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 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 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.
