15 U.S.C. § 1203 — Preemption of Federal standards

Page 1354 TITLE 15—COMMERCE AND TRADE § 1203 statement filed with the Commission under the preceding sentence shall specify the anticipated date of shipment of such fabric, related mate- rial, or product, the country and port of destina- tion of such fabric, related material, or product, and the quantity of such fabric, related mate- rial, or product that will be exported, and shall contain such other information as the Commis- sion may by regulation require. Upon petition filed with the Commission by any person re- quired to file a statement under this subsection respecting an exportation, the Commission may, for good cause shown, exempt such person from the requirement of this subsection that such a statement be filed no less than thirty days be- fore 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. (d) Authority to prohibit exports Notwithstanding any other provision of this section, the Consumer Product Safety Commis- sion may prohibit, by order, a person from ex- porting from the United States for purpose of sale any fabric or related material that the Commission determines is not in conformity with an applicable standard or rule under this chapter, unless the importing country has noti- fied the Commission that such country accepts the importation of such fabric or related mate- rial, provided that if the importing country has not so notified the Commission within 30 days after the Commission has provided notice to the importing country of the impending shipment, the Commission may take such action as is ap- propriate with respect to the disposition of the fabric or related material under the cir- cumstances. (e) Export pursuant to section 2066(e) Nothing in this section shall apply to any fab- ric or related material, the export of which is permitted by the Secretary of the Treasury pur- suant to section 2066(e) of this title. (June 30, 1953, ch. 164, § 15, as added Pub. L. 90–189, § 10, Dec. 14, 1967, 81 Stat. 574; amended Pub. L. 95–631, § 8(a), Nov. 10, 1978, 92 Stat. 3746; Pub. L. 110–314, title II, §§ 204(c)(2)(F), 221(b), Aug. 14, 2008, 122 Stat. 3042, 3066.) Editorial Notes AMENDMENTS 2008—Subsec. (a). Pub. L. 110–314, § 204(c)(2)(F), which directed the substitution of ‘‘Commission’’ for ‘‘Con- sumer Product Safety Commission (hereinafter in this section referred to as the ‘Commission’) in section 15 (15 U.S.C. 1202)’’, was executed by making the substi- tution for ‘‘Consumer Product Safety Commission (hereinafter in this section referred to as the ‘Commis- sion’)’’ to reflect the probable intent of Congress. Subsecs. (d), (e). Pub. L. 110–314, § 221(b), added sub- secs. (d) and (e). 1978—Subsec. (a). Pub. L. 95–631, § 8(a)(1), made chap- ter applicable to exports when the Commission deter- mines that exportation presents an unreasonable risk of injury to persons residing within the United States. Subsec. (b). Pub. L. 95–631, § 8(a)(2), made chapter ap- plicable to imports intended for export when the Com- mission determines that exportation presents an unrea- sonable risk of injury to persons residing within the United States. Subsec. (c). Pub. L. 95–631, § 8(a)(3), added subsec. (c). § 1203. Preemption of Federal standards (a) Standards or regulations designed to protect against same risk as State standards or regu- lations; identical State standards Except as provided in subsections (b) and (c), whenever a flammability standard or other reg- ulation for a fabric, related material, or product is in effect under this chapter, no State or polit- ical subdivision of a State may establish or con- tinue in effect a flammability standard or other regulation for such fabric, related material, or product if the standard or other regulation is de- signed to protect against the same risk of occur- rence of fire with respect to which the standard or other regulation under this chapter is in ef- fect unless the State or political subdivision standard or other regulation is identical to the Federal standard or other regulation. (b) State standards or regulations which afford a higher degree of protection The Federal Government and the government of any State or political subdivision of a State may establish and continue in effect a flamma- bility standard or other regulation applicable to a fabric, related material, or product for its own use which standard or other regulation is de- signed to protect against a risk of occurrence of fire with respect to which a flammability stand- ard or other regulation is in effect under this chapter and which is not identical to such stand- ard or other regulation if the Federal, State, or political subdivision standard or other regula- tion provides a higher degree of protection from such risk of occurrence of fire than the standard or other regulation in effect under this chapter. (c) Exemption for State standards or regulations; requirements; determination of burden on interstate commerce; notice and hearing (1) Upon application of a State or political subdivision of a State, the Commission may, by regulation promulgated in accordance with paragraph (2), exempt from subsection (a), under such conditions as may be prescribed in such regulation, any flammability standard or other regulation of such State or political subdivision applicable to a fabric, related material, or prod- uct subject to a standard or other regulation in effect under this chapter, if— (A) compliance with the State or political subdivision requirement would not cause the fabric, related material, or product to be in violation of the standard or other regulation in effect under this chapter, and (B) the State or political subdivision stand- ard or other regulation (i) provides a signifi- cantly higher degree of protection from the risk of occurrence of fire with respect to which the Federal standard or other regulation is in effect, and (ii) does not unduly burden inter- state commerce. In determining the burden, if any, of a State or political subdivision flammability standard or other regulation on interstate commerce the Commission shall consider and make appro- priate (as determined by the Commission in its discretion) findings on the technological and economic feasibility of complying with such Page 1355 TITLE 15—COMMERCE AND TRADE § 1204 flammability standard or other regulation, the cost of complying with such flammability stand- ard or other regulation, the geographic distribu- tion of the fabric, related material, or product to which the flammability standard or other regulation would apply, the probability of other States or political subdivisions applying for an exemption under this subsection for a similar flammability standard or other regulation, and the need for a national, uniform flammability standard or other regulation under this chapter for such fabric, related material, or product. (2) A regulation under paragraph (1) granting an exemption for a flammability standard or other regulation of a State or political subdivi- sion of a State may be promulgated by the Com- mission only after it has provided, in accordance with section 553(b) of title 5, notice with respect to the promulgation of the regulation and has provided opportunity for the oral presentation of views respecting its promulgation. (d) Flammability standards or regulations In this section, a reference to a flammability standard or other regulation for a fabric, related material, or product in effect under this chapter includes a standard of flammability continued in effect by section 11 of the Act of December 14, 1967 (Public Law 90–189). (June 30, 1953, ch. 164, § 16, as added Pub. L. 90–189, § 10, Dec. 14, 1967, 81 Stat. 574; amended Pub. L. 94–284, § 17(b), May 11, 1976, 90 Stat. 512; Pub. L. 110–314, title II, § 204(c)(2)(G), Aug. 14, 2008, 122 Stat. 3043.) Editorial Notes REFERENCES IN TEXT Section 11 of the Act of December 14, 1967 (Public Law 90–189), referred to in subsec. (d), is set out as a note under section 1191 of this title. AMENDMENTS 2008—Subsec. (d). Pub. L. 110–314 amended subsec. (d) generally. Prior to amendment, text read as follows: ‘‘For purposes of this section— ‘‘(1) a reference to a flammability standard or other regulation for a fabric, related material, or product in effect under this chapter includes a standard of flammability continued in effect by section 11 of the Act of December 14, 1967 (Public Law 90–189); and ‘‘(2) the term ‘Commission’ means the Consumer Product Safety Commission.’’ 1976—Pub. L. 94–284 substituted provisions which per- mitted the use of flammability standards or regula- tions not identical with the standards or regulations in effect under this chapter provided that the standards or regulations used afford a higher degree of protection from the risk of the occurrence of fire than the stand- ards or regulation under this chapter, and which per- mitted the Commission, by regulation promulgated in accordance with section 553 of title 5, to grant an ex- emption for a flammability standard or other regula- tion of a State or political subdivision of a State, for the prior supremacy of chapter provision. Statutory Notes and Related Subsidiaries PREEMPTION The provisions of this section establishing the extent to which the Flammable Fabrics Act (15 U.S.C. 1191 et seq.) preempts, limits, or otherwise affects any other Federal, State, or local law, any rule, procedure, or reg- ulation, or any cause of action under State or local law not to be expanded or contracted in scope, or limited, modified or extended in application, by any rule or reg- ulation under the Flammable Fabrics Act, or by ref- erence in any preamble, statement of policy, executive branch statements, or other matter associated with the publication of any such rule or regulation, see section 231 of Pub. L. 110–314, set out as a note under section 2051 of this title. § 1204. Congressional veto of flammability regula- tions (a) Transmission to Congress The Commission shall transmit to the Sec- retary of the Senate and the Clerk of the House of Representatives a copy of any flammability regulation promulgated by the Commission under section 1193 of this title. (b) Disapproval by concurrent resolution Any regulation specified in subsection (a) shall not take effect if— (1) within the ninety calendar days of con- tinuous session of the Congress which occur after the date of the promulgation of such reg- ulation, both Houses of the Congress adopt a concurrent resolution, the matter after the re- solving clause of which is as follows (with the blank spaces appropriately filled): ‘‘That the Congress disapproves the flammability regula- tion which was promulgated under the Flam- mable Fabrics Act by the Consumer Product Safety Commission with respect to and which was transmitted to the Congress on and disapproves the reg- ulation for the following reasons: .’’; or (2) within the sixty calendar days of contin- uous session of the Congress which occur after the date of the promulgation of such regula- tion, one House of the Congress adopts such concurrent resolution and transmits such res- olution to the other House and such resolution is not disapproved by such other House within the thirty calendar days of continuous session of the Congress which occur after the date of such transmittal. (c) Presumptions from Congressional action or inaction Congressional inaction on, or rejection of, a concurrent resolution of disapproval under this section shall not be construed as an expression of approval of the regulation involved, and shall not be construed to create any presumption of validity with respect to such regulation. (d) Continuous session of Congress For purposes of this section— (1) continuity of session is broken only by an adjournment of the Congress sine die; and (2) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of the periods of contin- uous session of the Congress specified in sub- section (b). (June 30, 1953, ch. 164, § 17, as added Pub. L. 97–35, title XII, § 1207(d), Aug. 13, 1981, 95 Stat. 719; amended Pub. L. 110–314, title II, § 204(c)(2)(C), (H), Aug. 14, 2008, 122 Stat. 3042, 3043.)