§1262 Declaration of Hazardous Substances

Summary

The Commission can officially name a substance or mix as a hazardous substance when doing so will help make the law clearer or solve questions about how the law applies. It uses formal rulemaking to do this and follows the procedures set out later in the law for making, changing, or removing those rules. If the Commission decides a substance poses a special danger, it can make extra or different label rules to protect public health and safety. If a household product or something meant for children does not have the required label under those rules, it is treated as a misbranded hazardous substance. The Commission can also make rules that exempt small packages, items with only minor hazards, or other cases where full labeling would be impractical or unnecessary. If another federal law already sets adequate safety rules for a hazardous substance or its container, the Commission may exempt that substance from these requirements. For toys or other items made for children that pose electrical, mechanical, or heat hazards, the Commission must decide by regulation and may choose between two established rulemaking procedures; if it picks the alternate procedure it must say so when it publishes its proposal. If the Commission finds an item presents an imminent hazard while the rulemaking is underway, it can order the item treated as banned until the process ends. Anyone hurt by a final rule on such a toy or child article can ask a U.S. Court of Appeals for review within 60 days after the rule is issued; the court may allow new evidence and send it back to the Commission for consideration. Before starting a ban or similar rulemaking, the Commission normally publishes an advance notice in the Federal Register that identifies the item and risk, summarizes regulatory options (including voluntary standards), lists known standards and why they may not be enough, and invites public comment for a period the Commission sets (not less than 30 days and not more than 60 days). The notice also asks for anyone to submit existing standards or to state plans to create voluntary standards, each within at least 30 days. If submitted standards would likely fix the risk, the Commission can use them as a proposed rule. The Commission must monitor any voluntary standards it relies on or helps develop. Before publishing a proposed rule that would ban an item, the Commission must include a preliminary analysis of benefits and costs and explain why other standards or voluntary efforts were not chosen. Before issuing a final ban rule, the Commission must prepare a final analysis that describes benefits and costs, explains alternatives considered and why they were rejected, and summarizes major public comments. The Commission must find that voluntary standards won’t work or won’t get wide compliance in cases where such standards exist; that the rule’s benefits reasonably match its costs; and that the rule is the least burdensome way to prevent or reduce the risk. Those analyses are part of the record but are not independently open to separate court review. The Commission must respond to petitions asking it to start rulemaking within a reasonable time and must give reasons when it grants or denies a petition. It cannot deny a petition just because a voluntary standard exists unless that standard already exists at the time of denial, the Commission finds it likely to eliminate the risk, and it is likely there will be substantial compliance.