Consumer Product Safety Improvement Act of 2008/Title II/Subtitle D

SUBTITLE D — MISCELLANEOUS PROVISIONS AND CONFORMING AMENDMENTS

Sec. 231. Preemption.

(a) Rule with regard to preemption.—

The provisions of sections 25 and 26 of the Consumer Product Safety Act (15 U.S.C. 2074 and 2075, respectively), section 18 of the Federal Hazardous Substances Act (15 U.S.C. 1261 note), section 16 of the Flammable Fabrics Act (15 U.S.C. 1203), and section 7 of the Poison Packaging Prevention Act of 1970 (15 U.S.C. 1476) establishing the extent to which those Acts preempt, limit, or otherwise affect any other Federal, State, or local law, any rule, procedure, or regulation, or any cause of action under State or local law may not be expanded or contracted in scope, or limited, modified or extended in application, by any rule or regulation thereunder, or by reference in any preamble, statement of policy, executive branch statements, or other matter associated with the publication of any such rule or regulation. In accordance with the provisions of those Acts, the Commission may not construe any such Act as preempting any cause of action under State or local common law or State statutory law regarding damage claims.

(b) Preservation of certain State law.—

Nothing in this Act or the Federal Hazardous Substances Act shall be construed to preempt or otherwise affect any warning requirement relating to consumer products or substances that is established pursuant to State law that was in effect on August 31, 2003.

Sec. 232.All-terrain vehicle standard.

(a) In general.—

The Act (15 U.S.C. 2051 et seq.), as amended by section 224, is further amended by adding at the end thereof the following:

``SEC. 42. All-terrain vehicles.

``(a) In general.—

``(1) MANDATORY STANDARD.—Notwithstanding any other provision of law, within 90 days after the date of enactment of the Consumer Product Safety Improvement Act of 2008, the Commission shall publish in the Federal Register as a mandatory consumer product safety standard the American National Standard for Four Wheel All-Terrain Vehicles Equipment Configuration, and Performance Requirements developed by the Specialty Vehicle Institute of America (American National Standard ANSI/SVIA –1–2007). The standard shall take effect 150 days after it is published.

``(2) COMPLIANCE WITH STANDARD.—After the standard takes effect, it shall be unlawful for any manufacturer or distributor to import into or distribute in commerce in the United States any new assembled or unassembled all-terrain vehicle unless—

``(A) the all-terrain vehicle complies with each applicable provision of the standard;

``(B) the ATV is subject to an ATV action plan filed with the Commission before the date of enactment of the Act, or subsequently filed with and approved by the Commission, and bears a label certifying such compliance and identifying the manufacturer, importer or private labeler and the ATV action plan to which it is subject; and

``(C) the manufacturer or distributor is in compliance with all provisions of the applicable ATV action plan.

``(3) VIOLATION.—The failure to comply with any requirement of paragraph (2) shall be deemed to be a failure to comply with a consumer product safety standard under this Act and subject to all of the penalties and remedies available under this Act.

``(4) COMPLIANT MODELS WITH ADDITIONAL FEATURES.—Paragraph (2) shall not be construed to prohibit the distribution in commerce of new all-terrain vehicles that comply with the requirements of that paragraph but also incorporate characteristics or components that are not covered by those requirements. Any such characteristics or components shall be subject to the requirements of section 15 of this Act.

``(b) Modification of standard.—

``(1) ANSI REVISIONS.—If the American National Standard ANSI/SVIA–1–2007 is revised through the applicable consensus standards development process after the date on which the product safety standard for all-terrain vehicles is published in the Federal Register, the American National Standards Institute shall notify the Commission of the revision.

``(2) COMMISSION ACTION.—Within 120 days after it receives notice of such a revision by the American National Standards Institute, the Commission shall issue a notice of proposed rulemaking in accordance with section 553 of title 5, United States Code, to amend the product safety standard for all-terrain vehicles to include any such revision that the Commission determines is reasonably related to the safe performance of all-terrain vehicles, and notify the Institute of any provision it has determined not to be so related. The Commission shall promulgate an amendment to the standard for all-terrain vehicles within 180 days after the date on which the notice of proposed rulemaking for the amendment is published in the Federal Register.

``(3) UNREASONABLE RISK OF INJURY.—Notwithstanding any other provision of this Act, the Commission may, pursuant to sections 7 and 9 of this Act, amend the product safety standard for all-terrain vehicles to include any additional provision that the Commission determines is reasonably necessary to reduce an unreasonable risk of injury associated with the performance of all-terrain vehicles.

``(4) CERTAIN PROVISIONS NOT APPLICABLE.—Sections 7 and 9 of this Act shall not apply to promulgation of any amendment of the product safety standard under paragraph (2). Judicial review of any amendment of the standard under paragraph (2) shall be in accordance with chapter 7 of title 5, United States Code.

``(c) Requirements for 3-wheeled all-terrain vehicles.—Until a mandatory consumer product safety standard applicable to 3-wheeled all-terrain vehicles promulgated pursuant to this Act is in effect, new 3-wheeled all-terrain vehicles may not be imported into or distributed in commerce in the United States. Any violation of this subsection shall be considered to be a violation of section 19(a)(1) of this Act and may also be enforced under section 17 of this Act.

``(d) Further proceedings.—

``(1) DEADLINE.—The Commission shall issue a final rule in its proceeding entitled ‘Standards for All Terrain Vehicles and Ban of Three-wheeled All Terrain Vehicles’.

``(2) CATEGORIES OF YOUTH ATVS.—In the final rule, the Commission, in consultation with the National Highway Traffic Safety Administration, may provide for a multiple factor method of categorization that, at a minimum, takes into account—

``(A) the weight of the ATV;

``(B) the maximum speed of the ATV;

``(C) the velocity at which an ATV of a given weight is traveling at the maximum speed of the ATV;

``(D) the age of children for whose operation the ATV is designed or who may reasonably be expected to operate the ATV; and

``(E) the average weight of children for whose operation the ATV is designed or who may reasonably be expected to operate the ATV.

``(3) ADDITIONAL SAFETY STANDARDS.—In the final rule, the Commission, in consultation with the National Highway Traffic Safety Administration, shall review the standard published under subsection (a)(1) and establish additional safety standards for all-terrain vehicles to the extent necessary to protect the public health and safety. As part of its review, the Commission shall consider, at a minimum, establishing or strengthening standards on—

``(A) suspension;

``(B) brake performance;

``(C) speed governors;

``(D) warning labels;

``(E) marketing; and

``(F) dynamic stability.

``(e) Definitions.—In this section:

``(1) ALL-TERRAIN VEHICLE OR ATV.—The term ‘all-terrain vehicle’ or ‘ATV’ means—

``(A) any motorized, off-highway vehicle designed to travel on 3 or 4 wheels, having a seat designed to be straddled by the operator and handlebars for steering control; but

``(B) does not include a prototype of a motorized, off-highway, all-terrain vehicle or other motorized, off-highway, all-terrain vehicle that is intended exclusively for research and development purposes unless the vehicle is offered for sale.

``(2) ATV ACTION PLAN.—The term ‘ATV action plan’ means a written plan or letter of undertaking that describes actions the manufacturer or distributor agrees to take to promote ATV safety, including rider training, dissemination of safety information, age recommendations, other policies governing marketing and sale of the ATVs, the monitoring of such sales, and other safety related measures, and that is substantially similar to the plans described under the heading ‘The Undertakings of the Companies in the Commission Notice’ published in the Federal Register on September 9, 1998 (63 FR 48199–48204).´´.

(b) GAO study.—

The Comptroller General shall conduct a study of the utility, recreational, and other benefits of all-terrain vehicles to which section 42 of the Consumer Product Safety Act (15 U.S.C. 2085) applies, and the costs associated with all-terrain vehicle-related accidents and injuries.

(c) Conforming Amendment.—

The table of contents of this Act is further amended by inserting after the item relating to section 42 the following:

``Sec. 42. All-terrain vehicles.´´.

Sec. 233.Cost-benefit analysis under the Poison Prevention Packaging Act of 1970.

Section 3 of the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1472) is amended by adding at the end thereof the following:

``(e) Nothing in this Act shall be construed to require the Consumer Product Safety Commission, in establishing a standard under this section, to prepare a comparison of the costs that would be incurred in complying with such standard with the benefits of such standard.´´.

Sec. 234.Study on use of formaldehyde in manufacturing of textile and apparel articles.

Not later than 2 years after the date of enactment of this Act, the Comptroller General, in consultation with the Commission, shall conduct a study on the use of formaldehyde in the manufacture of textile and apparel articles, or in any component of such articles, to identify any risks to consumers caused by the use of formaldehyde in the manufacturing of such articles, or components of such articles.

Sec. 235.Technical and conforming changes.

(a) Definitions.—

Section 3(a) (15 U.S.C. 2052) is amended by adding at the end the following:

``(15) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term ‘appropriate Congressional committees’ means the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate.

``(16) CHILDREN’S PRODUCT.—The term ‘children’s product’ means a consumer product designed or intended primarily for children 12 years of age or younger. In determining whether a consumer product is primarily intended for a child 12 years of age or younger, the following factors shall be considered:

``(A) A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.

``(B) Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.

``(C) Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.

``(D) The Age Determination Guidelines issued by the Commission staff in September 2002, and any successor to such guidelines.

``(17) THIRD-PARTY LOGISTICS PROVIDER.—The term ‘third-party logistics provider’ means a person who solely receives, holds, or otherwise transports a consumer product in the ordinary course of business but who does not take title to the product.´´.

(b) Miscellaneous.—

Section 3 (15 U.S.C. 2052) is amended—

(1) by striking “(a) for purposes of this Act:” and inserting “(a) In General.—In this Act:”;

(2) by indenting each paragraph and subparagraph of subsection (a) 2 em spaces;

(3) by inserting a heading, in a form consistent with the form of the heading of this subsection consisting of the term defined by such paragraph, after the designation of each paragraph of subsection (a);

(4) by reordering such paragraphs and the additional paragraphs added by paragraph (1) of this subsection in alphabetical order based on the headings of such paragraphs and renumbering such paragraphs as so reordered; and

(5) by inserting “common carriers, contract carriers, and freight forwarders” after “(b)” in subsection (b).

(c) Conforming Amendments.—

(1) Section 3(b) (15 U.S.C. 2052(b) is amended by inserting “third-party logistics provider,” after “contract carrier,”.

(2) Section 6(e)(4) (15 U.S.C. 2055(e)(4)) is amended by striking “the Committee on Commerce, Science, and Transportation of the Senate or the Committee on Energy and Commerce of the House of Representatives or any subcommittee of such committee,” and insert “either of the appropriate Congressional committees or any subcommittee thereof,”.

(3) Sections 9(a), 9(c), and 35(c)(2)(D)(iii) (15 U.S.C. 2058(a), (c), and 2082(c)(2)(D)(iii), and 2082(e)(1), respectively) are each amended by striking “the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives” each place it appears and inserting “the appropriate Congressional committees”.

(4) Section 32(b)(1) (15 U.S.C. 2050(b)(1)) is amended by striking “the Committee on Energy and Commerce of the House of Representatives, and by the Committee on Commerce, Science, and Transportation of the Senate.” and inserting “the appropriate Congressional committees.”.

(5) Section 35(e)(1) (15 U.S.C. 2082(e)(1)) is amended by striking “the Committee on Commerce, Science, and Transportation of the Senate and to the Committee on Energy and Commerce of the House of Representatives” and insert “the appropriate Congressional committees”.

(6) Sections 17(h)(3), 28(j)(10)(F), and 28(k)(1) and (2) (15 U.S.C. 2066(h)(3), 2077(j)(10)(F), and 2077(k)(1) and (2), respectively) are each amended by striking “the Congress” and inserting “the appropriate Congressional committees”.

(7) Section 29(e) (15 U.S.C. 2078(e)) is amended by striking “The Commission” and inserting “Notwithstanding section 6(a)(3), the Commission”.

Sec. 236. Expedited judicial review.

(a) In General.—

Section 11 (15 U.S.C. 2060) is amended by adding at the end thereof the following:

``(g) Expedited Judicial Review.—

``(1) APPLICATION.—This subsection applies, in lieu of the preceding subsections of this section, to judicial review of—

``(A) any consumer product safety rule promulgated by the Commission pursuant to section 15(j) (relating to identification of substantial hazards);

``(B) any consumer product safety standard promulgated by the Commission pursuant to section 42 (relating to all-terrain vehicles);

``(C) any standard promulgated by the Commission under section 104 of the Consumer Product Safety Improvement Act of 2008 (relating to durable infant and toddler products); and

``(D) any consumer product safety standard promulgated by the Commission under section 106 of the Consumer Product Safety Improvement Act of 2008 (relating to mandatory toy safety standards).

``(2) IN GENERAL.—Not later than 60 days after the promulgation, by the Commission, of a rule or standard to which this subsection applies, any person adversely affected by such rule or standard may file a petition with the United States Court of Appeals for the District of Columbia Circuit for judicial review of such rule. Copies of the petition shall be forthwith transmitted by the clerk of the court to the Commission or other officer designated by it for that purpose and to the Attorney General. The record of the proceedings on which the Commission based its rule shall be filed in the court as provided for in section 2112 of title 28, United States Code.

``(3) REVIEW.—Upon the filing of the petition under paragraph (2) of this subsection, the court shall have jurisdiction to review the rule in accordance with chapter 7 of title 5, United States Code, and to grant appropriate relief, including interim relief, as provided in such chapter.

``(4) CONCLUSIVENESS OF JUDGMENT.—The judgment of the court affirming or setting aside, in whole or in part, any final rule under this section shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification, as provided in section 1254 of title 28, United States Code.

``(5) FURTHER REVIEW.—A rule or standard with respect to which this subsection applies shall not be subject to judicial review in proceedings under section 17 (relating to imported products) or in civil or criminal proceedings for enforcement.´´.

(b) Pending actions unaffected.—

The amendment made by subsection (a) shall not apply to any petition filed before the date of enactment of this Act for judicial review of any action by the Consumer Product Safety Commission.

Sec. 237. Repeal.

Section 30 (15 U.S.C. 2079) is amended by striking subsection (d).

Sec. 238. Pool and Spa Safety Act technical amendments.

Title XIV of the Energy Independence and Security Act of 2007 (Public Law 110-140) is amended—

(1) in section 1403 by adding at the end the following:

``(8) STATE.—The term ‘State’ has the meaning given such term in section 3(10) of the Consumer Product Safety Act (15 U.S.C. 2052(10)), and includes the Northern Mariana Islands.´´.

(2) in section 1404 by adding at the end of subsection (b) the following: ``If a successor standard is proposed, the American Society of Mechanical Engineers shall notify the Commission of the proposed revision. If the Commission determines that the proposed revision is in the public interest, it shall incorporate the revision into the standard after providing 30 days notice to the public.´´; and

(3) by adding at the end the following:

``Sec. 1409. Applicability.

``This Act is applicable to the United States and its territories, including American Samoa, the Commonwealth of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, and the United States Virgin Islands.´´.

Sec. 239. Effective dates and Severability.

(a) Effective Dates.—

(1) IN GENERAL.—

Except as otherwise specifically provided in this Act, this Act and the amendments made by this Act shall take effect on the date of enactment of this Act.

(2) CERTAIN DELAYED EFFECTIVE DATES.—

The amendments made by sections 103(c) and 214(a)(2) shall take effect on the date that is 60 days after the date of enactment of this Act. Subsection (c) of section 42 of the Consumer Product Safety Act, as added by section 232 of this Act, and the amendments made by sections 216 and 223(b) shall take effect on the date that is 30 days after the date of enactment of this Act.

(b) Severability.—

If any provision of this Act or the amendments made by this Act, or the application of such provision to any person or circumstance, is held invalid, the remainder of this Act and the amendments made by this Act, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected by such invalidation.