Guidelines and Requirements for Mandatory Recall Notices, 3355-3371 [2010-873]
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Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations
the vessel, including its authorizations
to fish, gear, equipment, records,
facilities, fish and fish products and any
relevant documents necessary to verify
compliance with the conservation and
management measures in force pursuant
to the WCPF Convention;
(ii) Allow any WCPFC inspector to
communicate with the crew of the
WCPFC inspection vessel, the
authorities of the WCPFC inspection
vessel and the authorities of the vessel
being inspected;
(iii) Provide any WCPFC inspector
with reasonable facilities, including,
where appropriate, food and
accommodation; and
(iv) Facilitate safe disembarkation by
any WCPFC inspector.
(4) If the operator or crew refuses to
allow a WCPFC inspector to board and
inspect the vessel in the manner
described in this paragraph, they shall
offer to the WCPFC inspector an
explanation of the reason for such
refusal.
(5) The operator and crew shall not
assault, obstruct, resist, delay, refuse
boarding to, intimidate, harass, interfere
with, unduly obstruct or delay any
WCPFC inspector in the performance of
such person’s duties, or attempt to do
any of the same.
(c) When a fishing vessel of the
United States that is used for
commercial fishing for HMS is in the
Convention Area and is either on the
high seas without a valid WCPFC Area
Endorsement or is in an area under the
jurisdiction of a nation other than the
United States without an authorization
by that nation to fish in that area, all the
fishing gear and fishing equipment on
the fishing vessel shall be stowed in a
manner so as not to be readily available
for fishing, specifically:
(1) If the fishing vessel is used for
purse seining and equipped with purse
seine gear, the boom must be lowered as
far as possible so that the vessel cannot
be used for fishing but so that the skiff
is accessible for use in emergency
situations; the helicopter, if any, must
be tied down; and the launches must be
secured.
(2) If the fishing vessel is used for
longlining and equipped with longline
gear, the branch or dropper lines and
floats used to buoy the mainline must be
stowed and not available for immediate
use, and any power-operated mainline
hauler on deck must be covered in such
a manner that it is not readily available
for use.
(3) If the fishing vessel is used for
trolling and equipped with troll gear, no
lines or hooks may be placed in the
water; if outriggers are present on the
vessel, they must be secured in a
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vertical position; if any power-operated
haulers are located on deck they must
be covered in such a manner that they
are not readily available for use.
(4) If the fishing vessel is used for
pole-and-line fishing and equipped with
pole-and-line gear, any poles rigged
with lines and hooks must be stowed in
such a manner that they are not readily
available for use.
(5) For any other type of fishing
vessel, all the fishing gear and
equipment on the vessel must be stowed
in a manner so as not to be readily
available for use.
(d) For the purpose of this section, the
meaning of transshipment does not
include transfers that exclusively
involve fish that have been previously
landed and processed.
17. In § 300.222, paragraphs (a)
through (u) are added to read as follows:
■
§ 300.222
Prohibitions.
*
*
*
*
*
(a) Fail to obtain and have on board
a fishing vessel a valid WCPFC Area
Endorsement as required in § 300.212.
(b) Fail to report a change in the
information required in an application
for a WCPFC Area Endorsement as
required in § 300.212(g).
(c) Fail to provide information on
vessels and fishing authorizations or fail
to report changes in such information as
required in § 300.213.
(d) Fish for, retain on board, or land
fish, including HMS, in areas under the
jurisdiction of a nation other than the
United States without authorization by
such nation to do so, as provided in
§ 300.214(a)(1) and (b)(1).
(e) Operate a fishing vessel in
violation of, or fail to ensure the vessel
crew complies with, the applicable
national laws of a member of the
Commission other than the United
States, including any laws related to
carrying vessel observers or the
operation of VMS units, as provided in
§ 300.214(a)(2) and (b)(2).
(f) Fail to carry, allow on board, or
assist a WCPFC observer as required in
§ 300.215.
(g) Assault, obstruct, resist, delay,
refuse boarding to, intimidate, harass, or
interfere with a WCPFC observer, or
attempt to do any of the same, or fail to
provide a WCPFC observer with food,
accommodation or medical facilities, as
required in § 300.215.
(h) Offload, receive, or load fish from
a purse seine vessel at sea in the
Convention Area, in contravention of
§ 300.216.
(i) Fail to mark a fishing vessel or a
boat, skiff, or other watercraft on board
the fishing vessel as required in
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§ 300.217, or remove, obscure, or
obstruct such markings, or attempt to do
so.
(j) Fail to maintain and report catch
and effort information or transshipment
information as required in § 300.218.
(k) Fail to install, activate, or operate
a VMS unit as required in § 300.219(c).
(l) In the event of VMS unit failure or
interruption, fail to repair or replace a
VMS unit, fail to notify the SAC and
follow the instructions provided, or
otherwise fail to act as provided in
§ 300.219(c)(4).
(m) Disable, destroy, damage or
operate improperly a VMS unit installed
under § 300.219, or attempt to do any of
the same, or fail to ensure that its
operation is not impeded or interfered
with, as provided in § 300.219(e).
(n) Fail to make a VMS unit installed
under § 300.219 or the position data
obtained from it available for
inspection, as provided in § 300.219(f)
and (g).
(o) Fail to carry on board and monitor
communication devices as required in
§ 300.219(h).
(p) Fail to carry on board and make
available the required vessel
documentation and authorizations as
required in § 300.221(a)(1).
(q) Fail to continuously monitor the
specified radio frequencies as required
in § 300.221(a)(2).
(r) Fail to carry on board, and keep
accessible, an up-to-date copy of the
International Code of Signals as
required in § 300.221(a)(3).
(s) Fail to provide access to, or fail to
allow and assist, a WCPFC
transshipment monitor as required in
§ 300.221(a)(4).
(t) Fail to comply with the
instructions of, or fail to accept and
facilitate prompt and safe boarding by,
a WCPFC inspector, or fail to cooperate
and assist a WCPFC inspector in the
inspection of a fishing vessel, as
provided in § 300.221(b).
(u) Fail to stow fishing gear or fishing
equipment as required in § 300.221(c).
*
*
*
*
*
[FR Doc. 2010–1087 Filed 1–20–10; 8:45 am]
BILLING CODE 3510–22–P
CONSUMER PRODUCT SAFETY
COMMISSION
16 CFR Part 1115
Guidelines and Requirements for
Mandatory Recall Notices
AGENCY: Consumer Product Safety
Commission.
ACTION: Final rule.
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SUMMARY: The Consumer Product Safety
Commission (‘‘Commission,’’ ‘‘CPSC,’’
‘‘we’’) is issuing a final rule establishing
guidelines and requirements for
mandatory recall notices as required by
section 214 of the Consumer Product
Safety Improvement Act of 2008
(‘‘CPSIA’’). The rule contains the
Commission’s interpretation of
information which must appear on
mandatory recall notices ordered by the
Commission or a United States district
court pursuant to certain sections of the
Consumer Product Safety Act (‘‘CPSA’’).
The rule also contains Commission
guidelines for additional information
that the Commission or a court may
order to be included on a mandatory
recall notice.
DATES: Effective Date: This rule is
effective on February 22, 2010.
Compliance Date: Regardless of when
a product subject to a recall was
manufactured, all mandatory recalls
ordered pursuant to sections 12, 15(c) or
15(d) of the CPSA are subject to the
guidelines and requirements herein as
of February 22, 2010.
FOR FURTHER INFORMATION CONTACT:
Marc Schoem, Deputy Director, Office of
Compliance and Field Operations,
Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD
20814; telephone (301) 504–7520.
SUPPLEMENTARY INFORMATION:
I. Introduction
In the Federal Register of March 20,
2009 (74 FR 11883), the CPSC published
a proposed rule that would establish
guidelines and requirements for
mandatory recall notices ordered by the
Commission or a United States District
Court under the Consumer Product
Safety Act. The rule was intended to
provide firms with a uniform set of
information they can expect to find in
a recall notice ordered by the
Commission or a court. The
Commission and a court’s substantive
authority to order that a mandatory
recall notice be issued, including
control over the final form and content
of such notice, arises under sections 12,
15(c), and 15(d) of the CPSA. Section
214 of the CPSIA (Pub. L. 110–314) did
not change this authority. Rather,
section 214(c) of the CPSIA, which adds
a new subsection 15(i) to the CPSA,
requires the Commission to establish
guidelines which set forth a uniform
class of information that will be
included in mandatory recall notices,
and specifies certain content that must
be included in mandatory recall notices.
However, the Commission or a court
ordering that a recall notice issue retains
final authority over the form and
content of mandatory recall notices.
Accordingly, the Commission or a court
may remove information that is
unnecessary or inappropriate under the
circumstances, or add additional
appropriate information to a mandatory
recall notice. Sections 15(i)(2) and
15(i)(2)(I) of the CPSA.
The preamble to the proposed rule
contained detailed explanations of the
proposed rule and described the basis
for the proposed rule. See 74 FR 11883
through 11886. We refer readers to that
preamble if they wish to obtain further
information or explanation with regard
to the rule. In brief, the Commission
developed the proposed rule based on
its expertise with recall notifications
since the Commission’s inception.
Accordingly, the final rule is a
culmination of the statutory
requirements and the Commission’s
expertise, which is summarized in the
Commission’s Recall Handbook,
available at https://www.cpsc.gov/
BUSINFO/8002.html. Each section of
the rule is either statutorily required by
section 214 of the CPSIA, or the
Commission has determined will likely
increase recall effectiveness by helping
consumers to: (a) Identify a product
subject to a recall; (b) understand the
hazard identified with such product; or
(c) understand what remedy is being
offered with regard to the recalled
product.
The rule does not contain
requirements for voluntary recall
notices which result from corrective
action settlement agreements with
Commission staff. If the Commission
decides to extend the requirements to
voluntary recall notices, it would
proceed with a separate rulemaking.
While this rule may serve as a general
guide for information to include on
voluntary recall notices in some
instances, we recognize that each
voluntary recall is unique and is
negotiated as such. Therefore, all recall
notices issued, whether voluntary or
mandatory, should be tailored to the
specific product and circumstances of a
recall. Section 214 of the CPSIA did not
alter the Commission’s ability to
negotiate voluntary recall notices with a
manufacturer and to tailor both
voluntary and mandatory recall notices
to a particular recall scenario.
The Commission received 43
substantive comments on the proposed
rule. After reviewing the comments the
CPSC made several changes to the rule.
The changes between the proposed and
the final rules are as follows:
TABLE 1—SUMMARY OF CHANGES TO THE FINAL RULE
Proposed rule
Final rule
Did not contain a definition of ‘‘Other persons’’ .......................................
Defines ‘‘Other persons’’ in a new § 1115.25(e). This change is discussed in more detail in response to comment 12 in section III of this
document below.
Removes the word ‘‘firm’’ in § 1115.26(a)(3) to clarify that, in a mandatory recall scenario, firms are not the entity determining the form and
content of a recall notice. By statute, the final form and content of
mandatory recall notices are ordered by a United States district court
or the Commission. See sections 12, 15(c) and 15(d) of the CPSA.
Clarifies in § 1115.26(a)(5) that more than one form of recall notice
should be used. This change is discussed in more detail in response
to comments 15 and 17 in section III of this document below.
Clarifies in § 1115.26(b)(2) when a firm has direct contact information.
Also clarifies that a telephone number is considered direct contact information. These changes are discussed in more detail in response
to comment 16 in section III of this document below.
Provides examples of circumstances when a recall notice may be required to be made available in languages in addition to English in
§ 1115.26(c). This change is discussed in more detail in response to
comment 19 in section III of this document below.
Provided that ‘‘firms’’ target and tailor recall notices and consider the
manner in which a product was marketed and advertised in determining the form and content of a recall notice.
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Did not address use of more than one form of recall notice ...................
Did not address when a firm has direct contact information. Unclear
whether a telephone number is considered direct contact information.
Did not contain examples of when a recall notice may be required in
languages in addition to English.
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TABLE 1—SUMMARY OF CHANGES TO THE FINAL RULE—Continued
Proposed rule
Final rule
Did not clearly set forth that information related to the product description is required.
Clarifies in § 1115.27(c) that the information outlined therein must be
included in a recall notice when applicable to a product. This change
is discussed in more detail in response to comment 23 in section III
of this document below.
Clarifies in § 1115.27(h) that foreign manufacturers must be identified
by a legal name, city, and country of headquarters. This change is
discussed in more detail in response to comment 32 in section III of
this document below.
Adds ‘‘Region’’ at a new § 1115.27(j) as a separate category of information which is required when necessary or appropriate to assist
consumers to identify a product. This change is discussed in more
detail in response to comment 21 in section III of this document
below.
Did not specify when a foreign manufacturer’s legal name must be
identified.
Did not require a description of the region where a product was sold or
offered for sale.
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II. Legal Authority
The substantive authority for the
Commission or a United States District
Court to order that a firm issue a
mandatory recall notice comes from
existing statutes in sections 12, 15(c),
and 15(d) of the CPSA. Section 15(c) of
the CPSA specifically provides that,
when the Commission orders that a firm
conduct a mandatory recall, such order
‘‘shall specify the form and content of
any notice required to be given * * *.’’
Section 214 of the CPSIA does not alter
the Commission’s or a court’s authority
over the final form and content of a
mandatory recall notice. Section 214(c)
of the CPSIA, which added subsection
15(i) to the CPSA, states that the
Commission shall, by rule, within 180
days of the date of enactment of the
CPSIA (August 14, 2008), establish
guidelines which set forth a uniform
class of information to be included in
any recall notice ordered under sections
15(c) or (d), or by court order pursuant
to section 12 of the CPSA. (15 U.S.C.
2061, 2064(c), or 2064(d)). Thus, the
statute calls for a rulemaking which sets
forth guidelines concerning information
that firms can expect may be ordered in
any Commission or court-ordered
mandatory recall and the statute
specifies specific content that must be
included in mandatory recall notices.
Section 15(i) of the CPSA states that
the guidelines established by the
Commission must include information
that would help consumers: (a) Identify
a specific product; (b) understand the
identified hazard; and (c) understand
any remedy available to the consumer.
Section 15(i) of the CPSA also requires
that a recall notice include certain
specific information, unless the
Commission determines otherwise. This
information includes, but is not limited
to, descriptions of the product, hazard,
injuries, deaths, action being taken, and
remedy; identification of the
manufacturer and retailers;
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identification of relevant dates; and any
other information the Commission
deems appropriate.
Finally, in addition to section 214 of
the CPSIA, section 3 of the CPSIA grants
the Commission general rulemaking
authority to issue regulations, as
necessary, to implement the CPSIA.
Accordingly, the Commission has
authority to implement section 15(i) of
the CPSA, as amended by section 214(c)
of the CPSIA, through section 3 of the
CPSIA as well as section 214(c) of the
CPSIA.
III. Comments on the Proposed Rule
and the CPSC’s Responses
We describe and respond to
significant issues raised by the
comments below. To make it easier to
identify comments and the
Commission’s responses, the word
‘‘Comment’’ will appear in italics before
each comment description, and the
word ‘‘Response’’ will appear in italics
before the Commission’s response. We
have grouped comments based on their
similarity and have numbered the
comments to help distinguish between
different comment themes. The number
assigned to each comment summary is
for organizational purposes and does
not signify the comment’s value,
importance, or order in which it was
received.
Additionally, on our own initiative,
we have replaced ‘‘U.S.’’ with ‘‘United
States’’ in the codified text to preclude
any potential confusion as to what the
abbreviation of ‘‘United States’’ means.
A. Comments Related to Procedural
Issues
Comment 1—Administrative
Procedure Act (APA)—One commenter
states that the NPR is lacking because it
does not contain a list of data or studies
relied upon as required by the APA.
Although the preamble to the proposed
rule states that the agency relied on
agency recall guidance materials,
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including but not limited to the Recall
Handbook, the commenter maintains
that these resources were not made
available to the general public. The
commenter believes that, at minimum,
information on where to access the
resources should be provided or, a Web
link provided for direct access to the
documents. The commenter states that
no final rule should issue until the
public has the opportunity to review the
underlying data.
Response—The requirements for
mandatory recall notices set forth in the
proposed rule are largely dictated by
section 214 of the CPSIA. The proposed
rule also includes the Commission’s
interpretation and clarification of
section 214 of the CPSIA, as well as
additional guidelines. The preamble to
the proposed rule states that, in drafting
the proposed rule, the agency relied on
its experience conducting recalls and
recall effectiveness gained since the
CPSC’s inception, as well as agency
recall guidance materials, including but
not limited to the Recall Handbook.
Contrary to the commenter’s assertion
that access to the Recall Handbook was
not provided, the preamble to the
proposed rule contained a link to the
Recall Handbook (see 74 FR at 11883).
Moreover, the Commission did not rely
on quantifiable ‘‘data’’ in drafting the
proposed rule; it relied on the text of the
statute and more than thirty years of
experience conducting recalls, which is
summarized in the Recall Handbook.
Recall templates and a recall checklist
are also available to the public on the
CPSC’s Web site at https://www.cpsc.gov/
businfo/corrective.html. These materials
have been available to the public on the
CPSC Web site long before passage of
the CPSIA.
Comment 2—Regulatory Flexibility
Act—Two commenters take opposite
positions with regard to applicability of
the Regulatory Flexibility Act (‘‘RFA’’) to
the proposed rule. One comment states
that the RFA should not be applicable
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to children’s products so that small
businesses will not be able to
circumvent recall duties. Another
commenter opines that the CPSC is
attempting to evade the RFA when it
states that small businesses will not be
affected by the rule. The commenter
takes this position based on the
discretion the Commission has with
regard to determining a ‘‘significant
retailer,’’ which the commenter believes,
depending on the definition, could have
a large effect on small businesses. The
comment suggests that a small business
analysis should be done on the
proposed regulation.
Response—The RFA generally
requires that agencies review proposed
rules for their potential economic
impact on small entities, including
small businesses. A regulatory
flexibility analysis was not conducted
pursuant to section 605(b) of the RFA,
which states that the requirement to
prepare and make available for public
comment an initial regulatory flexibility
analysis does not apply if the head of
the agency certifies that the rule will
not, if promulgated, have a significant
economic impact on a substantial
number of small entities, and the agency
provides an explanation for that
conclusion.
As with the proposed rule, the final
rule will have little to no effect on small
businesses. First, the recall notice
requirements set forth in the final rule
are largely dictated by the CPSIA and
are already in effect. Second, mandatory
recalls are rare in the Commission’s
history, so, even if we were to assume
that a significant economic impact
would exist (and we do not claim that
such an impact exists), the impact
would not affect a ‘‘substantial number’’
of small entities. Third, the final rule
will not alter the agency’s reliance on
voluntary recalls. Finally, the recall
burden on small businesses will not be
altered by the definition of ‘‘significant
retailer.’’ The sole purpose of identifying
retailers in the recall notice is to assist
consumers with product identification.
It has no effect on which firm issues a
recall notice or has responsibility for
conducting a recall.
Comment 3—Effective Date—Several
commenters state that because they
believe the proposed rule seeks to
impose requirements that go beyond the
CPSIA, firms require notice of the
additional requirements and time to
comply. Accordingly, these commenters
state that the rule should not be
effective upon publication, but should
follow the standard of becoming
effective 30 days after publication so
that firms have time to comply. One
commenter suggests further that the rule
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be clarified not to apply retroactively
and that the requirements only apply to
goods manufactured after August 14,
2009.
Response—The final rule applies only
to mandatory recalls pursuant to a court
order (section 12 of the CPSA) or an
order of the Commission (sections 15(c),
and 15(d) of the CPSA). Mandatory
recalls are infrequent in the
Commission’s history, and currently
there are no pending matters where a
mandatory recall is at issue. Because of
the length of time involved in litigating
these issues in a United States district
court or administratively, it is
impracticable that any action would be
litigated to conclusion and that an order
requiring a mandatory recall notice
would be issued in 30 days time.
Therefore, setting the effective date 30
days after publication is appropriate and
there is no good cause for shortening the
period. Finally, the final rule does not
go beyond the CPSIA. Section 214 of the
CPSIA specifically provides that the
Commission shall promulgate both
guidelines and requirements for
mandatory recall notices, and authorizes
the Commission to issue additional
requirements as it deems appropriate.
Section 15(i)(2)(I) of the CPSA.
B. General Comments on the Proposed
Rule and Commission Responses
Comment 4—Many commenters seek
clarification of the rule. Several are
concerned that many requirements are
unnecessary, extraneous, too
complicated, and do not help
consumers locate relevant products and
determine what to do with them. In
particular, several commenters are
concerned about harm that could occur
to business reputation based on the
detailed requirements and the speed at
which imperfect information may travel.
Several commenters state that some
information is burdensome for firms to
maintain and report with no added
benefit to consumers, and are concerned
about the costs to maintain detailed
records such as photographs and pricing
information. These commenters prefer a
shorter mandatory recall notice that
would purportedly be more helpful to
consumers.
Response—Most requirements set
forth in the final rule are statutorily
mandated, and the Commission has the
authority to add requirements it
determines are appropriate. A review of
the CPSC Web site demonstrates that the
use of many of the requirements in the
final rule in previously issued voluntary
recall notices have not resulted in
lengthy recall notices. Moreover, the
final rule is not burdensome because it
does not impose any recordkeeping
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requirements on firms. Locating a
photograph of the product and the price
range has not been a significant issue for
firms at the time of a recall. Finally, the
Commission rejects the idea that a recall
notice causes undue harm to business
reputation. Responsible firms generally
desire to move quickly to remove
defective products from the marketplace
because it is statutorily required,
preserves their brand and consumer
confidence, limits liability, and, most
importantly, reduces the likelihood of
injuries and deaths from unsafe
products.
Comment 5—One commenter would
create a mandatory recall notice
template form that includes all required
sections for a notice. The commenter
believes that a template will be more
efficient, save time and resources, and
allow the Commission to quickly check
for all requirements to speed approval of
recall notices.
Response—The CPSC already has a
bank of recall notice examples that staff
provides to firms to help create a recall
notice. To the extent such a template is
revised, it can and should be done
outside of this rulemaking process, to
allow both the Commission and
industry flexibility to update such
templates as appropriate.
Comment 6—Several commenters
discuss use of the words ‘‘should’’ and
‘‘must’’ in the proposed rule, and suggest
that in the final rule, use of the word
‘‘should’’ should be changed to ‘‘must’’ to
alleviate any confusion regarding the
mandatory nature of the requirements.
Response—With regard to use of the
words ‘‘should’’ and ‘‘must’’ in the final
rule generally, the statute directs the
Commission to issue both a guidance
and requirements for mandatory recall
notices. Guidance provided by the
Commission regarding mandatory recall
notices uses the term ‘‘should,’’ while
requirements are described in the
regulation using the words ‘‘must’’ or
‘‘shall.’’
Comment 7—One commenter notes
that the rule omits timeliness issues
with regard to issuing a mandatory
recall notice. This commenter argues
that the rule should incentivize firms to
comply in a timely fashion, and provide
penalties for non-compliance.
Response—Timeliness is important
with regard to both mandatory and
voluntary recall notices. With regard to
mandatory recall notices specifically,
the Commission or a court will have
control over the timing of recall notices
once ordered.
Comment 8—One commenter suggests
using the civil penalties in section 20(a)
of the CPSA as a guideline for penalties
for non-compliance with any time
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constraints imposed. Another
commenter suggests adding a section on
prohibited acts for non-compliance with
part C generally.
Response—All prohibited acts over
which the Commission has penalty
authority are listed in section 19 of the
CPSA, and the associated penalty
amount provisions are located in section
20 of the CPSA. Section 19(a)(5) of the
CPSA provides that it is unlawful for
any person to ‘‘fail to comply with an
order issued under section 15(c) or (d).’’
Accordingly, these penalty provisions
already apply to mandatory recall orders
and the Commission declines to
duplicate these provisions in the rule.
Comment 9—FOIA Rights—One
commenter suggests that the rule
include a section on Freedom of
Information Act (‘‘FOIA’’) rights.
Response—The Commission declines
to address FOIA issues in the rule
because a separate, pre-existing, rule on
FOIA exists at 16 CFR part 1015.
C. Specific Comments on the Proposed
Rule and Commission Responses
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1. Section 1115.23—Purpose
Proposed § 1115.23 would describe
the purpose for a new subpart C,
‘‘Guidelines and Requirements for
Mandatory Recall Notices.’’ In
accordance with direction in the CPSIA,
the proposed rule would set out
guidelines and requirements for recall
notices issued under section 15(c) and
(d) or section 12 of the CPSA.
Comment 10—One commenter
believes that the proposed rule’s
purpose and reasoning section are too
generic and lack specific information.
The commenter suggests including
specific rationales for why certain
requirements will be effective and
suggests adding specific examples or
data to illustrate what the specific recall
problem is and how the rule will
address the problem.
Response—Section 214 of the CPSIA
sets forth a uniform class of information
to be included in mandatory recall
notices. The final rule’s requirements
are largely dictated by the statutory
language. Further, the Commission’s
interpretation of section 214 of the
CPSIA is not based on a scientific study,
but rather on the culmination of the
Commission’s and the staff’s many years
of experience conducting product safety
recalls. Because of the wide variety of
consumer products and industries that
such recalls encompass, it is necessary
to allow flexibility to tailor recall
notices to a specific target consumer
group, product, and hazard situation to
effectively remove hazardous products
from the hands of consumers. The
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statute and the final rule give the
Commission and/or a court the
flexibility to add or remove
requirements from a particular recall
notice as necessary and appropriate,
keeping in mind the goal of increasing
recall effectiveness, and to help
consumers identify products,
understand the product hazard, and
understand any available remedy.
2. Section 1115.24—Applicability
Proposed § 1115.24 would explain the
requirements in subpart C apply to
manufacturers (including importers),
retailers, and distributors of consumer
products. The preamble to the proposed
rule (see 74 FR at 11883) explained that
the rule would not contain requirements
for recalls and recall notices that are
voluntary and result from corrective
action settlement agreements with
Commission staff. The preamble to the
proposed rule further noted that, if the
Commission decides to extend the
requirements to voluntary recalls, it
would proceed with a separate
rulemaking initiated by a separate
notice of proposed rulemaking.
Comment 11—Many commenters note
the Commission’s statement that the
proposed rule will apply to mandatory
recall notices only and will serve as a
guideline for voluntary recalls unless
and until the Commission initiates a
separate rulemaking to apply the
requirements to voluntary recalls.
Comments from individuals and
consumer groups generally support the
extension of the mandatory notice
requirements to voluntary recalls to
promote uniformity and consistency in
providing consumers recall data and to
prevent firms from circumventing the
requirements for a mandatory recall
notice by agreeing to a voluntary recall.
One commenter notes that voluntary
recalls comprise the vast majority of
recalls and that the protections and
information afforded by the mandatory
recall notice should be extended to
consumers in voluntary recall notices as
well. Some commenters believe that
consumer safety is compromised by not
using the same notice requirements for
both mandatory and voluntary recalls.
One commenter states that the
mandatory recall notice requirements
should at least be applied to voluntary
recall notices for ultrahazardous
products.
Industry commenters are generally
opposed to extending the mandatory
recall notice requirements to voluntary
recall notices, arguing that important
differences exist between a mandatory
and voluntary recall. For example, one
commenter states that, during a
voluntary recall, the firm and the CPSC
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staff have time to develop an effective
recall notice in a more positive
environment. Depending on the nature
of the product and the harm, the same
level of detail may not be necessary for
every recall to be helpful to consumers.
These commenters support the current
system whereby the final notice
requirements are left for each specific
recall situation working with the staff.
One commenter notes the success of the
Fast Track program and believes the
Commission should continue to foster
cooperation in that program and only
impose mandatory recall procedures
when absolutely required. Some
commenters state that imposing
mandatory notice requirements will
discourage firms from conducting
voluntary recalls, which is typically
done to avoid the burdens of a
mandatory recall. Less voluntary recalls
will lead to over-burdening the
Commission staff and resources.
A few commenters are concerned
about the mandatory notice
requirements even serving as a
guideline for a voluntary recall notice
and urge the Commission to withdraw
this statement. One commenter believes
that a heightened level of importance
should be associated with mandatory
recalls. Other commenters note that,
even though the Commission
acknowledges that a separate
rulemaking will be necessary to extend
the requirements to voluntary recalls,
using the rule as a guideline is
essentially a distinction without a
difference. One commenter suggests that
the Commission explicitly acknowledge
in the preamble that a voluntary recall
notice will not need to meet all of the
guidelines for a mandatory recall notice
in order to be approved for voluntary
corrective action.
Response—While the Commission
may use the mandatory recall
requirements as a general guide for
voluntary recall notices, we recognize
that a separate rule on voluntary recall
notices is needed to make these
requirements uniform and required. The
ultimate purpose of every recall notice
is to get dangerous products out of the
hands of consumers as quickly as
possible, and each recall notice must be
negotiated with that goal in mind. The
Commission still retains the flexibility
to work with firms to tailor voluntary
recall notices to a particular product
and particular recall circumstance.
3. Section 1115.25—Definitions
Proposed § 1115.25 would define
‘‘recall,’’ ‘‘recall notice,’’ ‘‘direct recall
notice,’’ and ‘‘firm.’’
Comment 12—One commenter
suggests that the final rule define ‘‘other
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persons,’’ who were mentioned in
proposed § 1115.26. The preamble to the
proposed rule explained that ‘‘the term
‘other persons’ would include, but
would not be limited to, consumer
safety advocacy organizations, public
interest groups, trade associations, other
State, local and Federal government
agencies, and the media.’’ 74 FR at
11884. Another commenter states that it
is important to keep ‘‘other persons’’ in
the rule to acknowledge that both
governmental and non-governmental
entities are involved in the
dissemination of information in the
interest of consumer safety.
Response—The Commission agrees
that defining ‘‘other persons’’ in the rule
acknowledges the importance that both
governmental and non-governmental
entities can play in the broad
dissemination of consumer product
safety information. Accordingly, the
final rule adds the definition of ‘‘other
persons’’ at § 1115.25(e) as follows:
‘‘Other persons means, but is not limited
to, consumer safety advocacy
organizations, public interest groups,
trade associations, industry advocacy
organizations, other State, local, and
Federal government agencies, and the
media.’’ This definition is the same as
set forth in the preamble to the
proposed rule, with the addition of
‘‘industry advocacy organizations,’’ to
demonstrate the broad range of entities
that assist in disseminating product
safety information.
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4. Section 1115.26—Guidelines and
Policies
Proposed § 1115.26 provides general
guidance and describes the policies
pertaining to recall notices. The
proposed guidelines would restate the
goals delineated in section 214 of the
CPSIA. The CPSIA requires the
guidelines to include information
helpful to consumers.
In general, proposed § 1115.26(a)
would state general principles that are
important for recall notices to be
effective. For example, proposed
§ 1115.26(a)(1) would state that a recall
notice should provide information that
enables consumers and other persons to
identify the product and take a stated
action. Proposed § 1115.26(a)(2) through
(a)(4) would provide guidance on the
form of the recall notice, recognizing the
various forms of notice and providing
guidance concerning direct recall
notices and Web site recall notices.
Proposed § 1115.26(a)(4) would
recognize that a direct recall notice is
the most effective form of a recall
notice, and proposed § 1115.26(b)(2)
would state that when firms have
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contact information they should issue
direct recall notices.
Comment 13—Many comments
discuss § 1115.26(b)(2) on direct recall
notices and § 1115.26(a)(4) which states
that direct recall notices are the most
effective form of a recall notice. Overall,
individual consumer comments support
the proposed rule with regard to direct
recall notices, suggesting that
consumers tend to tune out information
not directed to them. One commenter
notes that direct recall notices have
worked effectively in Illinois since
2006. A few commenters suggest
revising the rule to require firms to
exhaust resources and to send direct
recall notices via every means possible
depending on the data they have, i.e.,
mail, electronic mail, and via telephone.
One commenter suggests requiring email notification when a firm has e-mail
contact information. One commenter
suggests asking consumers to forward email notices to people they know have
an interest in receiving the information
in order to take advantage of social
networking abilities. However, another
commenter suggests that, because
people ignore e-mails based on the large
volume received, direct regular mail
notices and automated phone messages
would be more effective. Another
commenter suggests that a direct recall
notice be required in all cases where a
firm has contact information unless the
firm can prove by a preponderance of
evidence that a direct recall notice will
not be as effective as other forms of a
recall notice.
However, one commenter urges that
direct recall notices should only be
required when a significant and
imminent health and safety risk is
involved because of the costs involved
in direct notice and because overwarning can de-sensitize consumers.
Moreover, section 15 of the CPSA
recognizes that the form of notice
depends on the risk involved and
affords parties the opportunity for a
hearing before the Commission can
order a number of actions.
Response—Direct recall notices are
the most effective form of a recall
notice. 74 FR at 11886. The statement is
based on the Commission’s experience
that one of the most important aspects
of conducting a recall is to target recall
notices to those consumers that are
more likely to have purchased the
product at issue. Direct recall notices
have the advantage of reaching a large
portion of the consuming public that
may have actually purchased the
product. Even if the product was not
ultimately used by the purchaser, in the
case of a parent buying a product for a
child or a consumer buying a gift, the
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purchaser is in a good position to notify
the product’s user about the recall.
Ensuring that notice of the recall is
provided in a timely manner to the
affected target audience is a major
component of recall effectiveness, and
direct recall notices are a key advantage
in the recall process when this
information is known. Moreover, the
rule recommends, but does not require,
use of direct recall notices. Assessing
whether direct notice is necessary,
appropriate, or possible in a particular
mandatory recall is best done on an
individual basis.
Comment 14—One commenter
advocates a clear delineation in the rule
with regard to responsibility for direct
recall notices. This commenter argues
that manufacturers should never have
responsibility for a direct recall notice,
but should have responsibility for broad
dissemination through other means.
Direct notice responsibility should fall
to the product distributors and retailers
that have such contact information.
Response—Determining which firms
have responsibility for a recall and
disseminating recall notices is beyond
the scope of the rule, which solely
relates to information categories
required on a mandatory recall notice.
Comment 15—Some commenters note
the limitations of relying solely on
direct recall notices. One commenter
states that direct recall notices are not
the best method of notifying consumers,
and should never be used as the sole
method of notifying consumers because
they miss third party consumers that
purchase products second-hand or
receive them as gifts. Considering the
popularity of certain Web sites that sell,
re-sell, or auction consumer products,
direct recall notices could miss a large
population of the consuming public.
Additionally, the general public has an
interest in knowing about recalled
products, such that the recall strategy
should be to reach the broadest possible
audience.
Response—The Commission agrees
that a direct recall notice should not be
the sole form of recall notification
because the purpose of a recall notice is
to reach the broadest possible audience
of consumers that may have purchased
or received the products. Sole reliance
on direct recall notices ignores the fact
that other persons may benefit from
receiving recall notices and assist in
broad dissemination of recall notices.
The final rule acknowledges this by
adding § 1115.26(a)(5) stating that at
least two of the recall notice forms listed
in subsection (b) should be used.
Comment 16—One commenter asks
the Commission to clarify the rule with
regard to the factors for determining
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when a firm actually has direct contact
information. This commenter states that
firms have millions of bits of
information, but being able to track the
information to a specific time frame and
product is time consuming and costly.
Moreover, firms may have some
information related to the sale, i.e.,
credit card information, but may not
have all information without relying on
a third party to match data, which can
also be time consuming and costly. The
commenter urges that the rule clarify
that it only applies when accurate, up
to date, contact information is readily
and practically available, and is in fact
in the firm’s direct possession. Another
commenter suggests adding ‘‘telephone
number’’ to the list of contact
information, and to prioritize the direct
notice methods as follows: (1) Direct
mail; (2) e-mail; and (3) telephone.
Response—Assessing when a firm has
possession of direct contact information
and when the information should be
used is best done on an individual basis
because of the variety of information
that firms or third parties may possess.
However, the final rule clarifies that ‘‘[a]
direct recall notice should be used for
each consumer for whom a firm has
direct contact information, or when
such information is obtainable,
regardless of whether the information
was collected for product registration,
sales records, catalog orders, billing
records, marketing purposes, warranty
information, loyal purchaser clubs, or
other such purposes.’’ The Commission
or a court retains flexibility to determine
when a firm has direct contact
information and when a direct recall
notice is appropriate. The final rule also
clarifies that a telephone number is
considered direct contact information:
‘‘[D]irect contact information includes,
but is not limited to, name and address,
telephone number, and electronic mail
address.’’
Comment 17—Some commenters are
positive about the various methods
available for dissemination of
information, but want the Commission
to make more than one form of notice
mandatory. For example, one
commenter would require multiple
forms of dissemination so that firms
cannot rely on a single press release and
notice to retailers. Another commenter
suggests requiring firms to contact
national and local media. Another
commenter is concerned that the rule
does not require firms to ensure that
notices are actually received and not
dismissed as spam or junk mail and says
requiring multiple dissemination
methods would address this problem.
Several commenters would require the
use of paid advertisements, for example,
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where injuries and deaths have
occurred. Similarly, another commenter
suggests that the recall notice be
required to be disseminated in the same
manner as advertising and promotion
for the product.
Response—Section 1115.26(a)(5) in
the final rule provides that more than
one form of recall notice should be
used. The Commission declines to
provide for any certain type of notice for
every recall in the final rule. Recall
notice forms may vary depending on the
type of hazard, the severity of the risk,
and the nature and distribution of the
target audience. While circumstances
will arise where paid advertisements are
warranted and the Commission’s or a
court’s order may require their use
directed to certain target audiences, in
certain time frames and intervals,
retaining flexibility and creativity to
adjust the forms of required recall
notices to the specifics of each case and
to allow for technological advancements
in recall notice forms should be
maintained.
Comment 18—Several comments
support § 1115.26(b)(3), stating that a
Web site recall notice should be
prominent and clear on the first entry
point of a Web site, such as a home
page, and be interactive. Several
commenters suggest making a Web site
recall notice a mandatory requirement
when a firm maintains a Web site. One
commenter agrees that the information
must be on the home page and urges the
CPSC not to allow firms to bury recall
notices deep within a Web site. These
commenters support the idea of an
interactive Web site that allows a
consumer to seek a remedy on-line.
However, one commenter opposes
placing a recall notice on a firm’s home
page and states that such a requirement
goes beyond the CPSIA mandate. This
commenter argues that manufacturers
and distributors post Web site recall
notices in a location where consumers
have become familiar with locating the
information. This commenter urges that
the CPSC should not adopt a ‘‘one-size
fits all’’ home page requirement and that
the decision should be based on the
circumstances of each case. Moreover,
the requirement for an interactive Web
site which allows a consumer to request
a remedy does not make sense in all
cases. The commenter gives the example
of ATVs and RVs, which must be taken
into an independent dealer for repair.
Because section 214 of the CPSIA does
not require an interactive Web site, the
commenter would delete this section
from the final rule.
Response—The Commission agrees
that product safety information should
not be buried in a firm’s Web site. Since
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at least 2000, the CPSC has provided
guidance to firms to post recall notices
prominently on the home page of the
firm’s Web site. The Commission rejects
the proposition that the rule goes
beyond the requirements of the CPSIA
with regard to providing an interactive
Web site for recalls. First, the guidelines
and policies set forth in section 1115.26
of the final rule are guidelines, not
requirements. And, as reviewed above,
section 214 of the CPSIA specifically
provides that the Commission should
‘‘include any information that the
Commission determines would be
helpful to consumers’’ to identify the
product, understand the hazard, and
understand the proposed remedy.
Although, for example, an ATV cannot
be exchanged through a Web site, a
prominently placed Web site recall
notice that is interactive will expand the
recall notice to the relevant target
audience, and increase recall
effectiveness by helping consumers with
product identification, hazard
identification and to understand the
nature of the remedy being offered.
Moreover, if the remedy is a repair, an
interactive Web site can help consumers
to locate a dealer to make the necessary
repair and/or arrange an appointment
for such repair at an appropriate dealer.
While the content and nature of Web
site interactivity may be product and
remedy specific, the tool itself can be
used in many ways to enhance
consumer understanding and recall
effectiveness.
Comment 19—Comments generally
support § 1115.26(c), which states that
the Commission or a court may require
that a recall notice be in languages in
addition to English ‘‘when necessary or
appropriate to adequately inform and
protect the public,’’ but would set
mandatory criteria for recall notices in
additional languages. For example, one
commenter states that the phrase
‘‘necessary and appropriate’’ requires
further clarification and an explanation
of the criteria that will be used. Another
commenter urges the Commission to
consider languages likely used by
consumers when reviewing and
approving recall notices and to insure
that recall hotlines and on-line forms
should be made available in additional
languages when the product was likely
purchased by non-English speaking
consumers.
Several commenters note the current
demographic situation in the United
States, stating that approximately 12%
of the population speaks Spanish, and
suggest that the Commission require
that all recall notices be drafted in both
English and Spanish. Another
commenter suggests requiring that all
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recall notices be drafted in the top two
or three other languages spoken in the
United States.
Moreover, several commenters opine
that the rule should contain criteria to
help determine when recall notices in
additional languages should be
required. Suggestions for criteria for a
mandatory language requirement
include:
• When product labeling is primarily
in a language other than English;
• When product instructions are
written in more than one language; and
• When a product is marketed in a
language other than English.
Finally, one commenter suggests that
the Commission maintain a ‘‘bank’’ of
standard recall information in other
major languages spoken in the United
States to help reduce the costs of
providing recall notices in additional
languages.
Response—The final rule clarifies
when the Commission or a court may
order that a recall notice be made in
languages in addition to English by
providing non-exhaustive examples.
However, the Commission and/or a
court retain flexibility to tailor recall
notices to individual recall
circumstances. Two criteria suggested
by commenters have been added as
examples in the final rule: When the
product labeling is primarily in a
language other than English and when
a product is marketed in a language
other than English. Both examples
establish circumstances where it may be
necessary or appropriate to issue recall
notices in additional languages in order
to increase the likelihood that audiences
will understand the notices. The final
rule, at § 1115.26(c), states one
additional example: When a product is
marketed or available in a geographic
area where English is not the
predominant language. This example
demonstrates that even when a
product’s marketing or labeling is in
English, there may be circumstances
that arise in a mandatory recall scenario
that still make it appropriate to
distribute recall notices in languages in
addition to English.
The Commission declines to adopt
additional criteria in the final rule that
would not result in an efficient use of
staff resources. For example, insufficient
information exists to impose a
requirement that every mandatory recall
notice be made available in two or three
languages. Finally, maintaining a ‘‘bank’’
of standard recall information in other
languages is something the Commission
may consider doing as a matter of
efficiency, but it is not within the scope
of the rule.
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5. Section 1115.27—Recall Notice
Content Requirements
Proposed § 1115.27 would set forth
the recall notice content requirements
specified in the CPSIA and would
provide further details where
appropriate. For example, proposed
§ 1115.27(a) would require that a recall
notice include the word ‘‘recall’’ in the
heading and text. As another example,
proposed § 1115.27(b) would require the
recall notice to contain the date of its
release, issuance, posting, or
publication.
Comment 20—One commenter would
have the rule address the sequence of
information found in a mandatory recall
notice. The commenter would have the
most important information appear at
the top of the notice because it is more
likely to be read. For example, the
photograph of the product should
appear at the top of the notice under the
‘‘recall’’ heading. The commenter would
use the following order: Description of
product hazard, type of hazard or risk,
identification of retailers, etc. This
commenter also suggests that the rule
address readability issues, such as the
use of bullet points over lengthy
paragraphs.
Response—The Commission agrees
that recall notices should be written
with the intent to aid readability and
understanding by consumers, but that
this issue is best addressed on an
individual, case-by-case basis. In a
mandatory recall situation, the
Commission or a court has control over
the final form and content of a recall
notice, and can require such notices to
conform to the standard format already
in use. The Commission declines to set
a uniform sequence in the current
rulemaking because what represents the
most critical recall information may
vary slightly depending on the
circumstances surrounding the recall.
Comment 21—One commenter
suggests adding a ‘‘Region’’ provision to
mandatory recall notices to specify the
geographic region in which the product
was made available in order to narrow
down areas of concern when a national
retailer is involved. This commenter
suggests that the ‘‘Region’’ should state
whether the product was for sale on
line, so that a consumer understands
when the geographic area may have
been broadened by Internet sales.
Response—When it is relevant, a
specific geographic region where a
product is sold or offered for sale is
typically included in a recall notice.
Although the proposed rule did not list
‘‘region’’ as part of the recall notice
content requirements, adding a separate
‘‘region’’ requirement to a mandatory
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recall notice could help to narrow the
geographic range for affected retailers
and consumers (while not narrowing the
range for dissemination of a recall
notice generally), and would allow for a
description of the region in situations
where no significant retailer is
identified. Designation of a region may
help consumers to identify whether they
have the product being recalled.
Accordingly, the final rule adds a
requirement for ‘‘Region’’ as a new
§ 1115.27(j), which provides that
‘‘[w]here necessary or appropriate to
assist consumers in determining
whether they have the product at issue,
a description of the region where the
product was sold, or held for purposes
of sale or distribution in commerce,
must be provided’’ and has renumbered
the remaining paragraphs accordingly.
Comment 22—Most commenters
support § 1115.27(a)’s requirement to
use the word ‘‘recall’’ in the heading and
text of the notice. A few commenters
suggest use of the label ‘‘Safety Recall’’
in the heading to alert consumers to a
safety issue with regard to the product.
One commenter suggests using the term
‘‘Urgent Recall’’ in the heading
whenever there is a serious risk of death
or loss of limb. This commenter urges
that the Commission use this
designation to create a more serious
class of product recalls.
One commenter dislikes using the
word ‘‘recall’’ in every notice, arguing
that it may be misleading and
‘‘unnecessarily harmful to the character
of a product, manufacturer, importer, or
retailer’’ by suggesting the harm is
greater than it actually may be. This
commenter suggests using language
from the ‘‘action taken’’ section, which
the commenter believes will be more
accurate in describing the nature of the
recall at issue. At minimum, the
commenter suggests using ‘‘recall’’ along
with the ‘‘action taken’’ in the header so
that consumers can quickly and easily
see the nature of the action being taken
with regard to the product.
Response—As a matter of
Commission policy for consistency and
uniformity, use of the word ‘‘recall’’ is
preferred because consumers and other
persons recognize the word ‘‘recall’’ as
meaning that a safety issue has arisen
that requires action by the consumer.
The CPSC’s position on the title of a
recall notice has been in the Recall
Handbook for many years. The
Commission does not agree that the
dissemination of a recall notice
necessarily harms manufacturers. As
reviewed in the Recall Handbook,
consumers no longer necessarily view
product recalls in a negative light and
are, instead, more likely to have a
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negative view of a firm if it does not
take responsibility for conducting an
effective recall. How well a company
conducts a timely, reasonable recall of
a product may have a strong influence
on consumers’ attitudes about the firm.
Successful product recalls can result in
continuing consumer support and
demand for the firm’s products.
While the Commission categorizes
recalls, as set forth in the Recall
Handbook Section III, CPSC Evaluation
of Section 15 Reports, the Commission
has avoided categorizing recall notices
because it wants consumers to review
and respond to all recall notices.
Consumers should have the opportunity
to read each notice and make an
informed decision regarding whether
they have the product, whether the risk
of injury applies to them, how to avoid
injury, and how to take advantage of any
remedy associated with the recall.
Categorizing recalls by the severity of
risk may hinder the overall goal of recall
effectiveness.
Comment 23—A few commenters
agree with proposed § 1115.27(c)’s
requirements pertaining to a description
of the product. However, one
commenter suggests that it is unclear
whether § 1115.27(c)(1) through (6)
establishes requirements because the
word ‘‘must’’ is not used. This
commenter suggests clarifying the rule
so that firms know whether all or some
subset of these product identification
guidelines are required.
Response—Section 15(i)(2) of the
CPSA requires that a mandatory recall
notice include a product description,
including model numbers or SKUs,
common product name(s), and a
photograph of the product. The final
rule is organized such that items in
§ 1115.26 are guidelines and policies,
and items in § 1115.27 are requirements.
Accordingly, § 1115.27(c) provides that
‘‘[a] recall notice must include a clear
and concise statement of the
information that will enable consumers
and other persons to readily and
accurately identify the specific product
and distinguish it from similar products.
The information must enable consumers
to readily determine whether or not they
have, or may be exposed to, the
product.’’ The rule lists six types of
descriptive information relevant to
product identification, including the
fact that a photograph ‘‘must’’ be
included. The final rule clarifies that
when the information specified under
this section is applicable to a particular
product, it must be included as part of
the product description: ‘‘[T]o the extent
applicable to a product, descriptive
information that must appear on a recall
notice includes, but is not limited to:’’
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The list is not exhaustive, however, and
additional product identification
information may be required for a
particular recall notice.
Comment 24—Several comments
would strengthen the remedy
requirements in proposed §§ 1115.27(d)
and (m). One commenter observes that
the remedy offered must be
implementable by all parties. The
commenter notes that there have been
several instances where a manufacturer
offered a remedy, such as a voucher or
coupon, that was not recognized by all
retailers’ computer systems when
presented by a consumer. Accordingly,
consideration of different systems
should be given when providing a
remedy and approval by the CPSC.
A few commenters suggest limiting a
manufacturer’s ability to instruct
consumers to discard products. They
argue that this remedy should be limited
to situations where a firm has gone out
of business or the product is of nominal
value. One commenter urges the
Commission to not approve any recall
notice that does not include
replacement, repair, or refund of the
purchase price as a remedy because
consumers will be less likely to comply
without compensation as they do not
want to pay for the item twice. Finally,
one commenter urges the Commission
to include a section for ‘‘incentive’’ or
‘‘reward’’ to inform consumers about any
additional incentives for the return of
the product, or state that ‘‘none’’ are
being given.
Response—The nature of remedies
approved as part of a corrective action
plan goes to the substance of a
corrective action plan, which is not at
issue in the final rule. With regard to the
suggestion to include a category for a
description of any recall incentive in a
mandatory recall notice, while the
Commission generally encourages firms
to offer incentives for compliance with
a recall, the Commission declines to
require a separate category for such
information. Incentives are properly
part of the remedy being offered. An
additional category for incentives in
every recall notice, even when an
incentive is not being offered, will
lengthen the recall notice without
improving the overall effectiveness of
the notice or providing new or different
information to help consumers
understand the remedy being offered.
The Commission also notes that
proposed § 1115.27(m) is now
renumbered as § 1115.27(n) in the final
rule.
Comment 25—Proposed § 1115.27(e)
would require the recall notice to state
the approximate number of product
units covered by the recall, including all
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product units manufactured, imported,
and/or distributed in commerce. Several
comments suggest clarifying
§ 1115.27(e) by requiring a statement of
the number of product units included in
a recall notice. A few commenters state
that the rule should only include
products actually sold to consumers so
that the number does not include
products that were never sold to any
distributor or retailer or are still in the
hands of the manufacturer and were
never imported. The commenters
believe that these products are not
subject to a recall and that it is
inappropriate and beyond the scope of
the CPSIA to include in the number of
units products that have never been in
the hands of consumers. Moreover,
these commenters argue that including
such data is misleading and distorting of
the number of products actually subject
to the recall and cannot be said to help
consumers identify a product,
understand a product hazard, or obtain
a remedy.
One commenter suggests that product
unit information is unnecessary,
unhelpful to the consumer, and is likely
to overwhelm the average consumer.
According to this commenter, including
product unit information only serves to
frustrate the purpose of understanding
the product’s actual or potential hazard.
This information could have a negative
effect on the firm, and media and other
groups could incorrectly focus on the
number of products being recalled
rather than any actual threat of public
harm.
Response—Section 15(i)(2)(C) of the
CPSA requires that a mandatory recall
notice include ‘‘[t]he number of units of
the product with respect to which the
action is being taken.’’ Accordingly,
firms must state product unit
information in a mandatory recall notice
pursuant to the statute. The
Commission’s interpretation of this
section of the statute is consistent with
past Commission practice for all recall
notices, as set forth in the Recall
Handbook, which is to list all units of
a product manufactured, imported, and/
or distributed in commerce. As for those
comments suggesting that products that
are not in the hands of consumers are
not subject to a recall, the CPSC has
jurisdiction over all consumer products
subject to a recall, and all such products
must be dealt with in a corrective action
plan, regardless of where the product is
in the supply chain. For example, in a
mandatory recall situation, a
manufacturer holding product could not
sell, modify, or destroy product without
CPSC authorization. Stating the number
of product units involved informs
consumers as to the scope of a recall,
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aids product identification, and
increases recall effectiveness.
Comment 26—Many comments
address proposed §§ 1115.27(f) and (l)
regarding a description of substantial
product hazard and a description of the
incidents, injuries and deaths. Several
commenters agree that requiring a
mandatory recall notice to describe and
state the number of injuries and deaths
is helpful to consumers and will
motivate them to comply with the
recall. Many commenters, however,
state that specific information on
injuries and deaths is unnecessary and
irrelevant, or suggest that the rule
should be further clarified to prevent
the recall notice from becoming a
lengthy, multi-paged document. One
commenter states that proposed
§ 1115.27(f) exceeds the scope of the
intent of the CPSIA with regard to a
description of the substantial product
hazard and reason for action. This
information may not be feasible for
firms to provide and may be more
misleading than informative because a
firm may not know all of this
information at the time of a recall.
Further, several commenters state that
reporting death statistics is outside the
purpose of a recall, will not help
consumers or their decision to
participate in a recall, but will have an
adverse effect on retailers and
producers.
Response—Sections 15(i)(2)(D) and
(G) of the CPSA require that a
mandatory recall notice include ‘‘[a]
description of the substantial product
hazard and the reasons for the action,’’
as well as ‘‘[t]he number and a
description of any injuries or deaths
associated with the product, the ages of
any individuals injured or killed, and
the dates on which the Commission
received information about such injuries
or deaths.’’ Accordingly, the statute and
the final rule require both a description
of the substantial product hazard and
specific information on injuries and
deaths, including the number,
description and ages of persons
involved. However, recall notices will,
by necessity, only include information
regarding a substantial product hazard
and any injuries or deaths that are
known at the time of the recall notice.
The Commission also notes that it has
renumbered § 1115.27(l) as § 1115.27(m)
in the final rule.
Comment 27—Some commenters
request clarification on what constitutes
an injury that requires reporting, what
the phrase ‘‘associated with the product’’
in proposed § 1115.27(f) means, what
‘‘product conditions or circumstances’’
can give rise to an injury or death
related to a product, and what a
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‘‘concise summary’’ constitutes. For
example, one commenter opines that the
term ‘‘injury’’ should be defined to only
include injuries which require medical
treatment, and to exclude minor injuries
such as superficial scrapes and bruises.
This commenter states that defining
‘‘injury’’ will make reporting consistent
across recall notices. Another
commenter states that ‘‘associated with
the product’’ language could be
interpreted broadly to require that all
deaths or injuries be reported, even
when there may be other causes, such
as gross negligence or use contrary to
warning labels. One commenter suggests
that the rule address whether a
manufacturer must list any death or
injury, however tangential, or may
qualify injuries where gross negligence
and contrary use are involved. Finally,
one commenter believes that requiring
detailed information on injuries and
deaths will expose firms to liability for
acts that have not been proven in court
to be causally linked to the products
without providing any benefits to the
consumer. Moreover, it could require
corporations to implicate themselves
criminally or civilly, in violation of the
Fifth Amendment of the Constitution.
Response—With regard to the types of
injuries required to be reported on a
recall notice, the Commission interprets
the statutory requirement consistent
with past agency practice with regard to
reporting injuries on a recall notice,
which is to include all injuries,
regardless of whether a consumer
sought medical treatment, where the
consumer product is present at the time
of the injury and may have been a
contributing factor.
A well-crafted recall notice does not
necessarily subject a firm to increased
product liability. The Commission’s
mandate is public safety, and effective
recall notices can play an important role
in enhancing public safety. Allowing a
defective product to stay on the market
without providing the public with
timely hazard and recall information
would likely result in increased liability
for non-compliant firms, not only from
potential civil and criminal penalties by
the Commission, but from product
liability lawsuits as well. Finally, no
concern exists that providing
information on injuries and deaths in a
recall notice impairs any Fifth
Amendment right against selfincrimination, as the Fifth Amendment
protects individuals, not corporate
entities. See, e.g., Bellis v. United States,
417 U.S. 85, 88–90 (1974) (reviewing
history of decisions regarding the Fifth
Amendment privilege and its
inapplicability to corporations and
stating that no artificial organization
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may utilize the personal privilege
against self-incrimination to avoid
producing corporate documents).
Comment 28—Several comments
would clarify the rule to allow reporting
of injuries and age ranges in the
aggregate. These commenters argue that
reporting specific ages is not necessarily
helpful for the consumer to evaluate the
risks involved. Moreover, if the rule is
interpreted to require a description of
each injury and the age of each person,
this could turn the recall notice into a
lengthy, multi-page document that
defeats the purpose of efficiently and
effectively identifying the product,
explaining the hazard, and
communicating a remedy to consumers.
Age ranges can be described in
numbered ranges, or, for example, as
adult, child, infant. One commenter
opines that the number of injuries is not
as important as the details of the
injuries and deaths, to distinguish
minor injuries from other types of harm.
Response—Reporting of injuries and
deaths, including the ages of individuals
injured or killed, is statutorily required
in a mandatory recall notice. Providing
this information, however, need not
result in a lengthy recall notice.
Consumers and firms can find
numerous examples of recall notices on
the CPSC’s Web site, and note that when
age and injury information is detailed,
it does not result in lengthy, unreadable
recall notices. The Commission or a
court retains the flexibility to craft
effective recall notices for particular
recall scenarios which are in the best
interest of the consumer. The exact
wording of any recall notice cannot be
done before the fact, and the
Commission declines to adopt a
specific, one size fits all, approach to
how this information is presented for
every recall notice. Firms should
anticipate that aggregation of age
information will be required in limited
circumstances.
Comment 29—One commenter states
that information regarding injuries on
exact dates can be considered
confidential material supplied to staff
under section 15(b) of the CPSA.
Including such information in a recall
notice would undermine confidentiality
under section 6(b) of the CPSA and
otherwise. Another commenter notes
that the date of injury may be unrelated
to when the consumer decides to report
the injury and how accurately the injury
is characterized. One commenter states
that if the information must be
provided, then the Commission should
at least allow firms to provide a range
of dates rather than exact dates, or a
summary such as ‘‘prior to the time of
this announcement.’’ Another
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commenter, however, agrees that the
recall notices should include the dates
or date ranges when the Commission
received information about deaths or
injuries, and suggests that the
Commission further require the dates or
date ranges when the recalling firm
received information about deaths or
injuries.
Response—Some commenters may
misunderstand the statutory
requirement with regard to reporting
dates related to injuries. Neither the
statute nor the rule require that a
mandatory recall notice state the actual
date that an injury or death occurred, or
the actual date when a firm received
information about an injury. Section
15(i)(2)(G) of the CPSA requires that a
mandatory recall notice include ‘‘the
dates on which the Commission
received information about such injuries
or deaths.’’ (Emphasis added.) At
minimum, a month and year must be
reported as to when the Commission
received such information. Accordingly,
aggregation of the month and year may
occur when necessary or appropriate to
shorten the information presented on a
recall notice while not sacrificing
appropriate and statutorily required
detail. For example, if the Commission
learns of three injuries on three separate
dates in a single month, a mandatory
recall notice may provide the month
and year in which these injuries were
reported, presenting accurate
information in a shortened format.
However, the Commission or a court
retains the flexibility to order the use of
exact dates or the use of a range of dates
by month and year, depending, among
other things, on the number of injuries
and the risk involved, if it is more
helpful to consumers.
Comment 30—One commenter
suggests that information on injuries
and deaths is a subpart of the section on
substantial product hazard and should
be moved under that section.
Response—A description of the
substantial product hazard and a
description of the associated injuries
and deaths are separate categories of
information presented on a recall notice.
Both the statute and the final rule
separate these categories of information.
See, e.g., sections 15(i)(2)(D) and (G) of
the CPSA. The information presented
under substantial product hazard is a
short, factual statement regarding the
actual or potential harm, i.e., choking,
laceration, drowning, while the number
and description of injuries reports
actual injuries that have occurred. In
some instances, for example, the risk of
injury for choking may be present, but
no reported injuries have occurred.
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Comment 31—Many comments
address § 1115.27(h) regarding
identification of manufacturers on a
mandatory recall notice. A few
comments are favorable, but many
comments question the value of
identifying a foreign manufacturer, and
suggest that this information is
confidential business information
subject to trade secret protection.
A few comments simply state that
while the identification of
manufacturers may be helpful to the
CPSC, it is not helpful to a consumer
and may be confusing with regard to
who is responsible for the recall. Several
commenters opine that not only is the
information irrelevant to an effective
recall and the stated goals of a recall
notice under section 214 of the CPSIA,
but the identity of foreign manufacturers
is proprietary, confidential business
information which should only be
required to be provided to the
Commission under trade secret
protection. These commenters state that
the CPSIA does not require
identification of a foreign manufacturer,
and that the name of the importer and
country of origin should be sufficient.
Moreover, publishing the name of
foreign manufacturers can cause
significant harm to a firm and is
information not shared with
competitors. Naming a foreign
manufacturer may cause confusion to
consumers, and unfairly place blame on
foreign manufacturers when the
problem, for example, may actually be
with the design of the product. Finally,
one commenter opines that information
on the country of origin is not helpful
to the consumer and detracts from the
overall effectiveness of a recall notice.
Such information may confuse
consumers to believe that all products
manufactured in a country are
dangerous.
Response—Section 15(i)(2)(E) of the
CPSA requires that a mandatory recall
notice shall include ‘‘[a]n identification
of the manufacturers * * * of the
product.’’ Section 3(a)(11) of the CPSA
defines ‘‘manufacturer’’ as ‘‘any person
who manufactures or imports a
consumer product.’’ The term
‘‘manufactured’’ means to ‘‘manufacture,
produce, or assemble.’’ Section 3(a)(10)
of the CPSA. A consumer product
includes ‘‘any article, or component part
thereof, produced or distributed’’ for
sale to consumers. Section 3(a)(5) of the
CPSA. Thus, any firm that
manufactures, produces, assembles or
imports a consumer product, or any
component part thereof, may be
characterized as a product
manufacturer. As is often the case, a
consumer product may have more than
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one manufacturer. This fact is
acknowledged both by the statute,
which employs the plural term
‘‘manufacturers’’ and the rule, which
provides that ‘‘[a] recall notice must
identify each manufacturer (including
importer) of the product and the country
of manufacture.’’
The identity of a foreign manufacturer
is not a trade secret or commercially
sensitive information in every case. For
example, many voluntary recall notices
issued in the past identify a foreign
manufacturer. In the context of a
mandatory recall situation, whether
identification of a foreign manufacturer
is indeed trade secret, confidential
information, and/or whether an
exception to section 6 of the CPSA
applies, will necessarily be litigated in
the judicial or administrative
proceeding. These issues require a factdependent, individualized analysis in
every case; it is not something that
could ever be decided broadly and
apply to all manufacturers. To the
extent that section 6 of the CPSA is
applicable, the Commission
acknowledges that it, and a firm, must
comply with the law and any exceptions
thereto.
Comment 32—Another commenter
opines that the rule is ambiguous as to
whether different information is
required from foreign and domestic
manufacturers. The commenter would
clarify the rule to state that a recall
notice must identify a domestic
manufacturer’s legal name, city, and
state of headquarters, or if a foreign
manufacturer is involved, identify the
city and country of its headquarters (but
omit the name of the company). Another
commenter agrees that the manufacturer
name and country of manufacture
should be on the recall notice, but not
the city and state of the headquarters.
This commenter does not see any added
benefit to the consumer to have this
information.
Response—The rule anticipates that
many consumer products have both
foreign and domestic manufacturers and
importers, both of whom must be
identified. The rule requires all
manufacturers to be identified by their
legal names. Additionally, domestic
companies should be identified by the
city and state of their headquarters, and
foreign companies should be identified
by the city and country of their
headquarters. The Commission agrees
that the language in the proposed rule
was unclear with regard to what
identifying information is required for
foreign manufacturers. The final rule
clarifies that foreign manufacturers must
be identified by: (i) Legal name; (ii) city;
and (iii) country of headquarters.
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Comment 33—One commenter
suggests that the Commission require a
manufacturer’s Web site address to be
listed with the identification
information, in addition to name, trade
name, city, and state, to facilitate recall
information dissemination and allow
consumers to access recall and remedy
information via the company’s Web site.
Response—The Commission declines
to require that a manufacturer’s Web
address be listed as identifying
information in every mandatory recall
notice. A Web address for recall
information is already provided
elsewhere on the recall notice. The
manufacturer may or may not have a
Web site and may or may not be the firm
in charge of a recall. The Commission
does not want consumers to be confused
with regard to which entity is
responsible for the recall, or to deluge
the wrong firm with phone calls about
a recall.
Comment 34—One commenter
suggests excluding small importers that
are not the sole importer or retailer from
any provision that allows them to be
characterized as a ‘‘manufacturer’’ or
‘‘significant retailer’’ for purposes of a
recall, because the burden on small
importers would be too great and they
would not likely have the type of
information available to manufacturers
and retailers to implement a recall.
However, another commenter observed
that the burden on small businesses
should not be great because there are
few mandatory recalls.
Response—Determining which firm is
responsible for conducting a recall is
outside the scope of the final rule,
which focuses on guidelines and
requirements for information categories
to include in a mandatory recall notice.
Comment 35—Many commenters
request clarification of proposed
§ 1115.27(i) with regard to identification
of ‘‘significant retailers,’’ arguing that the
rule is too vague regarding what criteria
will be used to determine a ‘‘significant
retailer.’’
One commenter opines that singling
out retailers does not help to identify a
product. This information is only
relevant if the remedy is to return the
product to the retailer, or if there is only
one retailer. Moreover, several
commenters prefer to keep the current
system whereby no specific retailer is
named, and the firm can rely on
language such as ‘‘sold at department
store and retail stores nationwide.’’
Response—Section 15(i)(2)(E) of the
CPSA requires that a mandatory recall
notice include ‘‘[a]n identification of the
* * * significant retailers of the
product.’’ Thus, the statute requires the
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identification of ‘‘significant’’ retailers
but does not define ‘‘significant.’’
Comment 36—Several commenters
believe the language regarding
‘‘significant retailers’’ should be
expanded to include all retailers,
instead of just ‘‘significant’’ retailers.
Many commenters state that if only a
few retailers are listed, consumers may
be confused and believe that their
product is not at issue in the recall
simply because the retailer they
purchased the product from is not
listed. Moreover, this scenario would
leave out the majority of retailers where
the products were actually purchased
and may compromise dissemination of
recall information to the majority of the
consuming public. One commenter
suggests that, in order to keep the notice
short, the Commission should require
the notice to state that the retailer list is
not exhaustive and to provide a Web
site address where the consumer can
find an exhaustive list of retailers.
Several commenters claim that, because
the definition of ‘‘significant retailer’’ is
so vague, firms will simply list all
retailers to avoid non-compliance.
These commenters argue that a long list
of retailers will increase the length of
the notice and make it difficult for
consumers to obtain the information
required for an effective recall.
Response—Section 15(i)(2)(E) of the
CPSA requires that a mandatory recall
notice identify significant retailers of
the product. Although the statute does
not define ‘‘significant,’’ the Commission
does not read it to mean identification
of all retailers. While the Commission
could identify all retailers on its Web
site if it were in the interest of public
safety, it declines to do so in every
mandatory recall scenario. First, the
statute requires identification of
‘‘significant’’ retailers, not all retailers.
Second, it is unclear whether requiring
every mandatory recall notice to include
an exhaustive list of retailers on the
CPSC Web site would increase recall
effectiveness or would be an efficient
use of Commission resources. Such a
requirement may become burdensome
with no added value to consumers.
Finally, listing significant retailers will
not result in a lengthy recall notice
because the Commission retains the
discretion to control the substance,
format, and organization of recall
notices in the interest of consumer
safety and recall effectiveness.
Comment 37—Many commenters
suggest that the concept of, and the
criteria for, ‘‘significant retailer’’ be
clarified and that § 1115.27(i)(5) should
not contain a vague catch-all that allows
the Commission to find a retailer
significant if it ‘‘is in the public
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interest.’’ Many commenters request that
the Commission set forth criteria the
Commission will consider in
determining what is in the public
interest.
Response—The Commission’s
experience with recall notices and
identification of retailers is that such
information helps consumers to
determine whether or not they may have
the defective product. Accordingly, the
rule provides four circumstances under
which identifying a retailer may be
helpful to consumers to identify a
product: (i) An exclusive retailer; (ii) a
retailer that is also an importer of the
product; (iii) a retailer with national
and/or regionally located stores; and (iv)
a retailer that holds or sold a significant
number of the defective products. The
rule also provides the Commission, or a
court, with the flexibility to determine
that although a retailer may not fall into
one of the four enumerated categories,
circumstances may arise whereby
designation of the retailer as
‘‘significant’’ for a particular mandatory
recall would help consumers identify
the product. The final rule maintains
this flexibility because: (i) It is not
possible to anticipate every
circumstance where listing a particular
retailer may become helpful to
consumers beforehand; and (ii) the
Commission, under sections 15(c) and
(d) of the CPSA, and a court, pursuant
to section 12 of the CPSA, already have
final authority over the form and
content of mandatory recall notices.
Such authority is not altered by section
15(i) of the CPSA and the Commission
declines to do so in the final rule.
Comment 38—Some commenters state
that the Commission failed to define
‘‘regional retailer,’’ or ‘‘regionallylocated.’’ Accordingly, these
commenters argue that the rule is too
vague.
Response—The term ‘‘regional’’
should be understood based on its
ordinary and customary usage. For
example, a regional chain could be
located in one region of the state of
California, it could comprise affiliated
stores existing in an entire state, or it
could comprise affiliated stores located
in a group of states, or finally, stores
located in one or more regions of the
United States.
Comment 39—Some commenters note
that there are many situations where
regional chains or ‘‘mom and pop’’ stores
sell the majority of the products and
collectively outsell a national retailer,
but the national retailer may end up
being named as a ‘‘significant retailer’’
because, compared to any one store, it
may have sold more products. Several
commenters observe that the rule, as
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proposed, will likely result in a small
number of national retailers being
named in virtually every recall notice,
which will dilute the purpose of the
information. One commenter suggests
addressing this problem by changing
§ 1115.27(i)(4) from ‘‘a significant
number of the total manufactured’’ to ‘‘a
majority of the total manufactured.’’
This commenter believes that naming
one retailer where a majority of the
products were sold would be more
helpful to the consumer than listing
every ‘‘significant retailer.’’
Response—With regard to the idea
that listing some, but not all, retailers
will cause consumer confusion, this has
not been the Commission’s experience.
For example, a recall notice can list
major retail outlets, but also explain that
the list of retailers is not exhaustive. In
a situation where Store A sold 40% of
the defective product and more than 50
smaller home centers and hardware
stores sold the remaining 60%, a recall
notice could employ additional, helpful
language describing the types of stores
where the product was sold without
causing the notice to become unduly
long and unreadable: ‘‘Product was sold
nationwide at Store A and at home
centers and hardware stores
nationwide.’’
The Commission declines to adopt the
suggestion that the required statutory
term ‘‘significant’’ be modified to mean
a ‘‘majority’’ of the products. The statute
itself requires identification of
‘‘significant’’ retailers. Many situations
arise where there may be two or three
retailers that sell 60% to 80% of the
products. While no retailer individually
sold a majority of the products, listing
these retailers is helpful to consumers to
determine whether or not they may have
the defective product.
Comment 40—One commenter would
expand the description of retailers to
include contractors, so that contractors
must notify consumers when the
materials were used in building
projects. The commenter cited, as an
example, the drywall situation, where
the nature of the product makes it
difficult for consumers to discern
whether the defective product is in their
home.
Response—The Commission declines
to include the term ‘‘contractors’’ in the
description of retailers, but this does not
preclude the fact that there may be
situations when contractors may be
considered to be retailers. Even if the
Commission were to include contractors
in the description of retailers, it would
not address the commenter’s primary
concern that contractors notify
homeowners about the materials used in
building projects. The statute at issue
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here, section 15(i) of the CPSA, does not
impose any specific obligation on a
retailer to notify consumers. Being listed
as a ‘‘significant retailer’’ does not create
any obligation on the part of retailers so
listed; the information is present solely
to assist consumers with product
identification.
Comment 41—One commenter opines
that the dates of manufacture and sale
under proposed § 1115.27(j) (now
renumbered as § 1115.27(k) in the final
rule) are too expansive. Manufacturers
date code products by the date of
manufacture, not the date of sale.
Manufacturers often do not know the
date a product first hits retail shelves.
Providing more than manufacturing
dates may be confusing to consumers.
The current system of citing
manufacturing dates by date code, or
date of sale if known, has been
successful.
Response—Section 15(i)(2)(F) of the
CPSA requires that a mandatory recall
notice include ‘‘[t]he dates between
which the product was manufactured
and sold.’’ The statute thus requires both
the dates of manufacture and the dates
of sale. If a manufacturer does not have
this information, it is expected that,
where available, it may be provided by
retailers or distributors.
Comment 42—A few commenters
suggest expanding the price requirement
in proposed § 1115.27(k) (now
renumbered as § 1115.27(l) in the final
rule). One commenter would require
suggested retail price, prices known to
the manufacturer, and the highest and
lowest retail price known. Another
commenter suggests that the
approximate price range is not helpful
enough, and that the price range should
be made specific for geographic
locations.
One commenter opines that a price
should only be required when the
remedy is a purchase price refund.
Otherwise, this information is unhelpful
and clutters the recall notice.
Response—The Commission typically
requires approximate price information
in all recall notices to assist with
product identification. We decline to
require every price known to the
manufacturer in every mandatory recall
notice; the approximate price range is
sufficient for product identification
purposes, and to assist the consumer in
understanding what the price refund
may be. Further, providing a price range
for each specific geographic location in
every recall situation is not always
practical. It is unclear whether such
information will add sufficient value to
the recall notice to offset the use of
resources in every recall situation. The
Commission retains the flexibility,
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however, to require more information
on price if it would assist consumers.
Comment 43—One commenter states
that proposed § 1115.27(n) (now
renumbered as § 1115.27(o) in the final
rule) regarding ‘‘other information’’ that
the Commission or a court may deem
appropriate for inclusion in a recall
notice should state what types of
additional information may be required
to put firms on notice. The commenter
argues that without such clarification an
aggrieved party may later argue that a
requirement placed on it is burdensome
and not contemplated by the rule.
Accordingly, the commenter suggests
that the rule clarify that § 1115.27 is
exhaustive as can be currently
contemplated, but that other
requirements will be included as the
situation demands. At a minimum, the
rule should state that future
requirements will be based on a fair
assessment of the situation.
Response—Section 15(i)(2)(I) of the
CPSA provides that a mandatory recall
notice must include ‘‘[o]ther information
the Commission deems appropriate.’’
Moreover, when a mandatory recall
notice is ordered by a court or the
Commission, it has authority over the
final form and content of the recall
notice and can require additional
information deemed appropriate in
particular cases pursuant to sections 12,
15(c) and 15(d) of the CPSA. Thus, the
authority to include any other
information the Commission deems
appropriate in a mandatory recall notice
does not solely originate from section
15(i) of the CPSA. The rule reflects the
Commission or a court’s inherent
authority with regard to the form and
content of mandatory recall notices, and
the Commission declines to limit its
own authority in the rule.
6. Section 1115.28—Multiple Products
or Models
Proposed § 1115.28 would require the
notice for each product or model
covered by a recall notice to meet the
requirements of this subpart.
We received no comments on this
provision and have finalized it without
change.
7. Section 1115.29—Final
Determination Regarding Form and
Content
Comment 44—Most commenters
support § 1115.29 which states that the
Commission or the Court has the final
determination as to the form and
content of a recall notice. Consumer
groups, in particular, support this rule
to level the influence that firms have
traditionally had over form and content.
One commenter suggests imposing a
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deadline on firms for disseminating the
recall notice after Commission approval
and immediate posting on the CPSC’s
Web site after approval. One
commenter, however, feels that the rule
is vague and allows the CPSC excessive
discretion with regard to recall form and
content. This commenter suggests more
specificity and criteria be inserted into
the rule to create more uniform
expectations for firms. Another
commenter suggests imposing a
deadline on the Commission’s approval
process, and allowing firms to
disseminate a recall notice if the
Commission has not rejected or
approved the proposed recall notice
within the time frame in order to get
recall information out to the public as
soon as possible.
Response—The Commission and/or a
court have statutory authority to control
the final form and content of mandatory
recall notices. Mandatory recall notices
must be approved by the Commission
before they are disseminated. Sections
15(c)(1) and 15(d)(2) of the CPSA.
Nothing in section 15(i) of the CPSA or
the final rule changes this control; the
statute merely requires that the
Commission provide guidance on a
uniform set of information that firms
can expect to find in a mandatory recall
notice, as well as sets forth certain
requirements for mandatory recall
notices which can be altered by the
Commission in particular recall
scenarios as necessary or appropriate.
Thus, the date of dissemination by both
the CPSC and the firm is directed by the
CPSC, and the CPSC posts all recall
press notices on its Web site at https://
www.CPSC.gov after approval by the
Commission.
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IV. Environmental Impact
Generally, the Commission’s
regulations are considered to ‘‘have little
or no potential for affecting the human
environment,’’ and environmental
assessments and impact statements are
not usually prepared. See 16 CFR
1021.5(c). The final rule establishes
requirements and guidelines for
mandatory recall notices is not expected
to have an adverse impact on the
environment. Thus, the Commission
concludes that no environmental
assessment or environmental impact
statement is required in this proceeding.
V. Paperwork Reduction Act of 1995
The rule does not impose information
collection requirements. Rather, the rule
sets forth a uniform set of information
categories that are either statutorily
required or provided as guidelines by
the Commission for use in recall notices
that are ordered by the Commission or
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a United States district court in
individual enforcement actions under
sections 12, 15(c) or 15(d) of the CPSA.
Additionally, under 5 CFR 1320.4(a)(2),
the Paperwork Reduction Act
requirements do not apply to collections
of information ‘‘during the conduct of a
civil action to which the United States
or any official or agency thereof is a
party, or during the conduct of an
administrative action * * * against
specific individuals or entities.’’
Accordingly, it is not subject to the
Paperwork Reduction Act, 44 U.S.C.
3501 through 3520.
VI. Executive Order 12988
According to Executive Order 12988
(February 5, 1996), agencies must state
in clear language the preemptive effect,
if any, of new regulations. The
requirements and guidelines contained
in the rule do not impact the States, as
they only apply to mandatory recalls
ordered by the Commission or a United
States district court. Moreover, section
26 of the CPSA with regard to
preemption only addresses the
preemptive effect of consumer product
safety standards under the CPSA. The
current rule is not a consumer product
safety standard under the Act.
Accordingly, the Commission has
determined that this rule does not
contain requirements or guidelines that
impact the States.
VII. Regulatory Flexibility Act
The Regulatory Flexibility Act
(‘‘RFA’’) generally requires that agencies
review proposed rules for their potential
economic impact on small entities,
including small businesses. Section 603
of the RFA calls for agencies to prepare
and make available for public comment
an initial regulatory flexibility analysis
describing the impact of the proposed
rule on small entities and identifying
impact-reducing alternatives. 5 U.S.C.
603. Section 605(b) of the RFA,
however, states that this requirement
does not apply if the head of the agency
certifies that the rule will not, if
promulgated, have a significant
economic impact on a substantial
number of small entities, and the agency
provides an explanation for that
conclusion.
This final rule will have little or no
effect on small businesses. First, this
rule consists of guidelines (which do
not require a regulatory flexibility
analysis) and recall notice content
requirements that are largely dictated by
the CPSIA. Second, these guidelines and
requirements apply in the context of an
administratively adjudicated order to a
specific party to issue a recall notice.
Such mandatory recalls have occurred
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infrequently in the Commission’s
history. Finally, the substantive
authority for a court or the Commission
to order that a mandatory recall notice
issue comes from existing law, sections
12, 15(c) and 15(d) of the CPSA, rather
than the final rule. Therefore, the
Commission concludes that the final
rule will not have a significant
economic impact on a substantial
number of small entities.
VIII. Effective Date
In the preamble to the proposed rule,
the Commission indicated that the final
rule would be effective upon
publication in the Federal Register
based upon good cause shown (74 FR
11885). However, in its vote to approve
the issuance of the final rule, the
Commission voted to follow the APA
standard, codified at 5 U.S.C. 553(d),
such that the effective date of the final
rule is 30 days after publication in the
Federal Register.
List of Subjects in 16 CFR Part 1115
Administrative practice and
procedure, Business and industry,
Consumer protection, Reporting and
recordkeeping requirements.
■ For the reasons stated above, the
Commission amends chapter II of title
16 of the Code of Federal Regulations as
follows:
PART 1115—SUBSTANTIAL PRODUCT
HAZARD REPORTS
1. The authority citation for part 1115
continues to read as follows:
■
Authority: 15 U.S.C. 2061, 2064, 2065,
2066(a), 2068, 2069, 2070, 2071, 2073, 2076,
2079, and 2080.
2. Add a new Subpart C to read as
follows:
■
Subpart C—Guidelines and Requirements
for Mandatory Recall Notices
Sec.
1115.23 Purpose.
1115.24 Applicability.
1115.25 Definitions.
1115.26 Guidelines and policies.
1115.27 Recall notice content requirements.
1115.28 Multiple products or models.
1115.29 Final determination regarding form
and content.
Subpart C—Guidelines and
Requirements for Mandatory Recall
Notices
§ 1115.23
Purpose.
(a) The Commission establishes these
guidelines and requirements for recall
notices as required by section 15(i) of
the Consumer Product Safety Act, as
amended (CPSA) (15 U.S.C. 2064(i)).
The guidelines and requirements set
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forth the information to be included in
a notice required by an order under
sections 12, 15(c), or 15(d) of the CPSA
(15 U.S.C. 2061, 2064(c), or 2064(d)).
Unless otherwise ordered by the
Commission under section 15(c) or (d)
of the CPSA (15 U.S.C. 2064(c) or (d)),
or by a United States district court
under section 12 of the CPSA (15 U.S.C.
2061), the content information required
in this subpart must be included in
every such notice.
(b) The Commission establishes these
guidelines and requirements to ensure
that every recall notice effectively helps
consumers and other persons to:
(1) Identify the specific product to
which the recall notice pertains;
(2) Understand the product’s actual or
potential hazards to which the recall
notice pertains, and information relating
to such hazards; and
(3) Understand all remedies available
to consumers concerning the product to
which the recall notice pertains.
§ 1115.24
Applicability.
This subpart applies to manufacturers
(including importers), retailers, and
distributors of consumer products as
those terms are defined herein and in
the CPSA.
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§ 1115.25
Definitions.
In addition to the definitions given in
section 3 of the CPSA (15 U.S.C. 2052),
the following definitions apply:
(a) Recall means any one or more of
the actions required by an order under
sections 12, 15(c), or 15(d) of the CPSA
(15 U.S.C. 2061, 2064(c), or 2064(d)).
(b) Recall notice means a notification
required by an order under sections 12,
15(c), or 15(d) of the CPSA (15 U.S.C.
2061, 2064(c), or 2064(d)).
(c) Direct recall notice means a
notification required by an order under
sections 12, 15(c), or 15(d) of the CPSA
(15 U.S.C. 2061, 2064(c), or 2064(d)),
that is sent directly to specificallyidentified consumers.
(d) Firm means a manufacturer
(including an importer), retailer, or
distributor as those terms are defined in
the CPSA.
(e) Other persons means, but is not
limited to, consumer safety advocacy
organizations, public interest groups,
trade associations, industry advocacy
organizations, other State, local, and
Federal government agencies, and the
media.
§ 1115.26
Guidelines and policies.
(a) General. (1) A recall notice should
provide sufficient information and
motivation for consumers and other
persons to identify the product and its
actual or potential hazards, and to
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respond and take the stated action. A
recall notice should clearly and
concisely state the potential for injury or
death.
(2) A recall notice should be written
in language designed for, and readily
understood by, the targeted consumers
or other persons. The language should
be simple and should avoid or minimize
the use of highly technical or legal
terminology.
(3) A recall notice should be targeted
and tailored to the specific product and
circumstances. In determining the form
and content of a recall notice, the
manner in which the product was
advertised and marketed should be
considered.
(4) A direct recall notice is the most
effective form of a recall notice.
(5) At least two of the recall notice
forms listed in subsection (b) should be
used.
(b) Form of recall notice—(1) Possible
forms. A recall notice may be written,
electronic, audio, visual, or in any other
form ordered by the Commission in an
order under section 15(c) or (d) of the
CPSA (15 U.S.C. 2064(c) or (d)), or by
a United States district court under
section 12 of the CPSA (15 U.S.C. 2061).
The forms of, and means for
communicating, recall notices include,
but are not limited to:
(i) Letter, Web site posting, electronic
mail, RSS feed, or text message;
(ii) Computer, radio, television, or
other electronic transmission or
medium;
(iii) Video news release, press release,
recall alert, Web stream, or other form
of news release;
(iv) Newspaper, magazine, catalog, or
other publication; and
(v) Advertisement, newsletter, and
service bulletin.
(2) Direct recall notice. A direct recall
notice should be used for each
consumer for whom a firm has direct
contact information, or when such
information is obtainable, regardless of
whether the information was collected
for product registration, sales records,
catalog orders, billing records,
marketing purposes, warranty
information, loyal purchaser clubs, or
other such purposes. Direct contact
information includes, but is not limited
to, name and address, telephone
number, and electronic mail address.
Forms of direct recall notice include,
but are not limited to, United States
mail, electronic mail, and telephone
calls. A direct recall notice should
prominently show its importance over
other consumer notices or mail by
including ‘‘Safety Recall’’ or other
appropriate terms in an electronic mail
subject line, and, in large bold red
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typeface, on the front of an envelope
and in the body of a recall notice.
(3) Web site recall notice. A Web site
recall notice should be on a Web site’s
first entry point such as a home page,
should be clear and prominent, and
should be interactive by permitting
consumers and other persons to obtain
recall information and request a remedy
directly on the Web site.
(c) Languages. Where the Commission
for purposes of an order under section
15(c) or (d) of the CPSA (15 U.S.C.
2064(c) or (d)), or a United States
district court for purposes of an order
under section 12 of the CPSA (15 U.S.C.
2061), determines that it is necessary or
appropriate to adequately inform and
protect the public, a recall notice may
be required to be in languages in
addition to English. For example, it may
be necessary or appropriate to require a
recall notice be in a language in
addition to English when a product
label is in a language in addition to
English, when a product is marketed in
a language in addition to English, or
when a product is marketed or available
in a geographic location where English
is not the predominant language.
§ 1115.27 Recall notice content
requirements.
Except as provided in § 1115.29, every
recall notice must include the
information set forth below:
(a) Terms. A recall notice must
include the word ‘‘recall’’ in the heading
and text.
(b) Date. A recall notice must include
its date of release, issuance, posting, or
publication.
(c) Description of product. A recall
notice must include a clear and concise
statement of the information that will
enable consumers and other persons to
readily and accurately identify the
specific product and distinguish it from
similar products. The information must
enable consumers to readily determine
whether or not they have, or may be
exposed to, the product. To the extent
applicable to a product, descriptive
information that must appear on a recall
notice includes, but is not limited to:
(1) The product’s names, including
informal and abbreviated names, by
which consumers and other persons
should know or recognize the product;
(2) The product’s intended or targeted
use population (e.g., infants, children,
or adults);
(3) The product’s colors and sizes;
(4) The product’s model numbers,
serial numbers, date codes, stock
keeping unit (SKU) numbers, and
tracking labels, including their exact
locations on the product;
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(5) Identification and exact locations
of product tags, labels, and other
identifying parts, and a statement of the
specific identifying information found
on each part; and
(6) Product photographs. A firm must
provide photographs. Each photograph
must be electronic or digital, in color, of
high resolution and quality, and in a
format readily transferable with high
quality to a Web site or other
appropriate medium. As needed for
effective notification, multiple
photographs and photograph angles may
be required.
(d) Description of action being taken.
A recall notice must contain a clear and
concise statement of the actions that a
firm is taking concerning the product.
These actions may include, but are not
limited to, one or more of the following:
Stop sale and distribution in commerce;
recall to the distributor, retailer, or
consumer level; repair; request return
and provide a replacement; and request
return and provide a refund.
(e) Statement of number of product
units. A recall notice must state the
approximate number of product units
covered by the recall, including all
product units manufactured, imported,
and/or distributed in commerce.
(f) Description of substantial product
hazard. A recall notice must contain a
clear and concise description of the
product’s actual or potential hazards
that result from the product condition or
circumstances giving rise to the recall.
The description must enable consumers
and other persons to readily identify the
reasons that a firm is conducting a
recall. The description must also enable
consumers and other persons to readily
identify and understand the risks and
potential injuries or deaths associated
with the product conditions and
circumstances giving rise to the recall.
The description must include:
(1) The product defect, fault, failure,
flaw, and/or problem giving rise to the
recall; and
(2) The type of hazard or risk,
including, by way of example only,
burn, fall, choking, laceration,
entrapment, and/or death.
(g) Identification of recalling firm. A
recall notice must identify the firm
conducting the recall by stating the
firm’s legal name and commonly known
trade name, and the city and state of its
headquarters. The notice must state
whether the recalling firm is a
manufacturer (including importer),
retailer, or distributor.
(h) Identification of manufacturers. A
recall notice must identify each
manufacturer (including importer) of
the product and the country of
manufacture. Under the definition in
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section 3(a)(11) of the CPSA (15 U.S.C.
2052(a)(11)), a manufacturer means ‘‘any
person who manufactures or imports a
consumer product.’’ If a product has
been manufactured outside of the
United States, a recall notice must
identify the foreign manufacturer and
the United States importer. A recall
notice must identify the manufacturer
by stating the manufacturer’s legal name
and the city and state of its
headquarters, or, if a foreign
manufacturer, the foreign
manufacturer’s legal name and the city
and country of its headquarters.
(i) Identification of significant
retailers. A recall notice must identify
each significant retailer of the product.
A recall notice must identify such a
retailer by stating the retailer’s
commonly known trade name. Under
the definition in section 3(a)(13) of the
CPSA (15 U.S.C. 2052(a)(13)), a retailer
means ‘‘a person to whom a consumer
product is delivered or sold for
purposes of sale or distribution by such
person to a consumer.’’ A product’s
retailer is ‘‘significant’’ if, upon the
Commission’s information and belief,
and in the sole discretion of the
Commission for purposes of an order
under section 15(c) or (d) of the CPSA
(15 U.S.C. 2064(c) or (d)), or in the sole
discretion of a United States district
court for purposes of an order under
section 12 of the CPSA (15 U.S.C. 2061),
any one or more of the circumstances
set forth below is present (the
Commission may require manufacturers
(including importers), retailers, and
distributors to provide information
relating to these circumstances):
(1) The retailer was the exclusive
retailer of the product;
(2) The retailer was an importer of the
product;
(3) The retailer has stores nationwide
or regionally-located;
(4) The retailer sold, or held for
purposes of sale or distribution in
commerce, a significant number of the
total manufactured, imported, or
distributed units of the product; or
(5) Identification of the retailer is in
the public interest.
(j) Region. Where necessary or
appropriate to assist consumers in
determining whether they have the
product at issue, a description of the
region where the product was sold, or
held for purposes of sale or distribution
in commerce, must be provided.
(k) Dates of manufacture and sale. A
recall notice must state the month and
year in which the manufacture of the
product began and ended, and the
month and year in which the retail sales
of the product began and ended. These
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dates must be included for each make
and model of the product.
(l) Price. A recall notice must state the
approximate retail price or price range
of the product.
(m) Description of incidents, injuries,
and deaths. A recall notice must contain
a clear and concise summary
description of all incidents (including,
but not limited to, property damage),
injuries, and deaths associated with the
product conditions or circumstances
giving rise to the recall, as well as a
statement of the number of such
incidents, injuries, and deaths. The
description must enable consumers and
other persons to readily understand the
nature and extent of the incidents and
injuries. A recall notice must state the
ages of all persons injured and killed. A
recall notice must state the dates or
range of dates on which the Commission
received information about injuries and
deaths.
(n) Description of remedy. A recall
notice must contain a clear and concise
statement, readily understandable by
consumers and other persons, of:
(1) Each remedy available to a
consumer for the product conditions or
circumstances giving rise to the recall.
Remedies include, but are not limited
to, refunds, product repairs, product
replacements, rebates, coupons, gifts,
premiums, and other incentives.
(2) All specific actions that a
consumer must take to obtain each
remedy, including, but not limited to,
instructions on how to participate in the
recall. These actions may include, but
are not limited to, contacting a firm,
removing the product from use,
discarding the product, returning part or
all of the product, or removing or
disabling part of the product.
(3) All specific information that a
consumer needs in order to obtain each
remedy and to obtain all information
about each remedy. This information
may include, but is not limited to, the
following: Manufacturer, retailer, and
distributor contact information (such as
name, address, telephone and facsimile
numbers, e-mail address, and Web site
address); whether telephone calls will
be toll-free or collect; and telephone
number days and hours of operation
including time zone.
(o) Other information. A recall notice
must contain such other information as
the Commission for purposes of an
order under section 15(c) or (d) of the
CPSA (15 U.S.C. 2064(c) or (d)), or a
United States district court for purposes
of an order under section 12 of the
CPSA (15 U.S.C. 2061), deems
appropriate and orders.
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§ 1115.28
Multiple products or models.
For each product or model covered by
a recall notice, the notice must meet the
requirements of this subpart.
§ 1115.29 Final determination regarding
form and content.
(a) Commission or court discretion.
The recall notice content required by
this subpart must be included in a recall
notice whether or not the firm admits
the existence of a defect or of an actual
or potential hazard, and whether or not
the firm concedes the accuracy or
applicability of all of the information
contained in the recall notice. The
Commission will make the final
determination as to the form and
content of the recall notice for purposes
of an order under section 15(c) or (d) of
the CPSA (15 U.S.C. 2064(c) or (d)), and
a United States district court will make
the final determination as to the form
and content of a recall notice for
purposes of an order under section 12
of the CPSA (15 U.S.C. 2061).
(b) Recall notice exceptions. The
Commission for purposes of an order
under section 15(c) or (d) of the CPSA
(15 U.S.C. 2064(c) or (d)), or a United
States district court for purposes of an
order under section 12 of the CPSA (15
U.S.C. 2061), may determine that one or
more of the recall notice requirements
set forth in this subpart is not required,
and will not be included, in a recall
notice.
(c) Commission approval. Before a
firm may publish, broadcast, or
otherwise disseminate a recall notice to
be issued pursuant to an order under
section 15(c) or (d) of the CPSA (15
U.S.C. 2064(c) or (d)), the Commission
must review and agree in writing to all
aspects of the notice.
Dated: January 13, 2010.
Todd A. Stevenson,
Secretary, United States Consumer Product
Safety Commission.
[FR Doc. 2010–873 Filed 1–20–10; 8:45 am]
to clarify and provide guidance to
Commission staff and affected parties
that Commission Rule 12.1(a), 17 CFR
12.1(a), requires that all rules of practice
relating to reparation proceedings under
17 CFR part 12 ‘‘shall be construed
liberally so as to secure the just, speedy
and inexpensive determination of the
issues presented with full protection for
the rights of all parties.’’
DATES: Effective Date: This Statement of
Policy is effective January 21, 2010.
FOR FURTHER INFORMATION CONTACT:
Edwin J. Yoshimura, Office of General
Counsel, Commodity Futures Trading
Commission, 525 West Monroe Street,
Suite 1100, Chicago, IL 60661.
Telephone: (312) 596–0562. E-mail:
eyoshimura@cftc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Under Section 14(a) of the
Commodity Exchange Act, as amended,
(‘‘Act’’), 7 U.S.C. 18(a), any person
complaining of a violation of the Act or
any rule, regulation, or order
thereunder, by any person registered or
required to be registered with the
Commission, may file a complaint with
the Commission seeking an award of
damages.1
On January 22, 1976, the Commission
issued its original ‘‘Rules Relating to
Reparation Proceedings.’’ 2 17 CFR part
12. These rules originally were intended
to conform to the procedural
requirements of the Administrative
Procedure Act (‘‘APA’’), as well as the
guidelines established by section 14 of
the Act.3
On January 11, 1983, Section 14(b) of
the Act, 7 U.S.C. 18(b) was amended,
effective May 11, 1983, to authorize the
Commission to ‘‘promulgate such rules,
regulations and orders as it deems
necessary or appropriate for the efficient
administration of this section.’’ Congress
conferred this broad discretion upon the
Commission ‘‘[t]o enable the
BILLING CODE 6355–01–P
COMMODITY FUTURES TRADING
COMMISSION
srobinson on DSKHWCL6B1PROD with RULES
17 CFR Part 12
Commission Guidance Concerning the
Rules of Practice Relating to
Reparations
AGENCY: Commodity Futures Trading
Commission.
ACTION: Statement of policy.
SUMMARY: The Commodity Futures
Trading Commission (‘‘Commission’’ or
‘‘CFTC’’) is issuing this policy statement
VerDate Nov<24>2008
17:28 Jan 20, 2010
Jkt 220001
1 Section 14 of the Act establishes the
Commission’s reparations program, which provides
an ‘‘expeditious, inexpensive, and easy to use
dispute resolution process, available to as many
customers as possible.’’ Marianne K. Smythe, The
Reparations Program of the Commodity Futures
Trading Commission: Reducing Formality in
Agency Adjudication, 2 Admin. L.J. 39, 40 (1988)
(quoting Government Accounting Office Report,
Reparations and Other Presently Available Forums
for Resolution of Customer Claims, reprinted in
CFTC Oversight: Hearings before the Subcomm. on
Commerce, Consumer, and Monetary Affairs on the
House Comm. on Government Operations, 97th
Cong., 2d Sess. 861 app. 5 (1982)).
2 Kenneth M. Raisler & Edward S. Geldermann,
The CFTC’s New Reparation Rules: In Search of a
Fair, Responsive, and Practical Forum for Resolving
Commodity-Related Disputes, 40 Bus. Law 537, 540
(1985).
3 Id.
PO 00000
Frm 00039
Fmt 4700
Sfmt 4700
3371
Commission to simplify its rules of
procedure regarding reparations and
streamline the process,’’ H.R. Rep. No.
565, 97th Cong., 2d Sess. 55 (1982). In
addition, the amendments to Section
14(b) were intended to authorize the
Commission ‘‘to use its best judgment in
fashioning appropriate procedures that
will be both fair and efficient.’’ Id.
II. Statement of Policy
Currently, Rule 12.1(a), 17 CFR
12.1(a), provides that ‘‘[t]he rules in [17
CFR Part 12] shall be construed liberally
so as to secure the just, speedy and
inexpensive determination of the issues
presented with full protection for the
rights of all parties.’’
The Commission generally has
maintained a longstanding policy of
liberally construing its Part 12
Reparation Rules. We have restated that
policy in several decisions:
As we said in Wade v. Chevalier,
[2007–2009 Transfer Binder] Comm.
Fut. L. Rep. (CCH) ¶ 30,781 at 61,680
(CFTC Feb. 27, 2008), ‘‘Congress created
the reparation forum as an informal
venue and decreed that parties are not
to be subjected to strict rules found in
the courts.’’ In Sommer v.
Conticommodity Services, Inc., [1987–
1990 Transfer Binder] Comm. Fut. L.
Rep. (CCH) ¶ 24,244 at 35,106 (CFTC
May 20, 1988), we also said, that
‘‘Congress[] inten[ded] that the
reparations program provide a more
flexible and informal forum than that
available in court * * *.’’ Further, in
Cook v. Monex International, Ltd.,
[1984–1986 Transfer Binder] Comm.
Fut. L. Rep. (CCH) ¶ 22,532 at 30,295
(CFTC Mar. 19, 1985) (citations to
legislative history omitted), we held that
‘‘[a]s remedial legislation, the
reparations procedure should be
liberally interpreted to effectuate that
congressional purpose.’’
We stated elsewhere that the
complexities and formalities of district
court litigation are not involved in the
reparation program. Nelson v. Chilcott
Commodities Corp., [1982–1984
Transfer Binder] Comm. Fut. L. Rep.
(CCH) ¶ 21,934 at 28,033 (CFTC Dec. 12,
1983). Furthermore, ‘‘[t]o remain
inexpensive, the reparations forum
must, at a minimum, remain hospitable
to the participation of pro se parties.’’
Hall v. Diversified Trading Systems,
Inc., [1992–1994 Transfer Binder]
Comm. Fut. L. Rep. (CCH) ¶ 26,131 at
41,751 (CFTC July 7, 1994). ‘‘As a result,
we have recognized that allowances
must be made for pro se status in
interpreting and applying procedural
requirements.’’ Id.
Recently, we said in Moss-Thomas v.
East Coast Commodities:
E:\FR\FM\21JAR1.SGM
21JAR1
Agencies
[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Rules and Regulations]
[Pages 3355-3371]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-873]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1115
Guidelines and Requirements for Mandatory Recall Notices
AGENCY: Consumer Product Safety Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
[[Page 3356]]
SUMMARY: The Consumer Product Safety Commission (``Commission,''
``CPSC,'' ``we'') is issuing a final rule establishing guidelines and
requirements for mandatory recall notices as required by section 214 of
the Consumer Product Safety Improvement Act of 2008 (``CPSIA''). The
rule contains the Commission's interpretation of information which must
appear on mandatory recall notices ordered by the Commission or a
United States district court pursuant to certain sections of the
Consumer Product Safety Act (``CPSA''). The rule also contains
Commission guidelines for additional information that the Commission or
a court may order to be included on a mandatory recall notice.
DATES: Effective Date: This rule is effective on February 22, 2010.
Compliance Date: Regardless of when a product subject to a recall
was manufactured, all mandatory recalls ordered pursuant to sections
12, 15(c) or 15(d) of the CPSA are subject to the guidelines and
requirements herein as of February 22, 2010.
FOR FURTHER INFORMATION CONTACT: Marc Schoem, Deputy Director, Office
of Compliance and Field Operations, Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7520.
SUPPLEMENTARY INFORMATION:
I. Introduction
In the Federal Register of March 20, 2009 (74 FR 11883), the CPSC
published a proposed rule that would establish guidelines and
requirements for mandatory recall notices ordered by the Commission or
a United States District Court under the Consumer Product Safety Act.
The rule was intended to provide firms with a uniform set of
information they can expect to find in a recall notice ordered by the
Commission or a court. The Commission and a court's substantive
authority to order that a mandatory recall notice be issued, including
control over the final form and content of such notice, arises under
sections 12, 15(c), and 15(d) of the CPSA. Section 214 of the CPSIA
(Pub. L. 110-314) did not change this authority. Rather, section 214(c)
of the CPSIA, which adds a new subsection 15(i) to the CPSA, requires
the Commission to establish guidelines which set forth a uniform class
of information that will be included in mandatory recall notices, and
specifies certain content that must be included in mandatory recall
notices. However, the Commission or a court ordering that a recall
notice issue retains final authority over the form and content of
mandatory recall notices. Accordingly, the Commission or a court may
remove information that is unnecessary or inappropriate under the
circumstances, or add additional appropriate information to a mandatory
recall notice. Sections 15(i)(2) and 15(i)(2)(I) of the CPSA.
The preamble to the proposed rule contained detailed explanations
of the proposed rule and described the basis for the proposed rule. See
74 FR 11883 through 11886. We refer readers to that preamble if they
wish to obtain further information or explanation with regard to the
rule. In brief, the Commission developed the proposed rule based on its
expertise with recall notifications since the Commission's inception.
Accordingly, the final rule is a culmination of the statutory
requirements and the Commission's expertise, which is summarized in the
Commission's Recall Handbook, available at https://www.cpsc.gov/BUSINFO/8002.html. Each section of the rule is either statutorily required by
section 214 of the CPSIA, or the Commission has determined will likely
increase recall effectiveness by helping consumers to: (a) Identify a
product subject to a recall; (b) understand the hazard identified with
such product; or (c) understand what remedy is being offered with
regard to the recalled product.
The rule does not contain requirements for voluntary recall notices
which result from corrective action settlement agreements with
Commission staff. If the Commission decides to extend the requirements
to voluntary recall notices, it would proceed with a separate
rulemaking. While this rule may serve as a general guide for
information to include on voluntary recall notices in some instances,
we recognize that each voluntary recall is unique and is negotiated as
such. Therefore, all recall notices issued, whether voluntary or
mandatory, should be tailored to the specific product and circumstances
of a recall. Section 214 of the CPSIA did not alter the Commission's
ability to negotiate voluntary recall notices with a manufacturer and
to tailor both voluntary and mandatory recall notices to a particular
recall scenario.
The Commission received 43 substantive comments on the proposed
rule. After reviewing the comments the CPSC made several changes to the
rule. The changes between the proposed and the final rules are as
follows:
Table 1--Summary of Changes to the Final Rule
------------------------------------------------------------------------
Proposed rule Final rule
------------------------------------------------------------------------
Did not contain a definition of ``Other Defines ``Other persons'' in a
persons''. new Sec. 1115.25(e). This
change is discussed in more
detail in response to comment
12 in section III of this
document below.
Provided that ``firms'' target and Removes the word ``firm'' in
tailor recall notices and consider the Sec. 1115.26(a)(3) to
manner in which a product was marketed clarify that, in a mandatory
and advertised in determining the form recall scenario, firms are not
and content of a recall notice. the entity determining the
form and content of a recall
notice. By statute, the final
form and content of mandatory
recall notices are ordered by
a United States district court
or the Commission. See
sections 12, 15(c) and 15(d)
of the CPSA.
Did not address use of more than one Clarifies in Sec.
form of recall notice. 1115.26(a)(5) that more than
one form of recall notice
should be used. This change is
discussed in more detail in
response to comments 15 and 17
in section III of this
document below.
Did not address when a firm has direct Clarifies in Sec.
contact information. Unclear whether a 1115.26(b)(2) when a firm has
telephone number is considered direct direct contact information.
contact information. Also clarifies that a
telephone number is considered
direct contact information.
These changes are discussed in
more detail in response to
comment 16 in section III of
this document below.
Did not contain examples of when a Provides examples of
recall notice may be required in circumstances when a recall
languages in addition to English. notice may be required to be
made available in languages in
addition to English in Sec.
1115.26(c). This change is
discussed in more detail in
response to comment 19 in
section III of this document
below.
[[Page 3357]]
Did not clearly set forth that Clarifies in Sec. 1115.27(c)
information related to the product that the information outlined
description is required. therein must be included in a
recall notice when applicable
to a product. This change is
discussed in more detail in
response to comment 23 in
section III of this document
below.
Did not specify when a foreign Clarifies in Sec. 1115.27(h)
manufacturer's legal name must be that foreign manufacturers
identified. must be identified by a legal
name, city, and country of
headquarters. This change is
discussed in more detail in
response to comment 32 in
section III of this document
below.
Did not require a description of the Adds ``Region'' at a new Sec.
region where a product was sold or 1115.27(j) as a separate
offered for sale. category of information which
is required when necessary or
appropriate to assist
consumers to identify a
product. This change is
discussed in more detail in
response to comment 21 in
section III of this document
below.
------------------------------------------------------------------------
II. Legal Authority
The substantive authority for the Commission or a United States
District Court to order that a firm issue a mandatory recall notice
comes from existing statutes in sections 12, 15(c), and 15(d) of the
CPSA. Section 15(c) of the CPSA specifically provides that, when the
Commission orders that a firm conduct a mandatory recall, such order
``shall specify the form and content of any notice required to be given
* * *.'' Section 214 of the CPSIA does not alter the Commission's or a
court's authority over the final form and content of a mandatory recall
notice. Section 214(c) of the CPSIA, which added subsection 15(i) to
the CPSA, states that the Commission shall, by rule, within 180 days of
the date of enactment of the CPSIA (August 14, 2008), establish
guidelines which set forth a uniform class of information to be
included in any recall notice ordered under sections 15(c) or (d), or
by court order pursuant to section 12 of the CPSA. (15 U.S.C. 2061,
2064(c), or 2064(d)). Thus, the statute calls for a rulemaking which
sets forth guidelines concerning information that firms can expect may
be ordered in any Commission or court-ordered mandatory recall and the
statute specifies specific content that must be included in mandatory
recall notices.
Section 15(i) of the CPSA states that the guidelines established by
the Commission must include information that would help consumers: (a)
Identify a specific product; (b) understand the identified hazard; and
(c) understand any remedy available to the consumer. Section 15(i) of
the CPSA also requires that a recall notice include certain specific
information, unless the Commission determines otherwise. This
information includes, but is not limited to, descriptions of the
product, hazard, injuries, deaths, action being taken, and remedy;
identification of the manufacturer and retailers; identification of
relevant dates; and any other information the Commission deems
appropriate.
Finally, in addition to section 214 of the CPSIA, section 3 of the
CPSIA grants the Commission general rulemaking authority to issue
regulations, as necessary, to implement the CPSIA. Accordingly, the
Commission has authority to implement section 15(i) of the CPSA, as
amended by section 214(c) of the CPSIA, through section 3 of the CPSIA
as well as section 214(c) of the CPSIA.
III. Comments on the Proposed Rule and the CPSC's Responses
We describe and respond to significant issues raised by the
comments below. To make it easier to identify comments and the
Commission's responses, the word ``Comment'' will appear in italics
before each comment description, and the word ``Response'' will appear
in italics before the Commission's response. We have grouped comments
based on their similarity and have numbered the comments to help
distinguish between different comment themes. The number assigned to
each comment summary is for organizational purposes and does not
signify the comment's value, importance, or order in which it was
received.
Additionally, on our own initiative, we have replaced ``U.S.'' with
``United States'' in the codified text to preclude any potential
confusion as to what the abbreviation of ``United States'' means.
A. Comments Related to Procedural Issues
Comment 1--Administrative Procedure Act (APA)--One commenter states
that the NPR is lacking because it does not contain a list of data or
studies relied upon as required by the APA. Although the preamble to
the proposed rule states that the agency relied on agency recall
guidance materials, including but not limited to the Recall Handbook,
the commenter maintains that these resources were not made available to
the general public. The commenter believes that, at minimum,
information on where to access the resources should be provided or, a
Web link provided for direct access to the documents. The commenter
states that no final rule should issue until the public has the
opportunity to review the underlying data.
Response--The requirements for mandatory recall notices set forth
in the proposed rule are largely dictated by section 214 of the CPSIA.
The proposed rule also includes the Commission's interpretation and
clarification of section 214 of the CPSIA, as well as additional
guidelines. The preamble to the proposed rule states that, in drafting
the proposed rule, the agency relied on its experience conducting
recalls and recall effectiveness gained since the CPSC's inception, as
well as agency recall guidance materials, including but not limited to
the Recall Handbook. Contrary to the commenter's assertion that access
to the Recall Handbook was not provided, the preamble to the proposed
rule contained a link to the Recall Handbook (see 74 FR at 11883).
Moreover, the Commission did not rely on quantifiable ``data'' in
drafting the proposed rule; it relied on the text of the statute and
more than thirty years of experience conducting recalls, which is
summarized in the Recall Handbook. Recall templates and a recall
checklist are also available to the public on the CPSC's Web site at
https://www.cpsc.gov/businfo/corrective.html. These materials have been
available to the public on the CPSC Web site long before passage of the
CPSIA.
Comment 2--Regulatory Flexibility Act--Two commenters take opposite
positions with regard to applicability of the Regulatory Flexibility
Act (``RFA'') to the proposed rule. One comment states that the RFA
should not be applicable
[[Page 3358]]
to children's products so that small businesses will not be able to
circumvent recall duties. Another commenter opines that the CPSC is
attempting to evade the RFA when it states that small businesses will
not be affected by the rule. The commenter takes this position based on
the discretion the Commission has with regard to determining a
``significant retailer,'' which the commenter believes, depending on
the definition, could have a large effect on small businesses. The
comment suggests that a small business analysis should be done on the
proposed regulation.
Response--The RFA generally requires that agencies review proposed
rules for their potential economic impact on small entities, including
small businesses. A regulatory flexibility analysis was not conducted
pursuant to section 605(b) of the RFA, which states that the
requirement to prepare and make available for public comment an initial
regulatory flexibility analysis does not apply if the head of the
agency certifies that the rule will not, if promulgated, have a
significant economic impact on a substantial number of small entities,
and the agency provides an explanation for that conclusion.
As with the proposed rule, the final rule will have little to no
effect on small businesses. First, the recall notice requirements set
forth in the final rule are largely dictated by the CPSIA and are
already in effect. Second, mandatory recalls are rare in the
Commission's history, so, even if we were to assume that a significant
economic impact would exist (and we do not claim that such an impact
exists), the impact would not affect a ``substantial number'' of small
entities. Third, the final rule will not alter the agency's reliance on
voluntary recalls. Finally, the recall burden on small businesses will
not be altered by the definition of ``significant retailer.'' The sole
purpose of identifying retailers in the recall notice is to assist
consumers with product identification. It has no effect on which firm
issues a recall notice or has responsibility for conducting a recall.
Comment 3--Effective Date--Several commenters state that because
they believe the proposed rule seeks to impose requirements that go
beyond the CPSIA, firms require notice of the additional requirements
and time to comply. Accordingly, these commenters state that the rule
should not be effective upon publication, but should follow the
standard of becoming effective 30 days after publication so that firms
have time to comply. One commenter suggests further that the rule be
clarified not to apply retroactively and that the requirements only
apply to goods manufactured after August 14, 2009.
Response--The final rule applies only to mandatory recalls pursuant
to a court order (section 12 of the CPSA) or an order of the Commission
(sections 15(c), and 15(d) of the CPSA). Mandatory recalls are
infrequent in the Commission's history, and currently there are no
pending matters where a mandatory recall is at issue. Because of the
length of time involved in litigating these issues in a United States
district court or administratively, it is impracticable that any action
would be litigated to conclusion and that an order requiring a
mandatory recall notice would be issued in 30 days time. Therefore,
setting the effective date 30 days after publication is appropriate and
there is no good cause for shortening the period. Finally, the final
rule does not go beyond the CPSIA. Section 214 of the CPSIA
specifically provides that the Commission shall promulgate both
guidelines and requirements for mandatory recall notices, and
authorizes the Commission to issue additional requirements as it deems
appropriate. Section 15(i)(2)(I) of the CPSA.
B. General Comments on the Proposed Rule and Commission Responses
Comment 4--Many commenters seek clarification of the rule. Several
are concerned that many requirements are unnecessary, extraneous, too
complicated, and do not help consumers locate relevant products and
determine what to do with them. In particular, several commenters are
concerned about harm that could occur to business reputation based on
the detailed requirements and the speed at which imperfect information
may travel. Several commenters state that some information is
burdensome for firms to maintain and report with no added benefit to
consumers, and are concerned about the costs to maintain detailed
records such as photographs and pricing information. These commenters
prefer a shorter mandatory recall notice that would purportedly be more
helpful to consumers.
Response--Most requirements set forth in the final rule are
statutorily mandated, and the Commission has the authority to add
requirements it determines are appropriate. A review of the CPSC Web
site demonstrates that the use of many of the requirements in the final
rule in previously issued voluntary recall notices have not resulted in
lengthy recall notices. Moreover, the final rule is not burdensome
because it does not impose any recordkeeping requirements on firms.
Locating a photograph of the product and the price range has not been a
significant issue for firms at the time of a recall. Finally, the
Commission rejects the idea that a recall notice causes undue harm to
business reputation. Responsible firms generally desire to move quickly
to remove defective products from the marketplace because it is
statutorily required, preserves their brand and consumer confidence,
limits liability, and, most importantly, reduces the likelihood of
injuries and deaths from unsafe products.
Comment 5--One commenter would create a mandatory recall notice
template form that includes all required sections for a notice. The
commenter believes that a template will be more efficient, save time
and resources, and allow the Commission to quickly check for all
requirements to speed approval of recall notices.
Response--The CPSC already has a bank of recall notice examples
that staff provides to firms to help create a recall notice. To the
extent such a template is revised, it can and should be done outside of
this rulemaking process, to allow both the Commission and industry
flexibility to update such templates as appropriate.
Comment 6--Several commenters discuss use of the words ``should''
and ``must'' in the proposed rule, and suggest that in the final rule,
use of the word ``should'' should be changed to ``must'' to alleviate
any confusion regarding the mandatory nature of the requirements.
Response--With regard to use of the words ``should'' and ``must''
in the final rule generally, the statute directs the Commission to
issue both a guidance and requirements for mandatory recall notices.
Guidance provided by the Commission regarding mandatory recall notices
uses the term ``should,'' while requirements are described in the
regulation using the words ``must'' or ``shall.''
Comment 7--One commenter notes that the rule omits timeliness
issues with regard to issuing a mandatory recall notice. This commenter
argues that the rule should incentivize firms to comply in a timely
fashion, and provide penalties for non-compliance.
Response--Timeliness is important with regard to both mandatory and
voluntary recall notices. With regard to mandatory recall notices
specifically, the Commission or a court will have control over the
timing of recall notices once ordered.
Comment 8--One commenter suggests using the civil penalties in
section 20(a) of the CPSA as a guideline for penalties for non-
compliance with any time
[[Page 3359]]
constraints imposed. Another commenter suggests adding a section on
prohibited acts for non-compliance with part C generally.
Response--All prohibited acts over which the Commission has penalty
authority are listed in section 19 of the CPSA, and the associated
penalty amount provisions are located in section 20 of the CPSA.
Section 19(a)(5) of the CPSA provides that it is unlawful for any
person to ``fail to comply with an order issued under section 15(c) or
(d).'' Accordingly, these penalty provisions already apply to mandatory
recall orders and the Commission declines to duplicate these provisions
in the rule.
Comment 9--FOIA Rights--One commenter suggests that the rule
include a section on Freedom of Information Act (``FOIA'') rights.
Response--The Commission declines to address FOIA issues in the
rule because a separate, pre-existing, rule on FOIA exists at 16 CFR
part 1015.
C. Specific Comments on the Proposed Rule and Commission Responses
1. Section 1115.23--Purpose
Proposed Sec. 1115.23 would describe the purpose for a new subpart
C, ``Guidelines and Requirements for Mandatory Recall Notices.'' In
accordance with direction in the CPSIA, the proposed rule would set out
guidelines and requirements for recall notices issued under section
15(c) and (d) or section 12 of the CPSA.
Comment 10--One commenter believes that the proposed rule's purpose
and reasoning section are too generic and lack specific information.
The commenter suggests including specific rationales for why certain
requirements will be effective and suggests adding specific examples or
data to illustrate what the specific recall problem is and how the rule
will address the problem.
Response--Section 214 of the CPSIA sets forth a uniform class of
information to be included in mandatory recall notices. The final
rule's requirements are largely dictated by the statutory language.
Further, the Commission's interpretation of section 214 of the CPSIA is
not based on a scientific study, but rather on the culmination of the
Commission's and the staff's many years of experience conducting
product safety recalls. Because of the wide variety of consumer
products and industries that such recalls encompass, it is necessary to
allow flexibility to tailor recall notices to a specific target
consumer group, product, and hazard situation to effectively remove
hazardous products from the hands of consumers. The statute and the
final rule give the Commission and/or a court the flexibility to add or
remove requirements from a particular recall notice as necessary and
appropriate, keeping in mind the goal of increasing recall
effectiveness, and to help consumers identify products, understand the
product hazard, and understand any available remedy.
2. Section 1115.24--Applicability
Proposed Sec. 1115.24 would explain the requirements in subpart C
apply to manufacturers (including importers), retailers, and
distributors of consumer products. The preamble to the proposed rule
(see 74 FR at 11883) explained that the rule would not contain
requirements for recalls and recall notices that are voluntary and
result from corrective action settlement agreements with Commission
staff. The preamble to the proposed rule further noted that, if the
Commission decides to extend the requirements to voluntary recalls, it
would proceed with a separate rulemaking initiated by a separate notice
of proposed rulemaking.
Comment 11--Many commenters note the Commission's statement that
the proposed rule will apply to mandatory recall notices only and will
serve as a guideline for voluntary recalls unless and until the
Commission initiates a separate rulemaking to apply the requirements to
voluntary recalls.
Comments from individuals and consumer groups generally support the
extension of the mandatory notice requirements to voluntary recalls to
promote uniformity and consistency in providing consumers recall data
and to prevent firms from circumventing the requirements for a
mandatory recall notice by agreeing to a voluntary recall. One
commenter notes that voluntary recalls comprise the vast majority of
recalls and that the protections and information afforded by the
mandatory recall notice should be extended to consumers in voluntary
recall notices as well. Some commenters believe that consumer safety is
compromised by not using the same notice requirements for both
mandatory and voluntary recalls. One commenter states that the
mandatory recall notice requirements should at least be applied to
voluntary recall notices for ultrahazardous products.
Industry commenters are generally opposed to extending the
mandatory recall notice requirements to voluntary recall notices,
arguing that important differences exist between a mandatory and
voluntary recall. For example, one commenter states that, during a
voluntary recall, the firm and the CPSC staff have time to develop an
effective recall notice in a more positive environment. Depending on
the nature of the product and the harm, the same level of detail may
not be necessary for every recall to be helpful to consumers. These
commenters support the current system whereby the final notice
requirements are left for each specific recall situation working with
the staff. One commenter notes the success of the Fast Track program
and believes the Commission should continue to foster cooperation in
that program and only impose mandatory recall procedures when
absolutely required. Some commenters state that imposing mandatory
notice requirements will discourage firms from conducting voluntary
recalls, which is typically done to avoid the burdens of a mandatory
recall. Less voluntary recalls will lead to over-burdening the
Commission staff and resources.
A few commenters are concerned about the mandatory notice
requirements even serving as a guideline for a voluntary recall notice
and urge the Commission to withdraw this statement. One commenter
believes that a heightened level of importance should be associated
with mandatory recalls. Other commenters note that, even though the
Commission acknowledges that a separate rulemaking will be necessary to
extend the requirements to voluntary recalls, using the rule as a
guideline is essentially a distinction without a difference. One
commenter suggests that the Commission explicitly acknowledge in the
preamble that a voluntary recall notice will not need to meet all of
the guidelines for a mandatory recall notice in order to be approved
for voluntary corrective action.
Response--While the Commission may use the mandatory recall
requirements as a general guide for voluntary recall notices, we
recognize that a separate rule on voluntary recall notices is needed to
make these requirements uniform and required. The ultimate purpose of
every recall notice is to get dangerous products out of the hands of
consumers as quickly as possible, and each recall notice must be
negotiated with that goal in mind. The Commission still retains the
flexibility to work with firms to tailor voluntary recall notices to a
particular product and particular recall circumstance.
3. Section 1115.25--Definitions
Proposed Sec. 1115.25 would define ``recall,'' ``recall notice,''
``direct recall notice,'' and ``firm.''
Comment 12--One commenter suggests that the final rule define
``other
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persons,'' who were mentioned in proposed Sec. 1115.26. The preamble
to the proposed rule explained that ``the term `other persons' would
include, but would not be limited to, consumer safety advocacy
organizations, public interest groups, trade associations, other State,
local and Federal government agencies, and the media.'' 74 FR at 11884.
Another commenter states that it is important to keep ``other persons''
in the rule to acknowledge that both governmental and non-governmental
entities are involved in the dissemination of information in the
interest of consumer safety.
Response--The Commission agrees that defining ``other persons'' in
the rule acknowledges the importance that both governmental and non-
governmental entities can play in the broad dissemination of consumer
product safety information. Accordingly, the final rule adds the
definition of ``other persons'' at Sec. 1115.25(e) as follows: ``Other
persons means, but is not limited to, consumer safety advocacy
organizations, public interest groups, trade associations, industry
advocacy organizations, other State, local, and Federal government
agencies, and the media.'' This definition is the same as set forth in
the preamble to the proposed rule, with the addition of ``industry
advocacy organizations,'' to demonstrate the broad range of entities
that assist in disseminating product safety information.
4. Section 1115.26--Guidelines and Policies
Proposed Sec. 1115.26 provides general guidance and describes the
policies pertaining to recall notices. The proposed guidelines would
restate the goals delineated in section 214 of the CPSIA. The CPSIA
requires the guidelines to include information helpful to consumers.
In general, proposed Sec. 1115.26(a) would state general
principles that are important for recall notices to be effective. For
example, proposed Sec. 1115.26(a)(1) would state that a recall notice
should provide information that enables consumers and other persons to
identify the product and take a stated action. Proposed Sec.
1115.26(a)(2) through (a)(4) would provide guidance on the form of the
recall notice, recognizing the various forms of notice and providing
guidance concerning direct recall notices and Web site recall notices.
Proposed Sec. 1115.26(a)(4) would recognize that a direct recall
notice is the most effective form of a recall notice, and proposed
Sec. 1115.26(b)(2) would state that when firms have contact
information they should issue direct recall notices.
Comment 13--Many comments discuss Sec. 1115.26(b)(2) on direct
recall notices and Sec. 1115.26(a)(4) which states that direct recall
notices are the most effective form of a recall notice. Overall,
individual consumer comments support the proposed rule with regard to
direct recall notices, suggesting that consumers tend to tune out
information not directed to them. One commenter notes that direct
recall notices have worked effectively in Illinois since 2006. A few
commenters suggest revising the rule to require firms to exhaust
resources and to send direct recall notices via every means possible
depending on the data they have, i.e., mail, electronic mail, and via
telephone. One commenter suggests requiring e-mail notification when a
firm has e-mail contact information. One commenter suggests asking
consumers to forward e-mail notices to people they know have an
interest in receiving the information in order to take advantage of
social networking abilities. However, another commenter suggests that,
because people ignore e-mails based on the large volume received,
direct regular mail notices and automated phone messages would be more
effective. Another commenter suggests that a direct recall notice be
required in all cases where a firm has contact information unless the
firm can prove by a preponderance of evidence that a direct recall
notice will not be as effective as other forms of a recall notice.
However, one commenter urges that direct recall notices should only
be required when a significant and imminent health and safety risk is
involved because of the costs involved in direct notice and because
over-warning can de-sensitize consumers. Moreover, section 15 of the
CPSA recognizes that the form of notice depends on the risk involved
and affords parties the opportunity for a hearing before the Commission
can order a number of actions.
Response--Direct recall notices are the most effective form of a
recall notice. 74 FR at 11886. The statement is based on the
Commission's experience that one of the most important aspects of
conducting a recall is to target recall notices to those consumers that
are more likely to have purchased the product at issue. Direct recall
notices have the advantage of reaching a large portion of the consuming
public that may have actually purchased the product. Even if the
product was not ultimately used by the purchaser, in the case of a
parent buying a product for a child or a consumer buying a gift, the
purchaser is in a good position to notify the product's user about the
recall. Ensuring that notice of the recall is provided in a timely
manner to the affected target audience is a major component of recall
effectiveness, and direct recall notices are a key advantage in the
recall process when this information is known. Moreover, the rule
recommends, but does not require, use of direct recall notices.
Assessing whether direct notice is necessary, appropriate, or possible
in a particular mandatory recall is best done on an individual basis.
Comment 14--One commenter advocates a clear delineation in the rule
with regard to responsibility for direct recall notices. This commenter
argues that manufacturers should never have responsibility for a direct
recall notice, but should have responsibility for broad dissemination
through other means. Direct notice responsibility should fall to the
product distributors and retailers that have such contact information.
Response--Determining which firms have responsibility for a recall
and disseminating recall notices is beyond the scope of the rule, which
solely relates to information categories required on a mandatory recall
notice.
Comment 15--Some commenters note the limitations of relying solely
on direct recall notices. One commenter states that direct recall
notices are not the best method of notifying consumers, and should
never be used as the sole method of notifying consumers because they
miss third party consumers that purchase products second-hand or
receive them as gifts. Considering the popularity of certain Web sites
that sell, re-sell, or auction consumer products, direct recall notices
could miss a large population of the consuming public. Additionally,
the general public has an interest in knowing about recalled products,
such that the recall strategy should be to reach the broadest possible
audience.
Response--The Commission agrees that a direct recall notice should
not be the sole form of recall notification because the purpose of a
recall notice is to reach the broadest possible audience of consumers
that may have purchased or received the products. Sole reliance on
direct recall notices ignores the fact that other persons may benefit
from receiving recall notices and assist in broad dissemination of
recall notices. The final rule acknowledges this by adding Sec.
1115.26(a)(5) stating that at least two of the recall notice forms
listed in subsection (b) should be used.
Comment 16--One commenter asks the Commission to clarify the rule
with regard to the factors for determining
[[Page 3361]]
when a firm actually has direct contact information. This commenter
states that firms have millions of bits of information, but being able
to track the information to a specific time frame and product is time
consuming and costly. Moreover, firms may have some information related
to the sale, i.e., credit card information, but may not have all
information without relying on a third party to match data, which can
also be time consuming and costly. The commenter urges that the rule
clarify that it only applies when accurate, up to date, contact
information is readily and practically available, and is in fact in the
firm's direct possession. Another commenter suggests adding ``telephone
number'' to the list of contact information, and to prioritize the
direct notice methods as follows: (1) Direct mail; (2) e-mail; and (3)
telephone.
Response--Assessing when a firm has possession of direct contact
information and when the information should be used is best done on an
individual basis because of the variety of information that firms or
third parties may possess. However, the final rule clarifies that ``[a]
direct recall notice should be used for each consumer for whom a firm
has direct contact information, or when such information is obtainable,
regardless of whether the information was collected for product
registration, sales records, catalog orders, billing records, marketing
purposes, warranty information, loyal purchaser clubs, or other such
purposes.'' The Commission or a court retains flexibility to determine
when a firm has direct contact information and when a direct recall
notice is appropriate. The final rule also clarifies that a telephone
number is considered direct contact information: ``[D]irect contact
information includes, but is not limited to, name and address,
telephone number, and electronic mail address.''
Comment 17--Some commenters are positive about the various methods
available for dissemination of information, but want the Commission to
make more than one form of notice mandatory. For example, one commenter
would require multiple forms of dissemination so that firms cannot rely
on a single press release and notice to retailers. Another commenter
suggests requiring firms to contact national and local media. Another
commenter is concerned that the rule does not require firms to ensure
that notices are actually received and not dismissed as spam or junk
mail and says requiring multiple dissemination methods would address
this problem. Several commenters would require the use of paid
advertisements, for example, where injuries and deaths have occurred.
Similarly, another commenter suggests that the recall notice be
required to be disseminated in the same manner as advertising and
promotion for the product.
Response--Section 1115.26(a)(5) in the final rule provides that
more than one form of recall notice should be used. The Commission
declines to provide for any certain type of notice for every recall in
the final rule. Recall notice forms may vary depending on the type of
hazard, the severity of the risk, and the nature and distribution of
the target audience. While circumstances will arise where paid
advertisements are warranted and the Commission's or a court's order
may require their use directed to certain target audiences, in certain
time frames and intervals, retaining flexibility and creativity to
adjust the forms of required recall notices to the specifics of each
case and to allow for technological advancements in recall notice forms
should be maintained.
Comment 18--Several comments support Sec. 1115.26(b)(3), stating
that a Web site recall notice should be prominent and clear on the
first entry point of a Web site, such as a home page, and be
interactive. Several commenters suggest making a Web site recall notice
a mandatory requirement when a firm maintains a Web site. One commenter
agrees that the information must be on the home page and urges the CPSC
not to allow firms to bury recall notices deep within a Web site. These
commenters support the idea of an interactive Web site that allows a
consumer to seek a remedy on-line.
However, one commenter opposes placing a recall notice on a firm's
home page and states that such a requirement goes beyond the CPSIA
mandate. This commenter argues that manufacturers and distributors post
Web site recall notices in a location where consumers have become
familiar with locating the information. This commenter urges that the
CPSC should not adopt a ``one-size fits all'' home page requirement and
that the decision should be based on the circumstances of each case.
Moreover, the requirement for an interactive Web site which allows a
consumer to request a remedy does not make sense in all cases. The
commenter gives the example of ATVs and RVs, which must be taken into
an independent dealer for repair. Because section 214 of the CPSIA does
not require an interactive Web site, the commenter would delete this
section from the final rule.
Response--The Commission agrees that product safety information
should not be buried in a firm's Web site. Since at least 2000, the
CPSC has provided guidance to firms to post recall notices prominently
on the home page of the firm's Web site. The Commission rejects the
proposition that the rule goes beyond the requirements of the CPSIA
with regard to providing an interactive Web site for recalls. First,
the guidelines and policies set forth in section 1115.26 of the final
rule are guidelines, not requirements. And, as reviewed above, section
214 of the CPSIA specifically provides that the Commission should
``include any information that the Commission determines would be
helpful to consumers'' to identify the product, understand the hazard,
and understand the proposed remedy. Although, for example, an ATV
cannot be exchanged through a Web site, a prominently placed Web site
recall notice that is interactive will expand the recall notice to the
relevant target audience, and increase recall effectiveness by helping
consumers with product identification, hazard identification and to
understand the nature of the remedy being offered. Moreover, if the
remedy is a repair, an interactive Web site can help consumers to
locate a dealer to make the necessary repair and/or arrange an
appointment for such repair at an appropriate dealer. While the content
and nature of Web site interactivity may be product and remedy
specific, the tool itself can be used in many ways to enhance consumer
understanding and recall effectiveness.
Comment 19--Comments generally support Sec. 1115.26(c), which
states that the Commission or a court may require that a recall notice
be in languages in addition to English ``when necessary or appropriate
to adequately inform and protect the public,'' but would set mandatory
criteria for recall notices in additional languages. For example, one
commenter states that the phrase ``necessary and appropriate'' requires
further clarification and an explanation of the criteria that will be
used. Another commenter urges the Commission to consider languages
likely used by consumers when reviewing and approving recall notices
and to insure that recall hotlines and on-line forms should be made
available in additional languages when the product was likely purchased
by non-English speaking consumers.
Several commenters note the current demographic situation in the
United States, stating that approximately 12% of the population speaks
Spanish, and suggest that the Commission require that all recall
notices be drafted in both English and Spanish. Another commenter
suggests requiring that all
[[Page 3362]]
recall notices be drafted in the top two or three other languages
spoken in the United States.
Moreover, several commenters opine that the rule should contain
criteria to help determine when recall notices in additional languages
should be required. Suggestions for criteria for a mandatory language
requirement include:
When product labeling is primarily in a language other
than English;
When product instructions are written in more than one
language; and
When a product is marketed in a language other than
English.
Finally, one commenter suggests that the Commission maintain a
``bank'' of standard recall information in other major languages spoken
in the United States to help reduce the costs of providing recall
notices in additional languages.
Response--The final rule clarifies when the Commission or a court
may order that a recall notice be made in languages in addition to
English by providing non-exhaustive examples. However, the Commission
and/or a court retain flexibility to tailor recall notices to
individual recall circumstances. Two criteria suggested by commenters
have been added as examples in the final rule: When the product
labeling is primarily in a language other than English and when a
product is marketed in a language other than English. Both examples
establish circumstances where it may be necessary or appropriate to
issue recall notices in additional languages in order to increase the
likelihood that audiences will understand the notices. The final rule,
at Sec. 1115.26(c), states one additional example: When a product is
marketed or available in a geographic area where English is not the
predominant language. This example demonstrates that even when a
product's marketing or labeling is in English, there may be
circumstances that arise in a mandatory recall scenario that still make
it appropriate to distribute recall notices in languages in addition to
English.
The Commission declines to adopt additional criteria in the final
rule that would not result in an efficient use of staff resources. For
example, insufficient information exists to impose a requirement that
every mandatory recall notice be made available in two or three
languages. Finally, maintaining a ``bank'' of standard recall
information in other languages is something the Commission may consider
doing as a matter of efficiency, but it is not within the scope of the
rule.
5. Section 1115.27--Recall Notice Content Requirements
Proposed Sec. 1115.27 would set forth the recall notice content
requirements specified in the CPSIA and would provide further details
where appropriate. For example, proposed Sec. 1115.27(a) would require
that a recall notice include the word ``recall'' in the heading and
text. As another example, proposed Sec. 1115.27(b) would require the
recall notice to contain the date of its release, issuance, posting, or
publication.
Comment 20--One commenter would have the rule address the sequence
of information found in a mandatory recall notice. The commenter would
have the most important information appear at the top of the notice
because it is more likely to be read. For example, the photograph of
the product should appear at the top of the notice under the ``recall''
heading. The commenter would use the following order: Description of
product hazard, type of hazard or risk, identification of retailers,
etc. This commenter also suggests that the rule address readability
issues, such as the use of bullet points over lengthy paragraphs.
Response--The Commission agrees that recall notices should be
written with the intent to aid readability and understanding by
consumers, but that this issue is best addressed on an individual,
case-by-case basis. In a mandatory recall situation, the Commission or
a court has control over the final form and content of a recall notice,
and can require such notices to conform to the standard format already
in use. The Commission declines to set a uniform sequence in the
current rulemaking because what represents the most critical recall
information may vary slightly depending on the circumstances
surrounding the recall.
Comment 21--One commenter suggests adding a ``Region'' provision to
mandatory recall notices to specify the geographic region in which the
product was made available in order to narrow down areas of concern
when a national retailer is involved. This commenter suggests that the
``Region'' should state whether the product was for sale on line, so
that a consumer understands when the geographic area may have been
broadened by Internet sales.
Response--When it is relevant, a specific geographic region where a
product is sold or offered for sale is typically included in a recall
notice. Although the proposed rule did not list ``region'' as part of
the recall notice content requirements, adding a separate ``region''
requirement to a mandatory recall notice could help to narrow the
geographic range for affected retailers and consumers (while not
narrowing the range for dissemination of a recall notice generally),
and would allow for a description of the region in situations where no
significant retailer is identified. Designation of a region may help
consumers to identify whether they have the product being recalled.
Accordingly, the final rule adds a requirement for ``Region'' as a new
Sec. 1115.27(j), which provides that ``[w]here necessary or
appropriate to assist consumers in determining whether they have the
product at issue, a description of the region where the product was
sold, or held for purposes of sale or distribution in commerce, must be
provided'' and has renumbered the remaining paragraphs accordingly.
Comment 22--Most commenters support Sec. 1115.27(a)'s requirement
to use the word ``recall'' in the heading and text of the notice. A few
commenters suggest use of the label ``Safety Recall'' in the heading to
alert consumers to a safety issue with regard to the product. One
commenter suggests using the term ``Urgent Recall'' in the heading
whenever there is a serious risk of death or loss of limb. This
commenter urges that the Commission use this designation to create a
more serious class of product recalls.
One commenter dislikes using the word ``recall'' in every notice,
arguing that it may be misleading and ``unnecessarily harmful to the
character of a product, manufacturer, importer, or retailer'' by
suggesting the harm is greater than it actually may be. This commenter
suggests using language from the ``action taken'' section, which the
commenter believes will be more accurate in describing the nature of
the recall at issue. At minimum, the commenter suggests using
``recall'' along with the ``action taken'' in the header so that
consumers can quickly and easily see the nature of the action being
taken with regard to the product.
Response--As a matter of Commission policy for consistency and
uniformity, use of the word ``recall'' is preferred because consumers
and other persons recognize the word ``recall'' as meaning that a
safety issue has arisen that requires action by the consumer. The
CPSC's position on the title of a recall notice has been in the Recall
Handbook for many years. The Commission does not agree that the
dissemination of a recall notice necessarily harms manufacturers. As
reviewed in the Recall Handbook, consumers no longer necessarily view
product recalls in a negative light and are, instead, more likely to
have a
[[Page 3363]]
negative view of a firm if it does not take responsibility for
conducting an effective recall. How well a company conducts a timely,
reasonable recall of a product may have a strong influence on
consumers' attitudes about the firm. Successful product recalls can
result in continuing consumer support and demand for the firm's
products.
While the Commission categorizes recalls, as set forth in the
Recall Handbook Section III, CPSC Evaluation of Section 15 Reports, the
Commission has avoided categorizing recall notices because it wants
consumers to review and respond to all recall notices. Consumers should
have the opportunity to read each notice and make an informed decision
regarding whether they have the product, whether the risk of injury
applies to them, how to avoid injury, and how to take advantage of any
remedy associated with the recall. Categorizing recalls by the severity
of risk may hinder the overall goal of recall effectiveness.
Comment 23--A few commenters agree with proposed Sec. 1115.27(c)'s
requirements pertaining to a description of the product. However, one
commenter suggests that it is unclear whether Sec. 1115.27(c)(1)
through (6) establishes requirements because the word ``must'' is not
used. This commenter suggests clarifying the rule so that firms know
whether all or some subset of these product identification guidelines
are required.
Response--Section 15(i)(2) of the CPSA requires that a mandatory
recall notice include a product description, including model numbers or
SKUs, common product name(s), and a photograph of the product. The
final rule is organized such that items in Sec. 1115.26 are guidelines
and policies, and items in Sec. 1115.27 are requirements. Accordingly,
Sec. 1115.27(c) provides that ``[a] recall notice must include a clear
and concise statement of the information that will enable consumers and
other persons to readily and accurately identify the specific product
and distinguish it from similar products. The information must enable
consumers to readily determine whether or not they have, or may be
exposed to, the product.'' The rule lists six types of descriptive
information relevant to product identification, including the fact that
a photograph ``must'' be included. The final rule clarifies that when
the information specified under this section is applicable to a
particular product, it must be included as part of the product
description: ``[T]o the extent applicable to a product, descriptive
information that must appear on a recall notice includes, but is not
limited to:'' The list is not exhaustive, however, and additional
product identification information may be required for a particular
recall notice.
Comment 24--Several comments would strengthen the remedy
requirements in proposed Sec. Sec. 1115.27(d) and (m). One commenter
observes that the remedy offered must be implementable by all parties.
The commenter notes that there have been several instances where a
manufacturer offered a remedy, such as a voucher or coupon, that was
not recognized by all retailers' computer systems when presented by a
consumer. Accordingly, consideration of different systems should be
given when providing a remedy and approval by the CPSC.
A few commenters suggest limiting a manufacturer's ability to
instruct consumers to discard products. They argue that this remedy
should be limited to situations where a firm has gone out of business
or the product is of nominal value. One commenter urges the Commission
to not approve any recall notice that does not include replacement,
repair, or refund of the purchase price as a remedy because consumers
will be less likely to comply without compensation as they do not want
to pay for the item twice. Finally, one commenter urges the Commission
to include a section for ``incentive'' or ``reward'' to inform
consumers about any additional incentives for the return of the
product, or state that ``none'' are being given.
Response--The nature of remedies approved as part of a corrective
action plan goes to the substance of a corrective action plan, which is
not at issue in the final rule. With regard to the suggestion to
include a category for a description of any recall incentive in a
mandatory recall notice, while the Commission generally encourages
firms to offer incentives for compliance with a recall, the Commission
declines to require a separate category for such information.
Incentives are properly part of the remedy being offered. An additional
category for incentives in every recall notice, even when an incentive
is not being offered, will lengthen the recall notice without improving
the overall effectiveness of the notice or providing new or different
information to help consumers understand the remedy being offered.
The Commission also notes that proposed Sec. 1115.27(m) is now
renumbered as Sec. 1115.27(n) in the final rule.
Comment 25--Proposed Sec. 1115.27(e) would require the recall
notice to state the approximate number of product units covered by the
recall, including all product units manufactured, imported, and/or
distributed in commerce. Several comments suggest clarifying Sec.
1115.27(e) by requiring a statement of the number of product units
included in a recall notice. A few commenters state that the rule
should only include products actually sold to consumers so that the
number does not include products that were never sold to any
distributor or retailer or are still in the hands of the manufacturer
and were never imported. The commenters believe that these products are
not subject to a recall and that it is inappropriate and beyond the
scope of the CPSIA to include in the number of units products that have
never been in the hands of consumers. Moreover, these commenters argue
that including such data is misleading and distorting of the number of
products actually subject to the recall and cannot be said to help
consumers identify a product, understand a product hazard, or obtain a
remedy.
One commenter suggests that product unit information is
unnecessary, unhelpful to the consumer, and is likely to overwhelm the
average consumer. According to this commenter, including product unit
information only serves to frustrate the purpose of understanding the
product's actual or potential hazard. This information could have a
negative effect on the firm, and media and other groups could
incorrectly focus on the number of products being recalled rather than
any actual threat of public harm.
Response--Section 15(i)(2)(C) of the CPSA requires that a mandatory
recall notice include ``[t]he number of units of the product with
respect to which the action is being taken.'' Accordingly, firms must
state product unit information in a mandatory recall notice pursuant to
the statute. The Commission's interpretation of this section of the
statute is consistent with past Commission practice for all recall
notices, as set forth in the Recall Handbook, which is to list all
units of a product manufactured, imported, and/or distributed in
commerce. As for those comments suggesting that products that are not
in the hands of consumers are not subject to a recall, the CPSC has
jurisdiction over all consumer products subject to a recall, and all
such products must be dealt with in a corrective action plan,
regardless of where the product is in the supply chain. For example, in
a mandatory recall situation, a manufacturer holding product could not
sell, modify, or destroy product without CPSC authorization. Stating
the number of product units involved informs consumers as to the scope
of a recall,
[[Page 3364]]
aids product identification, and increases recall effectiveness.
Comment 26--Many comments address proposed Sec. Sec. 1115.27(f)
and (l) regarding a description of substantial product hazard and a
description of the incidents, injuries and deaths. Several commenters
agree that requiring a mandatory recall notice to describe and state
the number of injuries and deaths is helpful to consumers and will
motivate them to comply with the recall. Many commenters, however,
state that specific information on injuries and deaths is unnecessary
and irrelevant, or suggest that the rule should be further clarified to
prevent the recall notice from becoming a lengthy, multi-paged
document. One commenter states that proposed Sec. 1115.27(f) exceeds
the scope of the intent of the CPSIA with regard to a description of
the substantial product hazard and reason for action. This information
may not be feasible for firms to provide and may be more misleading
than informative because a firm may not know all of this information at
the time of a recall. Further, several commenters state that reporting
death statistics is outside the purpose of a recall, will not help
consumers or their decision to participate in a recall, but will have
an adverse effect on retailers and producers.
Response--Sections 15(i)(2)(D) and (G) of the CPSA require that a
mandatory recall notice include ``[a] description of the substantial
product hazard and the reasons for the action,'' as well as ``[t]he
number and a description of any injuries or deaths associated with the
product, the ages of any individuals injured or killed, and the dates
on which the Commission received information about such injuries or
deaths.'' Accordingly, the statute and the final rule require both a
description of the substantial product hazard and specific information
on injuries and deaths, including the number, description and ages of
persons involved. However, recall notices will, by necessity, only
include information regarding a substantial product hazard and any
injuries or deaths that are known at the time of the recall notice.
The Commission also notes that it has renumbered Sec. 1115.27(l)
as Sec. 1115.27(m) in the final rule.
Comment 27--Some commenters request clarification on what
constitutes an injury that requires reporting, what the phrase
``associated with the product'' in proposed Sec. 1115.27(f) means,
what ``product conditions or circumstances'' can give rise to an injury
or death related to a product, and what a ``concise summary''
constitutes. For example, one commenter opines that the term ``injury''
should be defined to only include injuries which re