Guam § 32102 - Regulations Declaring Hazardous Substances; Variations and

§ 32102. Regulations Declaring Hazardous Substances; Variations and

Exemptions; Judicial Review of Determinations.

(a) Whenever in the judgment of the Director such action will promote

the objectives of this Chapter by avoiding or resolving uncertainty as to its

application, the Director may, by regulation, declare to be a hazardous

substance for the purpose of this Chapter, any substance or mixture of

substances which he finds meets the requirements of Subparagraph (1)(A)

of § 32101(b).

(b) If the Director finds that the requirements of § 32101(l)(1) are not

adequate for the protection of the public health and safety in view of the

special hazard presented by any particular hazardous substance, he may, by

regulation, establish such reasonable variations or additional label

requirements as he finds necessary for the protection of the public health

and safety; and any such hazardous substance intended or packaged in a

form suitable for use in the household or by children which fails to bear a

label in accordance with such regulations shall be deemed to be a

misbranded hazardous substance.

(c) If the Director finds that, because of the size of the package

involved or because of the minor hazard presented by the substance

contained therein or for other good and sufficient reasons, full compliance

with the labeling requirements otherwise applicable under this Chapter is

impracticable or is not necessary for the adequate protection of the public

health and safety, the Director shall promulgate regulations exempting such

substance from these requirements to the extent he determines to be

consistent with adequate protection of the public health and safety.

(d) If the Director finds that the hazard of an article subject to this

Chapter is such that labeling, adequate to protect the public health and

safety cannot be devised, or the article an imminent danger to the public

COL120106

health and safety, the Director may declare such article to be a banned

hazardous substance and require its removal from commerce.

(e)(1) A determination by the Director that a toy or other article

intended for use by children presents an electrical, mechanical or

thermal hazard shall be made by regulation in accordance with this

Chapter.

(2) If, before or during a proceeding pursuant to Paragraph (1) of

this Subsection, the Director finds that, because of an electrical,

mechanical or thermal hazard, distribution of the toy or other article

involved presents an imminent hazard to the public health and he gives

notice of such findings, such toy or other article shall be deemed to be

a banned hazardous substance for purposes of this Chapter until the

proceeding has been completed. If not yet initiated when such notice

is given, such a proceeding shall be initiated as promptly as

possible.

(3)(A) In the case of any toy or other article intended for use

by children which is determined by the Director to present an

electrical, mechanical or thermal hazard, any person who will be

adversely affected by such a determination may, at any time prior

to the sixtieth (60th) day after the regulation making such

determination is issued by the Director, file a petition with the

court of competent jurisdiction for a judicial review of such

determination. A copy of the petition shall be forthwith

transmitted by the clerk of the court to the Director or other

officer designated by him for that purpose. The Director shall file

in the court the record of the proceedings on which the Director

based his determination;

(B) If the petitioner applies to the court for leave to adduce

additional evidence, and shows to the satisfaction of the court that

such additional evidence is material and that there was no

opportunity to adduce such evidence in the proceeding before the

Director, the court may order such additional evidence (and

evidence in rebuttal thereof) to be taken before the Director in a

hearing or in such other manner, and upon such terms and

conditions as to the court may seem proper. The Director may

modify his findings as to be the facts or make new findings by

reason of the additional evidence so taken and he shall file such

modified or new findings and his recommendation, if any, for the

COL120106

modification or setting aside or his original determination, with

the return of such additional evidence;

(C) Upon the filing of the petition under this Paragraph, the

court shall have jurisdiction to review the determination of the

Director. If the court ordered additional evidence to be taken

under Subparagraph (B) of this Paragraph, the court shall also

review the Director's determination to determine if, on the basis

of the entire record before the court pursuant to Subparagraphs

(A) and (B) of this Paragraph, it is supported by substantial

evidence. If the court finds the determination is not so supported,

the court may set it aside. With respect to any determination

reviewed under this Paragraph, the court may grant appropriate

relief pending conclusion of the review proceedings.