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 United States as consumers of goods and services which
are made available to them through commerce or which affect commerce by so
establishing an independent Agency for Consumer Advocacy.
(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 United
States within the executive branch of the Government the Agency for Consumer
Advocacy. The Agency shall be directed and administered by an Administrator who
shall be appointed by the President, by and with the advice and consent of the
Senate, for a term coterminous with the term of the President, not to exceed
four years. The Administrator shall be an individual who by reason of training,
experience, and attainments is exceptionally qualified to represent the interest
of consumers. There shall be in the Agency a Deputy administrator, with similar
qualification, who shall be appointed by the President, by and with the advice
and consent of the Senate. The Deputy Administrator shall perform such
functions, powers, and duties as may be prescribed from time to time by the
Administrator and shall act for, and exercise the powers of, the Administrator
during the absence or disability or, or in the event of a vacancy in the office
of, the Administrator. On the expiration of his term, the Administrator shall
continue in office until he is reappointed or his successor is appointed and
qualifies.. The Administrator may be removed by the President for inefficiency,
neglect of duty or maleficence in office.
(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 pro- tect 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 United
States shall issue such an order upon petition by the Administrator or on a
motion to quash, and upon the Administrator. s carrying the burden of proving
in court that such order is for information that may substantially affect the
health or safety of consumers or may be necessary in the discovery of consumer
fraud or substantial economic injury to consumers, and is relevant to the
purposes for which the information is sought, unless the person to whom the
interrogatory or request is addressed shows that answering such interrogatory or
request will be unnecessarily or excessively burdensome.
(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 United States shall
have jurisdiction over any action brought for injunctive relief under this
subsection, or under section 10 (b) (7).
(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 United States shall audit, review,
and evaluate the implementation or the provisions of this Act by the Agency for
Consumer Advocacy.
(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.