[Title 16 CFR A]
[Code of Federal Regulations (annual edition) - January 1, 2002 Edition]
[Title 16 - COMMERCIAL PRACTICES]
[Chapter II - CONSUMER PRODUCT SAFETY COMMISSION]
[Subchapter A - GENERAL]
[From the U.S. Government Printing Office]
16COMMERCIAL PRACTICES22002-01-012002-01-01falseGENERALASUBCHAPTER ACOMMERCIAL PRACTICESCONSUMER PRODUCT SAFETY COMMISSION
SUBCHAPTER A--GENERAL
PART 1000--COMMISSION ORGANIZATION AND FUNCTIONS--Table of Contents
Sec.
1000.1 The Commission.
1000.2 Laws administered.
1000.3 Hotline.
1000.4 Commission address.
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 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.
1000.25 Office of Human Resources Management.
1000.26 Office of Information Services.
1000.27 Directorate for Epidemiology.
1000.28 Directorate for Health Sciences.
1000.29 Directorate for Economic Analysis.
1000.30 Directorate for Engineering Sciences.
1000.31 Directorate for Laboratory Sciences.
1000.32 Directorate for Administration.
1000.33 Directorate for Field Operations.
Authority: 5 U.S.C. 552(a).
Source: 56 FR 30496, July 3, 1991, unless otherwise noted.
Sec. 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.
Sec. 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.)).
Sec. 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
hearing or speech-impaired persons can communicate by teletypewriter
with the Commission. The teletypewriter number for use in all states is
1-800-638-8270.
(c) The Commission also makes information available to the public
product recall information, its public calendar, and other information
through its
[[Page 8]]
Internet gopher service at Internet address cpsc.gov. The public may
also report product hazards or other information to the Commission at
its electronic mail address: [email protected].
(d) The Commission also provides a fax-on-demand service from which
the public can request Commission documents by calling 1-301-504-0051
from the handset of a facsimile machine.
[56 FR 30496, July 3, 1991, as amended at 59 FR 66673, Dec. 28, 1994]
Sec. 1000.4 Commission address.
(a) The principal Offices of the Commission are at 4330 East West
Highway, Bethesda, Maryland. All U.S. Postal Service mail communications
with the Commission should be addressed to the Consumer Product Safety
Commission, Washington, DC 20207-0001, unless otherwise specifically
directed. Materials sent by private express services or by messenger
should be addressed to the Consumer Product Safety Commission, 4330 East
West Highway, Bethesda, Maryland 20814-4408.
(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 350, 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, 600 Harrison St., room 245, San
Francisco, California 94107-1370; Alaska, American Samoa, Arizona,
Arkansas, California, Colorado, Guam, Hawaii, Idaho, Louisiana, Montana,
Nevada, New Mexicao, Oklahoma, Oregon, Texas, Utah, Washington, and
Wyoming.
[56 FR 30496, July 3, 1991; 56 FR 67174, Dec. 30, 1991, as amended at 58
FR 64120, Dec. 6, 1993; 59 FR 66673, Dec. 28, 1994]
Sec. 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.
Sec. 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).
Sec. 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.
[[Page 9]]
(b) Interpretations of regulations. Upon written request, the
Assistant Executive Director for Compliance 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, 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.
[56 FR 30496, July 3, 1991, as amended at 60 FR 26825, May 19, 1995]
Sec. 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 4330 East West Highway, 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).
[56 FR 30496, July 3, 1991, as amended at 62 FR 46667, Sept. 4, 1997]
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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:
[[Page 10]]
(1) Office of the Budget;
(2) Office of Hazard Identification and Reduction;
(3) Office of Information and Public Affairs;
(4) Office of Compliance;
(5) Office of Planning and Evaluation;
(6) Office of Human Resources Management;
(7) Office of Information Services;
(8) Directorate for Administration;
(9) Directorate for Field Operations.
(c) The following units report directly to the Assistant Executive
Director for Hazard Identification and Reduction:
(1) Directorate for Economic Analysis;
(2) Directorate for Epidemiology;
(3) Directorate for Health Sciences;
(4) Directorate for Engineering Sciences;
(5) Directorate for Laboratory Sciences.
[61 FR 1707, Jan. 23, 1996, as amended at 64 FR 66579, Nov. 29, 1999]
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 11]]
firms desiring to execute continuing guaranties under the FFA. The
Office also supervises and administers the public reading room.
Sec. 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.
Sec. 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.
Sec. 1000.19 Office of 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,
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, the Office of Planning and
Evaluation, the Office of Human Resources Management, and the Office of
Information Services.
[59 FR 66673, Dec. 28, 1994, as amended at 60 FR 26825, May 19, 1995]
Sec. 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.
Sec. 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 and Health
Sciences, Economic Analysis, Engineering Sciences, and Laboratory
[[Page 12]]
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.
[56 FR 30496, July 3, 1991, as amended at 61 FR 1708, Jan. 23, 1996]
Sec. 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.
Sec. 1000.23 Office of Information and Public Affairs.
The Office of Information and Public Affairs, which is managed by
the Director of the Office, 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 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.
[59 FR 66673, Dec. 28, 1994]
Sec. 1000.24 Office of Compliance.
The Office of Compliance, which is managed by the Assistant
Executive Director for Compliance, 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
[[Page 13]]
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.
[56 FR 30496, July 3, 1991, as amended at 60 FR 26825, May 19, 1995]
Sec. 1000.25 Office of Human Resources Management.
The Office of Human Resources Management, which is managed by the
Director of the Office, provides human resources management support to
the Commission in the areas of recruitment and placement, position
classification, training and executive development, employee and labor
relations, employee benefits and retirement assistance, employee
assistance programs, drug testing, leave administration, disciplinary
and adverse actions, grievances and appeals, and performance management.
[59 FR 66673, Dec. 28, 1994]
Sec. 1000.26 Office of Information Services.
The Office of Information Services, which is managed by the
Assistant Executive Director for Information Services, is responsible
for general policy, controlling and conducting managerial activities and
operations relating to the collection, use, and dissemination of
information by the agency. The Office manages the Commission's
information system that supports all its program activities. The Office
provides automated data processing and operational support for data
collection, information retrieval, report generation, electronic mail,
and statistical and mathematical operations of the agency. The Office
maintains the agency's local and wide area networks and develops and
supports other network applications. The Office develops plans for
improving agency operations through the use of information technology.
The Office's functional responsibilities include planning, organizing,
and directing information resources management (including records
management and related requirements), and the managing of the agency's
management directives system. The Office administers the Commission's
telecommunications services including the agency's toll-free Hotline by
which the public reports hazardous consumer products and receives
information about product recalls and product hazards. It also oversees
operation of the Commission's Internet and fax-on-demand services.
[61 FR 1707, Jan. 23, 1996, as amended at 66 FR 38369, July 24, 2001]
Sec. 1000.27 Directorate for Epidemiology.
The Directorate for Epidemiology, managed by the Associate Executive
Director for Epidemiology, is responsible for the collection and
analysis of data on injuries and deaths associated with consumer
products. The Directorate has two divisions: the Data Systems Division
and the Hazard Analysis Division. The Data Systems Division operates the
national data collection systems which provide the data that serve as
the basis for the Commission's estimates of the numbers of deaths and
injuries associated with consumer
[[Page 14]]
products. These data systems include the National Electronic Injury
Surveillance System, a nationally representative sample of hospital
emergency departments; a death certificate file, which contains data
obtained from death certificates on deaths associated with consumer
products; and the Injury and Potential Injury Incident file, which
contains information on incidents associated with consumer products,
based on news clips, medical examiner reports, hotline reports, internet
complaints, referrals, etc. The Hazard Analysis Division conducts
statistical analysis of these data and conducts epidemiologic studies to
estimate the numbers of injuries and deaths associated with various
consumer products and to examine factors associated with these injuries
and deaths. In addition, staff in the Hazard Analysis Division design
special studies, design and analyze data from experiments for testing of
consumer products, and provide statistical expertise and advice to
Commission staff in support of regulation development. It administers
the National Injury Information Clearinghouse.
[64 FR 66579, Nov. 29, 1999, as amended at 66 FR 38369, July 24, 2001]
Sec. 1000.28 Directorate for Health Sciences.
The Directorate for Health Sciences is managed by the Associate
Executive Director for Health Sciences and is responsible for reviewing
and evaluating the human health effects and hazards related to consumer
products and assessing exposure, uptake and metabolism, including
information on population segments at risk. Directorate staff conducts
health studies and research in the field of consumer product-related
injuries. The Directorate performs risk assessments for chemical,
physiological and physical hazards based on methods such as medical
injury modeling, and on injury and incident data for mechanical,
thermal, chemical and electrical hazards in consumer products. It
provides the Commission's primary source of scientific expertise for
implementation of the Poison Prevention Packaging Act and the Federal
Hazardous Substances Act. The Directorate assists in the development and
evaluation of product safety standards and test methods based on
scientific and public health principles. It provides support to the
Commission's regulatory development and enforcement activities. It
manages hazard identification and analysis, and hazard assessment and
reduction projects as assigned. The Directorate provides liaison with
the National Toxicology Program, the Department of Health and Human
Services (including the Food and Drug Administration, the Centers for
Disease Control and Prevention, the National Institutes of Health), the
Occupational Health and Safety Administration, the Environmental
Protection Agency, other federal agencies and programs, and other
organizations concerned with reducing the risk to consumers from
exposure to consumer product hazards. The Directorate is responsible for
managing and safeguarding confidential business information received
from the Environmental Protection Agency in accordance with the
requirements of that agency.
[64 FR 66580, Nov. 29, 1999]
Sec. 1000.29 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
[[Page 15]]
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.
[56 FR 30496, July 3, 1991. Redesignated at 59 FR 66673, Dec. 28, 1994,
and further redesignated at 64 FR 66579, Nov. 29, 1999]
Sec. 1000.30 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 manages hazard assessment and
reduction projects as assigned by the Office of Hazard Identification
and Reduction; provides engineering technical support and product safety
assesments for the Office of Compliance; provides engineering,
scientific, and technical expertise to the Commission and Commission
staff as requested; and provides engineering technical support to other
Commission organizations, activities, and programs as needed. The
Directorate develops and evaluates product safety standards, product
safety tests and test methods, performance criteria, design
specifications, and quality control standards for consumer products,
based on engineering and scientific methods. It conducts engineering
analysis and testing of the safety of consumer products, and evaluates
and participates in the development of mandatory and voluntary standards
for consumer products including engineering and human factors analyses
in support of standards development and product compliance testing. The
Directorate performs or monitors research for consumer products in a
broad array of engineering disciplines including chemical, electrical,
fire protection, human factors, and mechanical engineering. It conducts
and coordinates engineering research, testing, and evaluation activities
with other federal agencies, private industry, and consumer interest
groups. The Directorate conducts human factors studies and research of
consumer product related injuries, including evaluations of labels,
signs and symbols, instructions, and other measures intended to address
the human component of injury prevention. The Directorate provides
technical supervision and direction of engineering activities including
tests and analyses conducted in the field.
[61 FR 1708, Jan. 23, 1996. Redesignated at 64 FR 66579, Nov. 29, 1999]
Sec. 1000.31 Directorate for Laboratory Sciences.
The Directorate for Laboratory Sciences, which is managed by the
Associate Executive Director for Laboratory Sciences, is responsible for
conducting engineering analyses and testing of consumer products,
supporting the development of voluntary and mandatory standards, and
supporting the Agency's compliance activities through product safety
assessments. A wide variety of products are tested and evaluated to
determine the causes of failure and the hazards presented. Product
safety tests involve mechanical, electrical, and combustion engineering,
as well as thermal and chemical analyses. Test protocols are developed,
test fixtures and setups are designed and fabricated, and tests are
conducted following the requirements and guidance of voluntary and
mandatory standards and/or using sound engineering and scientific
judgment. The Laboratory participates with and supports other agency
directorates on multi-disciplinary teams in the development of voluntary
and mandatory standards. The Laboratory coordinates and cooperates with
other Federal agencies, private industry, and consumer interest groups
by sharing engineering and scientific research, test, and evaluation
expertise. Additionally, Corrective Action Plans, proposed by
manufacturers to correct a product defect, are tested and evaluated to
assure that the proposed changes adequately resolve the problem.
Regulated products, such as children's products, sleepwear, and bicycle
helmets, are routinely tested and evaluated for compliance with the
Consumer Product Safety Act, the Federal Hazardous Substances Act, the
Flammable Fabrics
[[Page 16]]
Act, and the Poison Prevention Packaging Act. The Directorate is
composed of the Mechanical Engineering Division, the Electrical
Engineering Division (which includes flammable fabrics), and the
Chemical Division. Overall, the directorate provides engineering,
scientific, and other technical expertise to all entities within the
Consumer Product Safety Commission.
[65 FR 53167, Sept. 1, 2000]
Sec. 1000.32 Directorate for Administration.
The Directorate for Administration, which is managed by the
Associate Executive Director for Administration, is responsible for
formulating general administrative policies supporting the Commission in
the areas of financial management, procurement, and general
administrative support services including property and space management,
physical security, printing, and warehousing. 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.
[61 FR 1708, Jan. 23, 1996]
Sec. 1000.33 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.
[56 FR 30496, July 3, 1991. Redesignated at 59 FR 66673, Dec. 28, 1994]
PART 1009--GENERAL STATEMENTS OF POLICY OR INTERPRETATION--Table of Contents
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.
Sec. 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.
[[Page 17]]
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
[[Page 18]]
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]
Sec. 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.
[[Page 19]]
(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
[[Page 20]]
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]
Sec. 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 addition, 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.
[[Page 21]]
(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]
PART 1010 [RESERVED]
PART 1011--NOTICE OF AGENCY ACTIVITIES--Table of Contents
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.
Sec. 1011.1 General policy considerations; scope.
(a) In order for the Consumer Product Safety Commission to properly
carry out its mandate to protect the
[[Page 22]]
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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 23]]
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.
PART 1012--MEETINGS POLICY--MEETINGS BETWEEN AGENCY PERSONNEL AND OUTSIDE PARTIES--Table of Contents
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.
Sec. 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.
Sec. 1012.2 Definitions.
(a) As used in this part 1012, the following terms have the
respective meanings set forth in paragraphs (a)-(d) of Sec. 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
[[Page 24]]
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 Sec. 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 Sec. 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 constitute 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 recruitment,
training, meetings involving consumer deputies, or meetings with
hospital staff and other personnel involved in the National Electronic
Injury Surveillance System.
Sec. 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:
[[Page 25]]
(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.
Sec. 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
[[Page 26]]
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.
Sec. 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.
Sec. 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.
Sec. 1012.7 Telephone conversations.
(a) Telephone conversations present special problems regarding
Agency meetings. The Commission recognizes that persons outside the
Agency have a
[[Page 27]]
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 Sec. 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.
PART 1013--GOVERNMENT IN THE SUNSHINE ACT, RULES FOR COMMISSION MEETINGS--Table of Contents
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.
Sec. 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.
Sec. 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
Sec. 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 Sec. 1013.4(b)
(to determine whether a meeting will be open or closed), meetings
required or permitted by Sec. 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).
[[Page 28]]
Sec. 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 Sec. 1013.4(d) for
requirements for Commission reconsideration of a decision to open or
close a meeting to the public.)
Sec. 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:
[[Page 29]]
(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.
[[Page 30]]
(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
Sec. 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]
Sec. 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 Sec. 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 Sec. 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
[[Page 31]]
recording the decisions of the Commission and the votes of individual
Commissioners.
Sec. 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 Sec. 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
[[Page 32]]
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.
PART 1014--POLICIES AND PROCEDURES IMPLEMENTING THE PRIVACY ACT OF 1974--Table of Contents
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.
Sec. 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).
Sec. 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.
Sec. 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, 4330 East West Highway, 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.
[[Page 33]]
(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 Office of Human
Resources Management, Room 523, 4330 East West Highway, 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 Sec. 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 Sec. 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
Sec. 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;
62 FR 46667, Sept. 4, 1997]
Sec. 1014.4 Requirements for identification of individuals making requests.
The following proof of identity is required for requests for records
made pursuant to Sec. 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
[[Page 34]]
individual to submit additional proof of identity.
Sec. 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 Sec. 1014.8 of these regulations.
Sec. 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]
Sec. 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 Sec. 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 Sec. 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.
Sec. 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;
[[Page 35]]
(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]
Sec. 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]
Sec. 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.
Sec. 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).
Sec. 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
[[Page 36]]
(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.
(b) Inspector General Investigative Files--CPSC-6. All portions of
this system of records which fall within 5 U.S.C. 552a(k)(2)
(investigatory materials compiled for law enforcement purposes) and 5
U.S.C. 552a(k)(5) (investigatory materials solely compiled for
suitability determinations) are exempt from 5 U.S.C. 552a(c)(3)
(mandatory accounting of disclosures); 5 U.S.C. 552a(d) (access by
individuals to records that pertain to them); 5 U.S.C. 552a(e)(1)
(requirement to maintain only such information as is relevant and
necessary to accomplish an authorized agency purpose); 5 U.S.C.
552a(e)(4)(G) (mandatory procedures to notify individuals of the
existence of records pertaining to them); 5 U.S.C. 552a(e)(4)(H)
(mandatory procedures to notify individuals how they can obtain access
to and contest records pertaining to them); 5 U.S.C. 552a(e)(4)(I)
(mandatory disclosure of records source categories); and the
Commission's regulations in 16 CFR part 1014 which implement these
statutory provisions.
(c) Enforcement and Litigation Files--CPSC-7. All portions of this
system of records that fall within 5 U.S.C. 552a(k)(2) (investigatory
materials compiled for law enforcement purposes) are exempt from 5
U.S.C. 552a(c)(3) (mandatory accounting of disclosures); 5 U.S.C.
552a(d) (access by individuals to records that pertain to them); 5
U.S.C. 552a(e)(1) (requirement to maintain only such information as is
relevant and necessary to accomplish an authorized agency purpose); 5
U.S.C. 552a(e)(4)(G) (mandatory procedures to notify individuals of the
existence of records pertaining to them); 5 U.S.C. 552a(e)(4)(H)
(mandatory procedures to notify individuals how they can obtain access
to and contest records pertaining to them); 5 U.S.C. 552a(e)(4)(I)
(mandatory disclosure of records source categories); and the
Commission's regulations in 16 CFR part 1014 that implement these
statutory provisions.
[40 FR 53381, Nov. 18, 1975, as amended at 42 FR 9161, Feb. 15, 1977; 59
FR 32078, June 22, 1994; 62 FR 48756, Sept. 17, 1997]
PART 1015--PROCEDURES FOR DISCLOSURE OR PRODUCTION OF INFORMATION UNDER THE FREEDOM OF INFORMATION ACT--Table of Contents
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.
[[Page 37]]
1015.5 Time limitation on responses to requests for records and requests
for expedited processing.
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.
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).
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: 15 U.S.C. 2051-2084; 15 U.S.C. 1261-1278; 15 U.S.C. 1471-
1476; 15 U.S.C. 1211-1214; 15 U.S.C. 1191-1204; 5 U.S.C. 552.
Source: 42 FR 10490, Feb. 22, 1977, unless otherwise noted.
Subpart A--Production or Disclosure Under 5 U.S.C. 552(a)
Sec. 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 any format, including an
electronic format. These records include those maintained in connection
with the Commission's responsibilities and functions under the Consumer
Product Safety Act, as well as those responsibilities and functions
transferred to the Commission under the Federal Hazardous Substances
Act, Poison Prevention Packaging Act of 1970, Refrigerator Safety Act,
and Flammable Fabrics Act, and those 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
(Sec. Sec. 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, Sec. 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.
[[Page 38]]
(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.
[42 FR 10490, Feb. 22, 1997, as amended at 62 FR 46196, Sept. 2, 1997]
Sec. 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 that 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 of the Commission. The
address of this office is:
Office of the Secretary, Consumer Product Safety Commission, Room 502,
4330 East West Highway, Bethesda, MD 20814.
(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).
(c) The Consumer Product Safety Commission will maintain an
``electronic reading room'' on the World-Wide Web for those records that
are required by 5 U.S.C. 552(a)(2) to be available by ``computer
telecommunications.''
[42 FR 10490, Feb. 22, 1997, as amended at 62 FR 46197, Sept. 2, 1997]
Sec. 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, DC 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.
(e) The Consumer Product Safety Commission uses a multitrack system
to process requests under the Freedom of Information Act that is based
on the amount of work and/or time involved in processing requests.
Requests for records are processed in the order they are received within
each track. Upon
[[Page 39]]
receipt of a request for records, the Secretary or delegate of the
Secretary will determine which track is appropriate for the request. The
Secretary or delegate of the Secretary may contact requesters whose
requests do not appear to qualify for the fastest tracks and provide
such requesters the opportunity to limit their requests so as to qualify
for a faster track. Requesters who believe that their requests qualify
for the fastest tracks and who wish to be notified if the Secretary or
delegate of the Secretary disagrees may so indicate in the request and,
where appropriate and feasible, will also be given an opportunity to
limit their requests.
[42 FR 10490, Feb. 22, 1997, as amended at 62 FR 46197, Sept. 2, 1997]
Sec. 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 Sec. 1015.5 and shall be final. The
Commission response shall be in the form set forth in Sec. 1015.7(d) for
action on appeal. If no response is made by the Commission within twenty
working days, or any extension thereof, the requester and the Commission
may take the action specified in Sec. 1015.7(e).
[42 FR 10490, Feb. 22, 1997, as amended at 62 FR 46197, Sept. 2, 1997]
Sec. 1015.5 Time limitation on responses to requests for records and requests for expedited processing.
(a) The Secretary or delegate of the Secretary shall respond to all
written requests for records within twenty (20) 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 General Counsel 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.
(d) If the Secretary at the initial stage or the General Counsel at
the appellate stage determines that an extension of time greater than
ten (10) working days is necessary to respond to a request satisfying
the ``unusual circumstances'' specified in paragraph (b) of this
section, the Secretary or the General Counsel shall so notify the
requester and give the requester the opportunity to:
(1) Limit the scope of the request so that it may be processed
within the time limit prescribed in paragraph (b); or
(2) Arrange with the Secretary or the General Counsel an alternative
time frame for processing the request or a modified request.
(e) The Secretary or delegate of the Secretary may aggregate and
process as a single request requests by the
[[Page 40]]
same requester, or a group of requesters acting in concert, if the
Secretary or delegate reasonably believes that the requests actually
constitute a single request which would otherwise satisfy the unusual
circumstances specified in paragraph (b) of this section, and the
requests involve clearly related matters.
(f) The Secretary or delegate of the Secretary will provide
expedited processing of requests in cases where the requester
demonstrates a compelling need for such processing.
(1) The term ``compelling need'' means:
(i) That a failure to obtain requested records on an expedited basis
could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) With respect to a request made by a person primarily engaged in
disseminating information, that there is an urgency to inform the public
concerning actual or alleged Federal Government activity.
(2) Requesters for expedited processing must include in their
requests a statement setting forth the basis for the claim that a
``compelling need'' exists for the requested information, certified by
the requester to be true and correct to the best of his or her knowledge
and belief.
(3) The Secretary or delegate of the Secretary will determine
whether to grant a request for expedited processing and will notify the
requester of such determination within ten (10) days of receipt of the
request.
(4) Denials of requests for expedited processing may be appealed to
the Office of the General Counsel as set forth in Sec. 1015.7 of this
part. The General Counsel will expeditiously determine any such appeal.
(5) The Secretary or delegate of the Secretary will process as soon
as practicable the documents responsive to a request for which expedited
processing is granted.
(g) The Secretary may be unable to comply with the time limits set
forth in this Sec. 1015.5 when disclosure of documents responsive to a
request under this part is subject to the requirements of section 6(b)
of the Consumer Product Safety Act, 15 U.S.C. 2055(b), and the
regulations implementing that section, 16 CFR part 1101. The Secretary
or delegate of the Secretary will notify requesters whose requests will
be delayed for this reason.
[42 FR 10490, Feb. 22, 1997, as amended at 62 FR 46197, Sept. 2, 1997]
Sec. 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 Sec. 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) An estimation of the volume of requested material withheld. When
only a portion or portions of a document are withheld, the amount of
information deleted shall be indicated on the released portion(s) of the
record. When technically feasible, the indication of the amount of
material withheld will appear at the place in the document where any
deletion is made. Neither an estimation of the volume of requested
material nor an indication of the amount of information deleted shall be
included in a response if doing so would harm an interest protected by
the exemption in 5 U.S.C. 552(b) pursuant to which the material is
withheld.
(4) 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.
[[Page 41]]
(c) If no response is made within twenty (20) working days or any
extension thereof, the requester can consider his or 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).
[42 FR 10490, Feb. 22, 1997, as amended at 62 FR 46197, Sept. 2, 1997]
Sec. 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, DC 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 Sec. Sec. 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 Sec. 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]
Sec. 1015.8 Requests received during the course of administrative hearings. [Reserved]
Sec. 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
[[Page 42]]
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: $0.10 per page of computer printouts or,
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
[[Page 43]]
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 Sec. 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 requester received the bill. 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, as amended at 62 FR 46198, Sept. 2, 1997]
Sec. 1015.10 Commission report of actions to Congress.
On or before February 1 of each year, the Commission shall submit a
report of its activities with regard to freedom of information requests
during the preceding fiscal year to the Attorney General of the United
States. 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)(1) 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; and
(2) A complete list of all statutes that the Commission relies upon
to withhold information under such provisions, a description of whether
a court has upheld the decision of the Commission to withhold
information under each such statute, and a concise description of the
scope of any information withheld.
[[Page 44]]
(c) The number of requests for records pending before the Commission
as of September 30 of the preceding year, and the median number of days
that such requests had been pending before the Commission as of that
date.
(d) The number of requests for records received by the Commission
and the number of requests which the Commission processed.
(e) The median number of days taken by the Commission to process
different types of requests.
(f) The total amount of fees collected by the Commission for
processing requests.
(g) The number of full-time staff of the Commission devoted to
processing requests for records under such provisions, and the total
amount expended by the Commission for processing such requests.
[42 FR 10490, Feb. 22, 1997, as amended at 62 FR 46198, Sept. 2, 1997]
Sec. 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.
Sec. 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]
Subpart B--Exemptions From Production and Disclosure Under 5 U.S.C.
552(b)
Sec. 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
[[Page 45]]
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 Sec. 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 Sec. 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]
Sec. 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) Records 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]
[[Page 46]]
Sec. 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 Sec. 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 Sec. 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 Sec. 1015.6(b). Any appeal by a requester
shall be in accordance with Sec. 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]
Sec. 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
[[Page 47]]
(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.
Sec. 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.
Subpart C--Disclosure of Commission Accident or Investigation Reports
Under 15 U.S.C. 2074(c)
Sec. 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 Sec. 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.
PART 1016--POLICIES AND PROCEDURES FOR INFORMATION DISCLOSURE AND COMMISSION EMPLOYEE TESTIMONY IN PRIVATE LITIGATION--Table of Contents
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.
[[Page 48]]
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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
PART 1017 [RESERVED]
PART 1018--ADVISORY COMMITTEE MANAGEMENT--Table of Contents
Subpart A--General Provisions
Sec.
1018.1 Purpose.
[[Page 49]]
1018.2 Definitions.
1018.3 Policy.
1018.4 Applicability.
1018.5 Advisory Committee Management Officer.
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.
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.
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.
Subpart E--Records, Annual Reports and Audits
1018.41 Agency records on advisory committees.
1018.42 Annual report.
1018.43 Comprehensive review.
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.
Subpart A--General Provisions
Sec. 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)).
Sec. 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.
[[Page 50]]
(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]
Sec. 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.
Sec. 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]
Sec. 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.
Subpart B--Establishment of Advisory Committees
Sec. 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
[[Page 51]]
for the preparation and filing of charters.
[41 FR 45882, Oct. 18, 1976, as amended at 46 FR 63249, Dec. 31, 1981]
Sec. 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]
Sec. 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.
Sec. 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.
Sec. 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]
Sec. 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.
Sec. 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
[[Page 52]]
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]
Subpart C--Operation of Advisory Committees
Sec. 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 Sec. 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 45822, Oct. 18, 1976, as amended at 43 FR 60876, Dec. 29, 1978]
Sec. 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.
Sec. 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.
Sec. 1018.24 Agenda.
Prior to each advisory committee meeting, the Advisory Committee
Management Officer shall prepare and,
[[Page 53]]
after approval by the officer or employee designated under Sec. 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)).
Sec. 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]
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 54]]
Commission's Procedures for Disclosure or Production of Information
under the Freedom of Information Act (16 CFR part 1015).
Subpart D--Administration of Advisory Committees
Sec. 1018.31 Support services.
Unless the statutory 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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 55]]
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.
Sec. 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.
Subpart E--Records, Annual Reports and Audits
Sec. 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.
Sec. 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 Sec. 1018.43 shall be included in the annual report.
Sec. 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]
[[Page 56]]
Subpart F--Termination and Renewal
Sec. 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
Sec. 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.
Sec. 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]
PART 1019--EXPORT OF NONCOMPLYING, MISBRANDED, OR BANNED PRODUCTS--Table of Contents
Subpart A--Procedures for Export of Noncomplying, Misbranded, or Banned
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 the
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.
Subpart B--Statement of Policy and Interpretation Concerning Export of
Noncomplying, Misbranded, or Banned Products
1019.31 Purpose and scope.
1019.32 Statutory provisions.
1019.33 Statement of policy and interpretation.
Authority: 15 U.S.C. 1196, 1202, 1263, 1264, 1273, 2067, 2068.
Source: 61 FR 29647, June 12, 1996, unless otherwise noted.
Subpart A--Procedures for Export of Noncomplying, Misbranded, or Banned
Products
Sec. 1019.1 Purpose, applicability, and exemptions.
(a) Purpose. The regulations in this subpart A of 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 country to which
those products will be sent. The Consumer Product Safety
[[Page 57]]
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 and 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 regulations 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 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.
Sec. 1019.2 Definitions.
As used in this subpart A of 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 Sec. 1019.1(b),
except for those items excluded from the requirements of these
regulations by Sec. 1019.1 (c), (d), and (e).
Sec. 1019.3 General requirements for notifying the Commission.
Not less than 30 days before exporting any noncomplying goods
described in Sec. 1019.1(b), the exporter must file a statement with the
Consumer Product Safety Commission, as described in Sec. Sec. 1019.4 and
1019.5 of this subpart A. The exporter need not notify the Commission
about the export of items described in Sec. 1019.1 (c), (d), or (e). As
described in Sec. 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.
[[Page 58]]
Sec. 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 Assistant Executive Director for
Compliance, Consumer Product Safety Commission, Washington, DC 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
Assistant Executive Director of Compliance 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 section. The required information is:
(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
paragraph (d) of this section, the notification of 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; and
(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.
Sec. 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 Assistant Executive Director for
Compliance 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 Assistant Executive Director for Compliance
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 Assistant Executive Director will inform the
exporter if the notification of intent to export is incomplete and will
described which requirements of Sec. 1019.4 are not satisfied. The
Assistant Executive Director may inform the exporter that the 30-day
advance notification period will not begin until the Assistant Executive
Director receives all the required information.
(c) Requests for reduction in 30-day notification requirement. Any
exporter may
[[Page 59]]
request an exemption from the requirement of 30-day advance notification
of intent to export by filing with the Commission's Assistant Executive
Director for Compliance (Washington, DC 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
Assistant Executive Director for Compliance 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 to a
time between 10 and 30 days before the intended export); and
(4) Provide reasons for the request for reduction in time.
(d) Response to requests for reduction of time. The Assistant
Executive Director for Compliance has the authority to approve or
disapprove requests for reduction of time. The Assistant Executive
Director shall indicate the amount of time before export that the
exporter must provide the notification. If the request is not granted,
the Assistant Executive Director shall explain the reasons in writing.
Sec. 1019.6 Changes to notification.
If the exporter causes any change to any of the information required
by Sec. 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 Assistant Executive Director for Compliance
within two working days after causing or learning of such change, and
must state the reason for any such change. The Assistant 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.
Sec. 1019.7 Commission notification of foreign governments.
After receiving notification from the exporter, or any changes in
notification, the Assistant Executive Director for Compliance 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
Sec. 1019.4(d). The Assistant Executive Director shall also enclose any
information supplied in accordance with Sec. 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 Assistant
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 Assistant 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.
Sec. 1019.8 Confidentiality.
If the exporter believes any of the information submitted should be
considered trade secret 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.
[[Page 60]]
Subpart B--Statement of Policy and Interpretation Concerning Export of
Noncomplying, Misbranded, or Banned Products
Sec. 1019.31 Purpose and scope.
(a) This subpart B of this part 1019 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 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 subpart B of part 1019 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 subpart A of this 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 subpart A of
this 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 subpart A of
this 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 subpart A of this part 1019 for
requirements governing export of such products.)
Sec. 1019.32 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:
[[Page 61]]
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 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.
Sec. 1019.33 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 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.
PART 1020--SMALL BUSINESS--Table of Contents
Sec.
1020.1 Why is the Commission issuing this rule?
1020.2 What is the definition of ``small business''?
1020.3 What are the qualifications and duties of the Small Business
Ombudsman?
1020.4 What is the Small Business Program?
1020.5 What is the Small Business Enforcement Policy?
Authority: 5 U.S.C. 601 note.
Source: 61 FR 52878, Oct. 9, 1996, unless otherwise noted.
Sec. 1020.1 Why is the Commission issuing this rule?
(a) To state the Commission's policies on small businesses;
(b) To assure that the Commission continues to treat small
businesses fairly;
(c) To assure that small businesses do not bear a disproportionate
share of any burden or cost created by a Commission regulatory,
enforcement, or other action; and
(d) To assure that small businesses are given every opportunity to
participate fully in the Commission's regulatory process.
Sec. 1020.2 What is the definition of ``small business''?
As used in this part, the term small business means any entity that
is either a small business, small organization, or small governmental
jurisdiction, as those terms are defined at 5 U.S.C. 601(3), (4), and
(5), respectively.
Sec. 1020.3 What are the qualifications and duties of the Small Business Ombudsman?
(a) The Chairman will appoint a senior, full-time Commission
employee as Small Business Ombudsman. The Ombudsman must:
(1) Have a working knowledge of the Commission's statutes and
regulations;
(2) Be familiar with the industries and products that the Commission
regulates;
(3) Develop a working knowledge of the regulatory problems that
small businesses experience;
(4) Perform the Ombudsman duties in addition to, and consistently
with, other Commission responsibilities; and
(5) Not work in the Office of Compliance or Office of Hazard
Identification and Reduction.
(b) The duties of the Small Business Ombudsman will include, but not
be limited to, the following:
(1) Developing and implementing a program to assist small businesses
that is consistent with Sec. 1020.4;
[[Page 62]]
(2) Working to expedite Commission responses to small businesses and
providing information, guidance, and technical assistance to small
businesses;
(3) Performing a review, at least twice a year, of the Commission's
regulatory agenda for actions likely to have a significant impact on
small businesses; and
(4) Pursuing the interests of small businesses by maintaining a
working relationship with appropriate officials in the Small Business
Administration, in national trade associations that represent small
businesses, and in the Commission.
Sec. 1020.4 What is the Small Business Program?
(a) Whenever the Commission is aware of the interests of small
businesses, it will consider those interests before taking any action
that will likely have a significant effect on small businesses.
(b) Small businesses may request and receive special assistance from
the Commission, as appropriate and consistent with Commission resources.
Examples of such assistance are:
(1) Small businesses may contact the Small Business Ombudsman to
obtain information about Commission statutes, regulations, or programs;
to obtain technical assistance; to determine who in the agency has
particular expertise that might be helpful to the small business; or to
help expedite a small business's request.
(2) Small businesses may request assistance from the Commission by
using the small business extension on the Commission's hotline telephone
system. The number is 1-800-638-2772, extension 234.
(3) The Small Business Ombudsman will directly provide small
businesses with the requested assistance, or will direct the small
business to the appropriate Commission staff for help.
(c) Whenever the Commission issues a final regulatory flexibility
analysis for a rule, under the Regulatory Flexibility Act (5 U.S.C.
604), the Commission will publish a compliance guide for small
businesses. The guide will explain in easy-to-understand language what
action a small business must take to comply with the rule.
(d) The Commission may take other appropriate actions to assist
small businesses, but such actions will not treat any other Commission
constituent unfairly.
Sec. 1020.5 What is the Small Business Enforcement Policy?
(a) When appropriate, the Commission will, subject to all applicable
statutes and regulations and paragraph (b) of this section:
(1) Waive or reduce civil penalties for violations of a statutory or
regulatory requirement by a small business and/or
(2) Consider a small business's ability to pay in determining a
penalty assessment against that small business,
(b) The Commission may decline to waive civil penalties or consider
a small business's ability to pay, under paragraph (a) of this section,
when one or more of the following circumstances applies:
(1) The small business's violations posed serious health or safety
threats.
(2) The small business was subject to multiple enforcement actions
by the Commission.
(3) The small business's violations involved willful or criminal
conduct.
(4) The small business failed to correct violations within a
reasonable time.
(5) The small business failed to make a good faith effort to comply
with the law.
(6) The small business acted in any other way that would make it
unfair or inappropriate for the Commission to provide a benefit under
paragraph (a) of this section.
PART 1021--ENVIRONMENTAL REVIEW--Table of Contents
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.
Subpart B--Procedures
1021.6 Responsible official.
1021.7 Coordination of environmental review with CPSC procedures.
[[Page 63]]
1021.8 Legislative proposals.
1021.9 Public participation, notice, and comment.
1021.10 Emergencies.
1021.11 Information regarding NEPA compliance.
Subpart C--Contents of Environmental Review Documents
1021.12 Environmental assessment.
1021.13 Finding of no significant impact.
1021.14 Environmental impact statement.
Authority: 42 U.S.C 4321-4347; 40 CFR part 1500 et seq.
Source: 45 FR 69434, Oct. 21, 1980, unless otherwise noted.
Subpart A--General
Sec. 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).
Sec. 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.
Sec. 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.
Sec. 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 Sec. 1021.10(a),
[[Page 64]]
below.) It contains sufficient information to form a basis for deciding
whether effects on the environment are likely to be ``significant.''
(See Sec. 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 Sec. 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 Sec. 1021.12, below. For a particular proposal, the
breadth of issues to be discussed is determined by using the scoping
process described in Sec. 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
Sec. 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 Sec. 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.
Sec. 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.
[[Page 65]]
(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 Sec. Sec. 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.
Subpart B--Procedures
Sec. 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.
Sec. 1021.7 Coordination of environmental review with CPSC procedures.
(a) The Commission shall consider all relevant environmental
documents in evaluating proposals for Commission
[[Page 66]]
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 Sec. 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
Sec. 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.
Sec. 1021.8 Legislative proposals.
Draft EISs on legislative proposals which may significantly affect
the environment shall be prepared as described in Sec. 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
Sec. 1506.9 of the NEPA regulations. Comments on the legislative
statement and CPSC's responses shall be forwarded to the appropriate
Congressional committees.
Sec. 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:
[[Page 67]]
(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 Sec. 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 Sec. 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.
Sec. 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.
Sec. 1021.11 Information regarding NEPA compliance.
Interested persons may contact the Commission's Office of the
Executive Director (301-504-0550) for information regarding CPSC NEPA
compliance.
[45 FR 69434, Oct. 21, 1980, as amended at 62 FR 46667, Sept. 4, 1997]
Subpart C--Contents of Environmental Review Documents
Sec. 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
[[Page 68]]
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.
Sec. 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.
Sec. 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
Sec. 1502.10 of the NEPA regulations and shall contain the material
required by Sec. Sec. 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.
PART 1025--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS--Table of Contents
Subpart A--Scope of Rules, Nature of Adjudicative Proceedings,
Definitions
Sec.
1025.1 Scope of rules.
1025.2 Nature of adjudicative proceedings.
1025.3 Definitions.
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.
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.
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.
Subpart E--Hearings
1025.41 General rules.
1025.42 Powers and duties of Presiding Officer.
1025.43 Evidence.
1025.44 Expert witnesses.
[[Page 69]]
1025.45 In camera materials.
1025.46 Proposed findings, conclusions and order.
1025.47 Record.
1025.48 Official docket.
1025.49 Fees.
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.
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.
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 to Part 1025--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.
Subpart A--Scope of Rules, Nature of Adjudicative Proceedings,
Definitions
Sec. 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 Sec. 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]
Sec. 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
[[Page 70]]
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.
Sec. 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
Sec. 1025.68.
Subpart B--Pleadings, Form, Execution, Service of Documents
Sec. 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.
Sec. 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
[[Page 71]]
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.
Sec. 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.
Sec. 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\ x 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.
Sec. 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.
Sec. 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
[[Page 72]]
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 Sec. 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.
Sec. 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,
[[Page 73]]
(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 Sec. 1025.53
or Sec. 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
[[Page 74]]
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.
Sec. 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 Sec. 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
[[Page 75]]
(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 Sec. 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 Sec. 1025.51 or Sec. 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.
Sec. 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 Sec. 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.
Subpart C--Prehearing Procedures, Motions, Interlocutory Appeals,
Summary Judgments, Settlements
Sec. 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:
[[Page 76]]
(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 Sec. 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.
Sec. 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.
Sec. 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 Sec. 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
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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 Sec. 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.
Sec. 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 Sec. 1025.42(b);
(iv) Denies or unduly limits a petition for intervention pursuant to
the provisions of Sec. 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 Sec. 1025.24(b)(2).
If an affected party files a petition with the Commission pursuant to
Sec. 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
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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.
Sec. 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
Sec. 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.
Sec. 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
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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.
Subpart D--Discovery, Compulsory Process
Sec. 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 Sec. 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
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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 Sec. 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
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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.
Sec. 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
Sec. 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 Sec. 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.
Sec. 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 Sec. 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),
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or sampling any designated object or operation within the scope of
Sec. 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 Sec. 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.
Sec. 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
Sec. 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 Sec. 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
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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.
Sec. 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 Sec. 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 Sec. 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
[[Page 84]]
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 Sec. 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.
[[Page 85]]
(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.
Sec. 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.
Sec. 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 Sec. 1025.42(b) of these rules.
Any such action may be taken by order at any point in the proceedings.
Sec. 1025.38 Subpoenas.
(a) Availability. A subpoena shall be addressed to any person not a
party 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.
[[Page 86]]
(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
Sec. 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 Sec. 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.
Sec. 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 Sec. 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.
[[Page 87]]
(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 Sec. 1025.37 of these rules.
Subpart E--Hearings
Sec. 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 Sec. 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.
Sec. 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, sections 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 Sec. 1025.66 of these
rules. Any party, participant or representative so excluded may appeal
to the Commission in accordance with the provisions of Sec. 1025.24 of
these rules. If the representative of a party or participant is
excluded, the hearing may be
[[Page 88]]
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.
Sec. 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.
(e) [Reserved]
(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
[[Page 89]]
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.
Sec. 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.
Sec. 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
[[Page 90]]
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.
Sec. 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.
Sec. 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 Sec. 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.
Sec. 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.
Sec. 1025.49 Fees.
(a) Fees for deponents 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, Sec. 1015.9.
Subpart F--Decision
Sec. 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
[[Page 91]]
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.
Sec. 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.
Sec. 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.
[[Page 92]]
(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.
Sec. 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 Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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 Sec. 1025.26 of these
rules, becomes effective upon receipt of notice of Commission
acceptance, unless otherwise ordered by the Commission.
[[Page 93]]
(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.
Sec. 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
[[Page 94]]
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.
Subpart G--Appearances, Standards of Conduct
Sec. 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 Sec. 1025.65.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
[[Page 95]]
(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.
Sec. 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 Sec. 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 Sec. 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.
Sec. 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:
[[Page 96]]
(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.
Sec. 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, Sec. 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
[[Page 97]]
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.
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.
Sec. 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
[[Page 98]]
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 Sec. 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.
[[Page 99]]
(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 maximum 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.
Sec. 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
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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
Sec. 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 Sec. 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
part 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
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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.
Sec. 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
[[Page 102]]
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.
Appendix I to Part 1025--Suggested Form of Final Prehearing Order
Case Caption
A final prehearing conference was held in this matter, pursuant to
Rule 21 of the Commission's Rules of Practice for Adjudicative
[[Page 103]]
Proceedings (16 CFR 1025.21), on the ------ day of ------------, 19--,
at ---- o'clock, -- stm.
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
[[Page 104]]
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 Sec. 1025.17 of these
Rules, the prehearing order may be suitably modified; the initial page
may be modified to reflect the intervention.