Sec.

PART 1020-SMALL BUSINESS

1020.1 Why is the Commission issuing this

rule?

1020.2 What is the definition of "small business"?

1020.3 What are the qualifications and duties of the Small Business Ombudsman? 1020.4 What is the Small Business Program? 1020.5 What is the Small Business Enforcement Policy?

AUTHORITY: 5 U.S.C. 601 note.

SOURCE: 61 FR 52878, Oct. 9, 1996, unless otherwise noted.

§ 1020.1 Why is the Commission issuing this rule?

(a) To state the Commission's policies on small businesses;

(b) To assure that the Commission continues to treat small businesses fairly;

(c) To assure that small businesses do not bear a disproportionate share of any burden or cost created by a Commission regulatory, enforcement, or other action; and

(d) To assure that small businesses are given every opportunity to participate fully in the Commission's regulatory process.

§ 1020.2 What is the definition of "small business"?

As used in this part, the term "small business" means any entity that is either a "small business," "small organization," or "small governmental jurisdiction," as those terms are defined at 5 U.S.C. 601(3), (4), and (5), respectively.

§ 1020.3 What are the qualifications and duties of the Small Business Ombudsman?

(a) The Chairman will appoint a senior, full-time Commission employee as Small Business Ombudsman. The Ombudsman must:

(1) Have a working knowledge of the Commission's statutes and regulations; (2) Be familiar with the industries and products that the Commission regulates;

(3) Develop a working knowledge of the regulatory problems that small businesses experience;

(4) Perform the Ombudsman duties in addition to, and consistently with, other Commission responsibilities; and

(5) Not work in the Office of Compliance or Office of Hazard Identification and Reduction.

(b) The duties of the Small Business Ombudsman will include, but not be limited to, the following:

(1) Developing and implementing a program to assist small businesses that is consistent with §1020.4;

(2) Working to expedite Commission responses to small businesses and providing information, guidance, and technical assistance to small businesses;

(3) Performing a review, at least twice a year, of the Commission's regulatory agenda for actions likely to have a significant impact on small businesses; and

(4) Pursuing the interests of small businesses by maintaining a working relationship with appropriate officials in the Small Business Administration, in national trade associations that represent small businesses, and in the Commission.

§ 1020.4 What is the Small Business Program?

(a) Whenever the Commission is aware of the interests of small businesses, it will consider those interests before taking any action that will likely have a significant effect on small businesses.

(b) Small businesses may request and receive special assistance from the Commission, as appropriate and consistent with Commission resources. Examples of such assistance are:

(1) Small businesses may contact the Small Business Ombudsman to obtain information about Commission statutes, regulations, or programs; to obtain technical assistance; to determine who in the agency has particular expertise that might be helpful to the small business; or to help expedite a small business's request.

(2) Small businesses may request assistance from the Commission by using the small business extension on the Commission's hotline telephone system. The number is 1-800-638-2772, extension 234.

(3) The Small Business Ombudsman will directly provide small businesses with the requested assistance, or will direct the small business to the appropriate Commission staff for help.

(c) Whenever the Commission issues a final regulatory flexibility analysis for a rule, under the Regulatory Flexibility Act (5 U.S.C. 604), the Commission will publish a compliance guide for small businesses. The guide will explain in easy-to-understand language what action a small business must take to comply with the rule.

(d) The Commission may take other appropriate actions to assist small businesses, but such actions will not treat any other Commission constituent unfairly.

§1020.5 What is the Small Business Enforcement Policy?

(a) When appropriate, the Commission will, subject to all applicable statutes and regulations and paragraph (b) of this section:

(1) Waive or reduce civil penalties for violations of a statutory or regulatory requirement by a small business and/or

(2) Consider a small business's ability to pay in determining a penalty assessment against that small business,

(b) The Commission may decline to waive civil penalties or consider a small business's ability to pay, under paragraph (a) of this section, when one or more of the following circumstances applies:

(1) The small business's violations posed serious health or safety threats. (2) The small business was subject to multiple enforcement actions by the Commission.

(3) The small business's violations involved willful or criminal conduct.

(4) The small business failed to correct violations within a reasonable time.

(5) The small business failed to make a good faith effort to comply with the law.

(6) The small business acted in any other way that would make it unfair or inappropriate for the Commission to provide a benefit under paragraph (a) of this section.

PART 1021-ENVIRONMENTAL REVIEW

Subpart A-General

Sec.

1021.1 Purpose.

1021.2 Policy.

This part contains Consumer Product Safety Commission procedures for review of environmental effects of Commission actions and for preparation of environmental impact statements (EIS) and related documents. These procedures supersede any Commission procedures previously applicable. The procedures provide for identification of effects of a proposed action and its alternatives on the environment; for assessment of the significance of these effects; for consideration of effects at the appropriate points in the Commission's decision-making process; and for preparation of environmental impact statements for major actions significantly affecting the environment. These procedures are intended to implement the Council on Environmental Quality's final regulations of November 29, 1978 (43 FR 55978; 40 CFR part 1500, et seq.) concerning agency compliance with the National Environmental Policy Act, as amended (NEPA) (15 U.S.C.

4321-4347 as amended by Pub. L. 94-83, August 8, 1975).

§1021.2 Policy.

It is the policy of the Commission to weigh and consider the effects upon the human environment of a proposed action and its reasonable alternatives. Actions will be designed to avoid or minimize adverse effects upon the quality of the human environment wherever practicable.

§1021.3 Definitions.

(a) The term CPSC actions means rulemaking actions; enforcement actions; adjudications; legislative proposals or reports; construction, relocation, or renovation of CPSC facilities; decisions on petitions; and any other agency activity designated by the Executive Director as one necessitating environmental review.

(b) The term Commission means the five Commissioners of the Consumer Product Safety Commission.

(c) The term CPSC means the entire organization which bears the title Consumer Product Safety Commission.

(d) The term NEPA regulations means the Council of Environmental Quality regulations of November 29, 1978 (43 FR 55978) for implementing the provisions of the National Environmental Policy Act, as amended (42 U.S.C 4321, et. seq). (e) The term environmental review process refers to all activities associated with decisions to prepare an environmental assessment, a finding of no significant impact, or an environmental impact statement.

(f) The definitions given in part 1508 of the Council's NEPA regulations are applicable to this part 1021 and are not repeated here.

§ 1021.4 Overview of environmental review process for CPSC actions.

The environmental review process normally begins during the staff development of a proposed action and progresses through the following steps:

(a) Environmental assessment. (Section 1508.9 of the NEPA regulations). The assessment is initiated along with the staff development of a proposal and the identification of realistic alternatives. The assessment shall be available to the Commission before the Commission

votes on a proposal and its alternatives. Its purpose is to identify and describe foreseeable effects on the environment, if any, of the action and its alternatives. The assessment culminates in a written report. This report generally contains analyses of the same categories of information as would an EIS, but in a much less detailed fashion. (See §1021.10(a), below.) It contains sufficient information to form a basis for deciding whether effects on the environment are likely to be "significant." (See § 1508.27 of the NEPA regulations.).

(b) Decision as to significance of effects on the environment. This decision is made by the Executive Director of the CPSC and is based upon the results of the environmental assessment as well as any other pertinent information. If the effects are significant, CPSC publishes in the FEDERAL REGISTER a notice of intent to prepare an environmental impact statement. (See §1508.22 of the NEPA regulations.) If not, a finding of no significant impact is prepared. (Section 1508.13 of the NEPA regulations.)

(c) Finding of no significant impact. This is a written document which gives reasons for concluding that the effects of a proposed action, or its alternatives, on the environment will not be significant. Together with the environmental assessment, it explains the basis for not preparing an EIS. The finding of no significant impact is signed by the Executive Director. The finding of no significant impact and the environmental assessment accompany the proposed action throughout the Commission decision-making proc

ess.

(d) Draft environmental impact statement. The content of a draft EIS is described in §1021.12, below. For a particular proposal, the breadth of issues to be discussed is determined by using the scoping process described in § 1501.7 of the NEPA regulations. The draft EIS pertaining to a proposed rule is before the Commission at the time it considers the proposed action and is available to the public when the notice of proposed rulemaking is published or as soon as possible thereafter. In appropriate instances, the FEDERAL REGISTER preamble for a proposed rule may

serve as the draft EIS. The draft EIS shall accompany the proposed action throughout the remainder of the Commission decision-making process.

(e) Final EIS. The content of this document is described in §1021.12. A final EIS responds to all substantive comments on the draft statement. It is before the Commission when it considers a final action.

(1) Supplemental statements. When CPSC makes changes in the proposed action that are important to environmental issues or when there is significant new environmental information, the Executive Director instructs CPSC staff to prepare supplements to either the draft or final EIS (See §1502.9(c) of the NEPA regulations).

(g) Record of decision. (Sections 1505.2 and 1506.1 of the NEPA regulations.) At the time of a decision on a proposed action which involves an EIS, CPSC prepares a written record of decision explaining the decision and why any alternatives discussed in the EIS were rejected. This written record is signed by the Secretary of the Commission for the Commission. No action going forward on the proposal may be taken until the record of decision is signed and filed in the Office of the Secretary of the Commission.

§1021.5 Categories of CPSC actions.

(a) There are no CPSC actions which ordinarily produce significant environmental effects. Therefore, there are no actions for which an environmental impact statement is normally required.

(b) The following categories of CPSC actions have the potential of producing environmental effects and therefore, normally require environmental assessments but not necessarily environmental impact statements:

(1) Regulatory actions dealing with health risks.

(2) Actions requiring the destruction or disposal of large quantities of products or components of products.

(3) Construction, relocation, or major renovation of CPSC facilities.

(4) Recommendations or reports to Congress on proposed legislation that will substantially affect the scope of CPSC authority or the use of CPSC resources, authorize construction or

(1) Rules or safety standards to provide design or performance requirements for products, or revision, amendment, or revocation of such standards. (2) Product certification or labeling rules.

(3) Rules requiring poison prevention packaging of products or exempting products from poison prevention packaging rules.

(4) Administrative proceedings to require individual manufacturers to give notice of and/or to correct, repair, replace, or refund the purchase price of banned or hazardous products. Other administrative adjudications which are primarily law enforcement proceedings.

(5) Recommendations or reports to Congress on proposed legislation to amend, delete or add procedural provisions to existing CPSC statutory authority.

(6) Decisions on petitions for rulemaking.

(7) Issuance of subpoenas, general orders, and special orders.

(d) In exceptional circumstances, actions within category in paragraph (c) of this section ("categorical exclusions") may produce effects on the human environment. Upon a determination by the Executive Director that a normally excluded proposed action may have such an effect, an environmental assessment and a finding of no significant impact or an environmental impact statement shall be prepared.

Subpart B-Procedures

§ 1021.6 Responsible official.

(a) The Executive Director of the CPSC shall have the responsibility to ensure that the Commission's policies and procedures set forth in this part are carried out. He or she shall have the following specific powers and duties:

(1) To ensure that CPSC environmental review is conducted in accordance with the NEPA regulations as well as this part 1021.

(2) To evaluate the significance of effects of a CPSC action on the environment and to determine whether a finding of no significant impact or an EIS should be prepared.

(3) To determine when a categorical exclusion requires environmental review because of exceptional circumstances indicating that the otherwise excluded action may produce an environmental effect.

(4) To instruct CPSC staff to prepare supplements to either draft or final EIS's where there is new environmental information or when CPSC makes changes in a proposed action that are important to environmental issues.

(5) To ensure that environmental documents are before the Commission at all stages of review of proposed action.

(6) To make provisions for soliciting public comment on the anticipated effects on the environment of proposed CPSC actions and their reasonable alternatives at any stage of the environmental review process, whenever he or she decides that such comment will be helpful. The Executive Director, for example, shall have the power to require that provision for soliciting such comments, written or oral, be included in any announcement of a public hearing on proposed rulemaking or on the merits of a petition for rulemaking.

(7) To call upon all resources and expertise available to CPSC to ensure that environmental review is accomplished through an interdisciplinary effort.

(8) To delegate any of his or her powers and duties, other than paragraphs (a) (2) and (3) of this section, to any officer or employee of the CPSC.

§1021.7 Coordination of environmental review with CPSC procedures.

(a) The Commission shall consider all relevant environmental documents in evaluating proposals for Commission action. The preparation and completion of assessments and statements required by this part shall be scheduled to assure that available environmental information is before the Commission at all appropriate stages of development of CPSC actions along with technical and economic information otherwise required. The range of alternatives discussed in appropriate environmental documents shall be encompassed by the range of alternatives considered by the Commission for an action.

(b) An environmental assessment on a proposed rulemaking action requiring environmental review shall be available to the commission before the Commission votes on a proposed rule, and its alternatives. If the Executive Director determines that an EIS is needed, the draft EIS shall normally be before the Commission at the time it votes to publish a proposed rule. A final EIS shall be before the Commission when it considers final action on a proposed rule. Relevant environmental documents shall accompany the proposed rulemaking action throughout the Commission's decisionmaking

process.

(c) Draft EISS or findings of no significant impact together with environmental assessments shall be made available to the public for comment at the time of publication in the FEDERAL REGISTER of CPSC proposals for regulatory action requiring environmental review or promptly thereafter. Pursuant to §1506.10 of the NEPA regulations, no decision on a proposed action shall be made by the Commission until the later of 90 days after the Environmental Protection Agency (EPA) has published a notice announcing receipt of the draft EIS or 30 days after EPA announces receipt of the final EIS. These time periods may run concurrently. In addition, with regard to rulemaking for the purpose of protecting the public health and safety, the Commission may waive the 30 day period and publish a decision on a final rule