15 U.S.C. § 1274 — Remedies respecting banned hazardous

Page 1376 TITLE 15—COMMERCE AND TRADE § 1274 2 So in original. Probably should be ‘‘Commission’s’’. thereof, as may be specified in the Secretary’s 2 authorization). All such relabeling or other ac- tion pursuant to such authorization shall, in ac- cordance with regulations, be under the super- vision of an officer or employee of the Commis- sion designated by the Secretary 1, or an officer or employee of the Department of the Treasury designated by the Secretary of the Treasury. (c) Expenses in connection with refused articles All expenses (including travel, per diem, or subsistence, and salaries of officers or employees of the United States) in connection with the de- struction provided for in subsection (a) of this section and the supervision of the relabeling or other action authorized under the provisions of subsection (b) of this section, the amount of such expenses to be determined in accordance with regulations, and all expenses in connection with the storage, cartage, or labor with respect to any hazardous substance refused admission under subsection (a) of this section, shall be paid by the owner or consignee and, in default of such payment, shall constitute a lien against any fu- ture importations made by such owner or con- signee. (d) Statement of exportation: filing period, infor- mation; notification of foreign country; peti- tion for minimum filing period: good cause Not less than thirty days before any person ex- ports to a foreign country any misbranded haz- ardous substance or banned hazardous sub- stance, such person shall file a statement with the Commission notifying the Commission of such exportation, and the Commission, upon re- ceipt of such statement, shall promptly notify the government of such country of such expor- tation and the basis upon which such substance is considered misbranded or has been banned under this chapter. Any statement filed with the Commission under the preceding sentence shall specify the anticipated date of shipment of such substance, the country and port of destination of such substance, and the quantity of such sub- stance that will be exported, and shall contain such other information as the Commission may by regulation require. Upon petition filed with the Commission by any person required to file a statement under this subsection respecting an exportation, the Commission may, for good cause shown, exempt such person from the re- quirement of this subsection that such a state- ment be filed no less than thirty days before the date of the exportation, except that in no case shall the Commission permit such a statement to be filed later than the tenth day before such date. (Pub. L. 86–613, § 14, July 12, 1960, 74 Stat. 379; Pub. L. 89–756, §§ 2(i), 3(e), Nov. 3, 1966, 80 Stat. 1304, 1305; Pub. L. 95–631, § 7(c), Nov. 10, 1978, 92 Stat. 3746; Pub. L. 110–314, title II, § 204(b)(4)(D), (F)–(I), Aug. 14, 2008, 122 Stat. 3042.) Editorial Notes AMENDMENTS 2008—Subsec. (a). Pub. L. 110–314, § 204(b)(4)(D), (F), substituted ‘‘upon its request’’ for ‘‘upon his request’’ and substituted ‘‘Commission’’ for ‘‘Secretary of Health, Education, and Welfare’’ in two places. Subsec. (b). Pub. L. 110–314, § 204(b)(4)(F), (G), sub- stituted ‘‘appears to the Commission’’ for ‘‘appears to the Secretary of Health, Education, and Welfare’’ and ‘‘Commission designated by’’ for ‘‘Department of Health, Education, and Welfare designated by’’. Subsec. (d). Pub. L. 110–314, § 204(b)(4)(H), (I), sub- stituted ‘‘statement with the Commission’’ for ‘‘state- ment with the Consumer Product Safety Commission’’ and struck out ‘‘(hereinafter in this section referred to as the ‘Commission’)’’ before ‘‘notifying’’. 1978—Subsec. (d). Pub. L. 95–631 added subsec. (d). 1966—Subsec. (a). Pub. L. 89–756 substituted ‘‘a mis- branded hazardous substance or banned hazardous sub- stance’’ for ‘‘in misbranded packages’’. § 1274. Remedies respecting banned hazardous substances (a) Notice to protect public; form and contents If any article or substance sold in commerce is defined as a banned hazardous substance (wheth- er or not it was such at the time of its sale) and the Commission determines (after affording in- terested persons, including consumers and con- sumer organizations, an opportunity for a hear- ing) that notification is required to adequately protect the public from such article or sub- stance, the Commission may order the manufac- turer or any distributor or dealer of the article or substance to take any one or more of the fol- lowing actions: (1) To give public notice that the article or substance is a banned hazardous substance. (2) To mail such notice to each person who is a manufacturer, distributor, or dealer of such article or substance. (3) To mail such notice to every person to whom the person giving the notice knows such article or substance was delivered or sold. An order under this subsection shall specify the form and content of any notice required to be given under the order. (b) Order of Commission; repair, replacement, or refund If any article or substance sold in commerce is defined as a banned hazardous substance (wheth- er or not it was such at the time of its sale) and the Commission determines (after affording in- terested persons, including consumers and con- sumer organizations, an opportunity for a hear- ing) that action under this subsection is in the public interest, the Commission may order the manufacturer, distributor, or dealer to take whichever of the following actions the person to whom the order is directed elects: (1) If repairs to or changes in the article or substance may be made so that it will not be a banned hazardous substance, to make such repairs or changes. (2) To replace such article or substance with a like or equivalent article or substance which is not a banned hazardous substance. (3) To refund the purchase price of the arti- cle or substance (less a reasonable allowance for use, if the article or substance has been in the possession of the consumer for one year or more— (A) at the time of public notice under sub- section (a), or (B) at the time the consumer receives ac- tual notice that the article or substance is a banned hazardous substance, Page 1377 TITLE 15—COMMERCE AND TRADE § 1274 whichever first occurs). An order under this subsection may also require the person to whom it applies to submit a plan, satisfactory to the Commission, for taking the action which such person has elected to take. The Commission shall specify in the order the persons to whom refunds must be made if the person to whom the order is directed elects to take the action described in paragraph (3). If an order under this subsection is directed to more than one person, the Commission shall specify which person has the election under this sub- section. An order under this subsection may pro- hibit the person to whom it applies from manu- facturing for sale, offering for sale, distributing in commerce, or importing into the customs ter- ritory of the United States (as defined in general note 2 of the Harmonized Tariff Schedule of the United States), or from doing any combination of such actions, with respect to the article or substance with respect to which the order was issued. (c) Discretionary remedial activities available to Commission; orders; contents (1) If the Commission determines (after afford- ing interested persons, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (e) of this section) that any toy or other article intended for use by children that is not a banned haz- ardous substance contains a defect which cre- ates a substantial risk of injury to children (be- cause of the pattern of defect, the number of de- fective toys or such articles distributed in com- merce, the severity of the risk, or otherwise) and that notification is required to protect ade- quately the public from such toy or article, the Commission may order the manufacturer or any distributor or dealer of such toy or article to take any one or more of the following actions: (A) To give public notice that such defective toy or article contains a defect which creates a substantial risk of injury to children. (B) To mail such notice to each person who is a manufacturer, distributor, or dealer of such toy or article. (C) To mail such notice to every person to whom the person giving notice knows such toy or article was delivered or sold. An order under this paragraph shall specify the form and content of any notice required to be given under the order. (2) If the Commission determines (after afford- ing interested persons, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (e) of this section) that any toy or other article intended for use by children that is not a banned haz- ardous substance contains a defect which cre- ates a substantial risk of injury to children (be- cause of the pattern of defect, the number of de- fective toys or such articles distributed in com- merce, the severity of the risk, or otherwise) and that action under this paragraph is in the public interest, the Commission may order the manufacturer, distributor, or dealer to take whichever of the following actions the person to whom the order is directed elects: (A) If repairs to or changes in the toy or ar- ticle can be made so that it will not contain a defect which creates a substantial risk of in- jury to children, to make such repairs or changes. (B) To replace such toy or article with a like or equivalent toy or article which does not contain a defect which creates a substantial risk of injury to children. (C) To refund the purchase price of such toy or article (less a reasonable allowance for use, if such toy or article has been in the posses- sion of the consumer for 1 year or more (i) at the time of public notice under paragraph (1)(A), or (ii) at the time the consumer re- ceives actual notice that the toy or article contains a defect which creates a substantial risk of injury to children, whichever first oc- curs). An order under this paragraph may also require the person to whom it applies to submit a plan, satisfactory to the Commission, for taking the action which such person has elected to take. The Commission shall specify in the order the person to whom refunds must be made if the per- son to whom the order is directed elects to take the action described in subparagraph (C). If an order under this paragraph is directed to more than one person, the Commission shall specify which person has the election under this para- graph. An order under this paragraph may pro- hibit the person to whom it applies from manu- facturing for sale, offering for sale, distributing in commerce, or importing into the customs ter- ritory of the United States (as defined in general note 2 of the Harmonized Tariff Schedule of the United States), or from doing any combination of such actions, with respect to the toy or arti- cle with respect to which the order was issued. (d) Charge for remedy; reimbursement for ex- penses (1) No charge shall be made to any person (other than a manufacturer, distributor, or deal- er) who avails himself of any remedy provided under an order issued under subsection (b) or (c), and the person subject to the order shall reim- burse each person (other than a manufacturer, distributor, or dealer) who is entitled to such a remedy for any reasonable and foreseeable ex- penses incurred by such person in availing him- self of such remedy. (2) An order issued under subsection (a), (b), or (c) with respect to a toy, article or substance may require any person who is a manufacturer, distributor, or dealer of the toy, article or sub- stance to reimburse any other person who is a manufacturer, distributor, or dealer of such toy, article or substance for such other person’s ex- penses in connection with carrying out the order, if the Commission determines such reim- bursement to be in the public interest. (e) Hearing; representative of class An order under subsection (a), (b), or (c) may be issued only after an opportunity for a hearing in accordance with section 554 of title 5, except that, if the Commission determines that any person who wishes to participate in such hearing is a part of a class of participants who share an identity of interest, the Commission may limit such person’s participation in such hearing to participation through a single representative Page 1378 TITLE 15—COMMERCE AND TRADE § 1275 designated by such class (or by the Commission if such class fails to designate such a representa- tive). (f) ‘‘Manufacturer’’ defined For purposes of this section (1) the term ‘‘manufacturer’’ includes an importer for resale, and (2) a dealer who sells at wholesale an article or substance shall with respect to that sale be considered the distributor of that article or sub- stance. (g) Cost-benefit analysis of notification or other action not required Nothing in this section shall be construed to require the Commission, in determining that an article or substance distributed in commerce presents a substantial product hazard and that notification or other action under this section should be taken, to prepare a comparison of the costs that would be incurred in providing notifi- cation or taking other action under this section with the benefits from such notification or ac- tion. (Pub. L. 86–613, § 15, as added Pub. L. 91–113, § 4(a), Nov. 6, 1969, 83 Stat. 189; amended Pub. L. 97–35, title XII, § 1211(f)(1), Aug. 13, 1981, 95 Stat. 721; Pub. L. 97–414, § 9(l), Jan. 4, 1983, 96 Stat. 2065; Pub. L. 98–491, § 2, Oct. 17, 1984, 98 Stat. 2269; Pub. L. 100–418, title I, § 1214(c), Aug. 23, 1988, 102 Stat. 1156; Pub. L. 101–608, title I, § 111(b), Nov. 16, 1990, 104 Stat. 3114; Pub. L. 110–314, title II, § 204(b)(4)(H), Aug. 14, 2008, 122 Stat. 3042.) Editorial Notes REFERENCES IN TEXT The Harmonized Tariff Schedule of the United States, referred to in subsecs. (b) and (c)(2), is not set out in the Code. See Publication of Harmonized Tariff Sched- ule note set out under section 1202 of Title 19, Customs Duties. AMENDMENTS 2008—Subsec. (b). Pub. L. 110–314 substituted ‘‘Com- mission may order’’ for ‘‘Consumer Product Safety Commission may order’’ in introductory provisions. 1990—Subsec. (g). Pub. L. 101–608 added subsec. (g). 1988—Subsecs. (b), (c)(2). Pub. L. 100–418 substituted ‘‘general note 2 of the Harmonized Tariff Schedule of the United States’’ for ‘‘general headnote 2 to the Tar- iff Schedules of the United States’’. 1984—Subsec. (c). Pub. L. 98–491, § 2(a)(2), added sub- sec. (c). Former subsec. (c) redesignated (d). Subsec. (d). Pub. L. 98–491, § 2(a)(1), redesignated sub- sec. (c) as (d). Former subsec. (d) redesignated (e). Subsec. (d)(1). Pub. L. 98–491, § 2(b), inserted ‘‘or (c)’’ after ‘‘subsection (b)’’. Subsec. (d)(2). Pub. L. 98–491, § 2(c), (d), substituted ‘‘a toy, article’’ for ‘‘an article’’, ‘‘toy, article’’ for ‘‘arti- cle’’ in two places, and ‘‘subsection (a), (b), or (c)’’ for ‘‘subsection (a) or (b)’’. Subsec. (e). Pub. L. 98–491, § 2(a)(2), (d), redesignated subsec. (d) as (e) and substituted ‘‘subsection (a), (b), or (c)’’ for ‘‘subsection (a) or (b)’’. Former subsec. (e) re- designated (f). Subsec. (f). Pub. L. 98–491, § 2(a)(1), redesignated sub- sec. (e) as (f). 1983—Subsec. (e). Pub. L. 97–414 added subsec. (e). 1981—Pub. L. 97–35 revised section generally and sub- stituted provisions authorizing the Commission to re- quire the manufacturers, distributors, or dealers as the case may be to notify the public that the article or sub- stance was a banned hazardous one, and to repair, re- place or refund the purchase price, when the Commis- sion determines after providing the manufacturer, dis- tributor, or dealer an opportunity for a hearing that banned hazardous substances were sold for provisions requiring the manufacturer, distributor or dealer to re- purchase the banned hazardous article or substance. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–418 effective Jan. 1, 1989, and applicable with respect to articles entered on or after such date, see section 1217(b)(1) of Pub. L. 100–418, set out as an Effective Date note under section 3001 of Title 19, Customs Duties. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–35 effective Aug. 13, 1981, see section 1215 of Pub. L. 97–35, set out as a note under section 2052 of this title. EFFECTIVE DATE Section effective on sixtieth day following Nov. 6, 1969, see section 5 of Pub. L. 91–113, set out as an Effec- tive Date of 1969 Amendment note under section 1261 of this title. § 1275. Toxicological Advisory Board (a) Establishment; functions; review and rec- ommendations (1) Within 180 days after November 10, 1978, the Commission shall establish, in accordance with subsection (b), a Toxicological Advisory Board (hereinafter in this section referred to as the ‘‘Board’’) to advise the Commission on pre- cautionary labeling for hazardous substances. The Board shall provide scientific and technical advice to the Commission concerning— (A) proper labeling under sections 1261(p)(1) and 1262(b) of this title, with special attention to— (i) the description of precautionary meas- ures required under section 1261(p)(1)(F) of this title; (ii) the statement describing the hazards associated with a hazardous substance as re- quired under section 1261(p)(1)(E) of this title; and (iii) instructions for first-aid treatment under section 1261(p)(1)(G) of this title; and (B) the exemption of certain substances from labeling requirements under this chapter as permitted under section 1262(c) of this title. (2) In carrying out its duties under paragraph (1)(A), the Board shall review any labeling re- quirements or guidelines which have been estab- lished by the Commission under section 1261(p)(1) or 1262(b) of this title. Based upon its review the Board shall develop and submit to the Commission, within one year after the date that the Board is established, any recommenda- tions for revisions in such labeling requirements or guidelines which the Board considers to be appropriate, including any general recommenda- tions which may be of assistance to the Commis- sion in carrying out its responsibilities under section 1261(p)(1) or 1262(b) of this title. The Board shall periodically review the labeling re- quirements and guidelines established by the Commission under such sections to determine whether such requirements and guidelines re- flect relevant changes in scientific knowledge