DEFINITIONS
SEC. 2. [15 U.S.C. 1191]
As used in this Act--
(a) The term ``person'' means an individual,
partnership, corporation, association, or any other
form of business enterprise.
(b) The term ``commerce'' means commerce among the
several States or with foreign nations or in any
territory of the United States or in the District of
Columbia or between any such territory and another,
or between any such territory and any State or
foreign nation, or between the District of Columbia
or the Commonwealth of Puerto Rico and any State or
territory or foreign nation, or between the
Commonwealth of Puerto Rico and any State or
territory or foreign nation or the District of
Columbia.
(c) The term ``territory'' includes the insular
possessions of the United States and also any
territory of the United States.
(d) The term ``article of wearing apparel'' means
any costume or article of clothing worn or intended
to be worn by individuals.
(e) The term ``interior furnishing'' means any
type of furnishing made in whole or in part of
fabric or related material and intended for use or
which may reasonably be expected to be used, in
homes, offices, or other places of assembly or
accommodation.
(f) The term ``fabric'' means any material (except
fiber, filament, or yarn for other than retail sale)
woven, knitted, felted, or otherwise produced from
or in combination with any natural or synthetic
fiber, film, or substitute therefor which is
intended for use or which may reasonably be expected
to be used, in any product as defined in subsection
(h).
(g) The term ``related material'' means paper,
plastic, rubber, synthetic film, or synthetic foam
which is intended for use or which may reasonably be
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expected to be used in any product as defined in
subsection (h).
(h) The term ``product'' means any article of
wearing apparel or interior furnishing.
(i) The term ``Commission'' means the Federal
Trade Commission.
(j) The term ``Federal Trade Commission Act''
means the Act of Congress entitled ``An Act to
create a Federal Trade Commission, to define its
powers and duties, and for other purposes'' approved
September 26, 1914, as amended. [15 U.S.C. 41 et
seq.]
REGULATION OF FLAMMABLE FABRICS
SEC. 4. [15 U.S.C. 1193]
(a) Whenever the Secretary of Commerce finds on
the basis of the investigations or research
conducted pursuant to section 14 of this Act that a
new or amended flammability standard or other
regulation, including labeling, for a fabric,
related material, or product may be needed to
protect the public against unreasonable risk of the
occurrence of fire leading to death or personal
injury, or significant property damage, he shall
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institute proceedings for the determination of an
appropriate flammability standard (including
conditions and manner of testing) or other
regulation or amendment thereto for such fabric,
related material, or product.
(b) Each standard, regulation, or amendment
thereto promulgated pursuant to this section shall
be based on findings that such standard, regulation,
or amendment thereto is needed to adequately protect
the public against unreasonable risk of the
occurrence of fire leading to death, injury, or
significant property damage, is reasonable,
technologically practicable, and appropriate, is
limited to such fabrics, related materials, or
products which have been determined to present such
unreasonable risks, and shall be stated in objective
terms. Each such standard, regulation, or amendment
thereto, shall become effective twelve months from
the date on which such standard, regulation, or
amendment is promulgated, unless the Secretary of
Commerce finds for good cause shown that an earlier
or later effective date is in the public interest
and publishes the reason for such finding. Each
such standard or regulation or amendment thereto
shall exempt fabrics, related materials, or products
in inventory or with the trade as of the date on
which the standard, regulation, or amendment
thereto, becomes effective except that, if the
Secretary finds that any such fabric, related
material, or product is so highly flammable as to be
dangerous when used by consumers for the purpose for
which it is intended, he may under such conditions
as the Secretary may prescribe, withdraw, or limit
the exemption for such fabric, related material, or
product.
(c) The Secretary of Commerce may obtain from any
person by regulation or subpena issued pursuant
thereto such information in the form of testimony,
books, records, or other writings as is pertinent to
the findings or determinations which he is required
or authorized to make pursuant to this Act. All
information reported to or otherwise obtained by the
Secretary or his representative pursuant to this
subsection which information contains or relates to
a trade secret or other matter referred to in
section 1905 of title 18 of the United States Code,
shall be considered confidential for the purpose of
that section, except that such information may be
disclosed to other officers or employees concerned
with carrying out this Act or when relevant in any
proceeding under this Act. Nothing in this section
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shall authorize the withholding of information by
the Secretary or any officer or employee under his
control, from the duly authorized committees of the
Congress.
(d) Standards, regulations, and amendments to
standards and regulations under this section shall
be made in accordance with section 553 of title 5,
United States Code, except that interested persons
shall be given an opportunity for the oral
presentation of data, views, or arguments in
addition to an opportunity to make written
submissions. A transcript shall be kept of any oral
presentation.
(e)(1) Any person who will be adversely affected
by any such standard or regulation or amendment
thereto when it is effective may at any time prior
to the sixtieth day after such standard or
regulation or amendment thereto is issued file a
petition with the United States court of appeals for
the circuit wherein such person resides or has his
principal place of business, for a judicial review
thereof. A copy of the petition shall be forthwith
transmitted by the clerk of the court to the
Secretary or other officer designated by him for
that purpose. The Secretary thereupon shall file in
the court the record of the proceedings on which the
Secretary based the standard or regulation, as
provided in section 2112 of title 28 of the United
States Code.
(2) If the petitioner applies to the court for
leave to adduce additional evidence, and shows to
the satisfaction of the court that such additional
evidence is material and that there were reasonable
grounds for the failure to adduce such evidence in
the proceeding before the Secretary, the court may
order such additional evidence (and evidence in
rebuttal thereof) to be taken before the Secretary,
and to be adduced upon the hearing, in such manner
and upon such terms and conditions as to the court
may seem proper. The Secretary may modify his
findings or make new findings, by reason of the
additional evidence so taken, and he shall file such
modified or new findings, and his recommendations,
if any, for the modification or setting aside of his
original standard or regulation or amendment
thereto, with the return of such additional
evidence.
(3) Upon the filing of the petition referred to in
paragraph (1) of this subsection, the court shall
have jurisdiction to review the standard or
regulation in accordance with chapter 7 of title 5
Page 8
of the United States Code and to grant appropriate
relief as provided in such chapter. The standard or
regulation shall not be affirmed unless the findings
required by the first sentence of subsection (b) are
supported by substantial evidence on the record
taken as a whole. For purposes of this paragraph,
the term ``record'' means the standard or
regulation, any notice published with respect to the
promulgation of such standard or regulation, the
transcript required by subsection (d) of any oral
presentation, any written submission of interested
parties, and any other information which the
Commission considers relevant to such standard or
regulation.
(4) The judgment of the court affirming or setting
aside, in whole or in part, any such standard or
regulation of the Secretary shall be final, subject
to review by the Supreme Court of the United States
upon certiorari or certification as provided in
section 1254 of title 28 of the United States Code.
(5) Any action instituted under this subsection
shall survive, notwithstanding any change in the
person occupying the office of Secretary or any
vacancy in such office.
(6) The remedies provided for in this subsection
shall be in addition to and not in substitution for
any other remedies provided by law.
(f) A certified copy of the transcript of the
record and proceedings under subsection (e) shall be
furnished by the Secretary to any interested party
at his request, and payment of the costs thereof,
and shall be admissible in any criminal, exclusion
of imports, or other proceeding arising under or in
respect of this Act, irrespective of whether
proceedings with respect to the standard or
regulation or amendment thereto have previously been
initiated or become final under subsection (e).
(g) A proceeding for the promulgation of a
regulation under this section for a fabric, related
material, or product shall be commenced by the
publication in the Federal Register of an advance
notice of proposed rulemaking which shall--
(1) identify the fabric, related material, or
product and the nature of the risk of injury
associated with the fabric, related material, or
product;
(2) include a summary of each of the
regulatory alternatives under consideration by
the Commission (including voluntary standards);
(3) include information with respect to any
existing standard known to the Commission which
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may be relevant to the proceedings, together
with a summary of the reasons why the Commission
believes preliminarily that such standard does
not eliminate or adequately reduce the risk of
injury identified in paragraph (1);
(4) invite interested persons to submit to the
Commission, within such period as the Commission
shall specify in the notice (which period shall
not be less than 30 days or more than 60 days
after the date of publication of the notice),
comments with respect to the risk of injury
identified by the Commission, the regulatory
alternatives being considered, and other
possible alternatives for addressing the risk;
(5) invite any person (other than the
Commission) to submit to the Commission, within
such period as the Commission shall specify in
the notice (which period shall not be less than
30 days after the date of publication of the
notice), an existing standard or a portion of a
standard as a proposed regulation.
(6) invite any person (other than the
Commission) to submit to the Commission, within
such period as the Commission shall specify in
the notice (which period shall not be less than
30 days after the date of publication of the
notice), a statement of intention to modify or
develop a voluntary standard to address the risk
of injury identified in paragraph (1) together
with a description of a plan to modify or
develop the standard.
The Commission shall transmit such notice within 10
calendar days to the Committee on Commerce, Science,
and Transportation of the Senate and the Committee
on Energy and Commerce {now Committee on Commerce}
of the House of Representatives.
(h)(1) If the Commission determines that any
standard submitted to it in response to an
invitation in a notice published under subsection
(g)(5) if promulgated (in whole, in part, or in
combination with any other standard submitted to the
Commission or any part of such a standard) as a
regulation, would eliminate or adequately reduce the
risk of injury identified in the notice provided
under subsection (g)(1), the Commission may publish
such standard, in whole, in part, or in such
combination and with nonmaterial modifications, as a
proposed regulation under this section.
(2) If the Commission determines that--
(A) compliance with any standard submitted to
it in response to an invitation in a notice
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published under subsection (g)(6) is likely to
result in the elimination or adequate reduction
of the risk of injury identified in the notice,
and
(B) it is likely that there will be
substantial compliance with such standard,
the Commission shall terminate any proceeding to
promulgate a regulation respecting such risk of
injury and shall publish in the Federal Register a
notice which includes the determination of the
Commission and which notifies the public that the
Commission will rely on the voluntary standard to
eliminate or reduce the risk of injury, except that
the Commission shall terminate any such proceeding
and rely on a voluntary standard only if such
voluntary standard is in existence. For purposes of
this section, a voluntary standard shall be
considered to be in existence when it is finally
approved by the organization or other person which
developed such standard, irrespective of the
effective date of the standard. Before relying upon
any voluntary standard, the Commission shall afford
interested persons (including manufacturers,
consumers, and consumer organizations) a reasonable
opportunity to submit written comments regarding
such standard. The Commission shall consider such
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comments in making any determination regarding
reliance on the involved voluntary standard under
this subsection.
(3) The Commission shall devise procedures to
monitor compliance with any voluntary standards--.
(A) upon which the Commission has relied under
paragraph (2) of this subsection;
(B) which were developed with the
participation of the Commission; or
(C) whose development the Commission has
monitored.
(i) No regulation may be proposed by the
Commission under this section unless, not less than
60 days after publication of the notice required in
subsection (g), the Commission publishes in the
Federal Register the text of the proposed rule,
including any alternatives, which the Commission
proposes to promulgate, together with a preliminary
regulatory analysis containing--
(1) a preliminary description of the potential
benefits and potential costs of the proposed
regulation, including any benefits or costs that
cannot be quantified in monetary terms, and an
identification of those likely to receive the
benefits and bear the costs;
(2) a discussion of the reasons any standard
or portion of a standard submitted to the
Commission under subsection (g)(5) was not
published by the Commission as the proposed
regulation or part of the proposed regulation;
(3) a discussion of the reasons for the
Commission's preliminary determination that
efforts proposed under subsection (g)(6) and
assisted by the Commission as required by
section 5(a)(3) of the Consumer Product Safety
Act would not, within a reasonable period of
time, be likely to result in the development of
a voluntary standard that would eliminate or
adequately reduce the risk of injury identified
in the notice provided under subsection (g)(1);
and
(4) a description of any reasonable
alternatives to the proposed regulation,
together with a summary description of their
potential costs and benefits, and a brief
explanation of why such alternatives should not
be published as a proposed regulation.
The Commission shall transmit such notice within 10
calendar days to the Committee on Commerce, Science,
and Transportation of the Senate and the Committee
on Energy and Commerce {now Committe on Commerce} of
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the House of Representatives.
(j)(1) The Commission shall not promulgate a
regulation under this section unless it has prepared
a final regulatory analysis of the regulation
containing the following information:
(A) A description of the potential benefits
and potential costs of the regulation, including
costs and benefits that cannot be quantified in
monetary terms, and the identification of those
likely to receive the benefits and bear the
costs.
(B) A description of any alternatives to the
final regulation which were considered by the
Commission, together with a summary description
of their potential benefits and costs and brief
explanation of the reasons why these
alternatives were not chosen.
(C) A summary of any significant issues raised
by the comments submitted during the public
comment period in response to the preliminary
regulatory analysis, and a summary of the
assessment by the Commission of such issues.
The Commission shall publish its final regulatory
analysis with the regulation.
(2) The Commission shall not promulgate a
regulation under this section unless it finds (and
includes such finding in the regulation)--
(A) in the case of a regulation which relates
to a risk of injury with respect to which
persons who would be subject to such regulation
have adopted and implemented a voluntary
standard, that--
(i) compliance with such voluntary
standard is not likely to result in the
elimination or adequate reduction of such
risk of injury; or
(ii) it is unlikely that there will be
substantial compliance with such voluntary
standard;
(B) that the benefits expected from the
regulation bear a reasonable relationship to its
costs; and
(C) that the regulation imposes the least
burdensome requirement which prevents or
adequately reduces that risk of injury for which
the regulation is being promulgated.
(3)(A) Any regulatory analysis prepared under
subsection (i) or paragraph (1) shall not be subject
to independent judicial review, except that when an
action for judicial review of a regulation is
instituted, the contents of any such regulatory
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analysis shall constitute part of the whole
rulemaking record of agency action in connection
with such review.
(B) The provisions of subparagraph (A) shall not
be construed to alter the substantive or procedural
standards otherwise applicable to judicial review of
any action by the Commission.
(k) The Commission shall grant, in whole or in
part, or deny any petition under section 553(e) of
title 5, United State Code, requesting the
Commission to initiate a rulemaking, within a
reasonable time after the date on which such
petition is filed. The Commission shall state the
reasons for granting or denying such petition. The
Commission may not deny any such petition on the
basis of a voluntary standard unless the voluntary
standard is in existence at the time of the denial
of the petition, the Commission has determined that
the voluntary standard is likely to result in the
elimination or adequate reduction of the risk of
injury identified in the petition, and it is likely
that there will be substantial compliance with the
standard.
ADMINISTRATION AND ENFORCEMENT
SEC. 5. [15 U.S.C. 1194] {penalties increased; see
64 FR 51963}
(a) Except as otherwise specifically provided
herein, sections 3, 5, 6, and 8(b) of this Act shall
be enforced by the Commission under rules,
regulations and procedures provided for in the
Federal Trade Commission Act. In the case of an
attorney general of a State alleging a violation of
a standard or regulation under section 4 that
affects or may affect such State or its residents,
such attorney general may bring a civil action for
an injunction to enforce the requirement of such
standard or regulation. The procedural requirements
of section 24 of the Consumer Product Safety Act
shall apply to any such action.
(b) The Commission is authorized and directed to
prevent any person from violating the provisions of
section 3 of this Act in the same manner, by the
same means and with the same jurisdiction, powers
and duties as though all applicable terms and
provisions of the Federal Trade Commission Act were
incorporated into and made a part of this Act; and
any such person violating any provision of section 3
of this Act shall be subject to the penalties and
entitled to the privileges and immunities provided
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in said Federal Trade Commission Act as though the
applicable terms and provisions of the said Federal
Trade Commission Act were incorporated into and made
a part of this Act.
(c) The Commission is authorized and directed to
prescribe such rules and regulations, including
provisions for maintenance of records relating to
fabrics, related materials, and products, as may be
necessary and proper for administration and
enforcement of this Act. The violation of such rules
and regulations shall be unlawful and shall be an
unfair method of competition and an unfair and
deceptive act or practice, in commerce, under the
Federal Trade Commission Act.
(d) The Commission is authorized to--
(1) cause inspections, analyses, tests, and
examinations to be made of any product, fabric
or related material which it has reason to
believe falls within the prohibitions of this
Act; and
(2) cooperate on matters related to the
purposes of this Act with any department or
agency of the Government; with any State or
territory or with the District of Columbia or
the Commonwealth of Puerto Rico; or with any
department, agency, or political subdivision
thereof; or with any person.
(e)(1) Any person who knowingly violates a
regulation or standard under section 4 shall be
subject to a civil penalty not to exceed $5,000 for
each such violation, except that the maximum civil
penalty shall not exceed $1,250,000 for any related
series of violations.
(2) In determining the amount of any penalty to be
sought upon commencing an action seeking to assess a
penalty for a violation of a regulation or standard
under section 4, the Commission shall consider the
nature and number of the violations, the severity of
the risk of injury, the occurrence or absence of
injury, and the appropriateness of such penalty in
relation to the size of the business of the person
charged.
(3) Any civil penalty under this subsection may be
compromised by the Commission. In determining the
amount of such penalty or whether it should be
remitted or mitigated, and in what amount, the
Commission shall consider the nature and number of
the violations, the appropriatness of such penalty
to the size of the business of the persons charged,
the severity of the risk of injury, and the
occurrence or absence of injury. The amount of such
Page 15
penalty when finally determined, or the amount
agreed on compromise, may be deducted from any sums
owing by the United States to the person charged.
(4) As used in paragraph (1), the term
``knowingly'' means (A) having actual knowledge, or
(B) the presumed having of knowledge deemed to be
possessed by a reasonable person who acts in the
circumstances, including knowledge obtainable upon
the exercise or due care to ascertain the truth of
representations.
(5)(A) The maximum penalty amounts authorized in
paragraph (1) shall be adjusted for inflation as
provided in this paragraph.
(B) Not later than December 1, 1994, and December
1 of each fifth calendar year thereafter, the
Commission shall prescribe and publish in the
Federal Register a schedule of maximum authorized
penalties that shall apply for violations that occur
after January 1 of the year immediately following
such publication.
(C) The schedule of maximum authorized
penalties shall be prescribed by increasing each
of the amounts referred to in paragraph (1) by
the cost-of-living adjustment for the preceding
five years. Any increase determined under the
preceding sentence shall be rounded to--
(i) in the case of penalties greater than
$1,000 but less than or equal to $10,000, the
nearest multiple of $1,000;
(ii) in the case of penalties greater than
$10,000 but less than or equal to $100,000, the
nearest multiple of $5,000;
(iii) in the case of penalties greater than
$100,000 but less than or equal to $200,000, the
nearest multiple of $10,000; and
(iv) in the case of penalties greater than
$200,000, the nearest multiple of $25,000.
(D) For purposes of this subsection:
(i) The term ``Consumer Price Index'' means
the Consumer Price Index for all-urban consumers
published by the Department of Labor.
(ii) The term ``cost-of-living adjustment for
the preceding five years'' means the percentage
by which--
(I) the Consumer Price Index for the month
of June of the calendar year preceding the
adjustment; exceeds
(II) the Consumer Price Index for the
month of June preceding the date on which
the maximum authorized penalty was last
adjusted.
Page 16
INJUNCTION AND CONDEMNDATION PROCEEDINGS
SEC. 6. [15 U.S.C. 1195]
(a) Whenever the Commission has reason to believe
that any person is violating or is about to violate
section 3, or a rule or regulation prescribed under
section 5(c), of this Act, and that it would be in
the public interest to enjoin such violation until
complaint under the Federal Trade Commission Act is
issued and dismissed by the Commission or until
order to cease and desist made thereon by the
Commission has become final within the meaning of
the Federal Trade Commission Act or is set aside by
the court on review, the Commission may bring suit
in the district court of the United States, for the
district in which such person resides or transacts
business, or, if such person resides or transacts
business in Guam or the Virgin Islands, then in the
District Court of Guam or in the District Court of
the Virgin Islands (as the case may be), to enjoin
such violation and upon proper showing a temporary
injunction or restraining order shall be granted
without bond.
(b) Whenever the Commission has reason to believe
that any product has been manufactured or introduced
into commerce or any fabric or related material has
been introduced in commerce in violation of section
3 of this Act, it may institute proceedings by
process of libel for the seizure and confiscation of
such product, fabric, or related material in any
district court of the United States within the
jurisdiction of which such product, fabric, or
related material is found. Proceedings in cases
instituted under the authority of this section shall
conform as nearly as may be to proceedings in rem in
admiralty, except that on demand of either party and
in the discretion of the court, any issue of fact
shall be tried by jury. Whenever such proceedings
involving identical products, fabrics, or related
materials are pending in two or more jurisdictions,
they may be consolidated for trial by order of any
such court upon application seasonably made by any
party in interest upon notice to all other parties
in interest. Any court granting an order of
consolidation shall cause prompt notification
thereof to be given to other courts having
jurisdiction in the cases covered thereby and the
clerks of such other courts shall transmit all
pertinent records and papers to the court designated
for the trial of such consolidated proceedings.
Page 17
(c) In any such action the court, upon application
seasonably made before trial, shall by order allow
any party in interest, his attorney or agent, to
obtain a representative sample of the product,
fabric, or related material seized.
(d) If such products, fabrics, or related
materials are condemned by the court they shall be
disposed of by destruction, by delivery to the owner
or claimant thereof upon payment of court costs and
fees and storage and other proper expenses and upon
execution of good and sufficient bond to the effect
that such products, fabrics, or related materials
will not be disposed of until properly and
adequately treated or processed so as to render them
lawful for introduction into commerce, or by sale
upon execution of good and sufficient bond to the
effect that such products, fabrics, or related
materials will not be disposed of until properly and
adequately treated or processed so as to render them
lawful for introduction into commerce. If such
products, fabrics, or related materials are disposed
of by sale the proceeds, less costs and charges,
shall be paid into the Treasury of the United
States.
GUARANTY
SEC. 8. [15 U.S.C. 1197]
(a) No person shall be subject to prosecution
under section 7 of this Act for a violation of
section 3 of this Act if such person (1) establishes
a guaranty received in good faith signed by and
containing the name and address of the person by
whom the product, fabric, or related material
guaranteed was manufactured or from whom it was
received, to the effect that reasonable and
representative tests made in accordance with
standards issued or amended under the provisions of
section 4 of this Act show that the fabric or
related material covered by the guaranty, or used in
the product covered by the guaranty, conforms with
applicable flammability standards issued or amended
under the provisions of section 4 of this Act, and
(2) has not, by further processing, affected the
flammability of the fabric, related material, or
product covered by the guaranty which he received.
Such guaranty shall be either (1) a separate
guaranty specifically designating the product,
fabric, or other related material guaranteed, in
which case it may be on the invoice or other paper
relating to such product, fabric, or related
material; (2) a continuing guaranty given by seller
to buyer applicable to any product, fabric, or
related material sold or to be sold to buyer by
seller in a form as the Commission by rules and
regulations may prescribe; or (3) a continuing
guaranty filed with the Commission applicable to any
product, fabric, or related material handled by a
guarantor, in such form as the Commission by rules
or regulations may prescribe. {16 CFR Part 1608}
(b) It shall be unlawful for any person to
furnish, with respect to any product, fabric, or
related material, a false guaranty (except a person
relying upon a guaranty to the same effect received
in good faith signed by and containing the name and
address of the person by whom the product, fabric,
or related material guaranteed was manufactured or
from whom it was received) with reason to believe
the product, fabric, or related material falsely
guaranteed may be introduced, sold, or transported
in commerce, and any person who violates the
provisions of this subsection is guilty of an unfair
method of competition, and an unfair or deceptive
act or practice, in commerce within the meaning of
the Federal Trade Commission Act.
Page 19
EXPORTS
SEC. 15. [15 U.S.C. 1202]
(a) This Act shall not apply to any fabric,
related material, or product which is to be exported
from the United States, if such fabric, related
material, or product, and any container in which it
is enclosed, bears a stamp or label stating that
such fabric, related material, or product is
intended for export and such fabric, related
material, or product is in fact exported from the
United States; unless the Consumer Product Safety
Commission (hereinafter in this section referred to
as the ``Commission'') determines that exportation
of such fabric, related material, or product
presents an unreasonable risk of injury to persons
residing within the United States; except that this
Act shall apply to any fabric, related material, or
product manufactured for sale, offered for sale, or
intended for shipment to any installation of the
United States located outside of the United States.
(b) This Act shall not apply to any fabric,
related material, or product which is imported into
the United States for dyeing, finishing, other
processing, or storage in bond, and export from the
United States, if such fabric, related material, or
product, and any container in which it is enclosed,
bears a stamp or label stating that such fabric,
related material, or product is intended for export,
and such fabric, related material, or product is in
fact exported from the United States, unless the
Commission determines that exportation of such
fabric, related material, or product presents an
unreasonable risk of injury to persons residing
within the United States; except that this Act shall
apply to any such imported fabric, related material,
or product manufactured for sale, offered for sale,
or intended for shipment to any installation of the
United States located outside of the United States.
(c) Not less than thirty days before any person
exports to a foreign country any fabric, related
material, or product that fails to conform to an
applicable flammability standard or regulation in
effect under this Act, such person shall file a
statement with the Commission notifying the
Commission of such exportation, and the Commission,
upon receipt of such statement, shall promptly
notify the government of such country of such
exportation and the basis for such flammability
Page 22
standard or regulation. Any statement filed with
the Commission under the preceding sentence shall
specify the anticipated date of shipment of such
fabric, related material, or product, the country
and port of destination of such fabric, related
material, or product, and the quantity of such
fabric, related material, or product that will be
exported, and shall contain such other information
as the Commission may by regulation require. Upon
petition filed with the Commission by any person
required to file a statement under this subsection
respecting an exportation, the Commission may, for
good cause shown, exempt such person from the
requirement of this subsection that such a statement
be filed in no less than thirty days before the date
of the exportation, except that in no case shall the
Commission permit such a statement to be filed later
than the tenth day before such date.
PREEMPTION
SEC. 16. [15 U.S.C. 1203]
(a) Except as provided in subsections (b) and (c),
whenever a flammability standard or other regulation
for a fabric, related material, or product is in
effect under this Act, no State or political
subdivision of a State may establish or continue in
effect a flammability standard or other regulation
for such fabric, related material, or product if the
standard or other regulation is designed to protect
against the same risk of occurrence of fire with
respect to which the standard or other regulation
under this Act is in effect unless the State or
political subdivision standard or other regulation
is identical to the Federal standard or other
regulation.
(b) The Federal Government and the government of
any State or political subdivision of a State may
establish and continue in effect a flammability
standard or other regulation applicable to a fabric,
related material, or product for its own use which
standard or other regulation is designed to protect
against a risk of occurrence of fire with respect to
which a flammability standard or other regulation is
in effect under this Act and which is not identical
to such standard or other regulation if the Federal,
State, or political subdivision standard or other
regulation provides a higher degree of protection
from such risk of occurrence of fire than the
standard or other regulation in effect under this
Act.
Page 23
(c)(1) Upon application of a State or political
subdivision of a State, the Commission may, by
regulation promulgated in accordance with paragraph
(2), exempt from subsection (a), under such
conditions as may be prescribed in such regulation,
any flammability standard or other regulation of
such State or political subdivision applicable to a
fabric, related material, or product subject to a
standard or other regulation in effect under this
Act, if--
(A) compliance with the State or political
subdivision requirement would not cause the
fabric, related material, or product to be in
violation of the standard or other regulation in
effect under this Act, and
(B) the State or political subdivision
standard or other regulation (i) provides a
significantly higher degree of protection from
the risk of occurrence of fire with respect to
which the Federal standard or other regulation
is in effect, and (ii) does not unduly burden
interstate commerce.
In determining the burden, if any, of a State or
political subdivision flammability standard or other
regulation on interstate commerce the Commission
shall consider and make appropriate (as determined
by the Commission in its discretion) findings on the
technological and economic feasibility of complying
with such flammability standard or other regulation,
the cost of complying with such flammability
standard or other regulation, the geographic
distribution of the fabric, related material, or
product to which the flammability standard or other
regulation would apply, the probability of other
States or political subdivisions applying for an
exemption under this subsection for a similar
flammability standard or other regulation, and the
need for a national, uniform flammability standard
or other regulation under this Act for such fabric,
related material, or product.
(2) A regulation under paragraph (1) granting an
exemption for a flammability standard or other
regulation of a State or political subdivision of a
State may be promulgated by the Commission only
after it has provided, in accordance with section
553(b) of title 5, United States Code, notice with
respect to the promulgation of the regulation and
has provided opportunity for the oral presentation
of views respecting its promulgation.
(d) For purposes of this section--
(1) a reference to a flammability standard or
Page 24
other regulation for a fabric, related material,
or product in effect under this Act includes a
standard of flammability continued in effect by
section 11 of the Act of December 14, 1967
(Public Law 90-189); and
(2) the term ``Commission'' means the Consumer
Product Safety Commission.