it. Observe any permanent deformation of the handrail
or its attachments at point A. If each handrail will still support the
162-pound (73.5-kg) weight for a period of 15 minutes and has not been
bent more than 45 from its original direction, it passes this
performance test.
(B) Transition handrail strength. Rotate the assembled slide into
the horizontal position on its side on a loading dock or other platform.
Move the slide into such a position that the entire handrail assembly
overhangs the platform and level the slide. Fasten the slide firmly in
this position and attach a 115-pound (52.2-kg) weight to point D, as
shown in figure F, and check for any visible permanent deformation of
the handrail at point A. If none exists, the handrails pass this
performance test.
(e) Lubrication. Swimming pool slides shall either be equipped with
a method of lubrication (for example, water) or have a similar
coefficient of friction so that the slider has a smooth, continuous
slide. If water is used, the nozzles, piping, or hoses that deliver
water to the runway shall be recessed or designed in such a fashion as
not to interfere with a slider's progress down the slide or create
tripping hazards on the slide.
(f) Runways -- (1) Curvature. Slide runway curvature between the
front and rear support legs of the slide shall be consistent with
maintaining the slider safely on the slide during intended use and
reasonably foreseeable abuse.
(2) Dynamic equilibrium. (i) Swimming pool slide runways, whether
straight or curved, shall be designed as ''balanced curves.'' On a
balanced curve, the test fixture discussed in paragraph (f)(2)(ii) of
this section shall stay on a trajectory that keeps it within a distance
of 41 percent of the runway width to the runway centerline at all
points along the runway without contacting the runway rails.
(ii) Performance test -- (A) Direct measurement. Build a wooden
pallet no larger than 5 by 5 inches (12.7 x 12.7 cm), as shown in figure
G. Securely attach a lead rod or bar on the pallet. Size the bar so
that the weight-to-area ratio of the assembly is 1.30 0.05 lbs./sq. in.
(8,960 340 newtons/sq. meter) and the pallet does not tip over when in
motion. Attach a felt pen or other suitable marking device to the
pallet assembly as shown in figure G to mark the slide during descent.
(B) Test. Lubricate the slide in accordance with the manufacturer's
instructions. Center the pallet at the top of the slide runway and
release. Observe the pallet's descent and note if it touches the
slide's side rails. If it touches, check alignment and installation
again. With water off and the slide dry, center the pallet at the top
of the runway and release. Measure the distance from the felt pen
marked line to the centerline of the runway. If within 41 percent of
the width measured from the centerline along the entire path and if the
pallet does not contact the runway rails, the slide is dynamically
balanced and passes this performance test.
(3) Runway side rails. Swimming pool slide runways shall have
permanent runway side rails of at least 2 inches (5.08 cm) and height to
prevent lateral discharge of the slider off the slide under intended use
and reasonably foreseeable abuse.
(4) Runway side-rail heights. Runway side-rail heights shall be
designed as a function of the maximum slide-slope angle (as shown in
figure H). Table 2 that follows shows side-rail height versus maximum
slide-slope angle. If the maximum slide-slope angle is not shown in
table 2, the next higher side-rail height must be used. Maximum
slide-slope angles shall not exceed 75 . (See figure H.)
Insert Illus. 22A
16 CFR 1207.5
Insert Illus. 23A
(5) Slide geometry. Swimming pool slide runways shall have a smooth
transition section and have geometry such that the path of the center of
gravity of the slider is not more than 10 from the horizontal at the
center of gravity's exit off the slide and such that the slider's angle
of attack (a), shown in figure I and defined below, shall be at least
+15 when the slider's feet leave the slide. (See figure I.)
(i) Performance tests. Measurement of the 50th-percentile adult male
(71 2 inches and 162 5 pounds, 180.34 5.08 cm and 73.5 2.3 kg)1007
slider's angle of attack shall be made using any of the following
methods or their equivalent:
(A) Motion picture cameras (36 frames per second or more).
(B) Still cameras with strobe lights and reflectors on the head and
hip of the slider.
(C) Still cameras with rotating shutters and lights on the head and
hip of the slider.
(D) Video tape recorder.
(ii) Measurements shall be made from the still water level as the
horizontal. The path angle shall be determined by measuring the angle
between a tangent to the path of the center of gravity (line X) and the
horizontal taken through the center of gravity (line Y). At least five
consecutive runs with the same subject shall be made in order that an
average may be computed. 2008 Angle of attack shall be taken as the
angle between the slider's longitudinal axis (Z) and the tangent to the
path of his center of gravity (X). The slider's longitudinal axis shall
be located by the vertical line that passes through his center of
gravity when he stands erect. The slider shall wear usual swimming
attire. The angle-of-attack measurement shall be made after the
slider's feet have cleared the slide, the distance between the end of
the slide and his feet being less than 8 inches (20.3 cm). The slider's
descent must be headfirst, prone, belly-down, and with arms extended in
front. Except when starting, the slider shall not augment the slide
trip by forcibly reacting with the slide through the use of his hands,
arms, feet and/or legs. The slider's starting reactions with the slide
shall be only as strong as necessary to start him moving. If the
average angle of attack measured and computed in the above manner is
equal to or greater than +15 , the slide passes this performance test.
Insert Illus. 24A
(6) Runway exit lips. All runway exit lips of swimming pool slides
shall be smoothly faired into the runway surface with a radius of
curvature at the exit lip of the slide of at least 2 1/4 inches (5.72
cm) (see figure J).
Insert Illus. 25A
(7) Runway exit vertical angle. The angle of the runway at exit of
the slide ( ) shall be ^3 to ^11 degrees from the horizontal as shown
in figure J.
(8) (i) Runway exit ramp lateral curvature and exit lip horizontal
angle. No net lateral forces on the slider shall exist in that portion
of the runway exit ramp beyond the forward support points of the slide.
All slides shall be designed and constructed so that the exit lip of the
slide is level at all points along the width of the runway at the runway
exit lip line drawn at the point where the lip curvature shown in figure
J is tangent to the runway. The slide shall be designed so that any
side forces on the user induced by prior lateral curvature will be
reduced to zero upon exit from the slide runway.
(ii) Performance tests. Those tests described in paragraph
(f)(2)(ii) of this section are also applicable to paragraph (f)(8) of
this section, and the path of the test fixture must be parallel to the
centerline of the slide at the exit lip (within 5 ) and not touching the
side rails of the runway.
(9) Strength of slide runways and supports -- (i) Static loads. A
properly assembled and installed slide runway shall be capable of
supporting a static load of at least 350 pounds (1,557 newtons) applied
normal to the runway over an area of no more than 20 square inches
(129.03 square cm) at any point along its length or width.
(ii) Dynamic loading. Properly assembled and installed slide runways
shall be capable of supporting, without structural failure except as
defined in paragraph (f)(9)(iii)(B)(3) of this section, a dynamic load
of at least 450 foot-pounds (610.2 newton-meters) dropped on an area of
20 square inches (129.03 square cm) at the midpoints of the upper runway
platform and the lower runway exit ramp.
(iii) Performance tests -- (A) Static loads. Assemble and install a
slide according to the manufacturer's instructions. Prepare a
20-square-inch (129.03 square cm) load-bearing pallet according to
figure K. Place the loaded pallet on the upper slide platform,
positioned between the runway rails, until the scale on the hoist line
reads between 0 and 10 pounds (0 and 44.48 newtons). Keep the pallet in
this position for 10 minutes. Remove the loaded pallet and observe the
runway for any significant structural failure such as permanent
deformations or cracks. If there are none, the slide passes the test.
Repeat the same test on the lower runway exit ramp.
Insert Illus. 26A
(B) Dynamic loads. (1) Assemble and install a slide according to the
manufacturer's instructions. Use the hardwood load pallet shown in
figure K and set it up under dynamic load guides fabricated as shown in
figure L, or an equivalent impact-testing machine.
Insert Illus. 27A
(2) Fabricate a 45-pound (20.4-kg) billet of 4.900 0.005-inch (12.45
.01 cm) steel rod as shown in figure M, or equivalent, and load into the
pipe above the trigger slot. The length of the pipe from the trigger
slot to the impact pallet shall be 10.0 0.1 feet (3.05 meters 3.05 cm).
Insert Illus. 28A
(3) Drop the billet onto the pallet and observe the slide for any
permanent deformations or cracks. If the slide runway can still support
a static load of 350 pounds (1,557 newtons) on the pallet without
further crack propagation, it passes this test.
(4) Perform the test on the entrance and exit platforms of the slide
runway.
(41 FR 2751, Jan. 19, 1976; 41 FR 9307, Mar. 4, 1976; 41 FR 10062,
Mar. 9, 1976, as amended at 41 FR 12638, Mar. 26, 1976; 41 FR 13911,
Apr. 1, 1976)
1207.6 -- 1207.8 (Reserved)
0071See reference (f) of 1207.11 for full discussion.
0082Maximum measurement variation of 15 percent.
16 CFR 1207.9 Product certification.
(a) Certification shall be in accordance with section 14(a)(1) of the
Consumer Product Safety Act (15 U.S.C. 2063(a)(1)).
(b) A certificate shall accompany the swimming pool slide (in the
form of a permanent label on the shipping container(s) or in the form of
a separate certificate) to all distributors and retailers to whom the
material is delivered certifying that the slide conforms to this part
1207. The certificate or permanent label issued under this section
shall be based upon either a test of each product or 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.
(c) Any certificate shall be based upon the test procedures and
requirements specified in this part 1207.
16 CFR 1207.10 Handling, storage, and marking.
(a) Marking. The manufacturer's or private labeler's identification
shall appear on the slide and shipping container. Such identification
shall include the identity and address of the manufacturer or private
labeler. If a private labeler's name is used, the marking shall include
a code mark that will permit an identification of the manufacturer.
(b) Shipping, handling, and storage. The slide shall be designed,
constructed, or packaged so that reasonably foreseeable shipping,
handling, and storage will not cause defects in the slide that will
prevent the slide from complying with the requirements of this part
1207.
16 CFR 1207.11 References.
(a) ''Statistical Abstract of the United States 1973,'' U.S. Dept.
of Commerce, pp. 181-185, 192.
(b) ''Human Engineering Guide for Equipment Designers,'' Woodson and
Conover, pp. 2-166 through 2-169 published by the University of
California Press, 2223 Fulton St., Berkeley, California 94720.
(c) ''Human Engineering Guide to Equipment Design,'' Van Cott and
KinKade, published by U.S. Dept. of Defense, 1972, Library of Congress
Card No. 72-600054, pp. 457-465.
(d) ''The Measure of Man -- Human Factors in Design,'' by Henry
Dreyfuss, published by Watson-Guptill Publications, Inc., 1 Astor Plaza,
New York, New York, 10036.
(e) ''Medical Tribune'', Wed., 8/15/73, p. 21.
(f) ''Technical Rationale in Support of A Safety Standard for
Swimming Pool Slides,'' 5/30/75. National Swimming Pool Institute, 2000
K Street NW., Washington, D.C. 20006.
16 CFR 1207.12 Stockpiling.
(a) Definitions. As used in this section:
(1) ''Stockpiling'' means manufacturing or importing swimming pool
slides between the date of promulgation of part 1207 in the Federal
Register and its effective date at a rate greater than five percent more
than the rate at which the slides were manufactured or imported during
the base period.
(2) ''Base period'' means, at the option of the manufacturer or
importer concerned, any period of 180 consecutive days beginning on or
after January 2, 1974, and ending on or before December 31, 1974.
(3) ''Rate of production (or importation)'' means the total number of
swimming pool slides manufactured (or imported) during a stated time
period. In determining whether a slide was manufactured (or imported)
during a stated time period, the later of the date on which the slide
runway was manufactured (or imported) or the date on which the
accompanying ladder and other support parts were manufactured (or
imported) shall be used.
(b) Prohibited acts. Manufacturers and importers of swimming pool
slides, as these products are defined in 1207.3(a)(28) shall not
manufacture or import slides that do not comply with the requirements of
this part 1207 between January 19, 1976, and July 17, 1976, at a rate
which is greater than the rate of production or importation during the
base period plus five percent of that rate.
(c) Manufacturers and importers shall maintain appropriate
documentation to be able to substantiate to the Commission that they are
in compliance with the provisions of this section.
(41 FR 2751, Jan. 19, 1976, as amended at 41 FR 15003, Apr. 9, 1976)
16 CFR 1207.12 Pt. 1209
16 CFR 1207.12 PART 1209 -- INTERIM SAFETY STANDARD FOR CELLULOSE INSULATION
16 CFR 1207.12 Subpart A -- The Standard
Sec.
1209.1 Scope and application.
1209.2 Definitions and measurements.
1209.3 General requirements.
1209.4 Test procedures for determining settled density.
1209.5 Test procedures for corrosiveness.
1209.6 Test procedures for critical radiant flux.
1209.7 Test procedures for smoldering combustion.
1209.8 Procedure for calibration of radiation instrumentation.
1209.9 Labeling requirement.
1209.10 Certification and enforcement.
1209.11 Effective date.
Figures 1-10
16 CFR 1207.12 Subpart B -- Certification
1209.31 Purpose and applicability.
1209.32 Definitions.
1209.33 Reasonable testing program.
1209.34 Qualification testing.
1209.35 Product specification.
1209.36 Production testing.
1209.37 Corrective actions.
1209.38 Records.
1209.39 Certification of compliance.
1209.40 Certification responsibility, multiple parties.
1209.41 Effective date.
Source: 44 FR 39966, July 6, 1979, unless otherwise noted.
16 CFR 1207.12 Subpart A -- The Standard
Authority: Sec. 35(c)(2), Pub. L. 95-319, 92 Stat. 388-389 (15
U.S.C. 2082).
16 CFR 1209.1 Scope and application.
(a) Scope. This part 1209, an interim consumer product safety
standard, prescribes flame resistance and corrosiveness requirements for
cellulose insulation that is a consumer product. These requirements are
intended to reduce or eliminate an unreasonable risk of injury to
consumers from flammable and corrosive cellulose insulation. The
requirements are based upon the flame resistance and corrosiveness
requirements of General Services Administration Specification HH-I-515D.
(b) Application. This part 1209 shall apply to cellulose insulation
that is a consumer product, that is, cellulose insulation produced or
distributed for sale to, or for the personal use, consumption, or
enjoyment of consumers in or around a permanent or temporary household
or residence, a school, in recreation, or otherwise. The interim
standard applies to cellulose insulation that is produced or distributed
for sale to consumers for their direct installation or use, as well as
cellulose insulation that is produced or distributed for installation by
professionals. This part 1209 applies only to cellulose insulation
manufactured after October 15, 1979.
16 CFR 1209.2 Definitions and measurements.
(a) As used in this part 1209, Cellulose insulation means cellulosic
fiber, loose fill, thermal insulation that is suitable for blowing or
pouring applications.
(b) The definitions given in section 3 of the Consumer Product Safety
Act are applicable to this part 1209.
(c) For the purposes of conformance with the technical requirements
of this standard, the figures are given in the metric system of
measurement. The inch-pound system approximations of these figures are
provided in parentheses for convenience and information only. For
numerical quantities for which no specific tolerances are given, the
tolerance shall be one half of the unit value of the last significant
digit given in the dimension. Where numerical quantities are given
without tolerances in both the metric and inch-pound system of
measurements, the tolerance shall be one half of the last significant
digit of the metric equivalent of the numerical quantity.
(d) The specifications and dimensions in the test methods below are
given in metric units, with the English equivalents in parentheses. For
enforcement purposes the Commission will use metric units.
16 CFR 1209.3 General requirements.
(a) All cellulose insulation to which this interim standard applies,
as described in 1209.1, shall be noncorrosive when tested in accordance
with the test procedures at 1209.5 and evaluated using the criteria at
1209.5(c). This means that after the product is tested, the six metal
coupons used in the test shall not have any perforations (excluding
notches extending into the coupon 3 mm or less from any edge) when the
coupons are observed over a 40-W appliance light bulb.
(b) All cellulose insulation to which this interim standard applies,
as described in 1209.1, shall have a critical radiant flux equal to or
greater than 0.12 W/cm2 for each of the three specimens when tested in
accordance with the test procedures at 1209.6.
(c) All cellulose insulation to which this interim standard applies,
as described in 1209.1, shall have no evidence of flaming combustion
and shall also have weight loss of 15 percent or less of the initial
weight, for each of the three specimens, when tested in accordance with
the test procedures at 1209.7.
(d) All containers of cellulose insulation to which this interim
standard applies, as described in 1209.1, shall have a labeling
statement in accordance with the labeling requirements at 1209.9.
16 CFR 1209.4 Test procedures for determining settled density.
The settled density of lose fill insulation must be determined before
the corrosiveness test ( 1209.5) and the smoldering combustion test (
1209.7) can be performed. This section describes the procedure for
determining the settled density of loose fill insulation.
(a) Apparatus and materials. (1) An insulation specimen container
with a flat bottom and an inside diameter of 15.0 1 cm, straight sides
(without a flared lip or spout, (Apparatus 1)). The height of the
beaker shall be such that the distance between the bottom of the cyclone
and the top edge of the beaker is 8.5 cm 1.0 cm. (3.39 in .39 in).
(2) A flat-rigid disc with a total weight of 75 5 g (2.65 0.18 oz)
and of a suitable diameter to fit loosely into the specimen container.
Weight may be added to the center of the disc to bring the total weight
to the required 75 5 g (Apparatus 2).
(3) A balance of 2 kg (4.4 lbs) capacity accurate at least to 0.2 g
(0.007 oz) (Apparatus 3).
(4) Blower apparatus, two units (supply and overflow) meeting the
following specifications: (The Commission staff has found that a Breuer
Electric Manufacturing Co., Model 98805 blower is suitable for this
purpose, although other blowers may be suitable.) (Apparatus 4).
(i) Each blower apparatus shall be capable of blowing an average of
272.2 kg (600 lbs.) of insulation per hour.
(ii) Each blower apparatus shall have a nominal air flow of 2.1
cm3/min. (75 ft3/min.)
(iii) Each blower apparatus shall have a nominal motor speed of
16,450 revolutions per minute at 115 VAC.
(5) A shaker unit capable of shaking 4.5 kg (10 lb) of weight with a
vertical motion of 0.5 g Root Mean Square (RMS) acceleration at an
approximate frequency of 9 Hertz (Hz) and displacement of approximately
1.17 cm ( 15/32 1/32 in.) .08 cm peak to peak. (The Commission staff
has found that a Tyler Industries, Portable Sieve Shaker Model Rx-24 is
suitable for this purpose, although other shakers may be suitable.)
(Apparatus 5).
(6) Fill chamber with inside dimensions of 45.7 cm (18 in) high
38.1 cm (15 in) wide 38.1 cm (15 in) deep, with covered openings that
will allow a radiant panel tray to be slid through the chamber, (see
Figure 1 for details) (Apparatus 6).
(7) A cyclone receiver (see Figure 2 for complete details).
(Apparatus 7).
(8) Various lengths of nominally 2-inch diameter hose (see Figure 1
for details), as follows:
(i) A supply source hose, 274.3 5.1 cm (9 ft 2 in) (Apparatus 8(i)).
(ii) A cyclone receiver hose, 182.9 5.1 cm (6 ft 2 in) (Apparatus
8(ii)).
(iii) A fill chamber exit hose, 91,.4 5.1 cm (3 ft 2 in) (Apparatus
8(iii)).
(iv) An overflow exhaust hose, length as needed (Apparatus 8(iv)).
(9) Blower Control(s) capable of operating the two blowers at 40
volts RMS. As an example, a variac for each of the two blowers with
sufficient rating to operate at 40 volts and 12 amperes RMS would be
acceptable (Apparatus 9).
(10) An insulation holding container to hold a sufficient quantity of
insulation to fill the specimen container four times.
(11) A garden rake, 50.8 cm (20 in) wide (Apparatus 11).
(12) A shovel (Apparatus 12).
(b) Conditioning. Specimens shall be conditioned to equilibrium at
21 5 C (69.8 9 F) and 50 5 % relative humidity. A less than 1% change
in net weight of the specimen in two consecutive weighings with two
hours between each weighing constitutes equilibrium.
(c) Test specimen preparation -- (1) Insulation intended for
pneumatic applications. If the insulation is intended for pneumatic
applications, the test specimens shall be prepared in the following
manner:
(i) If ambient laboratory conditions are different from the
conditioning requirements specified in (b) above, begin testing the
specimen for settled density within 10 minutes after it has been removed
from the conditioned area.
(ii) Pour the conditioned insulation into the holding box (Apparatus
10) in sufficient quantity to fill the specimen container (Apparatus 1
shown in Figure 1) four times. Manually break up any large clumps of
material that might cause feeding problems.
(2) Insulation intended for pouring applications. If the insulation
is intended for pouring applications, the test specimens shall be
prepared in the following manner:
(i) If ambient laboratory conditions are different from the
conditioning requirements specified in (b) above, begin testing 10
minutes after it has been removed from the conditioned area.
(ii) Pour loose fill insulation into a simulated attic space until
full. The attic space shall be formed by two nominal 2 x 6 (243 cm) (8
ft) long joists placed 40.6 cm (16 in) on center with 1.27 cm ( 1/2 in)
plywood nailed to the ends and bottom. Fluff the material with a garden
rake (Apparatus 11), applyilng a series of small amplitude strokes
while moving the rake slowly along the joist. Repeat the fluffing
process six times.
(d) Procedures -- (1) Procedures for insulation intended for
pneumatic applications. If the insulation is intended for pneumatic
applications, conduct the following procedures:
(i) The test shall be conducted in an area conditioned to the
requirements of 1209.4(b).
(ii) The apparatus shall be set up as shown in Figure 1. (Apparatus
9 and 10 are not shown in Figure 1, but are described at 1209.4(a)).
Connect one end of the supply source hose (Apparatus 8.i) to the intake
of the supply blower (Apparatus 4). The other end will be used to pick
up insulation from the holding container (Apparatus 10). Connect one
end of the cyclone receiver hose (Apparatus 8.ii) to the outlet of the
supply blower and the other end to the cyclone receiver (Apparatus 7).
Connect one end of the fill chamber exit hose (Apparatus 8.iii) to the
intake of the overflow blower (Apparatus 4) and the other end to the
fill chamber (Apparatus 6). The fill chamber shall be placed on a flat
and level surface. Connect one end of the variable length overflow
exhaust hose (Apparatus 8.iv) to the outlet of the overflow blower.
The other end should be conveniently placed to reduce insulation dust in
the test area.
(iii) Weigh the empty insulation specimen container and record its
weight.
(iv) Place the empty insulation specimen container in the fill
chamber (Apparatus 6) centered under the cyclone reciever (Apparatus
7), and close the front cover.
(v) Adjust the blower control(s) (Apparatus 9) such that the supply
and overflow blowers will operate at a no load voltage of 40 volts RMS.
(vi) Turn on the blowers simultaneously and proceed to fill the
insulation specimen container by picking up material from the holding
container using the supply source hose.
(vii) The container may fill unevenly, i.e. a void may tend to form
off center in the container. If this occurs, stop the blowing process
and rotate the container 180 degrees and continue the blowing process
until the container just begins to overflow. If, for any reason, the
filling process is interrupted for more than one minute or for more than
the one time allowed to rotate the container, begin the process again.
(viii) Gently screed the excess material using a straight edge so as
to leave a uniform surface of the insulation flush with the top of the
container.
(ix) Weigh the filled and leveled container and record the weight.
Take care not to bump or jar the container so as not to introduce any
extraneous settling of the insulation.
(x) Cover the container to prevent spilling and secure the container
to the shaker. Operate the shaker for a period of 5 minutes 15 seconds.
(xi) Remove the container from the shaker and uncover, taking care
not to bump or jar it. Lower the disc (Apparatus 2) very slowly into
the container until it starts to contact the insulation. At this point,
release the disc and allow it to settle onto the insulation under its
own weight.
(xii) Measure the volume of the space occupied by the settled
insulation using the bottom edge of the disc as the upper datum point.
If the disc is not level, measure the high and low points of the bottom
of the disc and average the readings and use this as the height
measurement in calculating the volume (Vs). This settled insulation
volume and insulation weight (w) shall be used to calculate the settled
density.
(xiii) Repeat this procedure (steps (i through xi)) using another
specimen of the insulation until four settled densities are obtained for
a given material. Then average these figures to arrive at a final
settled density.
(2) Procedures for insulation intended for pouring applications. If
the insulation is intended for pouring applications, conduct the
following procedures:
(i) Weigh the empty insulation specimen container and record its
weight.
(ii) Using a shovel (Apparatus 12) remove insulation from the
simulated attic space and place it into the specimen container until the
container just begins to overflow.
(iii) Follow steps (vi) through (xii) as specified under Procedures
for insulation intended for pneumatic applications.
(iv) Repeat this procedure (steps (i) through (iii)) using another
specimen of the insulation until four settled densities are obtained for
a given material. Then average these figures to arrive at a final
settled density.
(e) Insulation intended for pouring and pneumatic applications. If
the insulation is intended for both pouring and pneumatic applications,
or if it is uncertain whether the insulation will be poured or installed
pneumatically, the insulation shall be tested for settled density using
the test specimen preparation and test procedures at 1209.4 (c) and (d)
for each of the applications. The larger of the two settled density
values shall be used in performing the corrosiveness test at 1209.5 and
the smoldering combustion test at 1209.7.
(f) Calculations. Calculate the settled density of each specimen
using the following formula:
Settled Density in kg/m3=W/Vs, where
W=combined weight of the container and insulation in grams, minus the
weight of the container in grams.
Vs=volume of insulation in liters after shaking.
16 CFR 1209.5 Test procedures for corrosiveness.
This section prescribes the procedures for determining the
corrosiveness of cellulose insulation. Cellulose insulation shall be
tested for corrosiveness using the measured settled density, obtained by
following the test procedure at 1209.4, to calculate the amount of
distilled or deionized water to add to the test specimens.
Determination of corrosiveness shall be in accordance with the following
test procedure:
(a) Apparatus and materials -- (1) Humidity chamber. A forced-air
humidity chamber capable of maintaining 48.9 1.7 C (120 3 F) and 97
1.5 percent relative humidity.
(2) Crystallizing dishes. Six glass crystallizing dishes, 90 mm
(3.54 in) diameter by 50 mm (1.9 in) height.
(3) Test coupons. (i) Two aluminum coupons. 3003 bare aluminum,
zero temper.
(ii) Two copper coupons. ASTM B 152, type ETP, Cabra No. 110 soft
copper.
(iii) Two steel coupons. Low carbon, commercial quality, cold
rolled, less than 30 carbon content, shim steel.
Each coupon shall be 50.8 by 50.8 mm (2 by 2 in) by 0.076 mm (0.003
in) thick metal free of tears, punctures, or crimps.
(4) Test specimens: Six test specimens of insulation shall be used
for one test. Each specimen shall weigh 20g (0.7 oz).
(b) Procedure -- (1) General procedures for cleaning all metal
coupons. The metal coupons shall be cleaned by the following method:
(i) At no time during the fabrication, cleaning or testing shall the
metal coupons be touched by ungloved hands.
(ii) Gloves shall be clean and in good condition.
(iii) All chemicals used shall be of American Chemical society
reagent grade or better, free from oily residues and other contaminants.
(iv) Water shall be distilled or deionized water.
(v) Handle cleaned coupons only with clean forceps.
(vi) In order to avoid exposing laboratory personnel to toxic fumes,
the commission recommends that all cleaning procedures be performed in a
fume hood.
(vii) Clean the coupons by vapor degreasing with
1,1,1-trichloroethane for ten minutes. Following vapor degreasing,
subject the coupons to caustic and/or detergent washing as appropriate.
Following caustic or detergent washing, rinse the coupons in flowing
water to remove residues. Inspect each coupon for a water-break free
surface. (A water-break is a break, separation, beading or retraction
of the water film as the coupon is held vertically after wetting. As the
coupons are cleaned, the water film should become gradually thinner at
the top and heavier at the bottom.) Hot air dry the coupons at 105 C
(221 F).
(2) Specimens of cellulose insulation submitted for testing shall be
blown, combed, or otherwise mixed to reasonably assure homogeneity in
the cellulose insulation test specimens.
(3) Before presaturating each 20g (0.7 oz) test specimen, subdivide
it into two 10g (0.35 oz) portions. The quantity of distilled or
deionized water to be used for each 10g (0.35 oz) portion shall be
determined using the following formula:
ml distilled water=46/(settled density, Kg/m /3/ ) 75
or
ml distilled water=2.9/(settled density, lb/ft /3/ ) 75
(4) Presaturate each 10g (0.35 oz) portion with the determined amount
of water. Place one presaturated 10g (0.35 oz) portion into a
crystallizing dish, tamp level using the bottom of a clean suitably
sized glass beaker. Place a metal coupon onto the presaturated
insulation portion and center it in a horizontal plane. Place the other
presaturated 10g (0.35 oz) portion into the crystallizing dish on the
metal coupon and tamp the composite specimen (metal coupon plus
saturated insulation in the crystallizing dish) to assure an even
distribution of this material and to assure good contact of the
insulation with the metal. Exercise care in preparing the composite
specimens to eliminate air pockets from forming next to the metal
coupons.
(5) Do not cover the crystallizing dish. (Care should be taken to
avoid evaporation from the composite specimen while it is being prepared
until it is placed in the humidity chamber.) If dripping occurs in the
chamber, position a drip guard in the chamber to divert condensation to
the chamber floor. Repeat the above for the other metal coupons. Place
all six composite specimens into the humidity chamber. The chamber
shall be preconditioned to 48.9 1.7 C (120 3 F) and 97 1.5 percent
relative humidity. The specimens shall remain in the chamber for 336 4
hours. (Keep the chamber door open a minimum of time while placing
composite specimens in and removing them from the chamber.)
(6) Upon completion of the test disassemble the composite specimens.
Thoroughly wash the metal coupons under running water and lightly brush
them using a soft nylon bristle brush or equivalent to remove loose
corrosion products. Remove the remaining corrosion products from the
metal coupons by cleaning them in accordance with the following
practices: 1
(i) Technique 1 -- Electrolytic Cleaning. This technique can be
used for post-cleaning the tested copper, steel and aluminum coupons.
Description: Electrolyze the coupons as follows: Make a solution
containing 28 ml of sulfuric acid (specific gravity 1.84), 2 ml of
organic inhibitor, e.g. aobut 0.5 g/liter of such inhibitors as
diorthotolyl thiourea, quinoline ethiodide, or betanaphthol quinoline
may be used, and 970 ml of water. The solution shall be at 75 C (167
F). The anode shall be carbon or lead, and the cathode shall be one
metal coupon. The electrolyzing shall run for 3 minutes at a current
density of 20 A/dm2. Caution: If lead anodes are used, lead may
deposit on the coupon. If the coupon is resistant to nitric acid, the
lead may be removed by a flash dip in 1 + 1 nitric acid (plus water).
To avoid injury in this and subsequent techniques when mixing acid and
water, gradually pour the acid into the water with continuous stirring,
provide cooling if necessary.
(ii) Technique 2 -- Copper. This technique or Technique 1 can be
used for post-cleaning the tested copper coupons only.
Description: Make a solution containing 500 ml of hydrochloric acid
(specific gravity 1.19), 100 ml of sulfuric acid (specific gravity
1.84), and 400 ml of water. To avoid injury, prepare the solution by
slowly adding the sulfuric acid to the water with continuous stirring.
Cool, then add the hydrochloric acid slowly with continuous stirring.
The solution shall be at room temperature. Dip the coupons in the
solution for 1 to 3 minutes.
(iii) Technique 3 -- Steel. This technique or technique 1 can be
used for post-cleaning the tested steel coupons only.
Description: Use one of the following two solutions:
Solution 1. Add 100 ml of sulfuric acid (specific gravity 1.84),
1.5 ml organic inhibitor, and water to make a l liter solution. The
solution shall be 50 C (120 F). Dip the coupons in this solution.
Solution 2 (also referred to as Clarke's solution). Add 20 g of
antimony trioxide and 50 g of stannous chloride to 1 liter of
hydrochloric acid (specific gravity 1.19). The solution shall be stirred
and be used at room temperature. Dip the coupons in this solution
stirring the solution at a rate such that deformation of the coupons
does not occur. This dipping shall last for up to 25 minutes.
(iv) Technique 4 -- Aluminum. This technique or technique 1 can be
used for post-cleaning the tested aluminum coupons only.
Description: Make a 1 liter solution by adding 20g of chromic acid,
and 50 ml of phosphoric acid (specific gravity 1.69), to water. The
solution shall be 80 C (176 F). Dip the coupons in this solution for
5-10 minutes. If a film remains, dip the coupons in nitric acid
(specific gravity 1.42) for 1 minute. Repeat the chromic acid dip.
Nitric acid alone may be used if there are no deposits.
(7) After cleaning, examine the metal coupons over a 40-W appliance
light bulb for perforation.
(c) Noncorrosiveness. Noncorrosiveness shall be determined by the
absence of any perforations (excluding notches which extend into the
coupon 3 mm or less from any edge) on each of the six test coupons when
the coupons are observed over a 40-W appliance light bulb.
1 These practices are the recommended practices in ''ASTM G1 --
Standard Recommended Practice for Preparing, Cleaning, and Evaluating
Corrosion Test Specimens,'' published by American Society for Testing
and Materials, 1916 Race Street, Philadelphia, Pa. 19103.
16 CFR 1209.6 Test procedures for critical radiant flux.
This section provides the test procedure for determining the critical
radiant flux of exposed attic floor insulation using a radiant heat
energy source.
(a) Apparatus and description of test procedure. Test chamber
(Figures 3 and 4 paragraph (b) of this section). An air-gas fueled
radiant heat energy panel or equivalent panel inclined at 30 above and
directed at a horizontally-mounted attic floor insulation specimen. The
radiant panel generates a radiant energy flux distribution ranging along
the approximately 100-cm length of the test specimen from a nominal
maximum of 1.0 W/cm.2 to a minimum of 0.1 W/cm2. The test is initiated
by open flame ignition from a pilot burner. The distance burned to
flame-out is converted to W/cm2 from the flux profile graph (Figure 8)
and reported as critical radiant flux, W/cm2. Section 1209.8 provides a
procedure for calibrating the radiation pyrometer used to standardize
the thermal output of the panel.
(b) Construction and instrumentation of the radiant panel test
chamber. The radiant panel test chamber shall be constructed and
instrumented as follows:
(1) The radiant panel test chamber employed for this test shall be
located in a draft protected area maintained at 21 3 C (69.8 9 F) and
relative humidity of 50 20%. The radiant panel test chamber, (Figures 3
and 4) shall consist of an enclosure 140 cm (55 in) long by 50 cm (19
1/2 in) deep by 71 cm (28 in) above the test specimen. The sides, ends,
and top shall be of 1.3 cm nominal ( 1/2 in) calcium silicate board,
such as Marinite I, 0.74 g/cm3 (46 lb/ft3) nominal density, with a
thermal conductivity at 177 C (350 F) of 1.11 cal (g)/hr cm2 C/cm
(0.89 Btu/(hr) (ft2) ( F/in)). One side shall be provided with an
approximately 10 cm x 110 cm (4 x 44 inches) draft tight fire resistant
glass window so that the entire length of the test specimen may be
observed from ourside the fire test chamber. On the same side and below
the observation window is a door which, when open, allows the specimen
platform to be moved out for mounting or removal of test specimens. A
draft tight, fire resistant observation window may be installed at the
low flux end of the chamber.
(2) The bottom of the test chamber shall consist of a sliding steel
platform which has provisions for rigidly securing the test specimen
holder in a fixed and level position. The free, or air access, area
around the platform shall be in the range of 1935-3225 cm2 (300-500
square in). The top of the chamber shall have an exhaust stack with
interior dimensions of 10.2 cm (4 in) wide by 38 cm (15 in) deep by 31.8
cm (12.5 in) high at the opposite end of the chamber from the radiant
energy source. The radiant heat energy source shall be a panel of
porous refractory material mounted in a cast iron frame, with a
radiation surface of 30.5 x 45.7 cm nominal (12 by 18 in). The panel
fuel system shall consist of a venturi-type aspirator or equivalent
system for mixing gas and air at approximately atmospheric pressure, a
clean dry air supply capable of providing 28.3 NTP (Normal Temperature
and Pressure m3 per hr (1000 standard cubic feet per hour) at 7.6 cm
(3.0 in) of water, and suitable instrumentation for monitoring and
controlling the flow of fuel to the panel.
(3) The radiant heat energy panel shall be mounted in the chamber 30
0.5 to the horizontal specimen plane. The horizontal distance from the
0 mark on the specimen fixture to the bottom edge (projected) of the
radiating surface of the panel is 8.9 cm 0.1 (3 1/2 1/32 in). The
panel to specimen vertical distance is 14.0 cm 0.1 (5 1/2 1/32 in) (see
Figure 5). The angle and dimensions given above are critical in order
to obtain the required radiant flux. The radiation pyrometer for
standardizing the thermal output of the panel shall be suitable for
viewing a circular area 25.0 cm (10 in) in diameter at a range of about
1.37 m (54 in). It shall be calibrated over the black body temperature
range of 490-510 C (914-950 F) in accordance with the procedure
described in 1209.8. A high impedance voltmeter with a suitable
millivolt range shall be used to monitor the output of the radiation
pyrometer described. The dummy holder (see Figure 6), shall be
constructed from 14 gauge heat-resistant stainless steel (AISI Type 300
(UNA-N08330)) or equivalent thickness 0.198 cm (0.078 in), having
overall dimension of 114 cm (45 in) by 32 cm (12 3/4 in) with a specimen
opening of 20 cm (7.9 inches) by 100 cm (39.4 in). Six slots are cut in
the flange on either side of the holder to reduce warping. The holder
is fastened to the platform with two stud bolts at each end.
(4) The specimen tray (see Figure 7) shall be constructed from 14
gauge heat-resistant stainless steel (AISI Type 300 (UNA-N08330)) or
equivalent, thickness 0.198 cm (0.078 in). The depth of the tray is 5.0
0.2 cm (2 5/64 in). The flanges of the specimen tray are drilled to
accommodate two stud bolts at each end; the bottom surface of the
flange is 2.1 0.1 cm (0.83 0.04 in) below the top edge of the specimen
tray. The overall dimensions of the tray and the width of the flanges
are not critical and should be chosen so that the tray essentially fills
the open space in the sliding platform. Tray must be adequate to
contain a specimen at least 100 cm long and 25 cm wide. It is important
to note that the zero reference point on the dummy specimen coincides
with the pilot burner flame impingement point (see Figure 5).
(5) The pilot burner used to ignite the specimen shall be a propane
venturi torch with an axially sysmmetric burner tip having a propane
supply tube with an orifice diameter of 0.0076 0.0013 cm (0.003 0.0005
in). In operation, the propane flow is adjusted to give a pencil flame
blue inner cone length of 1.3 cm ( 1/2 in). The pilot burner is
positioned so that the flame generated will impinge on the centerline of
the specimen at the zero reference point and at right angles to the
specimen length (see Figures 3 and 4). The burner shall be capable of
being swung out of the ignition position so that the flame is horizontal
and at least 5 cm (2 in) above the specimen plane.
(6) Two 3.2 mm nominal ( 1/8 in) diameter stainless steel sheathed,
grounded junction chromel alumel thermocouples are located in the
flooring radiant panel test chamber (see Figures 3 and 4).
Thermocouples shall be kept clean to ensure accuracy of readout. The
chamber thermocouple is located in the longitudinal central vertical
plane of the chamber 2.5 cm 0.1 (1 1/32 in) down from the top and 10.2
cm 0.1 (4 in 1/32) back from the inside of the exhaust stack. The
exhaust stack thermocouple is centrally located 15.2 0.1 cm (6 1/32 in)
from the top. A temperature indicating device with a range of 100-500
C (212-932 F) may be used to determine the chamber temperatures prior
to a test.
(7) An exhaust duct with a capacity of 28.3-85 NTP m3 per minute
(1000-3000 standard cubic feet per minute) decoupled from the chamber
stack by at least 7.6 cm (3 in) on all sides and with an effective area
of the canopy slightly larger than the plane area of the chamber with
the specimen platform in the out position shall be used to remove
combustion products from the chamber. With the panel turned on and
dummy specimen in place, there shall be no measurable difference in air
flow through the chamber stack with the exhaust on or off.
(8) The dummy specimen which is used in the flux profile
determination shall be made of 1.9 0.1 cm ( 3/4 1/32 in) 0.74 g/cm3 (46
lb/ft3) nominal density calcium silicate board, such as Marinite I (see
Figure 6). It is 25 cm (10 in) wide by 107 cm (42 in) long with 2.7 0.1
cm (1 1/16 1/32 in) diameter holes centered on and along the centerline
at the 10, 20, 30, 40, 50, 60, 70, 80, 90 cm locations (within 0.1 cm),
measured from the zero reference point at the maximum flux end of the
specimen. The total heat flux transducer used to determine the flux
profile of the chamber in conjunction with the dummy specimen should be
of the Schmidt-Boelter type, having a range of 0-1.5 W/cm2 (0-1.32
Btu/ft2 s), and shall be calibrated over the operating flux level range
of .10 to 1.5 W/cm2 in accordance with the procedure outlined in
1209.8. The incoming cooling water flowing through the instrument shall
be 15-25 C (59-77 F). A high impedance voltmeter with a resolution of
at least 0.01 mV shall be used to measure the output of the total heat
flux transducer during the flux profile determination. A timer shall be
used for measuring preheat and pilot contact time.
(c) Safety procedures. The possibility of a gas-air fuel explosion
in the test chamber should be recognized. Suitable safeguards
consistent with sound engineering practice should be installed in the
panel fuel supply system. These may include one or more of the
following: (1) A gas feed cut-off activated when the air supply fails,
(2) a fire sensor directed at the panel surface that stops fuel flow
when the panel flame goes out, (3) a commercial gas water heater or
gas-fired furnace pilot burner control thermostatic shut-off, which is
activated when the gas supply fails, or other suitable and approved
device. Manual reset is considered a desirable feature of any safeguard
system used. In view of the potential hazard from products of
combustion, the exhaust system must be so designed and operated that the
laboratory environment is protected from smoke and gas. The operator
should be instructed to minimize exposure to combustion products by
following sound safety practices, such as ensuring that the exhaust
system is working properly and wearing appropriate clothing, including
gloves.
(d) Test specimens -- (1) Specimens of insulation intended for
pneumatic applications. (i) Insulation shall be installed into the
specimen tray using the blower/cyclone apparatus described in
1209.4(a).
(ii) Insulation shall be conditioned as described in 1209.4(b).
(iii) Apparatus 4, 6, 7, 8, 9 and 10 shall be used as described in
1209.4(d)(1)(i) with the following additional requirements.
(iv) The fill chamber (apparatus 6) shall be equipped with openings
in the front and back so that a radiant panel specimen tray can be slid
through the fill chamber.
(v) Adjust the blower control(s) (apparatus 9) such that the supply
and overflow blowers will operate at a no load voltage of 40 volts RMS.
(vi) Turn on the blowers simultaneously and proceed to fill the fill
chamber by picking up material from the box using the supply source
hose. Large clumps of insulation shall be broken by hand before feeding
them into the hose. Continue filling the chamber until large amounts of
insulation are being drawn into the overflow hose.
(vii) Slowly slide the specimen tray through the fill chamber so that
the low flux end of the tray is parallel with the back of the fill
chamber filling the tray by sliding the tray forward to allow an excess
of insulation to build up in the tray.
(viii) Shut off the blowers and remove the specimen tray and gently
screed the insulation so that the insulation is level across the top of
the tray. Take care not to compact the insulation or to leave large
voids in the material. The tray may now be inserted into the radiant
panel.
(2) Specimens of insulation intended for pouring applications.
Insulation intended for pouring applications shall be poured into the
tray until the tray is overfilled and then carefully screeded to the top
of the the tray taking care not to compact the insulation or leave large
voids in the surface of the material.
(3) Specimens of insulation intended for pouring and pneumatic
applications. If the insulation is intended for both pouring and
pneumatic applications, or if it is uncertain whether the insulation
will be poured or blown, the insulation shall be tested using the test
procedures at paragraphs (d) (1) and (2) of this section for each of the
applications. Three specimens shall be tested under the test procedure
for each application. All of the specimens shall meet the criteria at
1209.3(b) for passing the attic floor radiant panel test.
(e) Radiant heat energy flux profile standardization. In a
continuing program of tests, determine the flux profile at least once a
week. Where the time interval between tests is greater than one week,
determine the flux profile at the start of the test series.
(1) Mount the dummy specimen in the mounting frame and attach the
assembly to the sliding platform. With the sliding platform out of the
chamber, ignite the radiant panel. Allow the unit to heat for 1 hour.
The pilot burner is off during this determination. Adjust the fuel
mixture to give an air-rich flame. Make fuel flow settings to bring the
panel to an apparent black body temperature as measured by the radiation
pyrometer, of approximately 500 C (932 F), and bring the chamber to a
temperature of approximately 180 C (356 F). When equilibrium has been
established, move the specimen platform into the chamber. Allow 0.5
hour for the closed chamber to reach equilibrium.
(2) Measure the radiant heat energy flux level at the 40 cm point
with the total flux meter instrumentation. This is done by inserting
the flux meter in the opening so that its detecting plane is 0.16-0.32
cm ( 1/16- 1/8 inch) above and parallel to the plane of the dummy
specimen and reading its output after 30 10 seconds. If the level is
within the limits specified, the flux profile determination is started.
If it is not, make the necessary adjustments in the panel fuel flow. A
suggested flux profile data log format is shown in Figure 9.
(3) The test shall be run under chamber operating conditions which
give a flux profile as shown in Figure 8. The radiant heat energy
incident on the dummy specimen shall be between 0.87 and .95 W/cm2 (0.77
and .83 Btu/ft2 sec) at the 20 cm point, between 0.48 and 0.52 W/cm2
(0.42 and 0.46 Btu/ft2 sec) at the 40 cm point, and between 0.22 and
0.26 W/cm2 (0.19 and 0.23 Btu/ft2 sec) at the 60 cm point. Insert the
flux meter in the 10 cm opening, following the procedure given above.
Read the millivolt output at 30 10 seconds and proceed to the 20 cm
point. Repeat the 10 cm procedure. The 30 to 90 cm flux levels are
determined in the same manner. Following the 90 cm measurement, make a
check reading at 40 cm. If this is within the limits set forth, the
test chamber is in calibration, and the profile determination is
completed. If not, carefully adjust fuel flow, allow 0.5 hour for
equilibrium and repeat the procedure. Plot the radiant heat energy flux
data as a function of distance along the specimen plane on rectangular
coordinate graph paper. Carefully draw the best smooth curve through
the data points. This curve will hereafter be referred to as the flux
profile curve.
(4) Determine the open chamber apparent black body and chamber
temperatures that are identified with the standard flux profile by
opening the door and moving the specimen platform out. Allow 0.5 hour
for the chamber to reach equilibrium. Read the radiation pyrometer
output and record the apparent black body temperature. This is the
temperature setting that can be used in subsequent test work in lieu of
measuring the radiant flux at 20 cm, 40 cm, and 60 cm using the dummy
specimen. The chamber temperature also shall be determined again after
0.5 hour and is an added check on operating conditions.
(f) Conditioning. Test specimens shall be conditioned to equilibrium
at 21 3 C (69.8 5.4 F) and a relative humidity of 50 5 percent
immediately prior to testing. A less than 1% change in net weight of
the specimen in two consecutive weighings with two hours between each
weighing constitutes equilibrium. The maximum cumulative time a
conditioned sample may be exposed to conditions different from 21 3 C
(69.8 5.4 F) and relative humidity of 50 5% before insertion in to the
radiant panel chamber for testing is 10 minutes.
(g) Test Procedure. (1) With the sliding platform out of the
chamber, ignite the radiant panel. Allow the unit to heat for 1 hour.
It is recommended that a sheet of inorganic millboard be used to cover
the opening when the hinged portion of the front panel is open and the
specimen platform is moved out of the chamber. The millboard is used to
prevent heating of the specimen and to protect the operator. Read the
panel apparent black body temperature and the chamber temperature. When
these temperatures are in agreement to within 5 C ( 9 F) with those
determined previously, during the flux profile standardization
procedure, the chamber is ready for use.
(2) Mount the specimen tray with insulation on the sliding platform
and position with stud bolts (see Figure 9). Ignite the pilot burner,
move the specimen into the chamber, and close the door. Start the
timer. After 2 minutes 5 seconds preheat, with the pilot burner on and
set so that the flame is horizontal and about 5 cm above the specimen,
bring the pilot burner flame into contact with the center of the
specimen at the 0 mark. Leave the pilot burner flame in contact with
the specimen for 2 minutes 5 seconds, or until all flaming other than
in the area of the pilot burner has ceased, then remove to a position of
at least 5 cm above the specimen and leave burning until the test is
terminated.
(3) If the specimen does not ignite within 2 minutes following pilot
burner flame application, the test is terminated by extinguishing the
pilot burner flame. For specimens that do ignite, the test is continued
until the flame goes out. When the test is completed, the door is
opened, and the specimen platform is pulled out.
(4) Measure the distance burned, (the point of farthest advance of
the flame front) to the nearest 0.1 cm (.03 in). From the flux profile
curve, convert the distance to W/cm2 (Btu/ft2 sec) critical radiant heat
flux at flame out. Read to two significant figures. A suggested data
log format is shown in Figure 10.
(5) Remove the specimen tray from the moveable platform. The
succeeding test can begin as soon as the panel apparent black body
temperature and chamber temperature are verified. The specimen tray
should be at room temperature before the next specimen is inserted.
16 CFR 1209.7 Test procedures for smoldering combustion.
This section provides the test method for determining smoldering
combustion characteristics of materials used for thermal insulation.
This test shall be conducted on materials at the measured settled
density as provided in 1209.4.
(a) Apparatus. (1) The specimen holder shall be an open-top 20 0.2
cm (7.87 .08 in) square box, 10 0.2 cm (3.94 .08 in) in height,
fabricated from a single piece of 0.61 0.08 mm thick (24 U.S. Standard
gauge) stainless steel sheet with the vertical edges of the box
overlapped, not to exeed 7 mm (.28 in) in seam width, and soldered so as
to be watertight. A removable extension top extending 8 .5 cm. above
the top of the smolder box shall also be provided. The specimen holder
during test use shall rest upon a pad of unfaced glass fiberboard or
equivalent having dimensions equal to or greater than those of the
bottom of the specimen holder. The unfaced glass fiberboard shall be
approximately 2.5 cm (1 in) thick with a thermal conductivity of 0.30
0.05 cal(g)/hr cm2 C/cm (0.24 0.04 Btu/hr ft2 F/in) at 23.9 C (75 F).
(2) Ignition source. The ignition source shall be a cigarette
without filter tip made from natural tobacco, 85 2 mm (3.35 .08 in) long
with a tobacco packing density of 0.270 0.020 g/cm3 (16.9 1.25 lb/ft3)
and a total weight of 1.1 0.1 gm (0.039 0.004 oz).
(3) Balance. A balance of 1 kg (2.2 lb) capacity, accurate at least
to 0.1 g (0.004 oz), is required.
(4) Test area. The test area shall be draft-protected and equipped
with a suitable system for exhausting smoke and/or noxious gases
produced by testing. Air velocities as measured by a hot wire
anemometer in the vicinity of the surface of the specimen shall not
exceed 0.5 m/sec (1.64 ft/sec). The test area shall be at 21 3 C (69.8
5.4 F) and 50 5 percent relative humidity at the time the test begins.
(b) Test procedure. (1) Specimens and cigarettes shall be
conditioned in air at a temperature of 21 3 C (69.8 5.4 F) and a
relative humidity of 50 5 percent to equilibrium prior to test. A
change of less than 1% in net weight of the specimen in two consecutive
weighings with two hours between each weighing constitutes equilibrium.
Cigarettes shall be removed from any packaging and exposed in a suitable
manner to permit free movement of air around them during conditioning.
Calculate the weight of material necessary to fill the holder (volume
4,000 cm3 or 0.14 ft3) at the settled density as determined in
1209.4(e). The material shall be blown, combed, or otherwise mixed to
remove lumps and shall be loaded uniformly into each specimen holder,
level and flush to the top of the holder. The weight of each specimen
shall be measured to the nearest 0.2 g (0.007 oz) or less by weighing
the holder before and after filling. If the weight of the specimen is
less than that calculated, a removable extension top shall be placed on
top of the holder, the necessary amount of insulation is placed inside
the extension and the loaded holder shall be dropped from a height no
greater than 7.6 cm. (3 in) onto a hard flat surface. This process
shall be repeated until the calculated weight of material completely
fills the holder. The extension top is then removed. With the specimen
in the holder and placed on the insulated pad, a rod of 8 mm (.31 in)
diameter with a pointed end shall be inserted vertically into the
approximate center of the material being tested and withdrawn to form an
appropriate cavity for the ignition source, such that the cigarette fits
snugly and maintains uniform contact with the specimen. A well lit
cigarette, burned not more than 8 mm (0.31 in), shall be inserted in the
formed cavity, with the lit end upward and flush with the specimen
surface. Burning of the cigarette and specimen shall be allowed to
proceed undisturbed in the test area for at least 2 hours or until the
smoldering is no longer progressing, whichever period is longer.
(2) After completion of burning and after the holder has cooled down
to approximately room temperature, the specimen holder with its material
residue shall be weighed, at least to the nearest 0.1 g (0.003 oz), and
the percent weight loss of the original specimen calculated. The weight
of the cigarette residue is ignored in this calculation. (That is, the
weight of the cigarette residue is not subtracted from the net weight of
the specimen holder's contends at the conclusion of the test.)
(3) Three specimens per sample shall be tested.
16 CFR 1209.8 Procedure for calibration of radiation instrumentation.
This procedure is used to calibrate the radiation instruments used in
the test procedures for measuring critical radiant flux.
(a) Radition pyrometer. Calibrate the radiation pyrometer by means
of a conventional black body enclosure placed within a furnace and
maintained at uniform temperatures of 490, 500, and 510 C (914, 932, and
950 F). The black body enclosure may consist of a closed chromel metal
cylinder with a small sight hole in one end. Sight the radiation
pyrometer upon the opposite end of the cylinder where a thermocouple
indicates the black body temperature. Place the thermocouple within a
drilled hole and in good thermal contact with the black body. When the
black body enclosure has reached the appropriate temperature
equilibrium, read the output of the radiation pyrometer. Repeat for
each temperature.
(b) Total heat flux meter. The total flux meter shall be calibrated
by the National Bureau of Standards, (direct request for such
calibration services to the: Radiometric Physics Division, 534,
National Bureau of Standards (NBS), Washington, DC 20234.), or,
alternatively, its calibration shall be developed by transfer
calibration methods with an NBS calibrated flux meter. This latter
calibration shall make use of the radiant panel tester as the heat
source. Measurements shall be made at each of the nine dummy specimen
positions and the mean value of these results shall constitute the final
calibration.
(c) Recommendation. It is recommended that each laboratory maintain
a dedicated calibrated reference flux meter against which one or more
working flux meters can be compared as needed. The working flux meters
should be calibrated according to this procedure at least once per year.
16 CFR 1209.9 Labeling requirement.
(a) Manufacturers, importers, and private labelers of cellulose
insulation shall place on all containers of cellulose insulation the
following statement:
''This product meets the amended CPSC standard for flame resistance
and corrosiveness of cellulose insulation.''
To meet this requirement manufacturers, importers, and private
labelers may use any type of label, including one which is pressure
sensitive or glued on, provided the label is made in such a manner that
it will remain attached to the container for the expected time interval
between the manufacture of the product and its installation.
(b) This label shall appear prominently and conspicuously on the
container in letters which are at least one-fourth inch in height. The
labeling statement shall be printed with legible type in a color which
contrasts with the background on which the statement is printed.
16 CFR 1209.10 Certification and enforcement.
(a) While this part 1209 prescribes test methods to determine whether
cellulose insulation subject to this interim standard meets its
requirements, the interim standard itself does not require that a
manufacturer or private labeler test any cellulose insulation. However,
section 14 of the Consumer Product Safety Act (15 U.S.C. 2063) requires
manufacturers and private labelers of products subject to safety
standards to certify that the product conforms to the standard based on
either a test of each product or a reasonable testing program.
(Elsewhere in this issue of the Federal Register, 44 FR 39983, the
Commission has issued a certification rule that prescribes requirements
that manufacturers and private labelers shall follow to certify that
their cellulose insulation complies with the requirements of the amended
standard.)
(b) The Commission intends to use the test procedures set forth in
this part 1209 to determine whether insulation subject to the interim
standard meets the requirements of the interim standard.
16 CFR 1209.11 Effective date.
All cellulose insulation that is a consumer product and that is
manufactured after October 15, 1979 shall meet the requirements of this
standard, including the labeling requirement of 1209.9.
16 CFR 1209.11 Pt. 1209, Subpt. A, Fig. 1
INSERT ILLUS. 29A
16 CFR 1209.11 Pt. 1209, Subpt. A, Fig. 2
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16 CFR 1209.11 Pt. 1209, Subpt. A, Fig. 3
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16 CFR 1209.11 Pt. 1209, Subpt. A, Fig. 4
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16 CFR 1209.11 Pt. 1209, Subpt. A, Fig. 5
INSERT ILLUS. 33A
16 CFR 1209.11 Pt. 1209, Subpt. A, Fig. 6
INSERT ILLUS. 34A
16 CFR 1209.11 Pt. 1209, Subpt. A, Fig. 7
INSERT ILLUS. 35A
16 CFR 1209.11 Pt. 1209, Subpt. A, Fig. 8
INSERT ILLUS. 36A
16 CFR 1209.11 Pt. 1209, Subpt. A, Fig. 9
INSERT ILLUS. 37A
16 CFR 1209.11 Pt. 1209, Subpt. A, Fig. 10
INSERT ILLUS. 38A
16 CFR 1209.11 Subpart B -- Certification
Authority: Secs. 14, 16; 86 Stat. 1220, 1222; (15 U.S.C. 2063,
2065).
16 CFR 1209.31 Purpose and applicability.
(a) Purpose. The purpose of this subpart B of part 1209 is to
establish requirements that manufacturers, importers, and private
labelers must follow to certify that their products comply with the
Amended Interim Standard for Cellulose Insulation (16 CFR part 1209,
subpart A). This subpart B includes requirements for conducting a
reasonable testing program, certifying with labels and separate
certificates, and recordkeeping.
(b) Applicability. (1) Cellulose insulation which is subject to the
standard includes all cellulose insulation, manufactured after the
effective date (as described in 1209.41), produced or distributed for
sale to, or for the personal use, consumption, or enjoyment of,
consumers in or around a permanent or temporary household or residence,
a school, in recreation or otherwise. The standard applies to cellulose
insulation that is produced or distributed for sale to consumers, for
their direct installation or use, as well as cellulose insulation that
is produced or distributed for installation by professionals.
(2) The term cellulose insulation is defined in 1209.2(a) of the
standard to mean cellulosic fiber, loose fill, thermal insulation that
is suitable for blowing or pouring applications.
16 CFR 1209.32 Definitions.
In addition to the definitions set forth in section 3 of the act and
in section 1209.2 of the standard, the following definitions shall apply
to this subpart:
Private labeler means an owner of a brand or trademark which is used
on the label of cellulose insulation subject to the standard which bears
a private label as defined in section 3(a)(7) of the act (15 U.S.C.
2052(a)(7)).
Production interval means a time span determined by the manufacturer,
private labeler, or importer to be appropriate for conducting a test or
series of tests on samples of the cellulose insulation being produced to
demonstrate that the product meets the requirements of the standard. An
appropriate production interval may vary from test to test. The time
period for a production interval shall be short enough to ensure that if
the samples selected for testing comply with the standard or a portion
of the standard, the insulation produced during the period will meet the
standard or the appropriate portion of the standard.
16 CFR 1209.33 Reasonable testing program.
(a) General. Section 14(a) of the Consumer Product Safety Act (15
U.S.C. 2063(a)) requires each manufacturer, importer, or private labeler
of a product which is subject to a consumer product safety standard to
issue a certificate of compliance with the applicable standard and to
base that certificate upon a test of each item or upon a reasonable
testing program. Because it is not practical to test each item subject
to the standard, a reasonable testing program shall be used to support
certificates of compliance for cellulose insulation.
(b) Requirements of testing program. A reasonable testing program
for cellulose insulation is one which demonstrates with reasonable
certainty that insulation certified to comply with the standard will
meet all requirements of the standard. Manufacturers, private labelers,
and importers shall determine the types and frequency of testing for
their own reasonable testing programs. A reasonable testing program may
include either the tests prescribed by the standard, or any other
reasonable test procedures. However, a reasonable testing program
cannot consist of tests which the party issuing the certificate of
compliance knows (or through the exercise of reasonable diligence should
know) will pass or accept insulation which will yield failing results
when subjected to any of the tests in the standard. All reasonable
testing programs shall consist of four elements:
(1) Qualification tests which must be performed on samples of the
manufacturer's cellulose insulation to demonstrate that the product is
capable of passing the tests prescribed by the standard.
(2) A description of the cellulose insulation which passed the
qualification testing. This description is known as the ''product
specification.''
(3) Production tests, which must be performed at appropriate
production intervals as long as the cellulose insulation is being
manufactured.
(4) Corrective action, which must be taken whenever samples of the
cellulose insulation yield unacceptable or failing test results.
(c) Commission testing. The Commission will test for compliance with
the standard by using the test procedures contained in the standard, and
will base enforcement actions for violation of the standard on the
results of such testing.
(d) Testing by third parties. At the option of the manufacturer,
importer, or private labeler, some or all of the testing for the
reasonable testing program may be performed by a commercial testing
laboratory. However, the manufacturer, importer, or private labeler is
responsible for ensuring that all testing used to support the
certificate of compliance has been properly performed with passing or
acceptable results and for maintaining all records of such tests in
accordance with 1209.38 below.
16 CFR 1209.34 Qualification testing.
(a) Requirement. Before any manufacturer, importer, or private
labeler begins distribution in commerce of cellulose insulation which is
subject to the standard, samples of the insulation shall be tested for
compliance with the standard. Manufacturers, importers, and private
labelers shall determine the types of tests for qualification testing.
(b) Timing, Sampling. Any or all of the qualification testing
required by this 1209.34 may be performed before the effective date of
the standard. Manufacturers, private labelers, or importers may select
samples for qualification testing of a product in any manner they
desire.
16 CFR 1209.35 Product specification.
(a) Requirement. Before any manufacturer, importer, or private
labeler distributes in commerce cellulose insulation which is subject to
the standard, it shall ensure that the insulation is described in a
written product specification.
(b) Contents of Specification. The product specification shall
include the following information:
(1) A description of the equipment used to manufacture the
insulation, including the model number and names of the equipment
manufacturers, and details of any modification made to any item of
equipment.
(2) A description of the cellulosic stock material used to
manufacture the insulation, identifying the extent of impurities
allowed.
(3) The formulation of the fire-retardant chemicals added, including
their chemical constituents and their form (for example, granulated,
powdered, or liquid); the amount of fire-retardant chemicals present in
the finished insulation, expressed as a percentage of the total weight
of chemicals and cellulosic stock; the average weight of chemicals per
bag; and the name and address of each chemical supplier. Where the
chemical composition or formula of a commercially pre-mixed fire
retardant is not known to the insulation manufacturer, the pre-mixed
fire retardant may be described simply by the name and address of the
supplier and its brand or trade name.
(4) A description of the tests which were used to qualify the product
as well as the dates of performance and results and actual values, where
applicable, of the tests.
(5) Any other information necessary to describe the insulation.
(c) Distribution in Commerce. After the qualification testing
required by 1209.34 has been completed with acceptable results and the
product specification required by this 1209.35 has been recorded, the
cellulose insulation may be manufactured and distributed in commerce,
subject to the provisions of 1209.36.
(d) New Product. Whenever a manufacturer, private labeler, or
importer makes any change to any item of equipment, cellulosic stock
material, or formulation of a fire-retardant chemical, or any other
factor which is likely to affect the ability of the cellulose insulation
to meet the standard, that change will result in a new cellulose
insulation product, requiring the preparation of a new product
specification. The new product must be subjected to qualification tests
and must yield passing or acceptable results.
16 CFR 1209.36 Production testing.
(a) General. Manufacturers, private labelers, and importers shall
test the cellulose insulation periodically as it is manufactured to
demonstrate that the product being manufactured is substantially similar
to the product which passed the qualification testing and to demonstrate
that the product being manufactured meets the requirements of the
standard.
(b) Types and frequency of testing. Manufacturers, private labelers,
and importers shall determine the types of tests for production testing.
Each production test shall be conducted at a production interval short
enough to ensure that if the samples selected for testing meet the
standard or a portion of the standard, the insulation produced during
the interval will also meet the standard or the appropriate portion of
the standard.
(c) Test failure. If any test yields failing results, production
must cease and the faulty manufacturing process must be corrected (see
1209.37). In addition, the material from which the samples were taken
may not be distributed in commerce unless the material can be corrected
(see 1209.37) so as to yield passing results and meet the standard.
Cellulose insulation that does not comply with the standard cannot be
sold or offered for sale.
16 CFR 1209.37 Corrective actions.
(a) Test failure. When any test required by 1209.36 yields failing
or unacceptable results, corrective action must be taken. Corrective
action includes changes to the manufacturing process as well as
reworking the insulation product itself. Corrective action may consist
of equipment adjustment, equipment repair, equipment replacement, change
in chemical formulation, change in chemical quantity, change in
cellulosic stock, or other action deemed appropriate by the
manufacturer, private labeler or importer to achieve passing or
acceptable test results.
(b) New product. If any corrective action required by this 1209.37
results in a change in the product specification and a new cellulose
insulation product (see 1209.34(b)), the product specification for the
new product must be recorded in accordance with 1209.35, and
qualification tests must be performed with passing or acceptable results
in accordance with 1209.34, before the new product is distributed in
commerce.
16 CFR 1209.38 Records.
(a) Establishment and maintenance. Each manufacturer, importer, and
private labeler of cellulose insulation subject to the standard shall
establish and maintain the following records which shall be available to
any designated officer or employee of the Commission upon request in
accordance with section 16(b) of the act (15 U.S.C. 2965(b)):
(1) A record of each product specification containing all information
required by 1209.35. (This includes information concerning the types of
qualification tests as well as the results from these tests.)
(2) Records to demonstrate compliance with the requirements for
production testing in 1209.36, including a description of the types of
production tests conducted and the production interval selected for
performance of each production test.
(3) Records of all corrective actions taken in accordance with
1209.37, including the specific action taken, the date the action was
taken, and the test failure which necessitated the action. Records of
corrective action must relate the corrective action taken to the product
specification of the insulation product which was the subject of that
corrective action, and the product specification of any new product
which results from any corrective action.
(4) Records indicating exactly which insulation material is covered
by each certificate of compliance issued.
(b) Retention. (1) Product specification. The records of each
product specification shall be retained for as long as the cellulose
insulation covered by that specification is manufactured and for a
period of two (2) years thereafter.
(2) Other records. Records of production testing, corrective actions
taken, and certificates issued shall be maintained for a period of two
(2) years.
(c) Confidentiality. Requests for confidentiality of records
provided to the Commission will be handled in accordance with section
6(a)(2) of the CPSA (15 U.S.C. 2055(a)(2)), the Freedom of Information
Act as amended (5 U.S.C. 552), and the Commission's regulations under
that act (16 CFR part 1015, February 22, 1977).
16 CFR 1209.39 Certification of compliance.
(a)(1) Responsibilities of manufacturer for insulation sold in bags.
Manufacturers of cellulose insulation subject to the standard which is
sold in bags or other containers shall certify compliance with the
standard by marking each bag or container with the following
information:
(i) The statement ''This product meets the amended CPSC standard for
flame resistance and corrosiveness of cellulose insulation.'' (This
statement is the same statement provided in 1209.9 of the standard; it
need not appear twice on the bag or container.)
(ii) The name of the manufacturer, private labeler, or importer
issuing the certificate of compliance. See paragraphs (b) and (c),
below.
(iii) The date of manufacture by day, month, and year.
(iv) The place of manufacture, by city, state, and zip code, or in
the case of products manufactured outside the United States, by city and
country.
The information required by this 1209.39(a) may appear anywhere on
the bag or container. The information required need not appear at the
same place on the bag or container. The information shall be permanent
until the bag or container is opened and used. The information shall be
conspicuous and must appear in letters and figures at least 1/4 inch in
height. The date and place of manufacture may be in code, provided the
person or firm issuing the certificate maintains a written record of the
meaning of the code that can be made available to consumers, persons in
the chain of distribution, and the Commission upon request.
(2) Insulation not sold in bags or containers. The manufacturer of
cellulose insulation subject to the standard which is not sold in bags
or other containers shall certify compliance with the standard by
accompanying each shipment or delivery of the product, with a document
such as an invoice, bill, statement, or separate document, which states
the following: ''This product meets the amended CPSC standard for flame
resistance and corrosiveness of cellulose insulation. This material was
manufactured on (insert day, month, and year of manufacture) at (insert
city, state, and zip code, or in the case of insulation manufactured
outside the United States, city and country).'' The certificate of
compliance must also contain the name of the manufacturer, private
labeler, or importer issuing the certificate. See paragraphs (b) and
(c), below. The certificate of compliance must appear in letters and
figures which are conspicuous and legible. The date and place of
manufacture may be in code, provided the person or firm issuing the
certificate maintains a written record of the meaning of the code that
can be made available to consumers, persons in the chain of
distribution, and the Commission upon request.
(b) Responsibilities of private labelers. A private labeler who
distributes a product subject to the standard which is manufactured by
another person or firm but which is sold under the private labeler's
name, brand, or trademark must issue the certificate of compliance
required by section 14 of the Consumer Product Safety Act and this
section. If the testing required by this subpart has been performed by
or for the manufacturer of the product, the private labeler may rely on
any such tests to support the certificate of compliance if the records
of such tests are maintained in accordance with 1209.38, above. The
private labeler is responsible for ensuring that all testing used to
support the certificate of compliance has been performed properly with
passing or acceptable results, and that all records of such tests are
accurate and complete.
(c) Responsibilities of importers. The importer of any product
subject to the standard must issue the certificate of compliance
required by section 14(a) of the act and this 1209.39. If the testing
required by this subpart B of part 1209 has been performed by or for the
foreign manufacturer of the product, the importer may rely on any such
tests to support the certificate of compliance if the importer is a
resident of the U.S. or has a resident agent in the U.S. and the records
are maintained in the U.S. in accordance with 1209.38 above. The
importer is responsible for ensuring that all testing used to support
the certificate of compliance has been performed properly with passing
or acceptable results, and that all records of such tests are accurate
and complete.
16 CFR 1209.40 Certification responsibility, multiple parties.
If there is more than one party (i.e., manufacturer, private labeler,
or importer) otherwise subject to the requirements of this subpart B of
part 1209 for certain cellulose insulation, only the party closest to
the consumer in the distribution chain is required to issue a
certificate.
16 CFR 1209.41 Effective date.
The requirements of this subpart B of part 1209 shall become
effective on October 16, 1979. Any cellulose insulation manufactured
after October 15, 1979 must be certified as complying with the standard.
Cellulose insulation which is sold in bags or other containers is
''manufactured'' when the insulation is packaged in the bag or other
container in which it will be sold. Insulation which is not sold in
bags or containers is ''manufactured'' when the insulation leaves the
manufacturing site to be sold.
16 CFR 1209.41 PART 1211 -- SAFETY STANDARD FOR AUTOMATIC RESIDENTIAL
GARAGE DOOR OPERATORS
Sec.
1211.1 Effective date.
1211.2 Definition.
1211.3 Units of measurement.
1211.4 Protection against risk of injury from entrapment.
1211.5 Instruction manual.
1211.6 UL marking requirement.
1211.7 Statutory labeling requirement.
Authority: Sec. 203, Pub. L. 101-608, 104 Stat. 3110.
Source: 56 FR 28052, June 19, 1991, unless otherwise noted.
16 CFR 1211.1 Effective date.
This standard applies to all residential garage door operators
manufactured on or after January 1, 1991 for sale in the United States.
16 CFR 1211.2 Definition.
As used in this part 1211: Residential garage door operator means a
vehicular door operator which is
(a) Intended for use in a home or associated garage;
(b) Is rated 600 volts or less; and
(c) Is intended to be employed in ordinary locations in accordance
with the current National Electrical Code, NFPA 70.
16 CFR 1211.3 Units of measurement.
If a value for measurement as given in these requirements is followed
by an equivalent value in other units, in parentheses, the second value
may be only approximate. The first stated value is the requirement.
16 CFR 1211.4 Protection against risk of injury from entrapment.
(a) General requirements. (1) If an automatically-reset protective
device is employed, automatic restarting of a motor shall not result in
a risk of injury to persons.
(2) A residential garage door operator is considered to comply with
the requirement in paragraph 1211.4(a)(1) if some means is provided to
prevent the motor from restarting when the protector closes.
(b) Entrapment. (1) Except for the first 1 foot (0.30 m) of travel
as measured over the path of the moving door operating member, a
downward moving residential garage door shall not remain in contact with
an obstructing object as specified in paragraph 1211.4(b)(2) for more
than 2 seconds.
(2) The object used for the obstruction is to be 2 inches (50.8 mm)
high, resilient in the first inch, and capable of being compressed to 1
inch (25.4 mm) under 100 pounds (445 N) of force. For the tests, the
object is to be placed on the garage floor and at various heights under
the leading edge of the door and located in line with the driving point
of the operator.
(3) An operator is to be tested for 50 open-and-close cycles of
operation while the operator is connected to the type of residential
garage door with which it is intended to be used or with the doors
specified in paragraph 1211.4(b)(4). The force adjustment on the
operator is to be at the maximum setting or at the setting that
represents the most severe operating condition. Any accessories that
are intended for use with the door are to be attached and the test is to
be repeated.
(4) If the operator is intended to be used with more than one type of
door, the operator is to be tested on a sectional door with a curved
track and on a one-piece door with jamb hardware and no track. If the
operator is not intended for use on either or both of these types of
doors, a one-piece door with track hardware or a one-piece door with
pivot hardware, as appropriate, may be used for the tests. See the
marking requirements at 1211.6(d) of this part.
(5) Compliance with the requirement in paragraph 1211.4(b)(1) may be
accomplished by reversal of the rotation of the motor, by spring
loading, or by other means.
(6) A residential garage door operator marketed separately from the
door that it is intended to control shall have the means to comply with
the requirement in paragraph 1211.4(b)(1) inherent in the operator.
(7) A residential garage door operator shall not allow the door to
remain in contact with an obstructing object if the lower limiting
device is not actuated in 30 seconds or less following the initiation of
the close cycle. If the door is stopped manually during its descent,
the 30 seconds may be measured from the resumption of the close cycle.
(8) Switches or relays used for the purpose mentioned in paragraph
1211.4(b)(7) shall be tested for 100,000 cycles of operation and shall
be connected in such a manner that malfunction of the switch or relay
will result in the operator being inoperative with respect to downward
movement of the door.
(9) If another means, such as a solid-state device, is used for the
purpose mentioned in paragraph 1211.4(b)(7) it shall be as reliable as
the switch or relay mentioned in paragraph 1211.4(b)(8).
(10) To determine whether an operator complies with the requirement
in paragraph 1211.4(b)(7) an operator is to be subjected to 10
open-and-close cycles of operation while connected to the door or doors
specified in paragraphs 1211.4(b) (3) and (4). The cycles need not be
consecutive; that is, there may be any number of motor cooling-off
periods during the test. The means provided to comply with the
requirement in paragraph 1211.4(b)(1) is to be inoperative or defeated
during the test. An obstructing object is to be provided so that the
door cannot activate a lower limiting device.
(11) During the closing cycle, the system providing compliance with
paragraphs 1211.4(b) (1) and (7) shall function regardless of a short
anywhere in the circuit that initiates the close cycle.
(12) A means to manually detach the door operator from the door shall
be provided. The means shall be colored red and shall be easily
distinguishable from the rest of the operator. It shall be capable of
being adjusted to a height of 6 feet (1.8 m) above the garage floor when
the operator is installed as specified in 1211.5 (b) and (c) of this
part. The means shall be constructed so that a hand can firmly grip it
and detach the operator by applying a maximum of 50 pounds (220 N) of
force to the means with the door obstructed in the down position. The
obstructing object, as described in paragraph 1211.4(b)(2) is to be
located in several different positions. If a twisting motion is
involved to detach the door operator from the door, the detachment shall
require a torque of not more than 10 pound-inches (1.1N m). A marking
with instructions for detaching the operator shall be provided as
required by 1211.6 (b) through (c) of this part.
(13) A push of a control button or buttons that initiate movement of
a door shall stop and may reverse the door on the down cycle. On the up
cycle, a push of a button or buttons shall stop the door but not reverse
it.
16 CFR 1211.5 Instruction manual.
(a) A residential garage door operator shall be provided with an
instruction manual. The instruction manual shall give complete
instructions for the safe and correct installation, operation, and
servicing of the operator. To determine whether the installation
instructions in the instruction manual comply with this requirement, at
paragraphs 1211.5 (b) and (e), a trial installation is to be made using
the instruction manual.
(b) Instructions that clearly detail installation and adjustment
procedures required to effect proper operation of the safety means
provided shall be provided with each door operator.
(c) The installation instructions shall recommend that a door
operator be installed 7 feet (2.1 m) or more above the floor and that
the detach means be installed at a height of 6 feet (1.8 m) above the
floor.
(d) If installation heights in addition to those specified in
paragraph 1211.5(c) are recommended, such as for restricted height
installations, they shall be evaluated during the trial installation
test. See 1211.4(b)(1) of this part.
(e) A residential garage door or door operator shall be provided with
complete and specific instructions for the correct adjustment of the
control mechanism and the need for periodic checking and, if needed,
adjustment of the control mechanism so as to maintain satisfactory
operation of the door. The instructions shall be in a form that can be
mounted adjacent to the door installation and directions for the
installer shall indicate the need for mounting these directions.
16 CFR 1211.6 UL marking requirement.
(a) Unless specifically excepted, marking required in this standard
shall be permanent. Ink-printed and stenciled markings, decalcomania
labels, and pressure sensitive labels are among the types of marking
that are considered acceptable if they are acceptably applied and are of
good quality.
(b) Except as provided below, a garage door operator shall be plainly
marked, at a location where the marking will be readily visible -- after
installation, in the case of a permanently connected appliance -- with:
(1) The manufacturer's name, trademark, or other descriptive marking
by which the organization responsible for the product may be identified
-- hereinafter referred to as the manufacturer's name;
(2) The catalog number or the equivalent;
(3) The voltage, frequency, and input in amperes or watts; and
(4) The date or other dating period of manufacture not exceeding any
three consecutive months.
(c) The ampere rating shall be included unless the full-load power
factor is 80 percent or more, or, for a cord-connected operator, unless
the rating is 50 watts or less. The number of phases shall be indicated
if an operator is for use on a polyphase circuit. The date code
repetition cycle shall not be less than 20 years.
(d) Exception No. 1: The manufacturer's identification may be in a
traceable code if the operator is identified by the brand or trademark
owned by a private labeler.
(e) Exception No. 2: The date of manufacture may be abbreviated or
in an established or otherwise accepted code.
(f) If a manufacturer produces or assembles operators at more than
one factory, each finished operator shall have a distinctive marking,
which may be in code, to identify it as the product of a particular
factory.
(g) A residential garage door operator shall be provided with a
separate cautionary label or tag for permanent installation near the
wall-mountable electrical actuating switch. The instruction manual
shall direct that the label be mounted near the switch. The label shall
specify the means to detach the operator from the door and shall also
contain the word ''CAUTION'' and the following statement or the
equivalent in clearly legible form: ''To reduce the risk of injury to
person, operate door only when fully visible, properly adjusted, and
free of obstructions. Do not permit children to play in the area of
door. See instruction manual.''
(h) A residential garage door operator shall be provided with a
separate cautionary label attached to or adjacent at all times to the
means provided to detach the operator from the garage door. This label
shall be marked with the following statement or the equivalent: ''If
the door becomes obstructed, detach door from operator as follows.'' The
method to detach the operator shall be shown on the label.
(i) The carton and the instruction manual for an operator shall be
marked with the word ''WARNING'' and the following or the equivalent:
''To reduce the risk of injury to persons -- Use this operator only with
(a) XXX door(s).''
16 CFR 1211.7 Statutory labeling requirement.
(a) A manufacturer selling or offering for sale in the United States
an automatic residential garage door operator manufactured on or after
January 1, 1991, shall clearly identify on any container of the system
and on the system the month or week and year the system was manufactured
and its conformance with the requirements of 1211.4 of this part.
(b) The display of the UL logo or listing mark, and compliance with
the date marking requirements of UL-325, on both the container and the
system, shall satisfy the requirements of this subsection.
16 CFR 1211.7 PART 1301 -- BAN OF UNSTABLE REFUSE BINS
Sec.
1301.1 Scope and application.
1301.2 Purpose.
1301.3 Findings.
1301.4 Definitions.
1301.5 Banning criteria.
1301.6 Test conditions.
1301.7 Test procedures.
1301.8 Effective date.
Authority: Secs. 8, 9, 86 Stat. 1215-1217, as amended, 90 Stat.
506; 15 U.S.C. 2057, 2058.
Source: 42 FR 30300, June 13, 1977, unless otherwise noted.
16 CFR 1301.1 Scope and application.
(a) In this part 1301 the Consumer Product Safety Commission
(Commission) declares that certain unstable refuse bins are banned
hazardous products under sections 8 and 9 of the Consumer Product Safety
Act (CPSA) (15 U.S.C. 2057 and 2058).
(b) This ban applies to those refuse bins of metal construction that
are being distributed in commerce on or after the effective date of this
rule, which do not meet the criteria of 1301.5 and which are produced
or distributed for sale to, or for the personal use, consumption or
enjoyment of consumers, in or around a permanent or temporary household
or residence, a school, in recreation or otherwise. The Commission has
found that (1) these refuse bins are being, or will be distributed in
commerce; (2) they present an unreasonable risk of injury; and (3) no
feasible consumer product safety standard under the CPSA would
adequately protect the public from the unreasonable risk of injury
associated with these products. The ban is applicable to those refuse
bins having an internal volume one cubic yard or greater by actual
measurement, which will tip over when subjected to either of the forces
described in 1301.7 and which are in commerce or being distributed in
commerce on or after the effective date of the ban.
(c) When such refuse bins are the subject of rental or lease
transactions between owners of refuse bins or between refuse collection
agencies and persons who make such refuse bins available for use by the
public, such transactions are considered to be distributions in commerce
and therefore come within the scope of this ban. Refuse collection
agencies or owners of refuse bins who rent or lease refuse bins to
persons who make them available for use by consumers are considered to
be distributors; the persons to whom refuse bins are rented or leased
are not considered to be distributors.
(d) On or after the effective date of this rule it shall be unlawful
to manufacture for sale, offer for sale, or distribute in commerce, the
unstable refuse bins described in this rule.
(e) This rule, effective November 13, 1981, is partially revoked and
therefore does not apply to front-loading, straight-sided refuse bins
without trunnion bars having an internal volume capacity of 1, 1 1/2, or
2 cubic yards, of the following external dimensions:
(Sec. 9(h), Pub. L. 97-35, Pub. L. 92-573, 86 Stat. 1215, 15 U.S.C.
2058(h))
(42 FR 30300, June 13, 1977, as amended at 46 FR 55925, Nov. 13,
1981)
16 CFR 1301.2 Purpose.
The purpose of this rule is to ban those refuse bins which come under
the scope of this ban because they present an unreasonable risk of
injury due to tip-over that can result in serious injury or death from
crushing.
16 CFR 1301.3 Findings.
(a) Risk of injury. The Commission has studied 19 in-depth
investigation reports of accidents associated with tip-over of unstable
refuse bins. The 19 accidents, which involved 21 victims, resulted in
13 deaths. Of the 21 victims, 20 were children 10 years of age and
under. Additionally, Commission records show three death certificated
for victims, under 5 years of age, who were killed by refuse bins
tipping over. Therefore, the Commission finds that unreasonable risks
of injury or death from crushing due to tip-over are associated with
certain unstable refuse bins having an internal volume one cubic yard or
greater, which unreasonable risk this banning rule is designed to
eliminate or reduce.
(b) Products subject to this ban. (1) The Commission finds that the
types of products subject to this ban are those manufactured metal
receptacles known in the solid waste collection trade as containers,
refuse bins, buckets, boxes or hoppers, with actual internal volumes of
one cubic yard or greater, used for the storage and transportation of
solid waste. They are fabricated in numerous sizes and configurations
for use with rear, side, front, hoist and roll-off loaded trash
collection trucks and are used by private firms and public agencies.
(2) Although unstable refuse bins subject to this ban may be in
various forms and shapes, the Commission's in-depth investigations into
accidents associated with metal refuse containers indicate that most
accidents have occurred with slant-sided metal refuse bins which are
used by rear and side-loaded trucks. Therefore, the Commission bases
its economic analysis of the potential impact of the ban upon the
population of these bins. Certain refuse bins such as front loaded,
roll-off, box and other types of large or broad based bins, because of
their configuration, bulk and weight are likely to be inherently stable
and are therefore not included in the population of potentially unstable
bins studied in this economic analysis.
(3) The Commission estimates that there may be approximately
638,000-716,000 slant-sided, metal refuse bins with an internal volume
one cubic yard or greater, which may be unstable. The population of
potentially unstable bins owned by some 10,000-15,000 private solid
waste collection firms in all parts of the United States and its
territories is estimated to be 359,000-371,000. These figures are
discussed in the Commission's Economic Impact Statement of April 22,
1977, which is available for review from the Commission's Office of the
Secretary, Washington, D.C. 20207.
(c) Need of the public for the product and effects on utility, cost,
and availability. (1) The public need for refuse bins is substantial
since these products are used for the containment of solid waste and
thus contribute to public hygiene. The U.S. Environmental Protection
Agency estimates that 135,000,000 tons of solid waste were collected in
1976 from residential, commercial and industrial sources. Approximately
101,250,000 tons (75%) were collected by private firms and the remainder
by public agencies.
(2) The Commission finds that the ban will not affect the utility
that consumers derive from the general use of refuse bins. The interest
of the public is in continuity, availability and price of solid waste
collection. The ban could result in a shift from bins which are subject
to the ban to other types of storage containers. Such a shift would not
affect solid waste collection and would entail a small price increase
for individual consumers. To the extent that injuries and deaths
associated with the use of unstable bins are reduced or eliminated as a
result of the ban, the public utility derived from the use of the
product will be increased.
(3) (i) The Commission finds that, based on its analysis of
industrial estimates, newly produced complying refuse bins will cost
approximately 1-10% more than currently produced noncomplying bins and
that existing inventories of unstable bins can be modified (depending
upon size) for about $45-$75 each. This modification cost estimate
includes the cost of material, shop labor, retrieval and return to
service, and the substitution of one bin for another for on-site
service.
(ii) The Commission estimates that the ban will not result in any
significant price increases for the delivery of solid waste collection
service to the general public because of the competitive structure of
the solid waste collection industry.
(4) The Commission finds that the ban will have no effect on the
availability of solid waste collection service to the general public.
Solid waste collection haulers who use products subject to this ban can
modify these refuse bins so that these products can continue to be used
for solid waste collection.
(d) Alternatives. (1) The Commission has considered other means of
achieving the objective of this ban, but has found none that it believes
would have fewer adverse effects on competition or that would cause less
disruption or dislocation of manufacturing, servicing or other
commercial practices consistent with public health and safety. The
Commission estimates that this ban may, because of capital and testing
costs and maintenance capacity limitations, have an adverse effect on
individual firms within some markets.
(2) The Commission estimates that the ban will not have an adverse
effect on the competitive structure of the solid waste collection
industry. The competitive nature of solid waste collection firms is
fostered because of low starting costs, particularly if a firm is
owner-operated. The rate of entry and exit into and out of the industry
for small operators tends to be high relative to larger firms in the
industry. The ban will most likely not increase the degree of market
concentration among the larger firms nor affect the rate of entry into
or exit out of the industry by relatively smaller firms.
(3) Table 3 of the Economic Impact Statement indicates that about 85
percent of the private sector trash haulers are those with a fleet size
of about 10 trucks and have annual revenues under $1 million. These
might be classified as small business firms. All firms in the trash
hauling business would have two possible problems associated with the
ban: cost and time to retrofit, and access to capital for retrofitting.
The problem of raising capital to retrofit should not be a burden to
small firms unless they are denied credit for factors not associated
with this ban. The revised effective date from 9 to 12 months will
extend both the time to retrofit and the time to search for capital
sources, if necessary. We conclude that the small firms in the trash
hauling industry will not experience undue hardship relative to their
larger competitors.
(e) Conclusion. (1) The Commission finds that this rule is
reasonably necessary to eliminate or reduce the unreasonable risks of
injury associated with refuse bins, as they are defined in 1301.4, and
which fail to meet the criteria specified in 1301.5
(2) Based on all of the above findings, the Commission finds that the
issuance of this rule is in the public interest.
(3) The Commission is aware of the fact that refuse bins are used for
many years before being discarded. Estimates of their useful life range
from 10 to 15 years. Although other products which may be hazardous may
also have a long life in the hands of individual consumers, a
substantial number of unstable refuse bins remain in commerce because
they are rented or leased and are constantly available for use by large
numbers of consumers. The combination of the long life of refuse bins
plus the fact that unstable refuse bins could remain in commerce and be
available for use by many people, persuaded the Commission to make this
finding that no feasible consumer product safety standard under the CPSA
could adequately protect the public from the unreasonable risk of injury
associated with those unstable refuse bins coming under the coverage of
this ban.
16 CFR 1301.4 Definitions.
(a) The definitions in section 3 of the Consumer Product Safety Act
(15 U.S.C. 2052) apply to this part 1301.
(b) Refuse bin means a metal receptacle having an internal volume one
cubic yard or greater, by actual measurement, which temporarily receives
and holds refuse for ultimate disposal either by unloading into the body
or loading hopper of a refuse collection vehicle or by other means.
(c) Internal volume means the actual volumetric capacity of the
container. This may not necessarily correspond to the nominal size
rating used by industry.
(d) Tip over means that during the application of either test force
described in 1301.7(a), the refuse bin begins to rotate forward about
its forwardmost ground supports.
16 CFR 1301.5 Banning criteria.
(a) Any refuse bin of metal construction produced or distributed, for
sale to, or for the personal use, consumption or enjoyment of consumers,
in or around a permanent or temporary household or residence, a school,
in recreation or otherwise, which is in commerce or being distributed in
commerce on or after the effective date of this ban and which has an
actual internal volume one cubic yard or greater and tips over when
tested under the conditions of 1301.6 and using the procedures
described in 1301.7, is a banned hazardous product.
(b) The Commission considers a refuse bin to tip over when it begins
to rotate forward about its forwardmost ground supports.
16 CFR 1301.6 Test conditions.
(a) The refuse bin shall be empty and have its lids or covers in a
position which would most adversely affect the stability of the bin when
tested.
(b) The refuse bin shall be tested on a hard, flat surface. During
testing, the bin shall not be tilted from level in such a way as to
increase its stability.
(c) Those refuse bins equipped with casters or wheels shall have the
casters or wheels positioned in a position which would most adversely
affect the stability of the bin and shall be chocked to prevent
movement.
(d) The stability of the refuse bin shall be tested without
dependence upon non-permanent attachments or restraints such as chains
or guys.
(e) For purposes of enforcement, bins will be tested by the
Commission in that position which most adversely affects their
stability.
16 CFR 1301.7 Test procedures.
(a) The refuse bin shall be tested by applying forces as described in
paragraphs (a) (1) and (2) of this section one after the other.
(1) A horizontal force of 70 pounds (311 N) shall be applied at a
point and in a direction most likely to cause tipping, and
(2) A vertically downward force of 191 pounds (850 N) shall be
applied to a point most likely to cause tipping. (See Figure 1.)
Insert illustration 40A
(b) These forces shall be applied separately and the bin shall not
tip over under the application of either action cited above in paragraph
(a)(1) or (a)(2).
16 CFR 1301.8 Effective date.
The effective date of this ban shall be June 13, 1978.
16 CFR 1301.8 PART 1302 -- BAN OF EXTREMELY FLAMMABLE CONTACT ADHESIVES
Sec.
1302.1 Scope and application.
1302.2 Purpose.
1302.3 Definitions.
1302.4 Banned hazardous products.
1302.5 Findings.
1302.6 Effective date.
Authority: Secs. 8, 9; 86 Stat. 1215-1217 as amended; 90 Stat.
506; (15 U.S.C. 2057, 2058).
Source: 42 FR 63731, Dec. 19, 1977, unless otherwise noted.
16 CFR 1302.1 Scope and application.
(a) In this part 1302 the Consumer Product Safety Commission
(Commission) declares extremely flammable contact adhesives and similar
liquid or semiliquid consumer products to be banned hazardous products
under sections 8 and 9 of the Consumer Product Safety Act (CPSA) (15
U.S.C. 2057 and 2058). This ban applies to those extremely flammable
contact adhesives and similar liquid or semiliquid consumer products, as
defined in 1302.3(b), which are in commerce or are being distributed in
commerce on or after the effective date of this regulation, and which
are consumer products (as defined in section 3(a) of the Act (15 U.S.C.
2052) customarily produced or distributed for sale to, or for the
personal use, consumption or enjoyment of consumers in or around a
permanent or temporary household or residence, a school, in recreation
or otherwise.
(b) An extremely flammable contact adhesive as defined in 1302.3(b)
is a banned hazardous product if the manufacturer, distributor, or
retailer customarily produces or distributes the product for sale to, or
use by consumers, or if the manufacturer, distributor, or retailer
fosters or facilitates the product's sale to, or use by, consumers. For
example, contact adhesives available in retail stores, such as lumber
yards or hardware stores, for sale to consumers would be included in the
scope of the ban even though such outlets may sell such products
primarily to industrial or professional users. The manufacturer who
markets an extremely flammable contact adhesive which would be subject
to the ban if sold to consumers has the responsibility for determining
the distribution and use patterns of its product and for taking all
reasonable steps to ensure that the product is not made available for
sale to consumers. The test of whether a contact adhesive is banned
shall be whether the product, under any customary or reasonably
foreseeable condition of distribution, or sale, is made available for
purchase by consumers.
(c) Contact adhesives that are labeled as, marketed, and sold solely
for industrial or professional use are not within the scope of this ban.
However, merely labeling a contact adhesive for industrial or
professional use only would not exclude such products from this ban. In
addition, packaging a contact adhesive in a large size container would
not in itself exclude the product from this ban.
(d) The Commission has found that the contact adhesives covered by
this ban are being, or will be distributed in commerce; and present an
unreasonable risk of injury; and that no feasible consumer product
safety standard under the CPSA would adequately protect the public from
the unreasonable risk of injury associated with these products.
16 CFR 1302.2 Purpose.
The purpose of this rule is to ban extremely flammable contact
adhesives which have been found to present an unreasonable risk of
injury to consumers of burns resulting from explosive and flashback
fire.
16 CFR 1302.3 Definitions.
(a) The definitions in section 3 of the Consumer Product Safety Act
(15 U.S.C. 2052) apply to this part 1302.
(b) The term extremely flammable contact adhesive and similar liquid
or semiliquid consumer products means consumer products that have each
of the following product characteristics:
(1) Show a flash point at or below 20 degrees Farenheit as determined
by the Tagliabue open-cup test method prescribed by 16 CFR 1500.43; and
(2) Are intended to be applied to two surfaces to be bonded together
and allowed to dry partially until there is little residual tack, and
adhere to themselves instantaneously when the coated surfaces are joined
under low or moderate pressure; and
(3) Are composed of a high percentage (70-90 percent by weight) of
solvents and a low percentage of solids (10-30 percent by weight); and
(4) Are substances that are non-aerosols and are free-flowing, having
a wet viscosity within the range of 300-6,000 centipoise at 70 degrees
Fahrenheit when measured by an RVF Brookfield viscometer; and
(5) Are packaged in containers of more than one-half pint.
(c) The term flash point means the lowest temperature corrected to a
pressure of 101.3 RPa (1013 millibars) of a substance at which
application of an ignition source causes the vapor above the substance
to ignite under specified conditions of test. A blue light (blue halo)
or other colored light which sometimes surrounds the test flame should
not be confused with the true ignition of the vapors (flash point).
(d) Initial introduction into commerce occurs when the manufacturer
ships a product covered by this regulation from a facility of the
manufacturer to a distributor, retailer, or consumer.
16 CFR 1302.4 Banned hazardous products.
Any extremely flammable contact adhesive and similar liquid or
semiliquid consumer product as defined in 1302.3 (b), which has been
manufactured or initially introduced into commerce after January 17,
1978, is a banned hazardous product. In addition, any other extremely
flammable contact adhesive and similar liquid or semiliquid consumer
product, as defined in 1302.3(b), no matter when manufactured or
initially introduced into commerce, is a banned hazardous product after
June 13, 1978.
16 CFR 1302.5 Findings.
(a) The degree and nature of the risk of injury. The Commission
finds that the risk of injury which this regulation is designed to
eliminate or reduce is the risk of injury of burns from explosive vapor
ignition and flashback fire associated with extremely flammable contact
adhesives as defined in this rule.
(1) Degree of the risk of injury presented by extremely flammable
contact adhesives. (i) In October 1976, the Commission's staff prepared
a report entitled Hazard Analysis on Contact Adhesive Fires. According
to the Hazard Analysis, three factors that measure burn severity are
percent of body burned, days hospitalized, and whether clothing ignition
occurs. Injury data sources summarized in the Hazard Analysis reveal
that contact adhesive fires often result in a high percent of body
burned, result in many days hospitalized, and usually involve clothing
ignition burns.
(ii) The American Burn Association (ABA) participated in a special
survey with the Commission to obtain an estimate of the incidence and
severity of burns associated with the use of contact adhesive cements.
In January 1976, the President of the ABA sent a letter to the 1,300 ABA
members asking the members to record any thermal injuries or deaths that
have occurred between January 1975 and March 1976 associated with
contact adhesives. In November 1976, the Chairman of the ABA Committee
on Burn Prevention submitted a statement to the Commission estimating
that between 45 and 125 contact adhesive related injuries are treated
annually in hospital emergency rooms. Although ABA members reported an
annual rate of 20 severe burn injuries for the January 1975 to March
1976 period, the actual rate of severe burn injuries may be higher,
since only approximately 400 hospitals, less than 10 percent of the
country's short-term hospitals, are represented in ABA membership. The
results of the ABA survey, as reported by the ABA Chairman, showed that
the injuries treated by members resulted in an average hospitalization
of 42 days, almost double the length of stay for all burn victims in
special facilities for burns. According to the ABA Chairman, when a
burn victim experiences such a lengthy stay, it is an indication of very
severe injury and predicts a lengthy period of recuperation and
potentially permanent physical and psychological consequences.
(iii) The Hazard Analysis prepared by the Commission's staff also
contains a summary of the results of the ABA survey. According to the
Commission's staff, the ABA survey revealed 33 incidents with sufficient
details for analysis. Nine of the victims died from their burns and 21
were hospitalized. The average body area burned was 40 percent. In
addition, the victims' clothing ignited on all except three of the 33
victims.
(iv) The Hazard Analysis also contains a summary of contact adhesive
related fires in the National Fire Protection Association's (NFPA) Fire
Incident Data Organization (FIDO), a computerized file of fire
experience that includes data collected from 1971 to 1975. The NFPA
files contained reports of 38 fires from 1971 to 1975, seven of which
occurred in residences. These seven fires resulted in injuries to
fifteen persons and deaths to three persons.
(v) In addition to the above injury information, the Hazard Analysis
also indicates that the Commission has received three death certificates
specifying the involvement of an adhesive.
(vi) According to the hazard analysis, after cases from the various
data sources were verified as being mutually exclusive, at least 130
persons have been injured in contact adhesive fires since 1970. Fifteen
of these persons subsequently died from the injuries they sustained in
these accidents.
(vii) Technical analysis of extremely flammable contact adhesives by
the Commission's staff indicates that the degree of the hazard
associated with these products is such that as little as one pint of
extremely flammable contact adhesive may produce a substantial explosion
hazard.
(2) Nature of the risk of injury presented by flammable contact
adhesives. (i) Technical analysis of these substances by the
Commission's staff indicates that extremely flammable contact adhesives
have a low flash point (20 F or below), a rapid evaporation rate (as a
result of a high percentage of solvents, 70-90 percent by weight), a low
percentage of solids, 10-30 percent by weight, and a low wet-viscosity
(300-6,000 centipoise when measured by an RVF Brookfield viscometer).
(ii) Flash point, viscosity, low solid to high solvent ratio,
evaporation rate, size of the application area, and rate of application
are factors which determine the potential for creating an ignitable
vapor situation. The rapid rate of evaporation of extremely volatile,
low flash point solvents from extremely flammable contact adhesives is
capable of creating a highly explosive atmosphere. The flammable nature
of these contact adhesives is such that the vaporized solvents from
these products can be ignited by a sparking electric motor or an
overlooked pilot light in an area remote from the site of use. Analysis
of actual injury reports by the Commission's staff reveals that
extremely flammable contact adhesives have, in fact, been ignited by
many ignition sources including oven and stove pilot lights, water
heater and furnace pilot lights, electric space heaters (without any
visible flame), sparks from a refrigerator motor and a wall receptacle,
and friction. Analysis of available injury reports has shown that these
ignition sources are frequently located in areas of the house remote
from the room in which the contact adhesive is being used.
(iii) The possibility of ignition from a source in another room or
another part of the house may well be overlooked by the public, in spite
of warnings on the label of the product. Ignition of the vapors may
result in a sudden, flash back fire from the source of vapor ignition to
the container of adhesive with little or no warning to the consumer and
with the potential for serious or fatal injury to the user or
bystanders. The injury information available to the Commission shows
that the vast majority of accidents occur while the product is being
used for its intended purpose. The potential for serious injury,
therefore, appears to be present during normal use of the product.
(iv) Although the Commission has in the past required the extremely
flammable contact adhesives now subject to this ban to bear minimum
cautionary labeling for the hazard caused by the extreme flammability of
the mixture, the Commission finds that this cautionary labeling is
inadequate to protect the public. An analysis prepared by the
Commission staff of the available injury data indicates that in spite of
the cautionary labeling, accidents have continued to occur, inflicting
serious injuries in much the same manner as those accidents that
occurred prior to the issuance of the 1970 labeling regulation. The
cautionary labeling presently required could be revised to include more
explicit and graphic warnings. However, as a result of the degree and
nature of the risk of injury presented by the product, this labeling
would also provide inadequate protection to the public. The degree and
nature of the risk of injury is such that a bystander or visitor could
present an ignition source resulting in an accident. Since the
bystander or visitor would not normally have an opportunity to read the
warning label on the product, additional labeling would not benefit
these potential victims. The possibility of ignition from a source in
another room or another part of the house may well be overlooked by the
public, in spite of warnings on the label of the product.
(b) Products Subject to this Ban. (1) The products banned by this
rule are listed in 1302.1.
(2) The Commission finds that the types of products subject to this
ban are those contact adhesives that are extremely flammable and are
packaged in containers of more than one-half pint. The average annual
consumption of all types of contact adhesives in the United States is
estimated at approximately 25 million gallons. Of this, it is estimated
that 4-5 million gallons are sold in containers of 1 gallon or less, the
sizes consumers generally buy. Professional users are estimated to
purchase about half of the contact adhesives in this size range with
most purchases probably of gallon containers. Therefore, consumers
probably purchase 2-2.5 million gallon of all contact adhesives, most of
which is estimated to be in quart containers, and a smaller amount in
containers of one pint or less.
(3) In early 1976, contact adhesive sales were estimated as 80
percent extremely flammable, 10 percent chlorinated-solvent based, and
10 percent water-based. Since that time, a flammable petroleum solvent
based contact adhesive has been developed and there has been a trend
away from extremely flammable to flammable and nonflammable for consumer
use. Although this trend is evident, reliable estimates of current
market shares are not available. A rough estimate would be that perhaps
50 percent of contact adhesives in container sizes of more than one-half
pint to 1 gallon are extremely flammable.
(c) Need of the public for the products and effects of the rule on
their utility, cost, and availability.
(1) The need for contact adhesives. Contact adhesives are used
primarily for bonding plastic laminates to counter and table tops, for
applying tile board to walls, and for applying some types of flooring.
Other uses include bonding metals, wood, leather, linoleum, tiles,
rubber and plastics. Contact adhesives may also be used in furniture
construction and repairs. There are contact adhesives available other
than the extremely flammable type and other alternatives to contact
adhesives that consumers can use.
(2) Probable effects of the ban on the utility of contact adhesives.
Of the three general types of contact adhesive other than extremely
flammable contact adhesives, flammable and non-flammable (chlorinated)
contact adhesives have about the same general performance
characteristics as extremely flammable contact adhesives. Therefore,
because these two products are available to the public, the Commission
believes the ban will have little impact on the utility of contact
adhesives. In terms of performance characteristics, there is little
difference between flammable and extremely flammable contact adhesives.
Although the extremely flammable product requires approximately 10
minutes of drying time before the item can be bonded, the flammable
product requires about 20 minutes. This difference in time is not
likely to be significant for most consumers who do ordinary home
improvement or repair work. The performance characteristics of
non-flammable chlorinated based contact adhesives are similar to those
of the extremely flammable type for most applications. Non-flammable
chlorinated based contact adhesives may be unacceptable for applications
involving leather. Water based contact adhesives may not be as
satisfactory, in terms of performance characteristics, as the other
contact adhesives. The drying time for water-based contact adhesives
varies with humidity. Although manufacturers of water-based neoprene
contact adhesives claim that their products will dry in 30 minutes, for
most of the country a drying time from one to four hours is probably
more realistic. It is possible that the adhesive will never dry in some
areas of the country with very high humidity. The time needed for the
adhesive to adhere after joining (open time) will also vary with the
humidity. Water-based acrylic contact adhesives are similar to neoprene
type adhesives in terms of the effect of humidity on drying time. The
neoprene and acrylic based adhesives are not completely satisfactory for
binding some substances with non-porous surfaces, such as metals. In
addition, the water in these adhesives might have an adverse effect on
leather. Neoprene water-based adhesives may become unstable if frozen
and thawed several times. This may occur during shipping or storage in
some areas of the country during deaths associated with the extreme
winter. To the extent that injuries and flammable contact adhesives are
reduced or eliminated as a result of the ban, the utility of contact
adhesives will be increased.
(3) Probable effects of the ban upon the cost of contact adhesives.
For gallon containers, the Commission estimates that the contact
adhesives available as substitutes for the extremely flammable type may
cost in the range of $1-$6 more than the extremely flammable type.
Although a gallon of extremely flammable contact adhesive may cost
$7.50-$10.50, a gallon of flammable contact adhesive may cost from
$8-$11, a gallon of nonflammable chlorinated base contact adhesive may
cost from $12-$15, a gallon of water-based neoprene contact adhesive may
cost from $11-$16, and a gallon of water-based acrylic contact adhesive
may cost from $10-$15.
(4) Probable effect of the ban on the availability of contact
adhesives to meet the need of the public. The Commission estimates that
the ban will not have any effect on the availability or use of contact
adhesives. Manufacturers are most likely to switch production to
flammable petroleum-based and to 1,1,1,-trichloroethane (1,1,1,-TCE)
based or water-based contact adhesives.
(d) Alternatives. (1) The Commission has considered other means of
achieving the objective of this rule, such as labeling, but has found
none that would achieve the objective of this ban, consistent with the
public health and safety.
(2) The Commission believes that any adverse effects of the ban
should be minimal and would be expected to be confined to some shift in
distribution patterns to accommodate professional users, including
methods of distinguishing between professional users and consumers.
(3) The Commission finds that competition should not be significantly
affected by this rule.
(e) Conclusion. The Commission finds that this rule, including its
effective date, is reasonably necessary to eliminate or reduce the
unreasonable risk of injury of burns from explosive vapor ignition and
flashback fire that is associated with the banned products described in
1302.3(b). The Commission also finds that issuance of the rule is in the
public interest. The Commission also finds that no feasible consumer
product safety standard under the act would adequately protect the
public from the unreasonable risk of injury associated with the product.
16 CFR 1302.6 Effective date.
This rule becomes effective January 18, 1978.
16 CFR 1302.6 PART 1303 -- BAN OF LEAD-CONTAINING PAINT AND CERTAIN
CONSUMER PRODUCTS BEARING LEAD-CONTAINING PAINT
Sec.
1303.1 Scope and application.
1303.2 Definitions.
1303.3 Exemptions.
1303.4 Banned hazardous products.
1303.5 Findings.
Authority: Secs. 8, 9, 86 Stat. 1215-1217, as amended 90 Stat.
506; 15 U.S.C. 2057, 2058.
Source: 42 FR 44199, Sept. 1, 1977, unless otherwise noted.
16 CFR 1303.1 Scope and application.
(a) In this part 1303, the Consumer Product Safety Commission
declares that paint and similar surface-coating materials for consumer
use that contain lead or lead compounds and in which the lead content
(calculated as lead metal) is in excess of 0.06 percent of the weight of
the total nonvolatile content of the paint or the weight of the dried
paint film (which paint and similar surface-coating materials are
referred to hereafter as ''lead-containing paint'') are banned hazardous
products under sections 8 and 9 of the Consumer Product Safety Act
(CPSA), 15 U.S.C. 2057, 2058. (See parts 1145.1 and 1145.2 for the
Commission's finding under section 30(d) of the Consumer Product Safety
Act (CPSA) that it is in the public interest to regulate lead-containing
paint and certain consumer products bearing such paint under the CPSA.)
The following consumer products are also declared to be banned hazardous
products:
(1) Toys and other articles intended for use by children that bear
''lead-containing paint''.
(2) Furniture articles for consumer use that bear ''lead-containing
paint''.
(b) This ban applies to the products in the categories described in
paragraph (a) of this section that are manufactured after February 27,
1978, and which are ''consumer products'' as that term is defined in
section 3(a)(1) of the Consumer Product Safety Act. Accordingly, those
of the products described above that are customarily produced or
distributed for sale to or for use, consumption, or enjoyment of
consumers in or around a household, in schools, in recreation, or
otherwise are covered by the regulation. Paints and coatings for motor
vehicles and boats are not included within the scope of the ban because
they are outside the statutory definition of ''consumer product''. In
addition to those products which are sold directly to consumers, the ban
applies to products which are used or enjoyed by consumers after sale,
such as paints used in residences, schools, hospitals, parks,
playgrounds, and public buildings or other areas where consumers will
have direct access to the painted surface.
(c) The Commission has issued the ban because it has found (1) that
there is an unreasonable risk of lead poisoning in children associated
with lead content of over 0.06 percent in paints and coatings to which
children have access and (2) that no feasible consumer product safety
standard under the CPSA would adequately protect the public from this
risk.
16 CFR 1303.2 Definitions.
(a) The definitions in section 3 of the Consumer Product Safety Act
(15 U.S.C. 2052) shall apply to this part 1303.
(b) For purposes of this part:
(1) Paint and other similar surface-coating materials means a fluid,
semi-fluid, or other material, with or without a suspension of finely
divided coloring matter, which changes to a solid film when a thin layer
is applied to a metal, wood, stone, paper, leather, cloth, plastic, or
other surface. This term does not include printing inks or those
materials which actually become a part of the substrate, such as the
pigment in a plastic article, or those materials which are actually
bonded to the substrate, such as by electroplating or ceramic glazing.
(2) Lead-containing paint means paint or other similar surface
coating materials containing lead or lead compounds and in which the
lead content (calculated as lead metal) is in excess of 0.06 percent by
weight of the total nonvolatile content of the paint or the weight of
the dried paint film.
(3) Toys and other articles intended for use by children means those
toys and other articles which are intended to be entrusted to or for use
by children. This would not include all articles to which children
might have access simply because they are present in a household.
(4) Furniture article means those movable articles: (i) Used to
support people or things; (ii) other functional or decorative furniture
articles, including, but not limited to, products such as beds,
bookcases, chairs, chests, tables, dressers, desks, pianos, console
televisions, and sofas. The term ''furniture article'' does not include
appliances, such as ranges, refrigerators, dishwashers, clothes washers
and dryers, air conditioners, humidifiers, and dehumidifiers; fixtures
such as bathroom fixtures, built-in cabinets, chandeliers, windows, and
doors; or household items such as window shades, venetian blinds, or
wall hangings and draperies.
16 CFR 1303.3 Exemptions.
(a) The categories of products listed in paragraph (b) of this
section are exempted from the scope of the ban established by this part
1303, provided:
(1) That these products bear on the main panel of their label, in
addition to any labeling that may be otherwise required, the signal word
''Warning'' (unless some other signal word is required) and the
following statement: ''Contains Lead. Dried Film of This Paint May Be
Harmful If Eaten or Chewed.''
(2) (i) That these products also bear on their label the following
additional statement or its practical equivalent:
Do not apply on toys and other children's articles, furniture, or
interior surfaces of any dwelling or facility which may be occupied or
used by children.
Do not apply on exterior surfaces of dwelling units, such as window
sills, porches, stairs, or railings, to which children may be commonly
exposed.
Keep out of reach of children.
(ii) If the statement required by the preceding paragraph (a)(2)(i)
is placed on a label panel other than the main panel, the label
statement required to be on the main panel by paragraph (a)(1) of this
section shall contain the following additional statement: ''See other
cautions on ---- (insert 'side' or 'back', as appropriate) panel.''
(3) That the placement, conspicuousness, and contrast of the label
statements required by this section (a) comply with the requirements of
the Federal Hazardous Substances Act at 16 CFR 1500.121.
(b) The following products are exempt from the scope of the ban
established by this part 1303, provided they comply with the
requirements of paragraph (a) of this section:
(1) Agricultural and industrial equipment refinish coatings.
(2) Industrial (and commercial) building and equipment maintenance
coatings, including traffic and safety marking coatings.
(3) Graphic art coatings (i.e., products marketed solely for
application on billboards, road signs, and similar uses and for
identification marking in industrial buildings).
(4) Touchup coatings for agricultural equipment, lawn and garden
equipment, and appliances.
(5) Catalyzed coatings marketed solely for use on radio-controlled
model powered aircraft.
(c) The following products are exempt from the scope of the ban
established by part 1303 (no cautionary labeling is required):
(1) Mirrors which are part of furniture articles to the extent that
they bear lead-containing backing paint.
(2) Artists' paints and related materials.
(3) Metal furniture articles (but not metal children's furniture)
bearing factory-applied (lead) coatings.
(42 FR 44199, Sept. 1, 1977, as amended at 43 FR 8515, Mar. 2, 1978)
16 CFR 1303.4 Banned hazardous products.
The following consumer products, manufactured after February 27,
1978, unless exempted by 1303.3, are banned hazardous products (see
definitions in 1303.2):
(a) Paint and other similar surface-coating materials which are
''lead-containing paint.''
(b) Toys and other articles intended for use by children that bear
''lead-containing paint.''
(c) Furniture articles that bear ''lead-containing paint.''
16 CFR 1303.5 Findings.
(a) The degree and nature of the risk of injury. (1) The Commission
finds that the risk of injury which this regulation is designed to
eliminate or reduce is lead poisoning in children. The adverse effects
of this poisoning in children can cause a range of disorders such as
hyperactivity, slowed learning ability, withdrawal, blindness, and even
death. The final Environmental Impact Statement on Lead in Paint which
is on file with the President's Council on Environmental Quality (and
available for inspection in the Office of the Secretary) contains in
Appendix A a detailed discussion of the health effects of lead in paint.
These effects will only be summarized here.
(2) Lead is a cumulative toxic heavy metal which, in humans, exerts
its effects on the renal, hematopoietic, and nervous systems. Newer
concepts indicate that there are three stages to childhood lead
poisoning. The adverse health effects in the first stage are not
clinically present but metabolic changes can be observed. During the
second stage or symptomatic stage such symptoms as loss of appetite,
vomiting, apathy, drowsiness, and inability to coordinate voluntary
muscle movements occur. The after effects of this stage include seizure
disorders as well as various behavioral and functional disorders which
are often included under the heading of minimal brain dysfunction.
Studies suggest that this syndrome may include hyperactivity, impulsive
behavior, prolonged reaction time, perceptual disorders and slowed
learning ability. The adverse health effects of the third stage may be
permanent and can include blindness, mental retardation, behavior
disorders, and death.
(3) The Commission notes that children with pica are of special
concern with regard to lead poisoning. Pica, the repetitive ingestion
of nonfood substances, occurs in 50 percent of children between the ages
of one and three, and studies indicate that at this age lead is absorbed
more rapidly than lead is absorbed in adults. Pica for paint is
believed to be episodic and can occur 2 to 3 times a week.
(4) The Commission also notes that there are no reports of injuries
caused by lead paint poisoning in the Commission's National Electronic
Injury Surveillance System (NEISS) data, which reflect hospital
emergency room treatment. Lead paint poisonings result from a chronic
hazard rather than from an acute hazard of the type generally treated in
emergency rooms; and NEISS reporting, therefore, does not reflect this
type of chronic hazard or injuries.
(5) Former U.S. Surgeon-General Jesse L. Steinfeld, however,
estimated in 1971 that 400,000 pre-school American children have
elevated body lead burdens. The National Bureau of Standards in 1972
estimated that 600,000 young children have unduly high lead blood
content.
(b) Products subject to this ban. (1) The products banned by this
rule are listed in 1303.4.
(2) The term paint comprises a variety of coating materials such as
interior and exterior household paints, varnishes, lacquers, stains,
enamels, primers, and similar coatings formulated for use on various
surfaces. Based on 1976 data, the Commission estimates that over 400
million gallons of paint a year valued at approximately $2.5 billion
could potentially be subject to this rule.
(3) All products commonly known as toys and other articles intended
for the use of children are subject to this rule. The categories of
products within this classification are numerous and include items and
equipment for play, amusement, education, physical fitness, and care of
children. Retail sales in 1976 of products considered to be toys or
other articles intended for use of children are estimated at around $4
billion.
(4) For the purposes of this rule, furniture articles are certain
movable articles used to support people or things or other functional or
decorative furniture articles such as couches, beds, tables, chairs,
chests, and the like. Appliances and similar equipment, household
fixtures, and certain other household items such as window shades,
blinds, wall hangings, and the like are not included within the
definition of furniture. The regulation applies to furniture for use in
households, schools, in recreation, or otherwise. In 1972, the value of
shipments of items of furniture such as those named above was as
follows: wood household furniture $2,716 million; metal household
furniture $859 million; wood television and radio cabinets $293
million; and $190 million for other household furniture made of
plastic, reed and rattan. (Not included in the above are some $2
billion worth of upholstered furniture and $300 million in convertible
sofas, chair beds and studio couches.)
(c) Need of the public for the products and effects of the rule on
their utility, cost, and availability. (1) The public need for paints
of various types and for furniture and other articles is substantial and
well established. The Commission finds that the need of the public for
paint containing more than 0.06 percent lead or for the affected
products that are coated with materials containing more than 0.06
percent lead is limited. The Commission has determined that there are
products containing more than the 0.06 percent level of lead which meet
a public need and for which substitutes are either not available or are
not sufficiently effective and to which access by children to the
coatings or the surfaces to which they are applied is unlikely.
Accordingly, these products have been specifically exempted from the
scope of the regulation in 1303.3.
(2) The Commission finds that the effects of this rule on the cost,
utility, and availability of paints and painted articles will be small.
The Commission notes that over 95 percent of latex-based and nearly 70
percent of oil-based paints have lead levels at or below the level set
by part 1303.
(i) Costs. The Commission estimates that the added costs to the
consumer for paints affected by this rule will not exceed 5 to 10 cents
per gallon. Costs to consumers for furniture and for toys and other
articles intended for the use of children are not expected to increase
as the result of compliance with the regulation.
(ii) Utility. The Commission finds that for water-based or latex
paints and coatings subject to this rule, reducing the amount of
allowable lead to 0.06 percent will not have adverse effects on their
utility. For certain solvent-thinned coatings, however, lead driers
will have to be replaced by non-lead driers such as zirconium to comply
with the 0.06 percent level (Driers are not used in latex paints). An
impact on the paint industry may result because current nonlead driers
may not dry satisfactorily in low temperatures or high humidity
conditions, and so the painting industry in some areas at certain times
of the year may suffer a reduction of effective painting time.
(iii) Availability. Substitutes at comparable prices are available
for paints and for products banned by this rule. The Commission
believes that the reduction of lead to a level of 0.06 percent will not
affect the availabilty of water-based or latex paints. Sales of such
coatings currently exceed sales of solvent-based coatings, and because
of the drying problem mentioned above, the trend toward increased use of
water-based paints may be accelerated somewhat by the effects of the
ban.
(d) Alternatives. (1) The Commission has considered other means of
achieving the objective of this rule, but has found none that would
cause less disruption or dislocation of manufacturing and other
commercial practices, consistent with public health and safety.
(2) The Commission estimates that this ban may, because of testing
costs and the necessity for improved housekeeping practices in the
manufacture of paint and similar surface-coating materials to prevent
lead contaimination, have some relatively minor adverse effect on
individual firms within some markets.
(3) The Commission, however, finds that competition will not be
adversely affected by this rule. Although costs of reformulation and
testing may be relatively higher for small manufacturers than large
manufacturers, these costs are not so onerous as to lead to greater
concentration in the industry. The period of time before the effective
date is sufficient to minimize problems of compliance with the rule.
(4) The reduction of the permissible level of lead in paint will
affect paint manufacturers, raw materials suppliers, professional and
non-professional painters, and manufacturers of furniture and children's
articles. For those producers of paint which are already subject to the
regulations under the Federal Hazardous Substances Act (FHSA), the
impact of this CPSA ban will involve only a change to non-lead driers
since lead pigments are precluded from practical use under the 0.5
percent lead restriction now in effect under the FHSA (16 CFR
1500.17(a)(6)). The manufacturers of some painted furniture who were not
affected by the 0.5 percent limit under the FHSA may now be, if they use
lead pigments or driers. Producers of children's articles who were
subject to the 0.5 percent FHSA limit will have to ensure that the paint
they use conforms to the 0.06 percent level.
(e) Conclusion. The Commission finds that this rule, including its
effective date, is reasonably necessary to eliminate or reduce the
unreasonable risk of lead poisoning of young children that is associated
with the banned products which are described in 1303.4 and that
promulgation of the rule is in the public interest.
16 CFR 1303.5 Pt. 1304
16 CFR 1303.5 PART 1304 -- BAN OF CONSUMER PATCHING COMPOUNDS
CONTAINING RESPIRABLE FREE-FORM ASBESTOS
Sec.
1304.1 Scope and application.
1304.2 Purpose.
1304.3 Definitions.
1304.4 Consumer patching compounds as banned hazardous products.
1304.5 Findings.
Authority: Secs. 8, 9, 86 Stat. 1215-1217, as amended 90 Stat.
506, 15 U.S.C. 2057, 2058.
Source: 42 FR 63362, Dec. 15, 1977, unless otherwise noted.
16 CFR 1304.1 Scope and application.
(a) In this part 1304 the Consumer Product Safety Commission declares
that consumer patching compounds containing intentionally-added
respirable freeform asbestos in such a manner that the asbestos fibers
can become airborne under reasonably foreseeable conditions of use, are
banned hazardous products under sections 8 and 9 of the Consumer Product
Safety Act (CPSA) (15 U.S.C. 2057 and 2058). This ban applies to
patching compounds which are (1) used to cover, seal or mask cracks,
joints, holes and similar openings in the trim, walls, ceiling, etc. of
building interiors, which after drying are sanded to a smooth finish and
(2) are produced and distributed for sale to or 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.
(b) The Commission has found that (1) these patching compounds are
being or will be distributed in commerce; (2) that they present an
unreasonable risk of injury; and (3) that no feasible consumer product
safety standard under the CPSA would adequately protect the public from
the unreasonable risk of injury associated with these products. This
rule applies to the banned hazardous products defined in 1304.3 and
described further in 1304.4.
(c) Only consumer products are subject to this regulation. Patching
compounds which are consumer products include those which a consumer can
purchase. Merely labeling a patching compound for industrial use would
not exclude such articles from the ban. If the sale or use of the
product by consumers is facilitated, it is subject to the ban. Patching
compounds which are labeled as, marketed, and sold solely for industrial
use in non-consumer environments are not subject to the ban. In
addition to those products which can be sold directly to consumers, the
ban applies to patching compounds containing respirable free-form
asbestos which are used in residences, schools, hospitals, public
buildings or other areas where consumers have customary access.
16 CFR 1304.2 Purpose.
The purpose of this rule is to ban consumer patching compounds
containing intentionally added respirable, free-form asbestos. These
products present an unreasonable risk of injury due to inhalation of
fibers which increase the risk of developing cancer, including lung
cancer and mesothelioma, diseases which have been demonstrated to be
caused by exposure to asbestos fibers.
16 CFR 1304.3 Definitions.
(a) The definitions in section 3 of the Consumer Product Safety Act
(15 U.S.C. 2052) apply to this part 1304.
(b) Asbestos means a group of mineral fibers composed of hydrated
silicates, oxygen, hydrogen, and other elements such as sodium, iron,
magnesium, and calcium in diverse combinations and are: Amosite,
chrysotile, crocidolite, anthophyllite asbestos, actinolite asbestos,
and tremolite asbestos.
(c) Free-form asbestos is that which is not bound, or otherwise
''locked-in'' to a product by resins or other bonding agents, or which
can readily become airborne with any reasonably foreseeable use.
(d) Patching compounds are mixtures of talc, pigments, clays, casein,
ground marble, mica or other similar materials and a binding material
such as asbestos which are sold in a dry form ready to be mixed with
water, or such combinations in ready-mix paste form.
(e) Consumer patching compounds are those that are customarily
produced or distributed for sale to or for the personal use, consumption
or enjoyment of consumers in or around a permanent or temporary
household or residence, a school, in recreation or otherwise. The
Commission considers that patching compounds for application in these
consumer environments are either distributed for sale to or are for the
personal use or enjoyment of consumers.
(f) Intentionally-added asbestos is asbestos which is (1) added
deliberately as an ingredient intended to impart specific
characteristics; or, (2) contained in the final product as the result
of knowingly using a raw material containing asbestos. Whenever a
manufacturer finds out that the finished product contains asbestos, the
manufacturer will be considered as knowingly using a raw material
containing asbestos, unless the manufacturer takes steps to reduce the
asbestos to the maximum extent feasible.
(g) Initial introduction into commerce occurs when the manufacturer
ships a product covered by this regulation from a facility of the
manufacturer to a distributor, retailer, or user.
16 CFR 1304.4 Consumer patching compounds as banned hazardous products.
On the basis that airborne asbestos fibers present the hazards of
cancer, including lung cancer and mesothelioma to the public, consumer
patching compounds containing intentionally-added, respirable free-form
asbestos, which have been manufactured or initially introduced into
commerce after January 16, 1978, are banned hazardous products. In
addition, all other consumer patching compounds containing
intentionally-added, respirable free-form asbestos, no matter when
manufactured or initially introduced into commerce, are banned hazardous
products after June 11, 1978.
16 CFR 1304.5 Findings.
(a) The degree and nature of the risk of injury. The Commission
finds that the risk of injury which this regulation is designed to
eliminate or reduce is from cancer, including lung cancer and
mesothelioma. In assessing the degree and nature of the risk of injury
to consumers, the Commission has reviewed experimental data and human
experience information. The Commission noted that in the scientific
literature, there is general agreement that there is no known threshold
level below which exposure to respirable free-form asbestos would be
considered safe. Further on the basis of such scientific opinion, it
appears to the Commission that children are particularly vulnerable to
carcinogens because of their longer potential lifetime and their rapid
rate of growth. In areas of the country where asbestos may not be
prevalent in the environment, the major risk of exposure for children
and others may occur in the household. In areas of the country where
more asbestos fibers are present in the environment, the public is
exposed to additional risks from the presence of asbestos fibers in
households and other consumer environments. The Commission concluded on
the basis of these factors that consumer patching compounds containing
respirable free-form asbestos present an unreasonable risk of injury to
the public. In addition, a risk assessment was made. For purposes of
this assessment, the Commission considered the use of patching compounds
by the consumer, for six hours a day four times a year, to be a high yet
reasonably foreseeable exposure. The increased risk of death from
respiratory cancer induced by this exposure is estimated at between 10
and 2,000 per million. For five years of exposure at these levels, the
risk increases geometrically and is estimated at between 1,000 and
12,000 per million. The lower estimate of 10 per million is closer to
the actual risk for a one-year exposure. Nevertheless, in view of the
seriousness of the injury and the cumulative effects of asbestos
exposure, even this minimum figure represents an unacceptable risk. The
Commission believes that reducing exposure to respirable free-form
asbestos in the home represents a substantial decrease in risk to
consumers, since, for many people, the major exposure to inhalable
asbestos is in the home.
(b) Products subject to the ban. Consumer patching compounds as
defined in 1034.3 (d), (e), (f) includes such products as drywall
spackling compounds and tape joint compounds (commonly known as ''joint
cement'' or ''tape joint mud''). The Commission estimates annual
shipments of patching compounds subject to the ban at approximately
30-50 million ''units,'' or individual packages, of various sizes from
0.5 to 25 pounds (dry) or 0.5 to 5 gallons (wet). The Commission
believes that about half the patching compounds sold in 1977, and
intended for sale to or use or enjoyment by consumers, were formulated
with asbestos. Many others containing significant levels of asbestos
contamination will also be affected by the ban.
(c) Need of the public for the products and effects of the rule on
their utility, cost and availability. Patching compounds, though used
primarily by commercial construction workers, are also used by
consumers, and are used for the patching and sealing of cracks and
joints in and around the household and in other consumer environments
either by consumers or professional applicators. The compounds are used
to cover areas on gypsum drywall which might otherwise be aesthetically
undesirable or which might lead to structural damage, energy loss or
lower property value. The asbestos in these compounds acts as a
structural reinforcing agent which helps to reduce cracking and
shrinkage of the compound over time, and which renders the compound more
pliable or ''workable'' upon application.
(1) Utility. The elimination of asbestos from these products may
result in the increased use or new development of substitutes which have
similar properties to those of asbestos, or which impart similar
qualities to the product. In current reformulations, asbestos is
replaced by a combination of substances, of which the most common is
attapulgite, a fibrous clay. Some non-asbestos formulations are
reportedly not as effective as those containing asbestos in controlling
shrinkage and cracking over time. The workability of some compounds may
be diminished as well. This may adversely affect the utility derived
from the product by consumers, and by professional contractors until
such time as improved formulations are developed and available to
end-users.
(2) Cost. Asbestos-free patching compound formulations may require
more time to use. This would tend to increase the direct labor costs of
residential and other construction and renovation. The expected
increase is between 10 and 25 percent. The Commission estimates that
the annual labor cost of drywall finishing in these consumer
environments is on the order of $1 billion. The use of nonasbestos
patching compound formulations in all applications may increase this
cost by $50-$125 million, assuming that roughly half the current labor
costs (i.e., that portion now associated with the use of asbestos
formulations) are affected by the 10-25 percent increase. The burden of
this cost is expected to fall directly on owners of existing homes who
may engage in some renovation, and on purchasers of newly-renovated or
newly-constructed homes. These increased costs are expected to diminish
over time as formulations improve and as applicators become more
accustomed to using nonasbestos formulations. The use of asbestos
substitutes may also lead to cost increases in the manufacture of
patching compounds. The Commission estimates this cost, which may vary
widely from firm to firm, at an average of 5-15 percent. This is made
up primarily of increased costs of raw materials and of formulation
research and development. It is expected that the price of many
patching compounds may rise as a result. Producers, distributors, and
retailers of patching compounds may also have to incur costs associated
with the disposal of products in inventory. The Commission estimates
that the wholesale value of manufacturers' and distributors' inventories
at the time the ban becomes effective will be approximately $15 million.
These costs may be reflected in the prices charged for asbestos-free
patching compound formulations, and in the prices of other drywall and
paint products. It appears that, because of competitive pressure from
asbestos-containing compounds, producers of asbestos-free formulations
have not yet passed on to purchasers their increased costs. If the
increased production costs of asbestos-free formulations can be passed
on completely as a result of the ban, the total annual price effect for
the year following the issuance of the ban may be $10-$60 million. The
magnitude of this effect may be reduced significantly in successive
years following the issuance of the ban as producers' development costs
are amortized, as raw materials become more widely available, and as
price competition is strengthened because of market pressure and
economies of sale associated with production.
(3) Availability. The supply of asbestos substitutes, particularly
attapulgite clay and relatively uncontaminated talc, for use in the
manufacture of patching compounds may be insufficient to meet the
short-run demand which is expected to be stimulated by the promulgation
of the ban. Further, many small producers probably lack the technical
capability to reformulate their products, and may be forced to cease
production, at least until formulations of satisfactory cost and
performance are developed. This may affect some professional
contractors. In the short run, consumers may be indirectly affected by
delays in drywall finishing and building completion.
(d) Any means of achieving the objective of the ban while minimizing
adverse effects on competition or disruption or dislocation of
manufacturing and other commercial practices consistent with the public
health and safety. The adverse effects of the ban on patching compounds
containing asbestos is reduced by limiting the ban to intentionally
added asbestos. Other alternatives such as limiting the scope of the
ban only to products purchased and used by consumers or to issuing a ban
with a later effective date, were considered by the Commission.
However, none was found that would cause less disruption or dislocation
of manufacturing and other commercial practices, consistent with public
health and safety.
16 CFR 1304.5 Pt. 1305
16 CFR 1304.5 PART 1305 -- BAN OF ARTIFICIAL EMBERIZING MATERIALS (ASH
AND EMBERS) CONTAINING RESPIRABLE FREE-FORM ASBESTOS
Sec.
1305.1 Scope and application.
1305.2 Purpose.
1305.3 Definitions.
1305.4 Artificial fireplace ash and embers as banned hazardous
products.
1305.5 Findings.
Authority: Secs. 8, 9, 30(d), Pub. L. 92-573, as amended, Pub. L.
94-284; 86 Stat. 1215-17, as amended, 90 Stat. 506 (15 U.S.C. 2057,
2058).
Source: 42 FR 63364, Dec. 15, 1977, unless otherwise noted.
16 CFR 1305.1 Scope and application.
In this part 1305 the Consumer Product Safety Commission declares
that artificial emberizing materials (ash and embers) containing
respirable free-form asbestos generally packaged in an emberizing kit
for use in fireplaces, and designed for use in such a manner that the
asbestos fibers can become airborne under reasonably foreseeable
conditions of use are banned hazardous products under sections 8 and 9
of the Consumer Product Safety Act (CPSA) (15 U.S.C. 2057 and 2058).
This ban applies to artificial emberizing materials available in
separate kits or with artificial fireplace logs for use in fireplaces
and sprinkled or coated by consumers on the artificial logs to simulate
live embers and ashes and give a glowing appearance when subjected to
high temperatures. Bags of material containing asbestos that are sold
separately to be sprinkled on and under artificial logs to simulate
burning and glowing ashes also come within the scope of this ban.
16 CFR 1305.2 Purpose.
The purpose of this rule is to ban artificial emberizing materials
containing respirable free-form asbestos. These products present an
unreasonable risk of injury due to inhalation of fibers which increase
the risk of developing cancers such as lung cancer and mesothelioma,
diseases which have been demonstrated to be caused by exposure to
asbestos fibers.
16 CFR 1305.3 Definitions.
(a) The definitions in section 3 of the Consumer Product Safety Act
(15 U.S.C. 2052) apply to this part 1305.
(b) Asbestos means a group of mineral fibers composed of hydrated
silicates, oxygen, hydrogen and other elements such as sodium, iron,
magnesium and calcium in diverse combinations and are: Amosite,
chrysotile, crocidolite, anthophyllite asbestos, actinolite asbestos,
and tremolite asbestos.
(c) Free-form asbestos is that which is not bound, woven, or
otherwise ''locked-in'' to a product by resins or other bonding agents,
or those from which fibers can readily become airborne with any
reasonably foreseeable use.
(d) Emberizing materials means an asbestos-containing material
generally packed in an ''emberizing'' kit to be placed under artificial
logs in gas-burning fireplace systems or in artificial fireplaces for
decorative purposes. The product is also glued to artificial logs,
either at a factory or by a consumer using an emberizing kit.
(Synthetic logs manufactured of cellulostic products which are consumed
by flames are not included in this definition. Electric artificial logs
and artificial ash beds used in electric fireplaces, which do not
contain respirable free-form asbestos are not included in this
definition.)
16 CFR 1305.4 Artificial fireplace ash and embers as banned hazardous
products.
On the basis that airborne asbestos fibers present the hazards of
cancer such as lung cancer and mesothelioma to the public, artificial
fireplace ash and embers containings respirable free-form asbestos are
banned hazardous products.
16 CFR 1305.5 Findings.
(a) The degree and nature of the risk of injury. The Commission
finds that the risk of injury which this regulation is designed to
eliminate or reduce is from cancer, including lung cancer and
mesothelioma. Measurements are not available of the amounts of asbestos
in the air from asbestos-containing emberizing materials in homes.
However, it appears that the amount of airborne asbestos in such homes
would increase when air currents in the home are created by downdrafts
from a fireplace chimney or other activities that stir air in any room.
Since emberizing materials may contain up to 50 percent asbestos, which
if not permanently bound into artificial fireplace logs would be in
respirable form, the risk associated with emberizing materials is
considerable, especially since it continues to exist 24 hours a day.
(b) Products subject to the ban. Artificial emberizing materials are
decorative simulated ashes or embers, used in certain gas-buring
fireplace systems, which glow to give the appearance of real burning
embers. The material is sprinkled on or glued to gas logs, or sprinkled
on fireplace floors.
(c) Need of the public for the products and effects of the rule on
their utility, cost, and availability. Artificial fireplace emberizing
material serves a strictly decorative purpose and does not materially
affect the actual performance of the fireplace gas system in terms of
its ability to provide heat. A certain degree of aesthetic desirability
exists, however, since the product ''system'' itself (the gas log,
ashes, and embers) is intended to simulate burning wooden logs. Gas
logs may be sold with artificial emberizing material attached at the
factory (the log commonly referred to as being ''frosted''), or with the
''embers'' in a separate kit, often mixed with simulated ''ashes.''
Virtually all gas logs are either frosted or packaged with an emberizing
kit; however, the majority of gas logs produced in 1977 were packaged
with non-asbestos-containing emberizing kits. The Commission estimates
annual sales of artificial gas logs at approximately 100,000 units.
Some 25,000-30,000 of these would be subject to the ban. Approximately
100,000 gas logs frosted or treated by consumers with asbestos are
estimated to be in existence. The Commission believes that the majority
of gas logs are sold with emberizing kits; this gives the consumer a
choice as to whether or not to use the artificial embers and ashes.
(1) Utility. Manufacturers of artificial gas log emberizing material
are currently using four substitutes for asbestos in their products:
vermiculite, rock wool, mica, and a synthetic fiber. None of the four
is claimed to be as aesthetically effective as asbestos. Thus, the
utility derived by consumers from some gas-burning fireplace systems may
be adversely affected.
(2) Cost. No effect on the overall price level of gas logs is
anticipated as a result of the ban. The average price of emberizing
kits may rise somewhat; the Commission estimates the total price effect
of the ban on consumers at under $25,000.
(3) Availability. The Commission believes that all producers of
artificial emberizing material will have eliminated asbestos from their
products by the time the ban becomes effective. No significant impact
on the availability of asbestos substitutes to producers nor on the
availability of gas logs or emberizing kits to retail dealers and
consumers is expected as a result of the ban.
(d) Any means of achieving the objective of the ban while minimizing
adverse effects on competition or disruption or dislocation of
manufacturing and other commercial practices consistent with the public
health and safety. The Commission believes that there will be minimal
disruption to the market for artificial emberizing materials as a
consequence of the ban and that no further reduction in adverse effects
is feasible.
16 CFR 1305.5 Pt. 1306
16 CFR 1305.5 PART 1306 -- BAN OF HAZARDOUS LAWN DARTS
Sec.
1306.1 Scope and application.
1306.2 Purpose.
1306.3 Banned hazardous products.
1306.4 Findings.
1306.5 Effective date.
Authority: 15 U.S.C. 2058-2060.
Source: 53 FR 46839, Nov. 18, 1988, unless otherwise noted.
16 CFR 1306.1 Scope and application.
(a) In this part 1306, the Commission declares lawn darts, described
in 1306.3, to be banned hazardous products.
(b) Lawn darts and similar products that are articles intended for
use by children are not covered by this ban, but are banned under the
Federal Hazardous Substances Act at 16 CFR 1500.18(a)(4).
16 CFR 1306.2 Purpose.
The purpose of this rule is to prohibit the sale of lawn darts, which
have been found to present an unreasonable risk of skull puncture
injuries to children.
16 CFR 1306.3 Banned hazardous products.
Any lawn dart is a banned hazardous product.
16 CFR 1306.4 Findings.
(a) The Commission has found that lawn darts are being distributed in
commerce and present an unreasonable risk of injury.
(b) The degree and nature of the risk of injury. (1) The risk that
the Commission intends to address in this proceeding is that of puncture
of the skulls of children caused by lawn darts being used by children.
The potential for these devices to cause these types of injuries is not
necessarily obvious to parents or other adults who might buy these items
or allow their children to play with them, much less to the children
themselves. This is because the tips do not appear sharp enough to
present an obvious danger of puncture. The combined factors of weight,
the narrow elongated shaft, the speed that the dart is traveling at the
time of impact, and the thickness of the child's skull at the point of
impact present the risk. The Commission has concluded that all lawn
darts have the potential for skull puncture during reasonably
foreseeable use or misuse.
(2) Because all lawn darts are being banned, the elimination of lawn
darts that can cause skull puncture injuries will also eliminate the
punctures of other parts of the body, as well as the lacerations,
fractures, and other injuries that have been associated with lawn darts
in the past. The Commission's staff estimates that about 670 injuries
from lawn darts are treated in U.S. hospital emergency rooms per year.
About 40 percent of these are puncture wounds. Approximately 57 percent
of the injuries involved the head, face, eye, or ear. Approximately 4
percent of the injured victims were hospitalized (on the average,
approximately 25 per year), including all of the injuries reported as
fractures. Over 75 percent of the victims were under age 15; about 50
percent of the victims were under age 10. In addition, Commission
records dating back to 1970 show that at least three children have been
killed by injuries associated with lawn darts. These children were 4,
7, and 13 years old. In the 25 lawn dart injury reports for which
information about the user of the lawn darts was available, the reports
indicated that children were playing with the lawn darts, despite the
ban and exemption which were developed to keep the product out of the
hands of children.
(c) Products subject to this ban. (1) Lawn darts are devices with
elongated tips that are intended to be used outdoors and that are
designed so that when they are thrown into the air they will contact the
ground tip first. Often, lawn darts are used in a game where the darts
are thrown at a target or other feature on the ground. The types of
lawn darts that have generally been available in the past and that have
demonstrated their ability to cause skull puncture injuries typically
have a metal or weighted plastic body, on the front of which is an
elongated metal shaft about 1/4 inch in diameter. These darts have a
shaft on the rear of the body containing plastic fins. These darts are
about a foot in length and weigh about one quarter to one half pound.
These darts are intended to stick in the ground when thrown. Prior to
this rule, annual sales of these lawn darts were estimated at 1-1.5
million units.
(2) The definition for lawn darts in this rule is not intended to
include arrows or horseshoes, nor is it intended to apply to indoor dart
games that use a vertically-placed target, such as ''English darts'' or
''American darts.''
(d) The need of the public for lawn darts, and the effects of the
rule on their utility, cost, and availability. The need of the public
for lawn darts is for recreational enjoyment. Substitute recreational
enjoyment can be obtained from other products. Lawn darts will not be
available through commercial channels after the effective date of the
ban.
(e) Alternatives. (1) The Commission considered various labeling
requirements and limitations on the marketing of lawn darts that would
be intended to discourage the marketing of the product to children and
the use of the product by children. The Commission concluded, however,
that these types of requirements would not preclude substantial use of
the product by children and would not reduce adequately the risk of
injury addressed by this rule.
(2) The Commission also considered the possibility of performance
requirements for lawn darts to determine which lawn darts present an
unreasonable risk of injury of skull penetration to children, but such
requirements were determined not to be feasible.
(f) Conclusion. The Commission finds:
(1) That this rule, including its effective date, is reasonably
necessary to eliminate or adequately reduce the unreasonable risk of
skull puncture wounds to children associated with lawn darts and will
also eliminate or reduce the other injuries, including puncture wounds,
that have been associated with this product.
(2) That issuance of the rule is in the public interest.
(3) That no feasible consumer product safety standard would
adequately protect the public from the unreasonable risk associated with
lawn darts.
(4) That the benefits expected from this rule bear a reasonable
relationship to its costs.
(5) That the rule imposes the least burdensome requirement which
prevents or adequately reduces the risk of injury for which the rule is
being promulgated.
16 CFR 1306.5 Effective date.
This rule is effective December 19, 1988 and applies to all lawn
darts in the chain of distribution on or after that date.
16 CFR 1306.5 PART 1401 -- SELF PRESSURIZED CONSUMER PRODUCTS
CONTAINING CHLOROFLUOROCARBONS: REQUIREMENTS TO PROVIDE THE COMMISSION
WITH PERFORMANCE AND TECHNICAL DATA; REQUIREMENTS TO NOTIFY CONSUMERS
AT POINT OF PURCHASE OF PERFORMANCE AND TECHNICAL DATA
Sec.
1401.1 Scope.
1401.2 Purpose.
1401.3 Definitions.
1401.4 (Reserved)
1401.5 Providing performance and technical data to purchasers by
labeling.
1401.6 Effective date.
Authority: Secs. 2(b), 27(e), Pub. L. 92-573, 86 Stat. 1208, 1228
(15 U.S.C. 2051(b), 2076(e)).
Source: 42 FR 42783, Aug. 24, 1977, unless otherwise noted.
16 CFR 1401.1 Scope.
This part 1401 establishes requirements under section 27(e) of the
Consumer Product Safety Act (15 U.S.C. 2076(e)) for marketers and
importers of self-pressurized consumer products that contain
chlorofluorocarbons as propellants to provide notification of certain
performance and technical data to prospective purchasers of such
products at the time of original purchase and to the first purchaser of
such products for purposes other than resale. The notification shall
consist of a label on the product stating that it contains a
chlorofluorocarbon that may harm the public health and environment by
reducing the ozone in the upper atmosphere. Also, manufacturers and
importers must provide the commission with reports identifying which of
the self-pressurized consumer products sold by them contain
chlorofluorocarbon propellants.
16 CFR 1401.2 Purpose.
Chlorofluorocarbons are used as propellants in self-pressurized
containers of a variety of products subject to the Commission's
jurisdiction. Scientific research has indicated that
chlorofluorocarbons may pose a risk of depletion of ozone in the
stratosphere. The stratospheric ozone shield is of great importance in
protecting life on earth from shortwave ultra-violet rays of the sun.
Ozone depletion allows more of these rays to reach the earth, and the
consequences include a possibility of a significant increase in human
skin cancer and other effects of unknown magnitude on man, animals, and
plants. Chlorofluorocarbon release may also cause climatic change, both
by reducing stratospheric ozone and by increasing infrared absorption in
the atmosphere. The Commission believes that the requirements of this
part 1401 will enable consumers to make a conscious choice of whether to
use products that contain chlorofluorocarbon propellants. The
Commission also believes that these requirements are necessary in order
to carry out the purposes of the Consumer Product Safety Act of (a)
helping to protect the public against unreasonable risks of injury
associated with consumer products and (b) assisting consumers in
evaluating the comparative safety of consumer products.
16 CFR 1401.3 Definitions.
For the purposes of this part 1401:
(a) Chlorofluorocarbon means any fully halogenated
chlorofluoroalkane.
(b) Finished product means a product which has been completely
manufactured, packaged, and labeled.
(c) Initially introduced into interstate commerce means the first
shipment of the product into interstate commerce by the firm marketing
the product. There must be both physical movement in interstate
commerce and passage of title to the product. Thus, mere shipment of a
product across state lines from a contract filler to the marketer of the
product would not constitute initial introduction into interstate
commerce. All products initially introduced into interstate commerce
before the effective date may continue to be distributed and sold even
though they do not bear the warning statement.
(d) Manufacturer means any person who manufactures or imports a
consumer product. The term includes both a person who manufactures the
product at the direction of another (such as a contract filler of
aerosol products) and the person at whose direction the product is
manufactured (such as the marketer of the brand).
(e) Propellent means a liquefied or compressed gas in a container,
where a purpose of the liquefied or compressed gas is to expel material
from the container. The material to be expelled may be the propellant
itself and/or a material different from the propellent.
(f) The definitions given in section 3 of the Consumer Product Safety
Act (15 U.S.C. 2052) shall, where applicable, apply to this part 1401.
1401.4 (Reserved)
16 CFR 1401.5 Providing performance and technical data to purchasers by
labeling.
(a) Manufacturers of self-pressurized consumer products containing a
chlorofluorocarbon propellant shall provide performance and technical
data concerning such products that they import or initially introduce
into interstate commerce after February 19, 1978, to prospective
purchasers at the time of original purchase and to the first purchaser
for purposes other than resale. The data shall consist of the following
identification and warning statement: ''WARNING -- Contains a
chlorofluorocarbon that may harm the public health and environment by
reducing ozone in the upper atmosphere.''
(b) The identification and warning statement required by paragraph
(a) of this section shall be in addition to any other required labeling
and shall be sufficiently prominent and conspicuous as to be likely to
be read and understood by ordinary individuals under normal conditions
of purchase. This identification and warning statement shall appear on
the immediate container of the product and also on any outside container
or wrapper in which the product is normally offered for sale at retail.
The identification and warning statement may appear on a firmly affixed
tag, tape, card, or sticker or similar overlabeling attached to the
package.
(42 FR 42783, Aug. 24, 1977; 42 FR 46285, Sept. 15, 1977)
16 CFR 1401.6 Effective date.
This part becomes effective February 20, 1978.
16 CFR 1401.6 PART 1402 -- CB BASE STATION ANTENNAS, TV ANTENNAS, AND
SUPPORTING STRUCTURES
Sec.
1402.1 Scope.
1402.2 Background.
1402.3 Definitions.
1402.4 Requirements to provide performance and technical data by
labeling and instructions.
Appendix I -- Recommended Outline for Instruction Booklet on ''How To
Safely Install Your CB Base Station Antenna''
Authority: Secs. 2, 27, Pub. L. 92-573, 86 Stat. 1207, 1228 (15
U.S.C. 2051, 2076).
Source: 43 FR 28392, June 29, 1978, unless otherwise noted.
16 CFR 1402.1 Scope.
(a) This part 1402 requires manufacturers (including importers) of
Citizens Band (CB) base station antennas, outdoor television (TV)
antennas, and their supporting structures to provide notification of
ways to avoid the hazard of electrocution which exists when these
products are allowed to come near powerlines while the antennas are
being put up or taken down. The notification must be provided to (1)
prospective purchasers of such products at the time of original purchase
and (2) the first purchaser of such products for purposes other than
resale. The notification consists of instructions to accompany the
products, warning labels on the products, and warning statements on the
packaging or parts container. Samples of the instructions, labels, and
warning statements must also be provided to the Consumer Product Safety
Commission.
(b) This part 1402 applies to any of the following that are
''consumer products'' as defined in section 3 of the Consumer Product
Safety Act (15 U.S.C. 2052) and that are manufactured or imported, or
packaged or sold by the manufacturer or importer, after September 26,
1978.
(1) Antennas designed or intended to be used as outdoor CB base
station antennas (referred to in this rule as ''CB base station
antennas'').
(2) Antennas designed or intended to be used as outdoor TV receiving
antennas (referred to in this rule as ''TV antennas'').
(3) Antenna supporting structures, which are elements over 5 feet in
length that are intended to support these types of antennas at a higher
elevation. These structures include towers, tripods, and masts.
Devices which merely secure the antenna in place are not included.
(43 FR 28392, June 29, 1978, as amended at 43 FR 47722, Oct. 17,
1978)
16 CFR 1402.2 Background.
As a result of numerous electrocutions which have occurred when
consumers contacted powerlines with CB base station and outside TV
antennas while putting these antennas up or taking them down, the
Consumer Product Safety Commission has determined that it is necessary
to require that warnings and instructions be furnished with these
antennas and their supporting structures so that consumers can be made
aware of the hazards involved and of safe ways to put up and take down
these antennas. The Commission anticipates that this regulation will
help protect the public against the unreasonable risk of injury
associated with CB base station antennas, outside TV antennas, and
supporting structures due to contact with overhead powerlines.
16 CFR 1402.3 Definitions.
(a) The definitions in section 3 of the Consumer Product Safety Act
(15 U.S.C. 2052) apply to this part 1402.
(b) Antenna supporting structures, CB base station antennas, and TV
antennas are defined in 1402.1(b)(1) through (3).
16 CFR 1402.4 Requirements to provide performance and technical data by
labeling and instructions.
(a) Notice to purchasers. Manufacturers of CB base station antennas,
TV antennas, and antenna supporting structures shall give notification
of performance and technical data related to performance and safety to
prospective purchasers of such products at the time of original purchase
and to the first purchaser of such product for purposes other than
resale, in the manner set forth below.
(1) Antennas. CB base station antennas and TV antennas shall be
provided with the following:
Insert Illus. 41A
(i) Label. (A) The antenna shall bear the label shown in fig. 1 so
that the label will be conspicuous to the installer during installation.
(B) If pipe or tubular nontelescoping masts are a suitable supporting
structure for the antenna, a separate label as shown in fig. 1 shall
accompany the antenna. The label shall be suitable for mounting by the
consumer on such a mast.
(C) The label in figure 1 shall be made and attached in such a manner
that it will be legible for an average expected life of at least 3
years.
(D) The word ''product'' may be substituted for ''antenna'' in the
label of fig. 1.
(E)(1) The colors in figure 1 shall conform to ANSI Standard
Z53.1-1971, ''Safety Color Code for Marking Physical Hazards,''
published in 1971 by the American National Standards Institute, which is
incorporated by reference. Copies of this document are available from
the American National Standards Institute, 1430 Broadway, New York, New
York 10018. This standard is also available for inspection at the
Office of the Federal Register, Room 8401, 1100 L Street NW.,
Washington, DC 20408. This incorporation by reference was approved by
the Director of the Federal Register. These materials are incorporated
as they exist in the edition which has been approved by the Director of
the Federal Register and which has been filed with the Office of the
Federal Register. Alternatively, the colors ''red'' and ''yellow'' in
figure 1 may conform to Color Tolerance Charts, published by the
Department of Transportation. Copies of the Color Tolerance Charts are
available from the Office of Hazardous Materials, Department of
Transportation, Washington, DC 20590. These materials are also
available for inspection at the Office of the Federal Register, Room
8401, 1100 L Street NW., Washington, DC 20408.
(2) Color limit values shall be determined by ASTM D 1535-68,
''Specifying Color by the Munsell System,'' published in 1968 by the
American Society for Testing and Materials. Copies of ASTM D 1535-68
are available from the American Society for Testing and Materials, 1916
Race Street, Philadelphia, Pennsylvania 19103. These materials are also
available for inspection at the Office of the Federal Register, Room
8401, 1100 L Street, NW., Washington, DC 20408. This incorporation by
reference was approved by the Director of the Federal Register. These
materials are incorporated as they exist in the edition which has been
approved by the Director of the Federal Register and which has been
filed with the Office of the Federal Register. Alternatively, color
limit values for red or yellow may be determined by the Department of
Transportation Color Tolerance Charts, which display the desired color
within the tolerance limits.
(ii) Instructions. CB base station antennas and TV antennas shall be
accompanied by instructions that include the following:
(A) The following warning statement, placed on the first page of the
document(s) containing the instructions and at the beginning of the body
of the instructions: ''WARNING: INSTALLATION OF THIS PRODUCT NEAR
POWERLINES IS DANGEROUS. FOR YOUR SAFETY, FOLLOW THE INSTALLATION
DIRECTIONS''. This statement shall be legible and conspicuous and shall
be in type that is at least as large as the largest type used on the
remainder of the page, with the exception of the logo and any
identification of the manufacturer, brand, model, or similar
designations, and that is preferably no smaller than 10 point type.
(B) The information set forth below, which shall be in a part of the
instructions that is conspicuously identified as containing information
concerning the risk of electrocution caused by contact with powerlines.
No particular wording is required for this information, but it shall be
in legible English and readily understandable to a user with a sixth
grade reading ability (other languages may be included as appropriate).
(1) An explanation of the risk of electrocution caused by contacting
powerlines while putting up or taking down the antenna.
(2) An identification of the generally available types and sizes of
antenna supporting structures that are suitable for use with the
antenna. If a generally available type or size of supporting structure
is not identified as suitable, an explanation of why it is not suitable
shall be included.
(3) If pipe or tubular non-telescoping masts are a suitable
supporting structure for the antenna, the instructions shall contain the
following in relation to installation of the antenna on such masts:
(i) How to select and measure the installation site.
(ii) An explanation (pictorial where appropriate) of methods that can
be used to reduce the possibility of contact with powerlines when
putting up and taking down the antenna mast.
(iii) Instructions for properly attaching the separate label that is
required to accompany the antenna by paragraph (a)(1)(i)(B) of this
section.
(iv) A statement that if the supporting structure to be used with the
antenna does not have a label of the type provided by the manufacturer,
the provided label should be attached to the base of the supporting
structure by the installer.
(2) Antenna supporting structures. Antenna supporting structures,
except pipe or tubular nontelescoping mast sections less than 11 ft.
(335 cm.) in length that are not individually packaged or otherwise
contained in a package intended for distribution to the consumer, shall
comply with the following requirements:
(i) Label. (A) Antenna supporting structures shall bear the label
shown in fig. 1, which shall be legible for an average expected life of
at least 3 years. The label shall be attached so that it is conspicuous
during installation and is 3 to 5 ft. (91 to 152 cm.) from the base of
the supporting structure.
(B) The word ''product'' may be substituted for ''antenna'' in the
label, as may ''tower'', ''tripod'', or other term, if it accurately
describes the supporting structure.
(ii) Instructions. Antenna supporting structures shall be
accompanied by instructions that include the following:
(A) The following warning statement, placed on the first page of the
document(s) containing the instructions and at the beginning of the body
of the instructions: ''WARNING: INSTALLATION OF THIS PRODUCT NEAR
POWERLINES IS DANGEROUS. FOR YOUR SAFETY, FOLLOW THE INSTALLATION
DIRECTIONS.'' This statement shall be legible and conspicuous and shall
be in type that is at least as large as the largest type used on the
remainder of the page, with the exception of the logo and any
identification of the manufacturer, brand, model, and similar
designations, and that is preferably no smaller than 10 point type.
(B) The information set forth below, which shall be in a part of the
instructions that is conspicuously identified as containing information
concerning the risk of electrocution caused by contact with powerlines.
No particular wording is required for this information, but it shall be
in legible English and understandable to a user with a sixth grade
reading ability (other languages may be included as appropriate).
(1) An explanation of the risk of electrocution caused by contacting
powerlines while putting up or taking down the supporting structure.
(2) How to select and measure the installation site.
(3) An explanation (pictorial where appropriate) of methods that can
be used to reduce the possibility of contact with powerlines when
putting up and taking down the supporting structure.
(3) Packaging. (i) The following warning statement shall legibly and
conspicuously appear on either the packaging or the parts container of
any CB base station antenna, TV antenna, or antenna supporting
structure: ''Warning: Installation of this product near powerlines is
dangerous. For your safety, follow the enclosed installation
directions.''
(b) Data provided to the Commission. (1) Manufacturers of CB base
station antennas, TV antennas, and antenna supporting structures shall
provide to the Commission samples of all the labels, warning statements,
and instructions which will be used to satisfy the requirements of
paragraph (a) of this section. These samples shall be provided to the
Associate Executive Director for Compliance and Enforcement, Consumer
Product Safety Commission, 5401 Westbard Avenue, Bethesda, Md. 20207,
by October 27, 1978, or, in the event of a subsequent change in the
warning statements or instructions or if a new product is introduced,
within 30 days after the change or introduction.
(2) Manufacturers need not submit a separate sample for each model of
antenna or supporting structure where different models use the same
label and warning statement and where the portion of the instructions
required by this part is the same for the different models (even though
the remainder of the instructions may be different for each model).
Changes in instructions which do not affect the portions of the
instructions required by this part do not require the submission of
additional samples.
(3) The reporting requirement contained in this section has been
approved by the U.S. General Accounting Office under No. B-180232
(R0555).
(43 FR 28392, June 29, 1978, as amended at 43 FR 47722, Oct. 17,
1978; 46 FR 63250, Dec. 31, 1981)
16 CFR 1402.4 Pt. 1402, App. I
16 CFR 1402.4 Appendix I -- Recommended Outline for Instruction Booklet
on ''How To Safely Install Your CB Base Station Antenna''
I. Required Warning Label Statement.
II. Statement of Hazard.
III. General Safety Instructions:
A. Seek professional assistance.
B. Select your site with safety in mind.
C. Call your electric power company.
D. Plan your procedure.
E. What to do if the assembly starts to drop.
F. What to do if the assembly contacts powerlines.
G. What to do in case of electric shock.
IV. Site Selection (How to select and measure the installation site):
A. Distance from powerlines.
B. FCC height limitations.
C. Alternate locations:
1. Roof.
2. Chimney.
3. Side of house.
4. Free standing.
V. Types and Sizes of Support Structures and Mountings:
A. Tripod:
1. Where it can be used.
2. Limitations.
3. Suitable mounting methods.
B. Tubular Mast:
1. Non-telescopic:
a. Where it can be used.
b. Limitations.
c. Suitable mounting methods.
2. Telescopic:*
a. Where it can be used.
b. Limitations.
c. Suitable mounting methods.
C. Tower:*
1. Where it can be used.
2. Limitations.
3. Suitable mounting methods.
VI. Installation Instructions:
A. General Instructions:
1. Materials.
2. Assembly.
3. How to walk-up a tubular mast:
a. Height limitations.
b. Tying off.
c. Raising the mast with an X-frame.
d. Raising the mast without an X-frame.
4. Guy Wires.
B. How to Install a Tripod:
1. Preparation.
2. Erecting the assembly.
3. Securing the assembly.
C. How to Install a Non-telescopic Tubular Mast:
1. Roof Mount:
a. Preparation.
b. Erecting the assembly.
c. Securing the assembly.
2. Chimney Mount:
a. Preparation.
b. Erecting the assembly.
c. Securing the assembly.
3. Side of House Mount:
a. Preparation.
b. Erecting the assembly.
c. Securing the assembly.
4. Free Standing Mount:
a. Preparation.
b. Erecting the assembly.
c. Securing the assembly.
VII. Grounding Your Antenna:
D. How to Install a Telescopic Mast:*
1. Preparation.
2. Erecting the assembly.
3. Securing the assembly.
E. How to Install a Tower:*
1. Preparation.
2. Erecting the assembly.
3. Securing the assembly.
VIII. Instructions for Attaching Label to Antenna and Supporting
Structure.
*Detailed instructions for installing these supports would come with
the product.
16 CFR 1402.4 PART 1404 -- CELLULOSE INSULATION
Sec.
1404.1 Scope, application, and effective date.
1404.2 Background.
1404.3 Definitions.
1404.4 Requirements to provide performance and technical data by
labeling -- Notice to purchasers.
Authority: Secs. 2, 27, 35, Pub. L. 92-573, Pub. L. 95-319; 86
Stat. 1207, 1228; 92 Stat. 386 (15 U.S.C. 2051, 2076, 2082).
Source: 44 FR 40001, July 6, 1979, unless otherwise noted.
16 CFR 1404.1 Scope, application, and effective date.
(a) Scope. This part 1404 establishes a requirement for
manufacturers, including importers, of cellulose insulation to notify
(1) prospective purchasers of such products at the time of original
purchase and (2) the first purchasers of such products for purposes
other than resale (installers and consumers) of ways to avoid the fire
hazard that exists where cellulose insulation is installed too close to
the sides or over the top of a recessed electrical light fixture or
where cellulose insulation is installed too close to the exhaust flues
from heat-producing devices or apparatus such as furnaces, water
heaters, and space heaters. The notification consists of a warning
label on the containers of cellulose insulation.
(b) Application and effective date. This rule applies to cellulose
insulation that is for sale to consumers for installation in households
or residences, as well as insulation that is produced or distributed for
installation by professionals in households or residences. Cellulose
insulation that is labeled as, marketed, and sold solely for
nonresidential installation is not included within the scope of this
proceeding. The rule applies to all products manufactured after October
15, 1979.
16 CFR 1404.2 Background.
Based on available fire incident information, engineering analysis of
the probable fire scenarios, and laboratory tests, the Consumer Product
Safety Commission has determined that fires can occur where cellulose
insulation is improperly installed too close to the sides or over the
top of recessed electrical light fixtures, or installed too close to the
exhaust flues from heat producing devices or apparatus such as furnaces,
water heaters, and space heaters. These fires may result in serious
injuries or deaths. Presently available information indicates that
fires may occur where cellulose insulation is improperly installed even
though the cellulose insulation complies with the Commission's amended
interim standard for cellulose insulation (16 CFR part 1209) based on
GSA Specification HH-I-515D. The Commission has determined that it is
necessary to require labeling to inform persons installing cellulose
insulation and consumers in whose homes the insulation is installed of
the fire hazard associated with improperly installed cellulose
insulation and the method of properly installing the insulation to
prevent this hazard. The Commission anticipates that this regulation
will accomplish the purpose of helping protect the public against the
unreasonable risk of injury associated with improperly installed
cellulose insulation.
16 CFR 1404.3 Definitions.
The definitions in section 3 of the Consumer Product Safety Act (15
U.S.C. 2052) apply to this part 1404.
Cellulose insulation is cellulosic fiber, loose fill, thermal
insulation that is suitable for blowing or pouring applications.
Manufacturer means any person who manufactures or imports a consumer
product. The term includes both a person who manufactures the product
at the direction of another (such as a packager) and the person at whose
direction the product is manufactured (such as the marketer of the
brand).
16 CFR 1404.4 Requirements to provide performance and technical data by
labeling -- Notice to purchasers.
(a) Manufacturers of cellulose insulation shall give notification of
performance and technical data related to performance and safety (1) to
prospective purchasers at the time of original purchase and (2) to the
first purchaser of such products for purposes other than resale in the
following manner. Manufacturers of cellulose insulation shall label all
containers of cellulose insulation with the following statement, using
capital letters as indicated:
16 CFR 1404.4 Caution
Potential Fire Hazard: Keep cellulose insulation at least three
inches away from the sides of recessed light fixtures. Do not place
insulation over such fixtures so as to entrap heat.
Also keep this insulation away from exhaust flues of furnaces, water
heaters, space heaters, or other heat-producing devices.
To be sure that insulation is kept away from light fixtures and
flues, use a barrier to permanently maintain clearance around these
areas. Check with local building or fire officials for guidance on
installation and barrier requirements.
Request to Installer: Remove this label and give it to the consumer
at completion of job.
Manufacturers of cellulose insulation may substitute the phrase ''TO
HELP AVOID FIRE'' for the phrase ''POTENTIAL FIRE HAZARD'' in the label
described above. Manufacturers may also delete the word ''cellulose
from the first sentence of the label and may delete the word ''this''
from the third sentence of the label. The remainder of the label
statement shall appear exactly as described above.
(b) The labeling statement required by 1404.4(a) shall appear
prominently and conspicuously on the container. The word ''CAUTION''
shall appear in capital letters at least one-fourth inch in height. The
words ''POTENTIAL FIRE HAZARD'' and ''REQUEST TO INSTALLER'' shall
appear in capital letters at least three-sixteenths inch in height. The
remainder of the statement shall appear in capital letters at least
three-sixteenths inch in height, with lower case letters in
corresponding proportion but at least one-eighth inch in height. The
labeling statement shall be enclosed within a rectangle formed with
lines at least one-sixteenth inch in width. The labeling statement
shall be printed with legible type in a color which contrasts with the
background on which the statement is printed.
(c) To meet this requirement, manufacturers may use any type of
label, including one which is pressure sensitive or glued-on, provided
the label is made in such a manner that it will remain attached to the
container for the expected time interval between the manufacture of the
product and its installation.
(44 FR 40001, July 6, 1979, as amended at 49 FR 21701, May 23, 1984)
16 CFR 1404.4 PART 1406 -- COAL AND WOOD BURNING APPLIANCES --
NOTIFICATION OF PERFORMANCE AND TECHNICAL DATA
Sec.
1406.1 Scope, purpose, and effective date.
1406.2 Background.
1406.3 Definitions.
1406.4 Requirements to provide performance and technical notice to
prospective purchasers and purchasers.
1406.5 Performance and technical data to be furnished to the
Commission.
Authority: Secs. 2, 27, Pub. L. 92-573, 86 Stat. 1207, 1228 (15
U.S.C. 2051, 2076).
16 CFR 1406.1 Scope, purpose, and effective date.
(a) Scope. This part 1406 requires manufacturers, including
importers, of coal and wood burning appliances, as defined in
1406.3(a), to provide consumers with a specified notification concerning
the installation, operation, and maintenance of the appliances. The
notification is intended to provide consumers with technical and
performance information related to the safety of the appliances. This
part 1406 also requires these manufacturers to provide to the Commission
a copy of the notification to consumers and a statement of the reasons
supporting the manufacturer's conclusion that certain clearance
distances contained in the notification are appropriate for preventing
fires.
(b) Purpose. This regulation is intended to reduce the unreasonable
risk of injury from fire associated with inadequate information provided
with coal and wood burning appliances. This rule does not replace any
voluntary standards applicable to these appliances or any state or local
requirements applicable to the installation, use, or maintenance of such
appliances that are not inconsistent with this rule. Thus, for example,
a local code could require the actual installation of appliances at
different distances from combustibles than those specified on the label
required by this rule, and voluntary standards or local codes could
require labeling or instructions in addition to those required by this
rule. The fact that a product complies with this regulation is not
intended to be a substitute for the performance tests and other criteria
established by listing organizations whose approval is required to meet
some state or local requirements applicable to these appliances.
(c) Effective date. (1) Except as provided in paragraphs (c)(2) and
(c)(3) of this section, manufacturers, including importers, of coal and
wood burning appliances as defined in 1406.3(a) must comply with this
regulation with respect to stoves that are manufactured or imported
after October 17, 1983, or that are first introduced into United States
commerce after May 16, 1984, regardless of the date of manufacture. For
the purposes of this rule, an appliance is manufactured when no further
assembly of the appliance is required (i) before shipment by the
manufacturer or (ii), if the product is not so shipped, before delivery
to the first purchaser. A product manufactured in the United States
(U.S.) is first introduced into U.S. commerce when it is shipped by the
manufacturer or delivered to the next purchaser, whichever comes first.
A product manufactured outside the U.S. is first introduced into U.S.
commerce when it is first brought within a U.S. port of entry.
(2) The requirements of 1406.4(c) apply to sales catalogs and point
of sale literature provided by manufacturers after May 16, 1984.
(3) Section 1406.5 is effective December 6, 1983.
(Information collection requirements contained in paragraph (a) were
approved by the Office of Management and Budget under control number
3041-0040)
(48 FR 21914, May 16, 1983; 48 FR 26761, June 10, 1983, as amended
at 48 FR 50706, Nov. 3, 1983; 48 FR 52889, Nov. 23, 1983)