Code of Federal Regulations: Containing a Codification of Documents of ...

(b) The business of a Standard Review Committee, except for the final recommendation of a standard, shall be conducted by majority vote of at least a quorum. A quorum shall consist of at least two-thirds of the total membership of the Committee. No standard may be recommended to the Department by the Committee unless it has been approved by three-quarters of all the members of the Committee. A vote may be taken by letter, either by the Committee chairman or by the Department.

(c) In recommending a standard to the Department for acceptance, the Standard Review Committee shall furnish a written report explaining the principal issues before the Committee, if any, and outlining how any objections were resolved or, if any objection remains, providing a statement by the minority of the reasons for the objection together with the Committee's reasons for rejecting such objection in making its recommendations.

§ 10.5

Procedure for acceptance of recommended standard.

(a) Upon receipt from the Committee of a recommended standard and report, the Department shall give appropriate public notice and distribute the recommended standard for acceptance unless

(1) Upon a showing by any member of the Committee who has voted to oppose the recommended standard on the basis of an unresolved objection, the Department determines that if such objection were not resolved, the recommended standard

(i) Would be contrary to the public interest, if published;

(ii) Would be technically inadequate; or

(iii) Would be inconsistent with law or established public policy.

(2) The Department determines that all criteria and procedures set forth herein have not been met satisfactorily or that there is legal objection to the recommended standard.

(b) Distribution for acceptance will be made to a list compiled by the Department, which shall be representative of producers, distributors, users, consumers, appropriate testing laboratories, and interested State and Federal agencies, and to any others upon request.

ported by a consensus, then it will be published as a product standard by the Department. (For the purpose of these procedures, consensus means general concurrence with no substantive objection deemed valid by the Department.) § 10.6 Standing Committee for published product standard.

(a) Prior to the printing of a product standard, the Department will appoint a Standing Committee, which may include members from the Standard Review Committee, to receive and consider proposals to revise or amend the standard in light of changing circumstances and to make appropriate recommendations to the Department.

(1) The Committee may be called upon to assist the Department in interpreting the standard. The members of a Standing Committee should be knowledgeable about

(i) The product or products covered by the standard,

(ii) The standard itself, and (iii) Industry and trade practices relating to the standard.

(2) The membership of a Standing Committee shall have an adequate balance among producers, distributors, users and consumers, and any other important interest such as State or Federal agencies, independent testing laboratories, educational institutions, or professional organizations.

(b) The appointments to the Standing Committee will be for a maximum term of 5 years. However, the Committee may be reconstituted by the Department, whenever necessary to meet changing situations.

§ 10.7 Publication of standard.

(a) A standard published by the Department under these procedures is a voluntary standard and thus by itself has no mandatory or legally-binding effect. Any person may choose to use or not to use such a standard.

(b) A publication fee will be charged to the sponsoring group, as appropriate, to cover the initial publication expenses incurred by the Government Printing Office in printing the final standard as issued by the Department. This fee will entitle the sponsoring group to one thousand copies of the standard. Additional copies will be sold by the Public Printer

in accordance with the Government printing laws and regulations.

§ 10.8 Reference to a standard.

Appropriate reference in contracts, codes, advertising, invoices, announcements, product labels, and the like, may be made to a standard published under these procedures. Such reference shall be in accordance with such policies as the Department may establish.

§ 10.9 Revision or amendment of a standard.

(a) A published standard shall require revision when any of its basic or substantive provisions are determined to be inadequate by its Standing Committee or by the Department for one or more of the following reasons or for other appropriate reasons:

(1) Any portion of the standard is obsolete, technically inadequate, or no longer acceptable to or used by the industry.

(2) The standard or any part of it is being used to mislead consumers or is found to be against the best interests of consumers.

(3) The standard is being used to control or limit production, to set prices, to create undue artificial economic advantages for one part of the industry in relation to another, or otherwise to constitute an unreasonable restraint of trade or create illegal dominance in the industry.

(b) Each suggestion for revision shall be referred to the Standing Committee for appropriate consideration. The processing of a suggested revision is the same as for the development of a new standard under these procedures and the Standing Committee serves the same functions as the Standard Review Committee in the process.

(c) Each standard will be reviewed within 5 years after initial issuance or last revision. Minor technical amendments may be published, at the discretion of the Department, upon the general concurrence of the Standing Committee. § 10.10 Withdrawal of a published

standard.

the public interest, or for other reasons, and revision is not feasible or would serve no useful purpose.

(b) Before withdrawing a published standard the Department will review with the Standing Committee for that standard, if such a committee exists, the relative advantages and disadvantages of revision or amendment, development of a new standard, or withdrawal.

(c) Adequate public notice of intent to withdraw an existing standard will be given and all previous acceptors of the standard will be notified of this intent. Withdrawal terminates the authority to refer to the published standard as a commodity or a product standard developed under Department of Commerce procedures, from the effective date of the withdrawal.

§ 10.11 Effect of procedures.

equipment and materials for the manufacture and maintenance of arms and ammunition; other aircraft and motor vehicles, and equipment and materials for the manufacture, assembly, or maintenance of aircraft or motor vehicles; oil or oil products if he knows or has reason to believe that said commodity or article is destined directly or indirectly for Southern Rhodesia, and no person shall discharge from any such ship or any such aircraft any such commodity or article at any port or place in Southern Rhodesia, or at any other port or place in transit to Southern Rhodesia, unless a validated export license under the Export Control Act of 1949, amended, or under section 414 of the Mutual Security Act of 1954, as amended; or a license under the Rhodesian Transaction Regulations issued by the Secretary of Treasury, has been obtained for the shipment, or unless authorization for the shipment has been obtained from the Secretary of Commerce or his delegate. This prohibition applies to the owner of the ship or aircraft, and any other officer, employee, or agent of the owner of the ship or aircraft who participates in the transportation.

(b) No person shall transport on any ship documented under the laws of the United States or in any aircraft registered under the laws of the United States asbestos, iron ore, chrome, pig iron, sugar, tobacco, copper, meat and meat products, and hides, skins, and leather originating in Southern Rhodesia and exported therefrom after December 16, 1966, or products made therefrom in Southern Rhodesia or elsewhere, unless a license under the Rhodesian Transaction Regulations issued by the Treasury Department has been obtained. This prohibition applies to the owner of the ship or aircraft, and any other officer, employee, or agent of the owner of the ship or aircraft who participates in the transportation.

§ 11.2 Application for adjustment or exceptions.

Any person affected by any provisions of this Part 11 may file an application for an adjustment or exception upon the ground that such provision works an exceptional hardship upon him, arising from transactions commenced before the date of the issuance of Executive Order No. 11322 (Jan. 5, 1967) or issuance of this Part 11. Such an application may be made by letter or telegram addressed

to the Secretary of Commerce, Washington, D.C. 20230, reference 15 CFR Part 11. If authorization is requested, any such application should specify in detail the material to be shipped, the name and address of the shipper and of the recipient of the shipment, the ports or places from which and to which the shipment is being made and the use to which the material shipped will be put. The application should also specify in detail the facts which support the applicant's claim for an exception. § 11.3 Reports.

Persons subject to this Part 11 shall submit such reports to the Secretary of Commerce as he shall require, subject to the terms of the Federal Reports Act. § 11.4 Records.

Each person participating in any transaction covered by this part shall retain in his possession, for at least 2 years, records of shipments in sufficient detail to permit an audit that determines for each transaction that the provisions of this Part 11 have been met. This does not specify any particular accounting method and does not require alteration of the system of records customarily maintained, provided such records supply Records an adequate basis for audit.

may be retained in the form of microfilm or other photographic copies instead of the originals.

§ 11.5 Defense against claims for dam

ages.

PART 12-FAIR PACKAGING AND

Sec.

12.1

12.2

LABELING

Introduction.
Undue proliferation.

12.3 Development of voluntary product standards.

12.4 Report to the Congress.

AUTHORITY: The provisions of this Part 12 issued under the authority vested in the Secretary of Commerce by secs. 5(d) and 5(e), Public Law 89-755, 80 Stat. 1299, and delegated to the Assistant Secretary of Commerce for Science and Technology by sec. 3, Department Order 177 (31 F.R. 6746), as amended (32 F.R. 3110).

SOURCE: The provisions of this Part 12 appear at 32 F.R. 11074, July 29, 1967, unless otherwise noted.

(a) These procedures apply to the discharge of the responsibility given to the Secretary of Commerce by sections 5(d) and 5(e) of the Fair Packaging and Labeling Act (Public Law 89-755, 80 Stat. 1299), hereinafter called the "Act". The word "Secretary", as used hereinafter, shall refer to the Secretary of Commerce or his authorized delegate.

(b) The Secretary does not have the responsibility or the authority under the Act to issue any regulations governing the packaging or labeling practices of private industry.

(1) Determine whether the reasonable ability of consumers to make value comparisons with respect to any consumer commodity or reasonably comparable consumer commodities is impaired by undue proliferation of the weights, measures, or quantities in which such commodity or commodities are being distributed in packages for sale at retail.

(2) Request manufacturers, packers, and distributors, where a determination of undue proliferation has been made, to participate in the development of a voluntary product standard under the procedures governing the Department's voluntary standards program.

(3) Report to Congress with a recommendation as to whether legislation providing regulatory authority should be enacted, when after 1 year following the date private industry has been requested to participate in the development of a voluntary product standard it is determined that such a standard will not be published, or when following the publication of such a standard it is determined

that the standard has not been observed. (d) The Act does not furnish a detailed, definitive explanation of "undue proliferation". It does, however, point out that the condition of "undue proliferation" must be one which "impairs the reasonable ability of consumers to make value comparisons" with respect to consumer commodities. Generally, therefore, the Department will determine "undue proliferation" on a case-by-case basis, and, accordingly, is establishing by these procedures an orderly process for such determinations.

(e) As used hereinafter the term "undue proliferation" shall refer to such undue proliferation-of the weights, measures or quantities in which any consumer commodity or reasonably comparable consumer commodities are being distributed for sale at retail-as impairs the reasonable ability of consumers to make value comparisons with respect to such consumer commodity or commodities, as set out in section 5(d) of the Act. § 12.2 Undue proliferation.

(a) Information as to possible undue proliferation. Any person or group, including a State or local governmental entity, is invited to communicate information to the Secretary concerning the possible existence of undue proliferation. Such communications should be in writing and include supporting information and explanations.

(b) Initiation of inquiry as to undue proliferation. Upon receipt of information regarding the possible existence of undue proliferation, the Secretary will determine whether there has been a showing of good cause warranting an inquiry. If the Secretary determines that good cause exists, he shall initiate an inquiry for the purpose of finding facts concerning the existence of undue proliferation.

(c) Procedures for Inquiry—(1) Cooperation with State and local officials. Any inquiry initiated under paragraph (b) of this section may be conducted in cooperation with State and local weights and measures officials.

(2) Participation by interested persons. The Secretary may, during the course of the inquiry, afford interested persons or groups an opportunity to submit in writing comments, data, arguments, views, or other information relevant to the inquiry.

(d) Proposed determination as to existence of undue proliferation. (1) If,

after consideration of all relevant information, the Secretary concludes that undue proliferation appears to exist, he shall publish a proposed determination to this effect. The proposed determination shall identify the particular consumer commodity or commodities involved and shall be accompanied by a concise statement of the facts upon which it is based.

(2) Within 60 days after publication of the proposed determination, any interested party may submit in writing comments, data, arguments, views, or other information relevant to the proposed determination. All written submissions shall be made a part of the public record.

(3) Within 30 days after the proposed determination has been published, any interested party may request in writing an oral hearing to present his views. The granting of such a hearing shall be at the discretion of the Secretary. Any such hearing shall be public and notice thereof shall be published at least 15 days in advance. A transcript of the hearing shall be made part of the public record.

(e) Final determination as to undue proliferation. As soon as practicable following the conclusion of the proceedings described in paragraph (d) of this section, the Secretary shall either publish a final determination of undue proliferation, or he shall publish a notice withdrawing his proposed determination of undue proliferation. In no event shall the withdrawal of a proposed determination operate to preclude the initiation of another inquiry regarding the same or similar subject matter under paragraph (b) of this section.

§ 12.3 Development of voluntary product standards.

(a) Invitation to participate in the development of a voluntary product standard. Whenever the Secretary publishes a final determination of undue proliferation under § 12.2(e), he shall invite manufacturers, packers, and distributors of the commodity or commodities involved to participate in the development of a voluntary product standard in accordance with the terms of the Act and the Department's published procedures for voluntary product standards. The term "Voluntary Product Standard" as used in this section means a standard for weights, measures or quantities in which the commodity or commodities are being distributed in packages for sale at retail.

(b) Determination that voluntary product standard will not be published. (1) If a voluntary product standard has not been developed within one year from the date on which participation was invited, the Secretary may conclude that a voluntary product standard will not likely be published. Upon reaching such a conclusion, the Secretary will publish a proposed determination that a voluntary product standard will not be published.

(4) As soon as practicable following the conclusion of the proceedings described in subparagraphs (2) and (3) of this paragraph, the Secretary shall either publish a final determination that a voluntary product standard will not be published, or he shall publish a notice withdrawing his proposed determination under subparagraph (1) of this paragraph. In no event shall the withdrawal of a proposed determination operate to preclude the publication of another proposed determination under subparagraph (1) of this paragraph with respect to the same or similar subject matter.

(c) Determination that a published voluntary product standard has not been observed. (1) Whenever the Secretary has reason to believe that a voluntary product standard published under these procedures is not being observed he shall initiate an inquiry to determine such fact.

(2) If, on the basis of the information developed during the inquiry, the Secretary concludes that the voluntary product standard is not being observed, he shall publish a proposed determination to this effect. The proposed determination shall identify the particular standard involved and shall be accompanied

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