Updated: Friday February 15, 2013/AlJumaa
Rabi' Thani 05, 1434/Sukravara
Magha 26, 1934, at 04:15:01 PM
Consumer
Protection Act, 1997
IN
THE HOUSE OF REPRESENTATIVES
Date
_______________
Referred to the
Committee on Government Operations
AN ACT To establish an
independent consumer agency to protect and serve the interest of consumers, and
for other purposes.
Be it enacted by the
Senate and House of Representatives of the United States of America in Congress
assembled, That this Act may be cited as the “Consumer Protection Act of 1997”.
STATEMENT OF FINDINGS
AND PURPOSES
Sec. 2 (a) The Congress finds
that the interest of consumers are inadequately represented and protected
within the Federal Government and that vigorous representation and protection
of the interest of consumers are essential to the fair and efficient functioning
of a free market economy. Each year, as a results of this lack of effective
representation before Federal agencies and courts, consumers suffer personal
injury, economic harm, and other adverse consequences in the course of
acquiring and using goods and services available in the marketplace.
(b) The Congress
therefore declares that-
(1) A non-regulatory
governmental organization to represent the interest of consumers before Federal
agencies and courts could help the agencies in the exercise of their statutory
responsibilities in a manner consistent with the public interest and with
effective and responsive government. It is the purpose of this Act to protect
and promote the interest of the people of the
(2) It is the purpose of
the Agency for Consumer Advocacy to represent the interest of consumers before
Federal agencies and courts, receive and transmit consumer complaints, develop
ad disseminate information of interest to consumers, and perform other
functions to protect and promote the interest of consumers. The authority of
the Agency to carry out this purpose shall not be construed to supersede,
supplant, or replace the jurisdiction functions, or powers of any other agency
to discharge its own statutory responsibilities according to law.
(3) It is the purpose of
this Act to promote protection of consumers with respect to the-
(A) safety, quality,
purity, potency, healthfulness, durability, performance, repair ability,
effectiveness, truthfulness, dependability, availability, and cost of any real
or personal property or tangible or intangible goods, services, or credit;
(B) preservation of
consumer choice and a competitive market;
(C) price and adequacy
of supply of goods and services;
(D)prevention of unfair
or deceptive trade practices;
(E) maintenance of
truthfulness and fairness in the advertising, promotion and sale by a producer,
distributor, lender, retailer or other supplier of such property goods,
services, and credit;
(F) furnishing of full,
accurate, and clear instructions, warnings and other information by any such
supplier concerning such property, goods, services, and credit;
(G) protection of the
legal rights and remedies of consumers; and
(H) providing of
estimates of the cost and benefits of programs and activities established by
Federal Government regulations and legislation.
(4) It is the purpose of
section 24 of this Act to establish a means for estimating in advance the
consumer cost and benefits of Federal legislation or rules that have
substantial economic impact, and to prevent the adoption of Government programs
whose costs to consumers outweigh their benefits.
(5) This Act should be
so interpreted by the executive branch and the courts so as to implement the
intent of Congress to protect and promote the interests of consumers, and to
achieve the foregoing purposes.
ESTABLISHMENT
Sec. 3 (a) There is hereby
established as an independent agency of the
(b) No employee of the
Agency while serving in such position may engage in any business, vocation,
other employment, or have other interest, inconsistent with his official
responsibilities.
(c) There shall be in
the Agency a General Counsel who shall be appointed by the Administrator.
(d) The Administrator is
authorized to appoint within the Agency not to exceed five Assistant
Administrators
POWERS AND DUTIES OF THE
ADMINISTRATOR
Sec. 4. (a) The Administrator
shall be responsible for the exercise of the powers and the discharge of the
duties of the Agency, and shall have the authority to direct and supervise all
personnel and activities thereof.
(b) In addition to any
other authority conferred upon him by this Act, the Administrator is
authorized, in carrying out his functions under this Act, to-
(1) subject to the civil
service and classification laws, select, appoint, employ, and fix the
compensation of such officers and employees as are necessary to carry out the
provisions of this Act and to prescribe their authority and duties
(2) employ experts and
consultants in accordance with section 3109 of title 5, United States Code, and
compensate individuals so employed for each day (including travel time) at
rates not in excess of the maximum rate of pay for Grade GS-18 as provided in
section 5332 of title 5, United States Code, and while such experts and
consultants are so serving away from their homes or regular places of business,
pay such employees travel expenses and per diem in lieu of subsistence at rates
authorized by section 5703 of title 5, United States Code, for person in
Government service employed intermittently;
(3) appoint advisory
committees composed of such private citizens, including consumers and business
representatives, and officials of the Federal, State, and local government as
he deems desirable to advise him with respect to his functions under this Act,
and pay such members (other than those regularly employed by the Federal
Government) while attending meetings of such committees or otherwise serving at
the request of the Administrator compensation and travel expenses at the rate
provided for in paragraph (2) of this subsection with respect to experts and
consultants: Provided, That all meetings of such committees shall be open to
the public and interested persons shall be permitted to attend, appear before,
or file statements with any advisory committee, subject to such reasonable
rules or regulations as the Administrator may prescribe:
(4) promulgate, in
accordance with the applicable provision of the Administrative Procedure Act,
title 5, United States Code, such rules, regulations, and procedures as may be
necessary to Carry out the provisions of this Act, and assure fairness to all
person affected by the Agency. s actions, and to delegate authority for the
performance of any function to any officer or employee under his direction and
supervision;
(5) utilize, with their
consent, the services, personnel, and facilities of other Federal agencies and
of State, regional, local, and private agencies and instrumentalities, with or
without reimbursement therefor, and to transfer funds made available under this
act to Federal, State, regional, local and private agencies and
instrumentalities as reimbursement for utilization of such service, personnel,
and facilities;
(6) enter into and
perform such contracts, leases, cooperative agreements, or other transactions
as may be necessary to carry out the provisions of this Act, on such terms as
the Administrator may deem appropriate, with any agency or instrumentality of
the United States, with any State, or any political subdivision thereof, or
with any person;
(7) accept voluntary and
uncompensated services, notwithstanding the provision of section 3679 (b) of
the Revised Statues (31 U.S.C. 665 (b));
(8) adopt an official
seal, which shall be judicially noticed;
(9) establish such
regional offices as the Administrator determines to be necessary to serve the
interest of consumers;
(10) conduct conferences
and hearings and other- wise secure data and expression of opinion;
(11) accept
unconditional gifts or donations of services, money or property, real,
personal, or mixed, tangible or intangible;
(12) designate
representatives to serve or assist on such committees as he may determine to be
necessary to maintain effective liaison with Federal agencies and with State
and local agencies carrying out programs and activities related to the interest
of consumers; and
(13) perform such other
administrative activities as may be necessary for the effective fulfillment of
his duties and functions
(c)Upon request made by
the Administrator, each Fed- agency is authorized and directed to make its
services, personnel, and facilities available to the greatest practicable
extent within its capability to the Agency in the performance of its functions,
An agency shall not be required to provide such service, personnel or
facilities to the Administrator where to do so would seriously affect in an
adverse manner the agency. s ability to carry out its responsibilities,
including any responsibility the agency has to protect the public health or
safety.
(d) The Administrator
shall prepare and submit simultaneously to the Congress and the President, not
later than April 1 of each year beginning April 1, 1998, an annual report,
which shall include a description and analysis of-
(1) the activities of
the Agency, including its representation of the interests of consumers before
Federal Agencies and Federal courts;
(2) the major Federal
agency actions and Federal court decisions affecting the interest of consumers;
(3) the assistance given
the Agency by other Federal agencies in carrying out the purposes of this Act;
(4) the performance of
Federal agencies and the adequacy of their resources in enforcing consumer
protection laws and in otherwise protecting the interests of consumers, and the
prospective results of alternative consumer protection programs;
(5) the appropriations
by Congress for the Agency, the distribution of appropriate funds for the
current fiscal year, and a general estimate of the resource requirements of the
Agency for each of the next there fiscal years; and
(6) the extent of
participation by consumers in Federal agency activities, and the effectiveness
of the representation of consumers before Federal agencies, together with
recommendations for new legislation, new budget authority for the Agency, and
administrative actions to deal with problems discussed in the report, to
protect and represent the interest of consumers more effectively, and to carry
out the purposes of this Act.
FUNCTIONS OF THE AGENCY
Sec. 5. (a) The agency shall, in
the performance of its functions, advise the Congress and the President as to
matters affecting the interests of consumers; and shall protect and promote the
interest of the people of the United States as consumers of goods and services
made available to them through the trade and commerce of the United States.
(b) The functions of the
Administrator shall be to-
(1) represent the
interests of consumers before Federal agencies and courts to the extent
authorized by this Act;
(2) conduct and support
research, studies, and testing to the extent authorized in section 9 of this
Act;
(3) submit
recommendations annually to the Congress and the President on measures to
improve the operation of the Federal Government in the protection and promotion
of the interest of consumers;
(4) obtain information
and publish and distribute material developed in carrying out his
responsibilities under this Act in order to inform consumers of matters of
interests to them, to the extent authorized in this Act;
(5) receive, transmit to
the appropriate agencies and persons and make publicly available consumer
complaints to the extent authorized in section 7 of this Act.
(6) conduct conferences,
surveys, and investigations, including economic surveys, concerning the needs,
interests, and problems of consumers: Provided, That such conferences,
surveys, or investigations are not duplicative in significant degree of similar
activities conducted by other Federal agencies;
(7) cooperate with State
and local governments and encourage private enterprise in the promotion and
protection of the interests of consumers;
(8) keep the appropriate
committees of Congress fully and currently informed of all the Agency. s
activities, when asked or on his own initiative;
(9) publish, in language
readily understandable by consumers, a consumer register which shall set forth
the time, place, and subject matters of actions by Congress, Federal agencies,
and Federal courts, and other information useful to consumers;
(10) encourage the
adoption and expansion of effective consumer education programs;
(11) encourage the
application and use of new technology, including patents and inventions, for
the promotion and protection of the interests of consumers;
(12) encourage the
development of voluntary informal dispute settlement procedures involving
consumers;
(13) encourage
meaningful participation by consumers in the activities of the Agency;
(14) promote the
consumer interest of farmers in obtaining a full supply of goods and services
at a fair and equitable price;
(15) coordinate its
activities with the activities of other executive departments and agencies with
respect to consumers; and
(16) perform such other
related activities as he deem necessary for the effective fulfillment of his
duties and functions.
REPRESENTATION OF
CONSUMERS
Sec. 6. (a)
(1) Whenever the
Administrator determines that the results of any Federal agency proceeding or
activity may substantially affect an interest of consumers, he may as of right
intervene as a party or otherwise participate for the purpose of representing
an interest of consumers, as provided in paragraph (2) or (3) of this
subsection. In any proceeding, the Administrator shall refrain from intervening
as a party, unless he determines that such intervention is necessary to
represent adequately and interest of consumers. The administrator shall comply
with Federal agency statutes and rules of procedure of general applicability
governing the timing of intervention or participation in such proceeding or
activity and , upon intervening or participating therein, shall comply with
laws and agency rules of procedure of general applicability governing the
conduct thereof. The intervention or participation of the Administrator in any
Federal agency proceeding or activity shall not affect the obligation of the
Federal agency conducting such proceedings or activity to assure procedural
fairness to all participants.
(2) Whenever the
Administrator determines that the result of any Federal agency proceeding which
is subject to the provisions of section 553, 556, or 557 of title 5, United
States Code, relating to administrative procedure, or which involves a hearing
pursuant to the administrative procedural requirements of any of the statue,
regulation, or practice, or which is conducted on the record after opportunity
for an agency hearing, or which provides for public notice and opportunity for
comment, may substantially affect an interest of consumers, he may as of right
intervene as a party or otherwise participate for the purpose of representing
an interest of consumers in such proceeding.
(3) With respect to any
Federal agency proceeding not covered by paragraph (2) of this subsection, or
any other Federal agency activity, which the Administrator determines may
substantially affect an interest of consumers, the Administrator may
participate by presenting written or oral submissions, and the Federal agency
shall give full consideration to such submissions of the Administrator. Such
sub- missions shall be presented in an orderly manner and without causing undue
delay. Such submission need not be simultaneous with that of any other person.
(b) At such time as the
Administrator determines to intervene or participate in a Federal agency
proceeding under subsection (a) (2) of this section, he shall issue publicly a
written statement setting forth his findings under subsection (a) (1), stating
concisely the specific interest of consumers to be protected. Upon intervening
or participating he shall file a copy of his statement in the proceeding.
(c) To the extent that
any person, if aggrieved, would by law have such right the Administrator shall
have the right, in accordance with the following provisions of this Subsection,
to initiate or participate in any Federal court proceeding involving a Federal
agency action-
(1) The Administrator
may, as of right, and in the manner prescribed by law, initiate any civil
proceeding in a Federal court which involves the review of a Federal agency
action that the Administrator determines may substantially affect an interest
of consumers. If the Administrator did not intervene or otherwise participate
in the Federal agency action arouse, the Administrator, before initiating a
proceeding to obtain judicial review, shall petition such agency for rehearing
or reconsideration thereof., if the statues or rules governing such agency
specifically authorize rehearing or reconsideration, Such petition shall be
filed within sixty days after the Federal agency action involved, or within
such longer period as may be allowed by applicable procedures. The
administrator may immediately initiate a judicial review proceeding if the
Federal agency does not finally act upon such petition within sixty days after
the filing thereof, or at such earlier time as may be necessary to preserve the
Administrators. right to obtain effective judicial review of the Federal agency
action. Where the Administrators did not intervene or otherwise participate in
a Federal agency proceeding or activity, the Administrator shall not be
permitted to initiate a judicial proceeding with respect to such agency
proceeding or activity unless the court shall first have deter- mined that
initiation of such a proceeding by the Administrator would advance the interest
of justice. In advance of the initiation of such a proceeding by the
Administrator, he shall file a statement setting forth the reason why he did
not intervene or otherwise participate in the Federal agency proceeding or
activity out of which the contemplated judicial proceeding arises or the court.
s consideration in connection with its determination whether initiation of such
judicial proceeding would advance the interest of justice.
(2) The administrator
may, as of right, and in the manner prescribed by law, intervene or otherwise
participate in any civil proceeding in a Federal court which involves the
review or enforcement of a Federal agency action that the Administrator
determines may substantially affect an interest of consumers.
(3) The initiation or
other participation of the Administrator in a judicial proceeding pursuant to
this sub- section shall not alter or affect the scope of review otherwise
applicable to the agency action involved.
(d) When the
Administrator determines it to be in the interest of consumers, he may request
the Federal agency concerned to initiate such proceeding, or to take such other
action may be authorized by law with respect to such agency. If the Federal
agency fails to take the action requested, it shall promptly notify the
Administrator of the reason therefor and such notification shall be a matter of
public record.
(e) Appearances by the
Agency under this Act shall be in its own name and shall be made by qualified
representatives designated by the Administrator.
(f) In any Federal
agency proceeding in which the Administrator is intervening or participation
pursuant to subsection (a) (2) of this section, the Administrator is authorized
to request the Federal agency to issue, and the Federal agency shall, on a
statement or showing (if such statement or showing is required by the Federal
agency. s rules of procedure) of general relevance and reasonable scope of the
evidence sought, issue such orders, as are authorized by the Federal agency. s
statutory powers, for the copying of documents, papers, and records, summoning
of witnesses, production of books and papers, and submission of information in
writing.
(g) The Administration
is not authorized, unless requested by state or local authorities, to intervene
or participate in proceedings or activities of State or local agencies and
State courts, or engage directly or indirectly, in advocacy activities before
State or local agencies or the Congress, in the manner prohibited by section
1913 of title 18, United State Code.
(h) Nothing in this
section shall be construed to prohibit the Administrator from communication
with or providing information requested by Federal; State, or local agencies
and State courts at times and in any manner consistent with law or agency
rules.
(i) Each Federal agency
shall review its rules of procedure of general applicability, and , after
consultation with the Administrator, issue any additional rules which may be
necessary to provide for the Administrator. s orderly intervention or
participation, in accordance with this section, in its proceedings and
activities which may substantially affect the interest of consumers, Each
Federal agency shall issue rules determining the circumstances under which the
Administrator may be allowed to make simultaneous submissions under subsection
(a) (3) of this section. Any additional rules adopted pursuant to the
requirements of this subsection shall be proposed and published in final form
in the Federal Register.
(j) The Administrator is
authorized to represent an interest of consumers which is presented to him for
his consideration upon petition in writing by a substantial number of persons
or by an organization which includes a substantial number of person. The
Administrator shall notify the principal sponsors of any such petition within a
reasonable time after receipt any such petition of the action taken or intended
to be taken by him with respect to the interest of consumers presented in such
petition. If the Administrator declines or is unable to represent such
interest, he shall notify such sponsors and shall state his reason therefor.
CONSUMER COMPLAINTS
Sec. 7. (a) Whenever the
Administrator receives from any person any complaint or other information which
discloses-
(1) an apparent violation
of law, agency rule or order, or a judgement, decree, or order of a State or
Federal court relating to an interest of consumers or;
(2) a commercial, trade,
or other practice which is detrimental to an interest of consumers; he shall,
unless he determines that such complaint or information is frivolous, promptly
transmit such complaint or information to any Federal, State or local agency
which has the authority to enforce any relevant law or to take appropriate
action. Federal agencies shall keep the Administrator informed to the greatest
practicable extent of any action which they are taking on complaints
transmitted by the Administrator pursuant to this section.
(b) The Administrator
shall promptly notify producers, distributors, retailers, lenders, or suppliers
of goods and service of all complaints of any significance concerning them
received or developed under this section unless the Administrator determines
that to do so is likely to prejudice or impede an action, investigation, or
prosecution concerning an alleged violation of law.
(c) The Administrator
shall maintain a public document room containing, for public inspection and
copying without charge or at a reasonable charge, not to exceed cost), an
up-to-date listing of all consumer complaints of any significance which the
Agency has received, arranged in meaningful and useful categories, together
with annotations of actions taken in response thereto. Unless the
Administrator, for good cause, determines not to make any specific complaint
available, complaints listed shall be made avail- able for public inspection
and copying: Provided, That-
(1) the party complained
against has had a reason- able time to comment on such complaint and such
comment, when received, is displayed together with the complaint;
(2) the agency to which
the complaint has been referred has had a reasonable time to notify the
Administrator what action, if any, it intends to take with respect to the
complaint;
(3) the complaint. s
identity is to be protected when he has requested confidentiality. Whenever the
complaint request that his identify be protected, the Administrator shall place
an appropriate designation on the complaint before making it available to the
public;
(4) no unsigned
complaints shall be placed in the public document room.
CONSUMER INFORMATION AND
SERVICES
Sec. 8. (a) In order to carry
out the purposes of this Act the Administrator shall develop on his own
imitative, and, subject to the other provisions of this Act, gather from other
Federal agencies and non-Federal sources, and disseminate to the public in such
manner, at such times, and in such form as he determines to be most effective,
information, statistics, and other data including, but not limited to matter
concerning-
(1) the functions and
duties of the Agency;
(2) consumer products
and services;
(3) problems encountered
by consumers generally, including annual reports on interest rates and
commercial and trade practices which may adversely affect consumers; and
(4) notices of Federal
hearings, proposed and final rules and orders, and other pertinent activities
of Federal agencies that affect consumer.
(b) All Federal agencies
which, in the judgement of the Administrator, possess information which would
be useful to consumers are authorized and directed to cooperate with the
Administrator in making such information available to the public.
STUDIES
Sec. 9. The Administrator is
authorized to conduct, support, and assist research, studies, plans,
investigations, conferences, demonstration projects, and surveys concerning the
interests of consumers.
INFORMATION GATHERING
Sec. 10. (a)
(1) The Administrator is
authorized, to the extent required to protect the health or safety of
consumers, or to discover consumer fraud or substantial economic injury to consumer,
to obtain data by requiring any person engaged in a trade, business, or
industry which substantially affects interstate commerce and whose activities
he determines may substantially affect an interest of consumers, by general or
specific order setting forth with particularity the consumer interest involved
and the purpose for which the information is sought to file with him a report
or answers in writing to specific questions concerning such activities and
other related information. Nothing in this subsection shall be construed to
authorize the inspection or copying of documents, papers, books, or records, or
to compel the attendance of any person. Nor shall anything in this subsection
require the disclosure of information which would violate any relationship
privileged according to law. Where applicable, chapter 35 of title 44, United
States Code, shall govern request for reports under this subsection in the
manner in which independent Federal regulatory agencies are subject to its
provisions. The Comptroller General shall, prior to issuance of any request for
information pursuant to this section by the Administrator, promptly review such
re- quest to assure that it does not impose an undue burden upon person
receiving such request. In the event the Comptroller General determines that
the Administrator. s request for in-formation shall impose an undue burden upon
the person receiving such request, the Comptroller General and the
Administrator shall make every reasonable effort to modify such request so as
to alleviate such burden prior to issuance of said request.
(2) The administrator
shall not exercise the authority under paragraph (1) of this subsection if the
information sought-
(A) is available as a
matter of public record; or
(B) can be obtained from
another federal agency pursuant to subsection (b) of this section; or
(C) is for use in
connection with his intervention in any agency proceeding against the person to
whom the interrogatory is addressed if the proceeding is pending at the time
the interrogatory is requested.
(3) In the event of
noncompliance with any interrogatories or request submitted to any person by
the Administrator pursuant to paragraph (1), any district court of the United
States within the jurisdiction of which such person is found, or has his
principal place of business, shall issue an order, on conditions and with such
apportionment of costs as it deems just, requiring compliance with a valid
order of the Administrator. The district court of the
(4) The administrator
shall not have the power to require the production or disclosure of any data or
other information under this subsection from any small business. For the
purpose of this paragraph, “small business” means any person that, together
with its affiliates, including any other person with whom such person is
associated by means of a franchise agreement, does not have assets exceeding
$7,500,000: or does not have net worth in excess of $2,500,000; or at the time
or proposed discovery by the administrator does not have more than the
equivalent of one hundred and fifty full-time employees. Nothing in this
paragraph shall be construed to prohibit the Administrator from requesting the
voluntary production of any such data or information. Notwithstanding this
paragraph, the Administrator shall have the power, pursuant to paragraph (1),
to obtain information from a small business if necessary to prevent imminent
and substantial danger to the health or safety of consumers and the
Administrator has no other effective means of action.
(b) Upon written request
by the Administrator, each Federal agency is authorized and directed to furnish
or allow access to all documents, papers, and records in its possession which
the Administrator deems necessary for the performance of his functions and to
furnish at cost copies of specified documents, papers, and records.
Notwithstanding this sub- section, a Federal agency may deny the Administrator
ac- cess to and copies of
(1) information
classified in the interest of national defense or national security by an
individual authorized to classify such information under applicable Executive
order or statues, and restricted data whose dissemination is controlled
pursuant to the Atomic Energy Act (42 U.S.C. 2011 et seq.);
(2) policy and
prosecutorial recommendations by Federal agency personnel intended for internal
agency use only;
(3) information
concerning routine executive and administrative functions which is not
otherwise a matter of public record;
(4) personnel and
medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of person privacy;
(5) information which
such Federal agency is expressly prohibited by law from disclosing to another
Federal agency, including but not limited to, such expressly prohibited
information contained in or related to examination, operating or condition
reports concerning any individual financial institution prepared by, on behalf of,
or for the use of an agency responsible for regulation or supervision of
financial institutions;
(6) information which
would disclose the financial condition of individuals who are customers of
financial institutions; and
(7) trade secrets and
commercial or financial information described in section 552 (b) (4) title 5,
United States Code-
(a) obtained prior to
the effective date of this Act by a Federal agency, if the agency had agreed to
treat and has treated such information as privileged or confidential and states
in writing to the Administrator that, taking into account the nature of the
assurance given, the character of the information requested, and the purpose,
as stated by the Administrator for which access is sought, to permit such
access would constitute a breach of faith by the agency; or
(b) obtained subsequent
to the effective date of this Act by a Federal agency, if the agency has agreed
in writing as a condition of receipt to treat such information as privileged or
confidential, on the basis of its reasonable determination set forth in writing
that such information was not obtainable without such an agreement and that
failure to obtain such information would seriously impair performance of the
agency. s function. Before granting the Administrator access to trade secrets
and commercial or financial information described in section 552 (b) (4) title
5, United States Code, the agency shall notify the person who provided such
information of its intention to do so and the reason therefor, and shall, not
withstanding section 21 (b), afford him a reasonable opportunity, not to exceed
ten working days after receipt of such notice, to comment or seek injunctive
relief. Whenever notice is served by mail, such notice shall be considered to
be received three days after the date on which it is mailed. Where access to
information denied to the Administrator by a Federal agency pursuant to this
subsection, the head of the agency and the Administrator shall seek to find a
means of providing the information in such other form, or under such
conditions, as will meet the agency. s objections.
(c) Consistent with the
provisions of section 7213 of the Internal Revenue Code of 1954 (26 U.S. C.
7213), nothing in this Act shall be construed as providing for or au- thorizing
any Federal agency to divulge or make known in any manner whatever to the
Administrator, solely from an income tax return, the amount or source of
income, profits, losses, expenditures, or any particular thereof, or to permit
any Federal income tax return filed pursuant to the provision of the Internal
Revenue Code of 1954, or copy thereof, or any book containing any abstracts or
particulars thereof, to be seen or examined by the Administrator except as
provided by law.
LIMITATIONS ON
DISCLOSURES
Sec. 11. (a) Except as provided
in this section 552 of title 5, United State Code, shall govern the release of
information by any officer or employee of the Agency.
(b)No officer or
employee of the Agency shall disclose to the public or to any State or local
agency any information which was received solely from a Federal agency when
such agency has notified the Administrator that the information is within the
exceptions stated in section 552 (b) of title 5, United States Code, and the
Federal agency has deter- mined that the information should not be made
available to the public; except that if such Federal agency has specified that
such information may be disclosed in a particular form or manner.
(c) The following
additional provisions shall govern the release of information by the
Administrator pursuant to any authority conferred by this Act, except
information released through the presentation of evidence in a Federal agency
or court proceeding pursuant to section 6-
(1) The Administrator,
in releasing information concerning consumer products and services, shall
deter-m that (A) such information, so far as practicable, is accurate, and (B)
no part of such information is prohibited from disclosure by law. The
administrator shall comply with any notice by a Federal agency pursuant to
section 11 (b) that the information should not be made available to the public
or should be disclosed only in a particular form or manner.
(2) In the dissemination
of any test results or other information which directly or indirectly disclose
product names, it shall be made clear that (A) not all products of a
competitive nature have been tested, if such is the case, and (B) there is not
intent or purpose to rate products tested over those not tester or to imply
that those tested are superior or preferable in quality over those not tested.
(3) Notice of all
changes in, or any additional information which would affect the fairness of
information previously disseminated to the public shall be promptly
disseminated in a similar manner.
(4) (A) Where the
release of information is likely to cause substantial injury to the reputation
or good will or a person, the Administrator shall notify such per- son of the
information to be released and afford him a reasonable opportunity, not to exceed
ten working days after receipt of such notice, to comment or seek injunctive
relief, unless immediate release is necessary to protect the health or safety
of the public. Whenever notice is served by mail, such notice shall be
considered to be received three days after the date on which it is mailed. The
district courts of the
(B) Nothing in this
paragraph shall affect the rights of the public to obtain information under
section 552 of title 5, United States Code.
(d) In any suit against
the Administrator to obtain information pursuant to the provision of section
552 of title 5, United States Code, where the sole basis for the refusal to
produce the information is that another Federal agency has specified that the
documents not be disclosed in accordance with the provisions of subsection (b)
of this section, the other Federal agency shall be substituted as the
defendant, and the Administrator shall thereafter have not duty to defend such
suit.
NOTICE
Sec. 12. (a) Each Federal agency
considering any action which may substantially affect an interest of consumers
shall, upon request by the Administrator, notify him of any proceeding or
activity at such time as public notice is given.
(b) Each Federal agency
considering any action which may substantially affect an interest of consumers
shall, upon specific request by the Administrator, promptly provide him with-
(1) A brief status report
which stall contain a statement of the subject at issue and a summary of
proposed measures concerning such subject; and
(2) such other relevant
notice and information, the provision of which would not be unreasonably
burden- some to the agency and which would facilitate the Administrator. s
timely and effective intervention or participation under section 6 of this Act.
(c) Nothing in this
section shall affect the authority or obligations of the Administrator or any
Federal agency under section 10 (b) of this Act.
SAVING PROVISIONS
Sec. 13. (a) Nothing in this Act
shall be construed to affect the duty of the Administrator o General Services
to represent the interests of the Federal Government as a consumer pursuant to
section 201 (a) (4) of the Federal Property and Administrative Services Act of
1949 (40 U.S. C. 481 (a) (4).
(b) Nothing in this Act
shall be construed to relieve any Federal agency of any responsibility to
protect and promote the interest of consumers.
(c) Nothing in this Act
shall be construed to limit the right of any consumer or group or class of
consumers to initiate, intervene in, or otherwise participate in any Federal
agency or court proceeding or activity, nor to require any petition or
notification to the Administrator as a condition precedent to the exercise of
such right, nor to require any petition or notification to the Administrator as
a condition precedent to the exercise of such right, nor to relieve any Federal
agency or court of any obligation, or affect its discretion, to permit
intervention or participation by a consumer or group or class of consumers in
any proceeding or activity.
(d) Nothing in this Act
shall be construed to affect the duty of the Small Business Administration to
aid, counsel, assist, and protect the interests of small business concerns,
pursuant to section 631 (a) of the Small Business Act of 1958 (15 U.S. C. 631
(a)), and the Small Business Administration remains the sole executive advocate
for the interests of small business concerns.
DEFINITIONS
SEC. 14. As used in this Act,
unless the context other- wise requires-
(1) “Administrator”
means the Administrator of the Agency for Consumer Advocacy:
(2) “Agency” means the
Agency for Consumer Advocacy;
(3) “agency action”
includes the whole or part of an agency “rule”, “order,” “license,” “sanction,”
“relief,” as defined in section 551 of title 5, United States Code, or the
equivalent or the denial thereof, or failure to act;
(4) “agency activity”
means any agency process, or phase thereof, conducted pursuant to any authority
or responsibility under law, whether such process is formal or informal;
(5) “agency proceeding”
means agency” rulemaking”, adjudication”, or licensing”, as defined in section
551 of title 5, United States Code;
(6) “commerce” means commerce
among or between the several States and commerce with foreign nations;
(7) “consumer” means any
person who uses purchases, leases, acquires, attempts to purchase or acquire,
or is offered or furnished any real or personal property, tangible or intangible
goods, services or credit for personal, family, agricultural, or household
purposes;
(8) “Federal agency” or “agency”
means “agency” as defined in section 551 of title 5, United States Code. The
term shall include the United States Postal Service, the Postal Rate
Commission, and any other authority of the United States which is a corporation
and which receives any appropriated funds, and unless otherwise expressly
provided by law, any Federal agency established after the date of enactment of
this Act, but shall not include the Agency for Consumer Advocacy;
(9) “Federal court”
means any court of the United States, including the Supreme Court of the United
States, any United States court of appeals, any United States district court
established under chapter 5 of the title 28, United States Code, the District
Court of Guam, the District Court of the United States Customs Court, the
United States Court of Customs and Patent Appeals, the United States Tax Court,
and the United States Court of Claims;
(10) “individual” means
a human being;
(11) “interest of
consumers” means any health, safety, or economic concern of consumers,
including but not limited to the factors enumerated in section 2 (b) (3),
involving- place offer or transaction affecting commerce, or which may be
related to any term or condition of such offer or transaction. Such offer or
transaction need not involve the payment or promise of a consideration;
(12) “participation”
includes any form of submission;
(13) “person” includes
any individual, corporation, partnership, firm, association, institution, or
public or private organization other than a Federal agency;
(14) “State” means each
of the several States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Canal Zone, Guam, American
Samoa, and the Trust Territory on the Pacific Islands; and
(15) “submission” means
participation through the presentation or communication of relevant evidence,
documents, arguments, or other information.
CONFORMING AMENDMENT
SEC 15. (a) Section 5314 of
title 5, United States Code, is amended by adding at the end thereof of the
following:
“(60) Administrator,
Agency for Consumer Advocacy.”
(b) Section 5315 of such
title is amended by adding at the end thereof the following:
(100) Deputy
Administrator, Agency for Consumer Advocacy.”
(c) Section 5316 of
title 5, United States Code, is amended by adding at the end thereof the
following new paragraphs:
“(135) General Counsel,
Agency for Consumer Advocacy.
“(136) Assistant Administrators,
Agency for Consumer Advocacy (5).”
EXEMPTIONS
SEC.16. This Act shall not apply
to the Central Intelligence Agency, the Federal Bureau of Investigation, or the
National Security Agency, or the national security or intelligence functions
(including related procurement) of the Department of State and Defense
(including the Departments of the Army, Navy, and Air Force) and the military
weapons program of the Energy Research and Development Administration, to any
agency action n the Federal Communicate amend the Judicial Code and to define
and limit the jurisdiction of courts sitting in equity, and for other
purposes:, approved March 23, 1932 (29 U.S. C. 113), or of section 2 of the
Labor Management Relations Act (29 U.S. C. 152), or to a labor agreement within
the meaning of section 201 of the Labor Management Relations Act, 1947 (29 U.S.
C. 171).
SEX DISCRIMINATION
SEC. 17. No person shall on the
ground of sex be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity carried on or
receiving Federal assistance under this Act. This provision will be enforced
through agency provisions and rules similar to those already established, with
respect to racial and other discrimination, under title VI of the Civil Rights
Act of 1964. However, this remedy is not exclusive and will not prejudice or
cut off any other legal remedies available to a person alleging discrimination.
SEC 18. (a) It is the sense of
the Congress that small\ business enterprises should have their varied needs
considered by all levels of government in the implementation of the procedures
provided for throughout this Act, including section 24 of the Act.
(b)
(1) In order to carry
out the policy stated in sub- section (a), the Small Business Administration
(A) shall to the maximum extent possible provide small business enterprises
with full information concerning the procedures provided for throughout this
Act which particularly affect such enterprises, and the activities of the
various agencies in connection with such provisions, and (B) shall, as part of
its annual report, provide to the Congress a summary of the actions taken under
this Act which have particularly affected such enterprises.
(2) To the extent
feasible, the Administrator shall seek the views of small business in
connection with establishing the Agency. s priorities, as well as the
promulgation of rules implementing this Act.
(3) In administering the
programs provided for in this Act, the Administrator shall respond in an
expeditious manner to the views, requests, and other filings by small business
enterprises.
(4) In implementing this
Act, the Administrator shall, insofar as practicable, treat all business, large
or small, in an equitable fashion; due consideration shall be given to the
unique problems of small business so as not to discriminate or cause
unnecessary hardship in the administration or implementation of the provisions
of this Act.
(5) For the purpose of
this section, the term “small business” shall have the same meaning as provided
in section 10 (a) (4) of this Act.
AUTHORIZATION OF
APPROPRIATIONS
SEC. 19. There are authorized to
be appropriated to carry out the provisions of this Act, except section 24, not
to exceed $20,000,000 for the period from the date of enactment to 1998, not to
exceed $25,000,000 for the fiscal year ending September 30, 1999, not to exceed
$30,000,000 for the fiscal year ending September 30, 2000. Any subsequent
legislation to authorize appropriations under this Act for the fiscal year
beginning October 1, 1979, shall be referred in the Senate to the Committee on
Government operations and to the Committee on Commerce.
EVALUATION BY THE
COMPTROLLER GENERAL
SEC. 20. (a) The Comptroller
General of the
(b) Not less than thirty
months nor more than thirty- six months after the effective date of this Act,
the Comptroller General shall prepare and submit to the Congress a report on
his audit conducted pursuant to subsection (a), which shall contain, but not be
limited to, the following:
(1) an evaluation of the
effect of the activities of the Agency. s consumer representation activities;
(2) an evaluation of the
effect of the activities of the Agency on the efficiency, effectiveness, and
procedural fairness of affected Federal agencies in carrying out their assigned
functions and duties;
(3) recommendations
concerning any legislation he deems necessary, and the reasons therefor, for
improving the implementation of the objectives of this Act as set forth in
section 2.
(c) Copies of the report
shall be furnished to the Administrator of the Agency for Consumer Advocacy;
the chairmen of the Senate Committees on Commerce and on Government Operations,
and the chairman of the Committee on Government Operations of the House of
Representatives.
(d) Restrictions and
prohibitions under this Act applicable to the use or public dissemination of
information by the Agency shall apply with equal force and effect to the
General Accounting Office in carrying out its functions under this section.
MISCELLANEOUS PROVISIONS
SEC. 21.
(a) Nothing in this
Action could be construed to limit the discretion of any Federal agency or
court, within its authority, including a court. s authority under rule 24 of
the Federal Rules of Civil Procedure, to grant the Administrator additional
participation in any proceedings or activity, to the extent that such
additional participation may not be as or right, or to provide additional
notice to the administrator concerning any agency proceeding or activity.
(b)
(1) No act or omission
by the Administrator or any Federal agency relating to the Administrator. s
authority under sections 6 (a), (d), (f), (i), and (j), 7, 10, 11 and 12 or
this Act shall affect the validity of an agency action or be subject to
judicial review: Provided, That-
(a) the Administrator
may obtain judicial review to enforce his authority under section 6 (a), (d),
(f), (i), and (j), 10, and 12 of this Act: Provided, That he may obtain
judicial review of the Federal agency determination under section 6 (f) of this
Act only after final agency action and only to the extent that such
determination affected the validity of such action;
(b) a party to any
agency proceeding or a participant in any agency activity in which the
Administrator intervened or participated many, where judicial review of the
final agency action is otherwise accorded by law, obtain judicial review following
such final agency action on the ground that the Administrator. s intervention
or participation resulted in prejudicial error to such party or participant
based on the record viewed as a whole; and
(C) any person who is
substantially and adversely affected by the Administrator. s action pursuant to
section 6 (f), 10 (a), or 11 of this Act may obtain judicial review, unless the
court determines that such judicial review would be detrimental to the interest
of justice. (2) For the purposes of this subsection, a determination by the
administrator that the result of any agency proceeding or activity may
substantially affect an interest of consumers or that his intervention in any
proceeding is necessary to represent adequately an interest of consumers shall
be deemed not to be a final agency action.
(3) The Administrator. s
determination, pursuant to sub-sections 6(a) (2), 6(a) (3), and 6 (d), that an
agency action may substantially affect an interest of consumers shall be
subject to review during judicial review of a final agency action.
TRANSFER OF CONSUMER
PRODUCT INFORMATION COORDINATING CENTER
SEC. 22.
(a)All officers,
employees, assets, liabilities, contracts, property, and records as are
determined by the Director of the Office of Management and Budget to be
employed, held, or used primarily in connection with the functions of the
Consumer Product Information Coordinating Center in the General Service
Administration are transferred to the Agency and all functions of the
Administrator of General Services administered through the Consumer Product
Information Coordination Center are transferred to the Agency.
(b) (1) Except as
provided in paragraph (2) of this subsection, personnel engaged in functions
transferred under this section shall be transferred in accordance with
applicable laws and regulations relating to transfer of functions. (2) The
transfer of personnel pursuant to this section shall be without reduction in
classification or compensation for one year after such transfer.
PUBLIC PARTICIPATION
SEC. 23.
(a) After reviewing its
statutory authority and rules of procedure, relevant agency and judicial
decisions, and other relevant provisions of law, each Federal agency shall
issue appropriate interpretations, guidelines, standards, or criteria, and
rules of procedure, to the extent that such rules. are appropriate and are not
already in effect, relating to the rights of individuals who may be affected by
agency action to-
(1) petition the agency
for action;
(2) receive notice of
agency proceedings;
(3) file official
complaints (if appropriate) with the agency;
(4) obtain information
from the agency; and
(5) participate in
agency proceedings for the purpose of representing their interest. Such
interpretations, guidelines, standards, criteria, and rules of procedure shall
be published in proposed and final form in the Federal Register.
(b) Each Federal agency
shall take all reasonable meas- to reduce or waive, where appropriate,
procedural requirements for individuals for whom such requirements would be
financially burdensome, or which would impede or prevent effective
participation in agency proceedings.
(c) Any rules of
procedure issued by any Federal agency pursuant to this section shall be
published in a form and disseminated in a manner that is designed to inform,
and that is able to be understood by, the general public
BUDGET REPORTS
SEC. 25. (a) The Director of the
Office of Management and Budget and the Director of the Congressional Budget
Office shall each transmit annually to the Congress a report containing an
estimate of the amount of funds expected to be allocated for each fiscal year
to any office representing consumer interests located within any department or
agency other than the Agency for Consumer Advocacy.
(b) Such estimate shall
be included in any committee report accompanying any bill making appropriations
for the Agency for Consumer Advocacy.
EFFECTIVE DATE
SEC 26. (a) This Act, other than
section 24 of this Act , shall take effect on January 1, 1998, or on such
earlier date as the President shall prescribe and publish in the Federal
Register.
(b) Any of the officers
provided for in this Act may (Notwithstanding subsection (a)) be appointed in
the manner provided for in this Act at any time after the date of the enactment
of this Act. Such officers shall be compensated from the date they first take
office at the rates provided for in this Act.
SEPARABILITY
SEC. 27. If any provision of this
Act is declared un- constitutional or the applicability thereof to any person
or circumstance is held invalid, the constitutionally and effectiveness of the
remainder of this Act and the applicability thereof to any person and
circumstances shall not be affected thereby.
Attest:
FRANCIS R. VALEO
Secretary.
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