Information Disclosure Under Section 6(b) of the Consumer Product Safety Act, 10432-10461 [2023-03021]
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CONSUMER PRODUCT SAFETY
COMMISSION
16 CFR Part 1101
[CPSC Docket No. CPSC–2014–0005]
Information Disclosure Under Section
6(b) of the Consumer Product Safety
Act
Consumer Product Safety
Commission.
ACTION: Supplemental notice of
proposed rulemaking.
AGENCY:
The U.S. Consumer Product
Safety Commission (CPSC or
Commission) is issuing this
supplemental notice of proposed
rulemaking (Supplemental NPR) to
update its regulation interpreting
section 6(b) of the Consumer Product
Safety Act (CPSA) (6(b) Regulation). On
February 26, 2014, the Commission
issued a notice of proposed rulemaking
in this matter (2014 NPR). The 2014
NPR proposed to modernize the 6(b)
Regulation to account for the significant
improvements in information
technology that have occurred since the
regulation’s initial adoption in 1983,
and streamline the 6(b) Regulation to
align more closely with the text of
section 6(b), including with respect to
protecting information filed by
manufacturers, distributors, and
retailers in accordance with the
requirements of section 15(b) of the
CPSA. This Supplemental NPR
responds to public comments on the
2014 NPR and proposes additional
changes to the 6(b) Regulation to further
modernize and align the regulation with
the statute.
DATES: Submit comments by April 3,
2023.
SUMMARY:
You may submit comments,
identified by Docket No. CPSC–2014–
0005, by any of the following methods:
Electronic Submissions: Submit
electronic comments to the Federal
eRulemaking Portal at:
www.regulations.gov. Follow the
instructions for submitting comments.
Do not submit through this website:
confidential business information, trade
secret information, or other sensitive or
protected information that you do not
want to be available to the public. CPSC
typically does not accept comments
submitted by electronic mail (email),
except as described below.
Mail/hand delivery/courier: CPSC
encourages you to submit electronic
comments by using the Federal
eRulemaking Portal. You may, however,
submit comments by mail, hand
delivery, or courier to: Office of the
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ADDRESSES:
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Secretary, Consumer Product Safety
Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone (301)
504–7479.
Instructions: All submissions must
include the agency name and docket
number. CPSC may post all comments
without change, including any personal
identifiers, contact information, or other
personal information provided, to:
www.regulations.gov. If you wish to
submit confidential business
information, trade secret information, or
other sensitive or protected information
that you do not want to be available to
the public, you may submit such
comments by mail, hand delivery, or
courier, or you may email them to: cpscos@cpsc.gov.
Docket: For access to the docket to
read background documents or
comments received, go to:
www.regulations.gov, and insert the
docket number, CPSC–2014–0005, into
the ‘‘Search’’ box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT:
Amy S. Colvin, Attorney, Division of
Federal Court Litigation, Office of the
General Counsel, Consumer Product
Safety Commission, 4330 East West
Highway, Bethesda, MD 20814;
telephone: 301–504–7639; email:
acolvin@cpsc.gov.
SUPPLEMENTARY INFORMATION: The
Commission issues this Supplemental
NPR proposing to amend the CPSC’s
regulation, Information Disclosure
Under Section 6(b) of the Consumer
Product Safety Act, codified at 16 CFR
part 1101.
‘‘is accurate, and that such disclosure is
fair in the circumstances and reasonably
related to effectuating the purposes of
this Act.’’ Id. In 1980, the U.S. Supreme
Court ruled that CPSC’s disclosures
under the Freedom of Information Act
(FOIA) are among the public releases
covered by the section 6(b)(1)
restrictions. CPSC v. GTE Sylvania, Inc.,
447 U.S. 102 (1980).
The Consumer Product Safety
Improvement Act of 2008 (CPSIA),
Public Law 110–314, 122 Stat. 3016,
enacted on August 14, 2008, amended
section 6 of the CPSA. The amendments
shortened, from 30 days to 15 days, the
period for manufacturers and private
labelers to receive advance notice and
have an opportunity to comment on
information that the Commission
proposes to disclose. In addition, the
amendments eliminated the
requirement that the Commission
publish a Federal Register notice when
the Commission makes a finding that
the public health and safety necessitates
public disclosure with less notice than
the default period specified in section
6(b)(1). CPSIA also broadened the
statutory exceptions to section 6(b). For
example, the amendments excluded
from the requirements of section
6(b)(1)–(3) a public disclosure of
information about any consumer
product which the Commission has
reasonable cause to believe is in
violation of any consumer product
safety rule or provision of the CPSA, or
similar rule or provision of any other act
enforced by the Commission.
I. Background
B. History of the 6(b) Regulation
A. Statutory Authority
Section 6(b) of the CPSA governs the
Commission’s disclosure of certain
information to the public. In general,
section 6(b)(1) requires, ‘‘prior to its
public disclosure of any information
obtained under this Act, or to be
disclosed to the public in connection
therewith,’’ that the Commission, ‘‘to
the extent practicable,’’ provide
manufacturers or private labelers with
advance notice and opportunity to
comment on the proposed disclosure, if
the manner in which such consumer
product is designated or described in
such information ‘‘permit[s] the public
to ascertain readily the identity of such
manufacturer or private labeler.’’ 15
U.S.C. 2055(b)(1). The CPSA defines
‘‘manufacturer’’ to include an importer.
15 U.S.C. 2052(a)(11). Section 6(b)(1)
also requires the Commission, prior to
such public disclosure, to ‘‘take
reasonable steps to assure’’ that the
information CPSC intends to disclose
On December 29, 1983, the
Commission published a final rule
interpreting section 6(b) of the CPSA. 48
FR 57406; see 49 FR 8428 (Mar. 7, 1984)
(technical correction). The 6(b)
Regulation, 16 CFR part 1101, describes
the Commission’s procedures for
providing manufacturers and private
labelers advance notice and ‘‘a
reasonable opportunity to submit
comments’’ to the Commission on
proposed disclosures of certain
information. In addition, the 6(b)
Regulation explains the ‘‘reasonable
steps’’ the Commission will take
pursuant to section 6(b) to assure, prior
to public disclosure of covered
information, that the information ‘‘is
accurate, and that such disclosure is fair
in the circumstances and reasonably
related to effectuating the purposes of
this Act.’’ In 2008, the Commission
amended the 6(b) Regulation to reflect
the CPSIA amendments. 73 FR 72334
(Nov. 28, 2008).
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C. The 2014 NPR
On February 26, 2014, the
Commission published the 2014 NPR.
Information Disclosure Under Section
6(b) of the Consumer Product Safety
Act, 79 FR 10712 (Feb. 26, 2014). The
2014 NPR was based on the following
guiding principles:
1. Modernize the 6(b) Regulation to
account for the significant
advancements in information
technology that have taken place since
its initial adoption in 1983;
2. Streamline the 6(b) Regulation to be
as closely aligned with 15 U.S.C.
2055(b) as possible, with the objectives
of: (a) eliminating unnecessary
administrative burdens to the agency;
(b) removing extra-statutory
requirements; (c) eliminating
redundancies in providing notice; (d)
minimizing FOIA backlogs; and (e)
maximizing transparency and openness
in the agency’s disclosure of
information;
3. Maintain CPSC’s compliance with
the statutory requirements of 15 U.S.C.
2055(b) (i.e., requirements related to
notice, opportunity to submit
comments, and taking reasonable steps
to assure accuracy, fairness in the
circumstances, and reasonable relation
to effectuating the purposes of the CPSA
outlined in 15 U.S.C. 2051(b)); and
4. Maintain the protections of 15
U.S.C. 2055(b)(5) for information filed
in accordance with the requirements of
15 U.S.C. 2064(b) (i.e., Section 15(b)
reports).
See Fiscal Year 2013 Midyear Review
and Operating Plan Adjustments,
available at https://www.cpsc.gov/s3fspublic/pdfs/foia_
RCAFY13MidyearReviewand
OperatingPlanAdjustments
%2520050313.pdf.
The Commission received 24
comments on the 2014 NPR. As
discussed in section III below, seven
consumer groups supported the
proposed revisions to modernize the
regulation and make it more consistent
with the statute and industry practice.
However, these commenters were
concerned that section 6(b)’s obstacles
to transparency and the immediate
release of crucial product safety
information remain. The other
commenters, comprising trade
associations and one firm, objected to
various proposals contained in the 2014
NPR. In general, these commenters
asserted that the proposed revisions
would result in the disclosure of
inaccurate or misleading information.
Moreover, according to these
commenters, some of the proposed
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changes could chill cooperation
between the Commission and industry.
II. Detailed Description of the Proposed
Revisions to the 6(b) Regulation
This section describes the changes
proposed by this Supplemental NPR, in
the order in which they appear in the
proposed revised part 1101 of the
Commission’s rules.
A. Table of Contents
1. Proposed Changes to the Table of
Contents
The 2014 NPR proposed a technical
change to the Table of Contents. 79 FR
10713. The Supplemental NPR
continues to propose this change. In
addition, the Supplemental NPR
proposes conforming changes to align
the 6(b) Regulation with the statute, and
minor grammatical edits for clarity. For
example, the Supplemental NPR
proposes to remove ‘‘release’’ and, in its
place, add ‘‘disclosure’’ because section
6(b)(1) of the CPSA uses the terms,
‘‘public disclosure,’’ ‘‘disclosure,’’
‘‘disclosed,’’ and ‘‘disclosing.’’ The
Supplemental NPR also proposes to
remove ‘‘analysis’’ and, in its place, add
‘‘comment,’’ because section 6(b)(1)
requires the Commission to provide
manufacturers and private labelers
‘‘with a reasonable opportunity to
submit comments.’’ The Supplemental
NPR proposes these conforming changes
throughout the 6(b) Regulation. To
improve clarity, the Supplemental NPR
also proposes to redesignate § 1101.1 as
‘‘Scope’’ and § 1101.2 as ‘‘General
background.’’
B. Subpart A—Background
1. Proposed Changes to § 1101.1
(General Background.)
To improve organization, the
Supplemental NPR proposes to
redesignate current § 1101.2 (Scope) as
§ 1101.1.
The 2014 NPR proposed technical
changes to current § 1101.2 (which
becomes § 1101.1). 79 FR 10713. The
Supplemental NPR continues to propose
only one of these technical changes:
removing ‘‘1476’’ as a statutory section
reference and, in its place, adding
‘‘1477.’’
Section 6(b)(1) of the CPSA applies to
the Commission’s ‘‘public disclosure of
any information obtained under this
Act, or to be disclosed to the public in
connection therewith.’’ 15 U.S.C.
2055(b)(1). Section 6(d)(1) of the CPSA
defines ‘‘Act’’ as the CPSA, FFA, PPPA,
and FHSA. 15 U.S.C. 2055(d)(1). Current
§ 1101.2, however, more broadly defines
the legislative acts that are relevant to
section 6(b) to include not only the laws
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specified in section 6(d)(1) of the CPSA,
but also the Refrigerator Safety Act, the
Virginia Graeme Baker Pool and Spa
Safety Act, and the Children’s Gasoline
Burn Prevention Act. The Supplemental
NPR proposes to revise this section to
conform to the language in section
6(b)(1) and (d)(1) of the CPSA, by
removing the additional laws. In
connection with this revision, the
Supplemental NPR proposes to refer
collectively to the CPSA, FFA, PPPA,
and FHSA as ‘‘the Acts’’ and to use this
defined term throughout the 6(b)
Regulation. The Supplemental NPR also
proposes edits to the statutory citations.
Thus, revised proposed § 1101.1 reads:
These rules apply to the public disclosure
of any information obtained under the
Consumer Product Safety Act, 15 U.S.C.
2051–2090 (CPSA), the Flammable Fabrics
Act, 15 U.S.C. 1191–1204 (FFA), the Poison
Prevention Packaging Act of 1970, 15 U.S.C.
1471–1477 (PPPA), and the Federal
Hazardous Substances Act, 15 U.S.C. 1261–
1278a (FHSA) (collectively, ‘‘the Acts’’), or to
be disclosed to the public in connection
therewith.
2. Proposed Changes to § 1101.2
(Scope.)
To improve organization, the
Supplemental NPR proposes to
redesignate current § 1101.1 (General
background) as § 1101.2.
The 2014 NPR proposed revising
current § 1101.1(b)(1) to reflect more
clearly that there are exceptions to
section 6(b)(5)’s limitations on the
disclosure of information submitted to
the Commission under section 15(b) of
the CPSA. 79 FR 10713. The
Supplemental NPR builds upon this
approach and proposes additional
changes throughout redesignated
§ 1101.2 to conform to the statute. For
example, the Supplemental NPR
proposes to revise the first sentence in
renumbered § 1101.2(b)(1) to conform to
the language in section 6(b)(1). This
revised sentence now reads:
Generally, section 6(b)(1) requires, prior to
the Commission’s public disclosure of any
information obtained under the Acts, or to be
disclosed to the public in connection
therewith, that the Commission, to the extent
practicable, provide manufacturers or private
labelers with advance notice and opportunity
to comment on the information, if the
manner in which such consumer product is
designated or described in the information
permits the public to ascertain readily the
identity of the manufacturer or private
labeler.
Likewise, the Supplemental NPR
proposes to add ‘‘consumer’’ before
‘‘product’’ because section 6(b)(1) refers
to ‘‘consumer product,’’ a term defined
in section 3(a)(5) of the CPSA. 15 U.S.C.
2052(a)(5). The Supplemental NPR
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proposes this conforming revision
throughout the 6(b) Regulation.
The 2014 NPR also proposed inserting
in § 1101.1(b)(1) the word, ‘‘calendar,’’
between ‘‘15’’ and ‘‘days.’’ 79 FR 10713.
For clarity and consistency, the
Supplemental NPR continues to propose
this change, without revision, in those
sections of the 6(b) Regulation that
discuss timing. The specification of
calendar days reflects CPSC’s practice
since 2008, when the Commission
published a final rule to revise the 6(b)
Regulation in accordance with the 6(b)
amendments under CPSIA. 73 FR
72334.
The 2014 NPR proposed revising the
date of CPSC’s internal Directive 1450.2
as listed in current § 1101.1(c). 79 FR
10713. The Supplemental NPR proposes
to delete the reference to Directive
1450.2 entirely, to avoid obsolescence if
the Commission chooses to update or
revise that document. The
Supplemental NPR also proposes
removing from current § 1101.2(c) the
words, ‘‘internal’’ and ‘‘internal
clearance,’’ to conform to the language
in section 6(b)(6) of the CPSA, which
does not use these terms.
Finally, to provide clarity to covered
firms, the Supplemental NPR proposes
to add a sentence at the end of current
§ 1101.2(b)(1), explaining the
requirements of section 15(b) of the
CPSA. The Supplemental NPR, for
clarity, also proposes minor
grammatical edits throughout
redesignated § 1101.2.
C. Subpart B—Information Subject to
Notice and Analysis Provisions of
Section 6(b)(1)
1. Proposed Changes to Subpart B
Heading
The Supplemental NPR proposes to
remove ‘‘Analysis’’ and, in its place, add
‘‘Comment’’ to conform to the language
in section 6(b)(1) of the CPSA.
2. Proposed Changes to § 1101.11
(General Application of Provisions of
Section 6(b)(1).)
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a. Proposed Changes to § 1101.11(a)
In § 1101.11(a), the Supplemental
NPR proposes to remove ‘‘analysis’’ and,
in its place, add ‘‘comment’’ to conform
to the statute.
i. Proposed Changes to § 1101.11(a)(1)
Current § 1101.11(a)(1) states: ‘‘The
information must pertain to a specific
product which is either designated or
described in a manner which permits its
identity to be ascertained readily by the
public.’’ The 2014 NPR proposed
deleting the phrase, ‘‘which is either
designated or described in a manner
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which permits its identity to be
ascertained readily by the public.’’ 79
FR 10713–14. The Supplemental NPR
proposes to delete § 1101.11(a)(1)
entirely because section 6(b)(1) of the
CPSA does not require that the
information proposed for disclosure
pertain to a specific product. Instead,
section 6(b)(1) requires the Commission
to provide a manufacturer or private
labeler with advance notice and an
opportunity to comment on the
information, ‘‘if the manner in which
such consumer product is to be
designated or described in such
information will permit the public to
ascertain readily the identity of such
manufacturer or private labeler.’’ 15
U.S.C. 2055(b)(1) (emphasis added).
This statutory requirement that the
public must be able to ascertain readily
the identity of the manufacturer or
private labeler of the consumer product
is reflected in current § 1101.11(a)(4),
which the Supplemental NPR proposes
to redesignate as § 1101.11(a)(2).
ii. Proposed Changes to § 1101.11(a)(2)
and (3)
Current § 1101.11(a)(2) states: ‘‘The
information must be obtained, generated
or received by the Commission as an
entity or by individual members,
employees, agents, contractors or
representatives of the Commission
acting in their official capacities.’’ The
2014 NPR proposed to revise
§ 1101.11(a)(2) to state: ‘‘The
information must be obtained under the
acts the Commission administers, or be
disclosed to the public in connection
therewith.’’ 79 FR 10714. The
Supplemental NPR proposes additional
changes to § 1101.11(a)(2) to align with
the statute. Revised § 1101.11(a)(2),
which the Supplemental NPR proposes
to redesignate as § 1101.11(a)(3), now
reads: ‘‘The information must be
obtained, generated or received under
the Acts, or be disclosed to the public
in connection therewith.’’
The Toy Industry Association (TIA)
suggested that the 2014 NPR’s proposal
to remove from § 1101.11(a)(2) the
phrase, ‘‘individual members,
employees, agents, contractors or
representatives of the Commission
acting in their official capacities,’’ could
cause these individuals to believe that
they are no longer subject to section
6(b). We disagree. Section 6(d)(2) of the
CPSA states that the ‘‘provisions of
[section 6] shall apply whenever
information is to be disclosed by the
Commission, any member of the
Commission, or any employee, agent, or
representative of the Commission in an
official capacity.’’ This statutory
provision is repeated in current
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§ 1101.11(a)(3), which the Supplemental
NPR proposes to redesignate as
§ 1101.11(a)(1) and to revise with minor
edits to conform to the statute. Revised
§ 1101.11(a)(1) now reads: ‘‘The
Commission, any member of the
Commission, or any employee, agent, or
representative, including contractor, of
the Commission in an official capacity
must propose to disclose the
information to the public (see
§ 1101.12).’’
iii. Proposed Changes to § 1101.11(a)(4)
The Supplemental NPR proposes to
redesignate § 1101.11(a)(4) as
§ 1101.11(a)(2) and to insert ‘‘consumer’’
between ‘‘the’’ and ‘‘product’’ to align
with the statute. The Supplemental NPR
also proposes minor grammatical edits
to this section.
b. Proposed Changes to § 1101.11(b)
The 2014 NPR proposed revising
§ 1101.11(b)(1) to clarify that the
requirements of section 6(b)(1) do not
apply to the information described in
the exceptions listed in section 6(b)(5)
of the CPSA. These exceptions include
the public disclosure of information
with respect to a consumer product
which is the subject of an action brought
under section 12, or which the
Commission has reasonable cause to
believe is in violation of any consumer
product safety rule or provision under
the CPSA or similar rule or provision of
any other act enforced by the
Commission, or information in the
course of or concerning a judicial
proceeding. 15 U.S.C. 2055(b)(5). The
Supplemental NPR continues to propose
this change, incorporating a technical
revision and minor grammatical edit.
The 2014 NPR also proposed adding
the following three categories to the list
of information not subject to the
requirements of section 6(b):
• A report of harm posted on the
publicly available consumer product
safety information database;
• Information that is publicly
available; and
• Information that is substantially the
same as information that the
Commission previously disclosed in
accordance with section 6(b)(1), except
as specified in § 1101.31(d).
i. Reports of Harm
The 2014 NPR proposed including
reports of harm posted on the publicly
available consumer product safety
information database (currently known
as and accessible at SaferProducts.gov)
in the list of information not subject to
section 6(b)(1), because section 6A(f)(1)
of the CPSA specifically excludes such
reports from the provisions of section
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6(b). 15 U.S.C. 2055a(f)(1). 79 FR 10714.
The Supplemental NPR continues to
propose implementing this revision.
The Commission acknowledges
commenters’ concerns with the
Commission disclosing, without
following the section 6(b) requirements,
reports of harm that are not published
on SaferProducts.gov. Although section
6A(f)(1) of the CPSA specifically
excludes from the requirements of
section 6(b), reports of harm that are
published on SaferProducts.gov, this
provision does not address reports of
harm that do not meet the criteria for
publication. Id. Accordingly, the
Commission will provide firms with any
requisite 6(b) notice for reports of harm
that are not published on
SaferProducts.gov.
The National Association of
Manufacturers (NAM) asserted that the
section 6(b) exclusion for reports of
harm ‘‘applies strictly to the reports of
harm on the database and does not
apply to alternative disclosures of
information contained in the report.’’
Without examples or explanation of the
phrase ‘‘alternative disclosures,’’ we are
unable to respond meaningfully to this
comment. In general, however, the
Commission may release or identify
information contained in a report of
harm that is posted to
SaferProducts.gov, without notice under
section 6(b)(1), if (1) the Commission
does not characterize the information
contained in the report, and (2) the
Commission’s use of SaferProducts.gov
information is accurate and not
misleading. For example, the
Commission could state that
SaferProducts.gov received 15 reports of
harm involving Manufacturer ABC’s
lamp. In contrast, the Commission
would have to provide 6(b) notice and
opportunity to comment if that same
release also warned consumers to stop
using the lamps due to a hazard, or
contained other information that is a
public disclosure subject to the notice
requirement of section 6(b)(1).
ii. Information That Is Publicly
Available
The 2014 NPR proposed including in
the list of information not subject to
section 6(b)(1) the following:
‘‘Information that is publicly available
or that has been disseminated in a
manner intended to reach the public in
general, such as news reports; articles in
academic and scientific journals; press
releases distributed through news or
wire services; or information that is
available on the Internet.’’ 79 FR 10714.
Commenters raised concerns regarding
the scope of the 2014 NPR’s proposed
revision, noting that publicly available
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information may be inaccurate, biased,
or misleading and the Commission’s
reference to such information implies
that the information is verified,
accurate, or reliable. The Commission
recognizes that even though information
appearing in a news article or in an
organization’s published report is
available to the general public, the
Commission’s repetition of that
information could be inconsistent with
the intent of section 6.
Based upon the comments that we
received, this Supplemental NPR
proposes a different approach for
information that is already available to
the public. Specifically, the Commission
proposes to specify that the
requirements of section 6(b)(1) do not
apply to: ‘‘Information that has already
been made available to the public
through sources other than the
Commission, provided the Commission
clearly indicates the source of the
information and the Commission’s use
of the information is accurate and not
misleading.’’
Under the revised approach proposed
here, the Commission may release or
identify information that the
Commission obtained from publicly
available sources (e.g., news clippings),
without notice under section 6(b)(1), if
(1) the Commission does not
characterize the publicly available
information or relay new information,
and (2) the Commission’s use of the
information is accurate and not
misleading. In determining whether the
Commission’s use of the information is
accurate and not misleading, the
integrity of the source may be relevant.
For example, the Commission could
state that it is aware of an identified
newspaper’s article reporting 10
incidents involving Manufacturer ABC’s
stroller, provided it is reasonable to
attribute integrity to the source of the
information (e.g., the newspaper follows
journalistic standards) and the
Commission’s description of the
newspaper’s report is accurate and not
misleading. However, the Commission
would provide 6(b) notice and
opportunity to comment before posting
to a social media platform: ‘‘Check your
ABC stroller for dangerous hinges—
[Newspaper name] reports injuries to 10
kids.’’ In this example, the
Commission’s social media message
implies that the Commission considers
the information contained in the news
article to be a basis for action, or even
that the Commission has itself
determined the stroller hinges pose a
hazard.
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iii. Information That Is Substantially the
Same as Information That the
Commission Previously Disclosed
The 2014 NPR proposed including the
following to the list of information not
subject to section 6(b)(1): ‘‘(8)
Information that is substantially the
same as information that the
Commission previously disclosed in
accordance with section 6(b)(1), except
as specified in § 1101.31(d).’’ 79 FR
10715.
Based upon comments that the
Commission received, which asserted
that the 2014 NPR proposal is vague and
difficult to apply, and upon further
consideration, the Commission proposes
a modified approach. Under this new
approach, the requirements of section
6(b)(1) do not apply to: ‘‘Information,
not previously disclosed, that in context
does not disclose materially more or
materially different information about
the consumer product than what the
Commission previously disclosed in
accordance with the law.’’ For example,
under this proposal, a Commissioner
may relate in a speech the findings
regarding Manufacturer A’s blender that
appeared in a published CPSC report on
kitchen appliances, for which the
Commission provided the requisite 6(b)
notice. However, the Commissioner
would not discuss other staff findings
that do not appear in the published
report, unless the Commission
previously provided Manufacturer A
with 6(b) notice regarding those
additional findings.
iv. Press Releases Issued by Firms
The Supplemental NPR proposes to
delete § 1101.11(b)(4), ‘‘Press releases
issued by firms.’’ While we do not
believe that section 6(b) requires the
Commission to provide a manufacturer
or private labeler with 6(b) notice and
an opportunity to comment before the
Commission provides the public with
information that is available in the
firm’s own publicly available press
release, we hold to the Supplemental
NPR’s position that it is unnecessary to
state in the 6(b) Regulation this specific
application of general principals.
c. Proposed Technical and Conforming
Changes to § 1101.11
The 2014 NPR proposed three
technical and conforming changes to
§ 1101.11. 79 FR 10715. The
Supplemental NPR continues to propose
these revisions, except for the proposal
to remove ‘‘16 CFR part 1017,’’ which is
listed as ‘‘Reserved,’’ and, in its place,
add ‘‘16 CFR part 1019,’’ which is titled
‘‘Export of Noncomplying, Misbranded,
or Banned Products,’’ in § 1101.11(b)(2).
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Instead, the Supplemental NPR
proposes to remove the reference to the
Commission’s Export Policy Statement,
which is not applicable, and insert the
relevant regulatory citation, 16 CFR
1019.7. In addition, the Supplemental
NPR proposes to re-number the
paragraphs in § 1101.11(b) to reflect the
proposed deletion of ‘‘(4) Press releases
issued by firms’’ and insert a crossreference to subpart E in redesignated
§ 1101.11(b)(4).
3. Proposed Changes to § 1101.12
(Commission Must Disclose Information
to the Public)
The 2014 NPR proposed technical and
conforming changes to § 1101.12,
including revising the heading to state:
‘‘Definition of ‘public.’ ’’ 79 FR 10715.
The Supplemental NPR continues to
propose these changes, without
revision.
For the requirements of section 6(b) to
apply, the Commission, any member of
the Commission, or any employee,
agent, or representative, including
contractor, of the Commission in an
official capacity, must propose to
disclose the information to the public.
See revised § 1101.11a(1). Current
§ 1101.12 includes in the list of persons
who are not considered members of the
‘‘public’’:
• ‘‘The persons or firms to whom the
information to be disclosed pertains, or
their legal representatives’’ (16 CFR
1101.12(d)); and
• ‘‘The persons or firms who
provided the information to the
Commission, or their legal
representatives’’ (16 CFR 1101.12(e)).
For greater specificity, the
Supplemental NPR proposes to remove
the reference to ‘‘persons or firms’’ and,
in its place, add ‘‘Persons, including but
not limited to, consumers,
manufacturers, private labelers,
retailers, or distributors.’’
The Commission may (and routinely
does) contact consumers or firms to
discuss information involving that
particular consumer or firm. For
example, when a manufacturer or
private labeler provides the Commission
with incident information that also
identifies the consumers involved in
those incidents, the Commission may
use that information to contact the
consumers to conduct in-depth
investigations of the incidents.
Similarly, when a manufacturer or
private labeler provides the Commission
with the names of firms that distributed
or sold a violative or defective product,
the Commission may contact the
distributor or retailer to obtain
additional information about the
product. In these instances, neither the
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consumer, distributor, nor retailer
constitutes the ‘‘public’’ under
§ 1101.12, because the information to be
disclosed pertains to (1) the particular
consumer who experienced an incident
with the product, or (2) the particular
distributor or retailer who distributed or
sold the product.
The Supplemental NPR proposes
additional technical and conforming
changes, as well as minor grammatical
edits, to § 1101.12 to provide clarity and
to align with the statute. For example,
the Supplemental NPR proposes to
revise § 1101.12(a) and (b) to explain
that section 6(b) applies to disclosures
of information by state officials who are
commissioned officers under section
29(a)(2) of the CPSA, and by any
member of the Commission or any
employee, agent, or representative,
including contractor, of the
Commission, in an official capacity. In
§ 1101.12(h), the Supplemental NPR
proposes to remove the reference to
‘‘CPSIA’’ and, in its place, insert
‘‘CPSA,’’ which the CPSIA amended.
4. Proposed Changes to § 1101.13
(Public Ability To Ascertain Readily
Identity of Manufacturer or Private
Labeler)
The 2014 NPR proposed deleting from
§ 1101.13 the last sentence, which
states, ‘‘The Commission will provide
the advance notice and opportunity to
comment if there is a question whether
the public could readily ascertain the
identity of a manufacturer or private
labeler.’’ 79 FR 10715. The 2014 NPR
explained that this sentence is vague
and inconsistent with the reasonable
person standard that the Commission
adopted in the first sentence of this
section. Id. Under that standard, if a
reasonable person who lacks specialized
expertise can readily ascertain the
identity of the firm from the information
proposed to be disclosed, the
Commission will provide such
information to the firm for section 6(b)
comment. The Supplemental NPR
continues to propose deleting the last
sentence of § 1101.13, while retaining
the reasonable person standard.
The Supplemental NPR proposes to
insert two sentences in § 1101.13 to
clarify that the following types of
information are not within the scope of
section 6(b)(1): (1) information about
categories of consumer products,
provided such information will not
permit the public to ascertain readily
the identity of the products’
manufacturers or private labelers, and
(2) information about manufacturers or
private labelers, provided such
information does not designate or
describe a consumer product. Consistent
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with section 6(b)(6) of the CPSA, the
Commission will ensure, pursuant to its
established procedures, that information
the Commission intends to disclose that
reflects on the safety of a class of
consumer products or on a
manufacturer or private labeler of
consumer products, is accurate and not
misleading.
The 2014 NPR also proposed a
technical change to § 1101.13. 79 FR
10715. The Supplemental NPR
continues to propose this change,
without revision. In addition, the
Supplemental NPR proposes
conforming changes to § 1101.13 to
align with the statute and minor
grammatical edits for clarity.
D. Subpart C—Procedure for Providing
Notice and Opportunity To Comment
Under Section 6(b)(1)
1. Proposed Changes to § 1101.21 (Form
of Notice and Opportunity To
Comment)
To increase efficiency and reduce
burdens on the Commission and private
parties, the 2014 NPR proposed revising
the 6(b) Regulation to authorize
electronic 6(b) notices, direct
Commission staff to transmit notices
electronically when possible, and
encourage electronic communication
back to the Commission. 79 FR 10715.
Commenters overwhelmingly supported
this proposal. The Supplemental NPR
builds upon the 2014 NPR’s approach.
The Supplemental NPR proposes a new
paragraph at § 1101.21(b) that requires,
to the extent practicable, electronic
transmission to avoid delays inherent in
methods such as mail delivery. In
response to commenters’ questions, the
new paragraph also clarifies the
procedure if electronic transmission is
not practicable or the Commission
cannot confirm electronic receipt of the
notice. In such instances, the
Commission will take appropriate steps
to provide notice using other methods,
including delivery via U.S. mail or other
delivery service.
Section 6(b)(1) of the CPSA states: ‘‘In
disclosing any information under
[section 6(b)], the Commission may, and
upon the request of the manufacturer or
private labeler shall, include with the
disclosure any comments or other
information or a summary thereof
submitted by such manufacturer or
private labeler to the extent permitted
by and subject to the requirements of
[section 6].’’ 15 U.S.C. 2055(b)(1). Thus,
unless a manufacturer or private labeler
specifically requests that the
Commission disclose the firm’s
‘‘comments or other information or a
summary thereof’’ that is submitted in
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response to a section 6(b)(1) notice from
CPSC, the Commission is not required
to disclose the firm’s comments. Current
§ 1101.21(b)(4), however, requires the
Commission to disclose comments even
when a manufacturer or private labeler
does not request disclosure. The
Supplemental NPR proposes to revise
this section to conform to the language
in section 6(b)(1) and to require that
requests for withholding be made in
writing to assist Commission staff with
processing and tracking such requests.
Revised § 1101.21(b)(4) now reads: ‘‘A
statement that the Commission may,
and upon the written request of the
manufacturer or private labeler shall,
include with the disclosure any
comments or other information or a
summary thereof submitted by such
manufacturer or private labeler, to the
extent permitted by and subject to the
requirements of section 6 of the CPSA.’’
Current § 1101.21(b) specifies the
information that will appear in a section
6(b) notice to a manufacturer or private
labeler. This information includes,
among other contents, ‘‘[a] statement
that a request for comments be withheld
from disclosure will be honored.’’ The
2014 NPR proposed revising
§ 1101.21(b)(5). 79 FR 10715–16. The
Supplemental NPR instead proposes to
delete § 1101.21(b)(5) entirely. A blanket
policy of always allowing a
manufacturer or private labeler to have
its comments withheld, even when such
comments are not confidential
commercial or trade secret information,
and disclosure of the comments is not
otherwise prohibited by law, may
conflict with the public interest in
transparency. Under the Commission’s
proposed revision at § 1101.24(c), a
manufacturer or private labeler must
explain its basis for requesting that the
Commission exercise its discretion to
not disclose the comments.
Current § 1101.21(b)(7) states that
firms may request renotification, or the
opportunity to comment on subsequent
disclosures of ‘‘identical information’’
that is ‘‘in the same format.’’ The 2014
NPR proposed revisions to this section.
79 FR 10716. As discussed in section
II.C.2.b.iii above, the Commission
proposes a different approach for
subsequent disclosures of information.
In connection with this new approach,
the Supplemental NPR proposes to
revise § 1101.21(b)(7), now redesignated
as § 1101.21(b)(6), to provide for
delivery to the manufacturer or private
labeler of: ‘‘A statement that no further
request for comment will be sought by
the Commission if the Commission
intends to disclose information, not
previously disclosed, that in context
does not disclose materially more or
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materially different information about
the consumer product than what the
Commission previously disclosed in
accordance with the law.’’ For example,
the Commission would not have to
provide another 6(b) notice before
restating the contents of a CPSC news
release that was issued after a notice
and comment process under section
6(b).
Current § 1101.21(b)(2) calls for the
inclusion in a section 6(b)(1) notice of:
A general description of the manner
in which the Commission will disclose
the information, including any other
relevant information the Commission
intends to include with the disclosure.
If the Commission advises that the form
of disclosure will be by press release, for
example, the Commission need not
provide further notice to disclose a
summary of the press release.
The Supplemental NPR proposes to
delete the last sentence of this provision
because it concerns renotification,
which is addressed in redesignated
§ 1101.21(b)(6), rather than initial
notification. The Supplemental NPR
includes this example in redesignated
§ 1101.21(b)(6).
The 2014 NPR proposed two technical
and conforming changes to § 1101.21. 79
FR 10716. The Supplemental NPR
continues to propose only the
conforming change in § 1101.21(b),
redesignated § 1101.21(c). In addition,
the Supplemental NPR proposes a
technical change in § 1101.21(a) to
cross-reference revised § 1101.26, which
identifies circumstances when notice
and opportunity to comment are not
practicable. Finally, the Supplemental
NPR proposes changes to conform to the
statute and minor grammatical edits
throughout § 1101.21 for simplification
and clarity. For example, in
§ 1101.21(b)(6), redesignated
§ 1101.21(c)(5), the Supplemental NPR
proposes to remove ‘‘firm’’ and, in its
place, add ‘‘manufacturer or private
labeler.’’ The Supplemental NPR also
proposes to redesignate certain
paragraphs and sub-paragraphs.
2. Proposed Changes to § 1101.22
(Timing: Request for Time Extensions)
The 2014 NPR proposed inserting a
sentence into § 1101.22(a)(1) regarding
electronic transmission of the 6(b)
notice. 79 FR 10716. The Supplemental
NPR proposes to move discussion of
electronic transmission to proposed
§ 1101.21(b).
Currently, the first sentence of
§ 1101.22(a)(2) states: ‘‘Upon his or her
own initiative or upon request, the
Freedom of Information Officer may
provide a different amount of time for
comment, particularly for firms that
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receive voluminous or complex
material.’’ The 2014 NPR proposed
deleting from § 1101.22(a)(2) the phrase,
‘‘Upon his or her own initiative or,’’
because, absent a request from a
manufacturer or private labeler, the
Freedom of Information Officer
generally will not provide a firm with
additional time to comment on
information proposed for disclosure. 79
FR 10716. The Supplemental NPR
proposes additional non-substantive
edits to the first sentence of
§ 1101.22(a)(2). The proposed revised
sentence reads: ‘‘The Commission may
provide a longer amount of time for
comment, particularly for manufacturers
and private labelers that receive from
the Commission voluminous or complex
material to review.’’
The 2014 NPR proposed revisions to
§ 1101.22(b)(2) to clarify when the
Commission will disclose information
in fewer than 15 calendar days. 79 FR
10716. The Supplemental NPR proposes
to delete § 1101.22(b)(2) entirely
because this section concerns timing,
which is addressed in §§ 1101.22(a)(1)
and 1101.23.
Current § 1101.22(b)(1) states: ‘‘If the
Commission has not received a response
within the time specified and if it has
received no request for extension of
time, the Commission will analyze the
information as provided in subpart D. If
no comments are submitted the
Commission will not give the further
notice provided in section 6(b)(2).’’ The
Supplemental NPR proposes minor
grammatical and clarifying revisions to
this section to reflect that an extension
request is not a substantive response.
Revised § 1101.21(b)(1), redesignated
§ 1101.21(b), now reads: ‘‘If the
Commission has not received a response
within the time specified (subject to any
extension of time that has been granted
under paragraph (c)), the Commission
will analyze the information as
provided in subpart D and will not give
the further notice provided in section
6(b)(2).’’ The Commission expects
manufacturers and private labelers to
submit comments by the deadline
indicated in the 6(b) notice or otherwise
given. The Commission ordinarily will
disregard comments that are not
submitted by the stated deadline.
The Supplemental NPR also proposes
edits to provide manufacturers and
private labelers more specific
instructions regarding the Commission’s
process for requesting an extension of
time to comment on information that
the Commission proposes to disclose.
The Supplemental NPR proposes
requiring in § 1101.22(c) that such
requests be in writing and submitted at
least 48 hours before the deadline to
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respond. The Commission believes this
is a reasonable approach for processing
and tracking any extension requests that
staff may receive and for ensuring that
proposed disclosures of information are
not unnecessarily delayed. In addition,
the Supplemental NPR clarifies that if
the time for response has been
shortened due to a public health and
safety finding, no extension will be
granted, except upon the Commission’s
initiative; in other words, extension
requests from the party receiving notice
will not be entertained in this situation.
The Supplemental NPR proposes to
move the sentence in § 1101.22(c)(2) to
the end of § 1101.22(c)(1) and to
redesignate ‘‘(3)’’ as ‘‘(2)’’. In addition,
in redesignated § 1101.22(c)(2), the
Supplemental NPR proposes to remove,
‘‘The Commission will promptly
respond to requests for extension of
time’’ and, in its place, add ‘‘It is the
policy of the Commission to respond
promptly to requests for extension of
time.’’ This change reflects that the
statute does not require the Commission
to respond promptly to an extension
request, although the Commission
endeavors to do so.
The 2014 NPR proposed two technical
changes to § 1101.22. 79 FR 10716. In
§ 1101.22(a)(2), the Supplemental NPR
continues to propose removing
‘‘§ 1101.24’’ and, in its place, adding
‘‘§ 1101.23.’’ The 2014 NPR’s proposed
revision to § 1101.22(b)(1) is no longer
necessary in light of other revisions to
this sentence.
The Supplemental NPR proposes
additional conforming changes to align
with the statute and minor grammatical
edits for clarity. For example, the
Supplemental NPR proposes to remove
‘‘firm’’ and, in its place, add
‘‘manufacturer or private labeler’’ to
conform to the statute and to provide
clarity about the types of entities that
are subject to section 6(b)(1) of the
CPSA. The Supplemental NPR proposes
this revision at appropriate places
throughout the 6(b) Regulation. The
Supplemental NPR also proposes to
revise the heading of § 1101.22 so that
it reads: ‘‘Time for comment and
requests for extension of time’’.
3. Proposed Changes to § 1101.23
(Providing Less Than 15 Days Notice
Before Disclosing Information)
Current § 1101.23(c), titled ‘‘Notice of
finding,’’ states that the Commission
will provide the manufacturer or private
labeler with notice of a public health
and safety finding. The 2014 NPR
proposed revisions to § 1101.23(c) to
direct the Commission to provide such
notice electronically. 79 FR 10716. The
Supplemental NPR proposes to delete
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§ 1101.23(c) entirely, because section
6(b) does not require the Commission to
provide the manufacturer or private
labeler direct notice of the finding.
Rather, when the Commission finds that
the public health and safety requires a
lesser period of notice, section 6(b)(1)
requires the Commission to publish
such finding. In addition, section 6(b)(2)
requires the Commission to notify the
manufacturer or private labeler of the
date set for public disclosure.
The Supplemental NPR proposes to
revise the heading in § 1101.23(a) to
include instances where the firm
notifies the Commission that the firm
has no comment. This provision
currently appears in the text of
§ 1101.23(a).
In addition, the Supplemental NPR
proposes to insert the following
sentence into § 1101.23(b): ‘‘The
Commission will publish the finding in
the disclosure itself or elsewhere.’’ The
CPSIA amendments in 2008 removed
the previous requirement in section
6(b)(1) of the CPSA that the Commission
publish its health and safety finding in
the Federal Register. The House Report
accompanying the CPSIA bill explained
this revision as follows:
[S]ection 205 further amends section
6(b)(1) to allow the Commission, in the case
of a public health or safety hazard posed by
a product, to simply publish its finding
(presumably on the Commission’s website)
before disclosing the relevant information to
the public. Currently, section 6(b)(1) requires
the Commission to publish its finding in the
Federal Register, which can needlessly delay
the process for as long as five additional
days.
H.R. Rep. No. 110–501, Consumer
Product Safety Modernization Act (Dec.
19, 2007). Based upon this statutory
revision and the accompanying
legislative history, the Commission
concludes that Congress intended the
Commission to publish the finding
quickly, such as in the press release or
other public disclosure itself. This
proposed revision, however, does not
impact the requirement under section
6(b)(1) of the CPSA that the
Commission, to the extent practicable,
provide the manufacturer or private
labeler with notice and an opportunity
to comment on the information prior to
disclosure.
The Supplemental NPR proposes
additional conforming changes to align
with the statute and minor grammatical
edits for clarity throughout § 1101.23.
For example, the Supplemental NPR
proposes to replace ‘‘firm’’ with
‘‘manufacturer or private labeler’’; insert
‘‘calendar’’ between ‘‘15’’ and ‘‘days’’;
and insert ‘‘consumer’’ between ‘‘the’’
and ‘‘product’’.
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4. Proposed Changes to § 1101.24 (Scope
of Comments Commission Seeks)
Section 6(b)(1) of the CPSA states: ‘‘In
disclosing any information under
[section 6(b)], the Commission may, and
upon the request of the manufacturer or
private labeler shall, include with the
disclosure any comments or other
information or a summary thereof
submitted by such manufacturer or
private labeler to the extent permitted
by and subject to the requirements of
[section 6].’’ 15 U.S.C. 2055(b)(1). The
2014 NPR proposed revising
§ 1101.24(c) to require that a
manufacturer or private labeler provide
a rationale to support withholding the
firm’s comments and an explanation of
why disclosure of the comments is not
necessary to assure that the disclosure
of the information that is the subject of
the comments is fair in the
circumstances. 79 FR 10716–17. The
Commission proposed this revision ‘‘[t]o
obtain more substantive and useful
information from firms who object to
disclosure of comments.’’ 79 FR 10718.
The 2014 NPR explained that
‘‘[c]onclusory assertions that comments
be withheld without a rationale will not
be sufficient to withhold comments’’
and that ‘‘a firm’s comment that it has
no objection to disclosure, without any
additional comments, will not be
sufficient to justify withholding.’’ Id.
The Supplemental NPR revises this
approach and proposes that a
manufacturer or private labeler must
provide a basis if it requests that the
comments not be disclosed. For
example, if a firm submits comments on
what it believes is inaccurate
information in the Commission’s
planned disclosure, and the
Commission agrees with the comments
and revises the proposed statement, the
firm might contend that releasing
comments referencing the inaccurate
information in the proposed disclosure
would not be a reasonable step to assure
accuracy or fairness under the 6(b)
requirements.
In addition, the Supplemental NPR
proposes to revise the last sentence of
§ 1101.24(c) to clarify that if a
manufacturer or private labeler objects
to the disclosure of a portion of its
comments, the firm must specifically
identify that portion. Incorporating
these revisions, along with conforming
and grammatical edits, the revised
proposed § 1101.24(c) now reads:
Requests for nondisclosure of comments. If
a manufacturer or private labeler objects to
the disclosure of its comments or a portion
thereof, it must notify the Commission at the
time the manufacturer or private labeler
submits its comments and provide the basis
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for its request. If the manufacturer or private
labeler objects to the disclosure of only a
portion of its comments, the firm must
identify with specificity those portions that
it requests be withheld.
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In response to the 2014 NPR,
commenters expressed concern with the
Commission’s treatment of trade secret
or privileged or confidential commercial
or financial information that may appear
in a firm’s comments. The proposed
revision in no way affects the
Commission’s treatment of such
information. The Commission will
maintain the protections on disclosure
of trade secret or privileged or
confidential commercial or financial
information, as delineated in the CPSA,
the FOIA, and our corresponding
regulations, and in applicable case law.
Firms should consult the Commission’s
FOIA regulation at 16 CFR 1015.18,
which specifies the information a firm
must provide with any request that the
Commission withhold trade secret or
privileged or confidential commercial or
financial information.
The 2014 NPR proposed two technical
changes to § 1101.24(b). 79 FR 10717.
The Supplemental NPR no longer
proposes the change to the first sentence
of § 1101.24(b); instead, the
Supplemental NPR proposes revisions
to conform to the language in section
6(a)(2) of the CPSA. The Supplemental
NPR continues to propose the change to
the second sentence, along with other
clarifying edits to the sentence. In
addition, throughout § 1101.24, the
Supplemental NPR proposes
conforming changes to align with the
statute and minor grammatical edits for
simplification and clarity. For example,
in § 1101.24(a), the Supplemental NPR
proposes to delete ‘‘undocumented’’
and, in its place, add ‘‘non-specific’’.
5. Proposed Changes to § 1101.25
(Notice of Intent To Disclose)
The 2014 NPR proposed adding the
following sentence to the end of
§ 1101.25(c): ‘‘If written notice is
provided, the Commission, whenever
possible, will transmit such notice
electronically.’’ 79 FR 10717. The
Supplemental NPR continues to propose
this revision, with minor grammatical
edits.
In § 1101.25(a), the Supplemental
NPR proposes non-substantive revisions
to clarify the time at which the
Commission may disclose the
information. In addition, the
Supplemental NPR proposes to remove
the last sentence in § 1101.25(a), which
states: ‘‘The notice of intent to disclose
will include an explanation of the
reason for the Commission’s decision
[and] copies of any additional materials,
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such as explanatory statements and
letters to FOIA requesters, which were
not previously sent to the firm.’’ Section
6(b)(2) of the CPSA only requires that
the Commission ‘‘notify the
manufacturer or private labeler that the
Commission intends to disclose [the
information] at a date not less than 5
days after the date of the receipt of
notification.’’ For FOIA requests,
however, it is the Commission’s current
practice to include, with the section
6(b)(2) notice, copies of the final
package of materials that the
Commission intends to disclose to the
FOIA requester.
The Supplemental NPR proposes to
delete § 1101.25(b) entirely, because the
information in this paragraph appears in
§ 1101.23(b). In connection with this
revision, the Supplemental NPR
redesignates paragraph (c) as (b).
The 2014 NPR proposed technical
changes to § 1101.25. 79 FR 10717. The
Supplemental NPR continues to propose
some of these changes. In addition, the
Supplemental NPR proposes minor
grammatical edits and conforming
changes to align § 1101.23 with the
statute. For example, in redesignated
§ 1101.25(b), the Supplemental NPR
proposes to delete, ‘‘depending on the
immediacy of the need for quick
action,’’ because a health and safety
finding itself constitutes a Commission
determination regarding immediacy.
6. Proposed Changes to § 1101.26
(Circumstances When the Commission
Does Not Provide Notice and
Opportunity To Comment)
The 2014 NPR did not propose any
changes to this section.
Section 6(b)(1) of the CPSA requires
that, ‘‘to the extent practicable,’’ the
Commission must provide
manufacturers and private labelers
notice and an opportunity to comment
before disclosing information about a
consumer product from which the
public can ascertain readily the
manufacturer’s or private labeler’s
identity. Current § 1101.26(b) offers
examples of circumstances in which
notice and opportunity to comment is
not practicable. The Supplemental NPR
proposes to add to this list the
following:
• When the Commission has been
unable, after a diligent search, to obtain
contact information for the
manufacturer or private labeler of the
consumer product to which the
information pertains.
• When an extraordinary
circumstance necessitates the
immediate disclosure of information to
protect the public health and safety
while the Commission simultaneously
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10439
pursues notification of the manufacturer
or private labeler.
Regarding the first example,
Commission staff conducts thorough
searches in internal databases and other
sources to locate contact information for
manufacturers and private labelers.
There have been occasions when staff
was unable to find contact information
for a particular firm after a diligent
search, and thus, the Commission could
not provide the requisite notice.
Regarding the second example, there
may be emergency situations where the
Commission must warn the public
immediately about a particular hazard
or risk while simultaneously pursuing
notification to the manufacturer or
private labeler. For example, on a
holiday weekend the Commission might
become aware of a serious hazard
involving a new consumer product
associated with the holiday, but the
Commission’s attempts to contact the
manufacturer go unanswered. In that
situation, the Commission might
immediately notify the public of the
hazard while awaiting a response from
the firm. Importantly, consistent with
the requirements in section 6(b)(1) of
the CPSA, the Commission would take
reasonable steps to assure that the
information is accurate and that
disclosure is fair in the circumstances
and reasonably related to effectuating
the purposes of the Acts.
The Supplemental NPR also proposes
conforming changes to align with the
statute and minor grammatical edits for
clarity and simplification throughout
§ 1101.26. For example, the
Supplemental NPR proposes to revise
the sentence in § 1101.26(b) to state:
‘‘Circumstances when notice and
opportunity to comment is not
practicable include, but are not
necessarily limited to, the following
. . .’’ In § 1101.26(b)(1), the
Supplemental NPR proposes to remove
‘‘company’’ and, in its place, add
‘‘manufacturer or private labeler of any
consumer product’’.
E. Subpart D—Reasonable Steps
Commission Will Take To Assure
Information It Discloses Is Accurate,
and That Disclosure Is Fair in the
Circumstances and Reasonably Related
To Effectuating the Purposes of the Acts
It Administers
1. Proposed Changes to Subpart D
Heading
The Supplemental NPR proposes
minor edits to the heading of Subpart D
for clarity and consistency. For
example, the Supplemental NPR
proposes to remove ‘‘Assure Information
It Discloses Is Accurate’’ and, in its
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place, add ‘‘Assure Public Disclosure of
Information Is Accurate.’’
2. Proposed Changes to § 1101.31
(General Requirements)
Current § 1101.31(b) states:
Inclusion of comments. In disclosing any
information under this section, the
Commission will include any comments or
other information submitted by the
manufacturer or private labeler unless the
manufacturer or private labeler at the time it
submits its section 6(b) comments
specifically requests the Commission not to
include the comments or to include only a
designated portion of the comments and
disclosure of the comments on such a
designated portion is not necessary to assure
that the disclosure of the information which
is the subject of the comments is fair in the
circumstances.
The 2014 NPR proposed revisions to
this section. 79 FR 10717. The
Supplemental NPR proposes to revise
§ 1101.31(b) to conform to the statute
and to require all requests regarding the
disclosure of a manufacturer’s or private
labeler’s comments to be in writing.
Revised § 1101.31(b), redesignated
§ 1101.31(a), now reads: ‘‘Inclusion of
comments. In disclosing any
information under this section, the
Commission may, and upon the written
request of the manufacturer or private
labeler shall, include any comments or
other information or a summary thereof
submitted by the manufacturer or
private labeler, to the extent permitted
by and subject to the requirements of
section 6 of the CPSA.’’
Current § 1101.31(d) states:
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Information previously disclosed. If the
Commission has previously disclosed, in
accordance with section 6(b)(1), the identical
information it intends to disclose again in the
same format, it will not customarily take any
additional steps to assure accuracy unless the
Commission has some reason to question its
accuracy or unless the firm, in its comments
responding to the Commission’s initial
section 6(b) notice, specifically requests the
opportunity to comment on subsequent
disclosures, or unless the Commission
determines that sufficient time has passed to
warrant seeking section 6(b) comment again.
Before disclosing the information, the
Commission will again review the
information to see if accuracy is called into
question and will further look to whether
disclosure is fair in the circumstances and
reasonably related to effectuating the
purposes of the Acts the Commission
administers.
The 2014 NPR proposed deleting
substantially all of § 1101.31(d). 79 FR
10718.
Upon further consideration, the
Commission now proposes a more
straightforward approach for releasing
information that does not disclose
materially more or materially different
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information than what was previously
disclosed. Proposed § 1101.31(d),
redesignated § 1101.31(c), now reads:
‘‘Disclosing materially more or
materially different information. If the
Commission intends to disclose
information, not previously disclosed,
that in context does not disclose
materially more or materially different
information about the consumer product
than what the Commission previously
disclosed in accordance with the law,
the Commission is not obligated to take
any additional steps to assure accuracy
unless the Commission has reason to
question the accuracy of the
information.’’ This provision reflects
that, in the situation described, the
notice and comment process has already
occurred for the substance of the
proposed disclosure, and repeating that
process would not advance the purposes
of section 6(b).
The Supplemental NPR also proposes
to delete § 1101.31(a), which states that
the Commission will attempt to make its
decision on disclosure ‘‘as soon as is
reasonably possible after expiration of
the statutory fifteen day moratorium on
disclosure.’’ There is no statutory
requirement that the Commission
disclose information within a certain
time after the 15-day period has expired,
assuming that the surrounding
circumstances have not significantly
changed.
In § 1101.31(c), now redesignated
§ 1101.31(b), the Supplemental NPR
proposes to delete the sentence:
‘‘Inclusion of an explanatory statement
is in addition to, and not a substitute
for, taking reasonable steps to assure the
accuracy of information.’’ The
Supplemental NPR proposes instead to
include a reference to an explanatory
statement as a new paragraph (b) in
revised § 1101.32 (Reasonable steps to
assure disclosure of information is
accurate). The Supplemental NPR also
proposes other revisions to conform to
the statute and clarify that the
Commission is not required under
section 6(b)(1) of the CPSA to provide
an explanatory statement with
information that it discloses to the
public. These revisions include: (1)
removing ‘‘Where appropriate’’; (2)
removing ‘‘will’’ and, in its place,
adding ‘‘may’’; and (3) removing ‘‘To the
extent practicable’’. The Supplemental
NPR also proposes to remove ‘‘released’’
and, in its place, add ‘‘disclosed’’ to
conform to the statute.
The 2014 NPR proposed two technical
and conforming changes to § 1101.31. 79
FR 10718–19. These changes have been
superseded by the Supplemental NPR’s
proposed revisions.
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3. Proposed Changes to § 1101.32
(Reasonable Steps To Assure
Information Is Accurate)
The 2014 NPR proposed technical
changes to § 1101.32. 79 FR 10719. The
Supplemental NPR continues to propose
these changes, without revision.
Section 6(b)(1) of the CPSA requires
the Commission to take reasonable steps
to assure, prior to disclosing
information, that such information is
accurate. Section 1101.32(a) of the 6(b)
Regulation specifies the types of actions
that the Commission considers to be
reasonable steps to assure the accuracy
of information that the Commission
proposes to disclose to the public. The
Supplemental NPR proposes to add the
following as a reasonable step to assure
the accuracy of the information: ‘‘(3)
The Commission staff relies on a
statement made under oath, or a similar
statement enforceable under penalty of
perjury (e.g., 28 U.S.C. 1746), that yields
or corroborates the information to be
disclosed.’’ The making of a statement
under penalty of perjury, such as in a
sworn affidavit or declaration provided
under 28 U.S.C. 1746, is generally
accepted as sufficient indicia of
reliability and appropriate for the
Commission to similarly credit. In
connection with this proposed addition,
the Supplemental NPR proposes to
redesignate current paragraph ‘‘(3)’’ as
paragraph ‘‘(4)’’.
Current § 1101.32(a)(1) provides
another action that the Commission
considers to be a reasonable step: ‘‘The
Commission staff or a qualified person
or entity outside the Commission . . .
conducts an investigation or an
inspection which yields or corroborates
the product information to be
disclosed.’’ The Supplemental NPR
proposes to delete ‘‘or an inspection’’
from this sentence because
‘‘investigation’’ is a broad term under
the Commission’s regulations that
encompasses ‘‘inspection.’’ See 16 CFR
1118.1(a)(4) (‘‘The term investigation
includes, but is not limited to,
inspections . . .’’).
The Supplemental NPR proposes to
add a new paragraph (b) explaining that
in addition to the reasonable steps
specified in § 1101.32(a), the
Commission may include the
explanatory statement referenced in
proposed § 1101.31(b) to assure the
accuracy of the information proposed
for disclosure. In connection with this
proposed revision, the Supplemental
NPR proposes to redesignate current
paragraph (b) as paragraph (c).
The Supplemental NPR also proposes
conforming changes to align with the
statute and other non-substantive
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revisions for simplification throughout
§ 1101.32. For example, the
Supplemental NPR proposes to revise
§ 1101.32(a)(3), redesignated as
§ 1101.32(a)(4), to state: ‘‘The person
who submitted the information to the
Commission confirms the information
as accurate to the best of the submitter’s
knowledge and belief, provided that
. . . .’’ In § 1101.32(b)(4), the
Supplemental NPR proposes to delete
the sentence, ‘‘Specific comments will
be given more weight than general
comments.’’ The Supplemental NPR
also proposes a technical change to
redesignated § 1101.32(c)(1) and minor
grammatical edits throughout § 1101.32.
4. Proposed Changes to § 1101.33
(Reasonable Steps To Assure
Information Release Is Fair in the
Circumstances)
Current § 1101.33(a) specifies the
types of actions that constitute
reasonable steps to assure disclosure of
information to the public is fair in the
circumstances. The Supplemental NPR
proposes several revisions to
§ 1101.33(a).
First, in § 1101.33(a)(1), the
Supplemental NPR revises the approach
proposed in the 2014 NPR regarding the
disclosure of a firm’s comments. The
Supplemental NPR proposes that a
manufacturer or private labeler must
provide a basis, as opposed to a legal
rationale, if the firm requests that its
comments not be disclosed. The
Supplemental NPR also proposes
revisions that conform § 1101.33(a)(1) to
the statute and require requests
regarding the disclosure of a
manufacturer’s or private labeler’s
comments to be in writing.
Second, in § 1101.33(a)(2), the
Supplemental NPR proposes revisions
to conform to the statute and to clarify
that the Commission may, but is not
required to, (1) accompany the
disclosure with an explanatory
statement that makes the nature of the
information disclosed clear to the public
and (2) assure disclosure is fair in the
circumstances by disclosing other
relevant information in the
Commission’s possession, subject to the
requirements of section 6(b)(1) and
other requirements of law.
Third, the Supplemental NPR
proposes to delete § 1101.33(a)(3),
which states: ‘‘The Commission will
limit the form of disclosure to that
which it considers appropriate in the
circumstances. For example, the
Commission may determine it is not
appropriate to issue a nationwide press
release in a particular situation and
rather will issue a press release directed
at certain localities, regions, or user
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populations.’’ The Commission believes
that this section is obsolete given the
general absence of geographic
restrictions when information is posted
on the internet.
Finally, the Supplemental NPR
proposes to delete, as unnecessary,
§ 1101.33(a)(4), which states: ‘‘The
Commission may delay disclosure of
information in some circumstances. For
example, the Commission may elect to
postpone an information release until an
investigation, analysis or test of a
product is complete, rather than
releasing information piecemeal.’’ There
is no need for notice under section 6(b)
of the CPSA if the Commission decides
to delay disclosure of the information.
Current § 1101.33(b) provides
examples of disclosures that generally
would not be fair in the circumstances.
The Supplemental NPR proposes two
substantive revisions to § 1101.33(b).
First, consistent with the 2014 NPR,
the Supplemental NPR continues to
propose deleting § 1101.33(b)(3), which
identifies as inappropriate:
Disclosure of the work-product of attorneys
employed by a firm and information subject
to an attorney/client privilege, if the
Commission has obtained the information
from the client or the attorney, the attorney
or client advises the Commission of the
confidential nature of the information at the
time it is submitted to the Commission, and
the information has been maintained in
confidence by the client and the attorney.
As explained in the 2014 NPR, in
general, we believe that firms waive
these protections when they
intentionally submit to CPSC
information that is attorney workproduct or subject to the attorney/client
privilege. 79 FR 10719. The Commission
does not expect, nor do we want, firms
to provide legally privileged
information to the Commission.
However, if a firm inadvertently submits
such information without intending a
waiver, the Commission will treat the
information in accordance with
applicable authorities governing
inadvertent disclosure. Moreover, if the
submitted information contains trade
secret or privileged or confidential
commercial or financial information, the
firm may request confidentiality of the
information in accordance with the
Commission’s FOIA regulation at 16
CFR 1015.18.
Second, the Supplemental NPR
proposes to revise § 1101.33(b)(4),
which states: ‘‘Disclosure of a firm’s
comments (or a portion thereof)
submitted under section 6(b)(1) over the
firm’s objection.’’ The 2014 NPR
proposed revising § 1101.33(b)(4) to
require a rationale for why the
comments should not be disclosed. 79
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10441
FR 10719–20. Instead of requiring a
legal rationale such as a statute or
regulation, the Supplemental NPR
recognizes that the Commission
generally has broad discretion whether
to grant a request for non-disclosure of
such comments, and accordingly
proposes that the manufacturer or
private labeler must simply provide
some basis for why it believes the
Commission should decide against
disclosing the comments. The
Supplemental NPR also proposes
revisions to conform to the statute and
minor edits for clarity.
The Supplemental NPR proposes
conforming changes to align with the
statute and minor grammatical edits
throughout § 1101.33. In addition, the
Supplemental NPR proposes to
redesignate § 1101.33(b)(4) as (b)(3) to
reflect the proposed deletion of
§ 1101.33(b)(3).
5. Proposed Changes to § 1101.34
(Reasonable Steps To Assure
Information Release Is ‘‘Reasonably
Related To Effectuating the Purposes of
the Acts’’ the Commission Administers)
The 2014 NPR proposed technical
changes to § 1101.34(a)(2). 79 FR 10720.
The Supplemental NPR no longer
proposes these changes.
As discussed in section II.B.1 above,
section 6(b)(1) of the CPSA applies to
the Commission’s ‘‘public disclosure of
any information obtained under this
Act, or to be disclosed to the public in
connection therewith.’’ 15 U.S.C.
2055(b)(1). Section 6(d)(1) of the CPSA
defines ‘‘Act’’ as the CPSA, FFA, PPPA,
and FHSA. 15 U.S.C. 2055(d)(1). The
Supplemental NPR proposes
conforming revisions to align
§ 1101.34(a) with section 6(b)(1) and
(d)(1) of the CPSA by removing
references to acts other than the CPSA,
FHSA, FFA, and PPPA.
Section 6(b)(1) requires the
Commission to take reasonable steps to
assure that ‘‘disclosure is . . .
reasonably related to effectuating the
purposes of’’ the CPSA, FFA, PPPA, and
FHSA. 15 U.S.C. 2055(b)(1). Current
§ 1101.34(a)(3), which addresses FOIA
requests, requires the Commission to
determine whether disclosure of
information in response to a FOIA
request is reasonably related to
effectuating one or more of the purposes
of the acts administered by the
Commission and that, in the event of a
close question on this issue, the
Commission will defer to the purposes
of the FOIA. The FOIA is not one of the
enumerated acts in section 6(d)(1) of the
CPSA, and thus, the Commission is not
required to determine whether
disclosure of the information would be
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reasonably related to effectuating the
purposes of the FOIA. Therefore, the
Supplemental NPR proposes to delete
§ 1101.34(a)(3) entirely. However, this
proposed revision does not affect the
Commission’s obligation, as determined
by the U.S. Supreme Court in CPSC v.
GTE Sylvania, Inc., to comply with the
requirements of section 6(b) of the CPSA
before disclosing any information in
response to a FOIA request. 447 U.S.
102 (1980).
The Supplemental NPR also proposes
conforming changes and nonsubstantive revisions for simplification
and clarity throughout § 1101.34. For
example, in the heading for § 1101.34,
the Supplemental NPR proposes to
remove ‘‘release’’ and, in its place, add
‘‘disclosure’’; and in § 1101.34(a)(2), the
Supplemental NPR proposes to insert
‘‘consumer’’ between ‘‘concerning’’ and
‘‘products.’’
F. Subpart E—Statutory Exceptions of
Section 6(b)(4)
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1. Proposed Changes to § 1101.41
(Generally)
The 2014 NPR proposed technical
changes to § 1101.41. 79 FR 10720. The
Supplemental NPR no longer proposes
those revisions.
The Supplemental NPR instead
proposes conforming revisions to align
with the statute and non-substantive
revisions for clarity and simplification
throughout § 1101.41. For example, the
Supplemental NPR proposes to insert
‘‘Acts’’ to clarify that these exceptions
apply specifically to the CPSA, FHSA.
FFA, and PPPA. The Supplemental NPR
also proposes to delete § 1101.41(b),
which states that the Commission will
apply the section 6(b)(4) exceptions to
‘‘the transferred acts.’’ Section
1101.41(b) is duplicative and repeats the
information already contained in
revised § 1101.41, as well as in revised
§ 1101.1 (Scope). In addition, the
Supplemental NPR proposes to reformat
the information in paragraphs (a)(3) and
(a)(4) as a combined list under
paragraph (3). Proposed § 1101.41(3)
now states that the statutory exceptions
in section 6(b)(4) apply to (among other
disclosures) ‘‘[i]nformation in the course
of or concerning: (i) a rulemaking
proceeding under the Acts; (ii) an
adjudicatory proceeding under the Acts;
or (iii) any other administrative or
judicial proceeding under the Acts.’’
The Supplemental NPR also proposes to
remove paragraph designation and
subheading ‘‘(a) Scope’’ to reflect the
proposed removal of paragraph (b).
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2. Proposed Changes to § 1101.42
(Imminent Hazard Exception)
Current § 1101.42(b) states:
Scope of exception. This exception applies
once the Commission has filed an action
under section 12 of the CPSA (15 U.S.C.
2061), in a United States district court. Once
the exception applies, information may be
disclosed to the public while the proceeding
is pending without following the
requirements of section 6(b)(1) if the
information concerns or relates to the
product alleged to be imminently hazardous.
Upon termination of the proceeding,
information filed with the court or otherwise
made public is not subject to section 6(b).
Information in the Commission’s possession
which has not been made public is subject
to section 6(b).
The 2014 NPR proposed the following
revisions to § 1101.42(b):
• In the second sentence, remove:
‘‘while the proceeding is pending.’’
• Remove the third and fourth
sentences.
79 FR 10720. The 2014 NPR
explained the Commission’s belief that,
upon filing a section 12 action,
information may be disclosed to the
public during and after the proceeding,
even if the information was not filed
with the court or otherwise made
public. Id. The Supplemental NPR
continues to propose these revisions,
without change.
In addition, the Supplemental NPR
proposes conforming changes to align
with the statute and minor grammatical
edits.
3. Proposed Changes to § 1101.43
(Section 6(b)(4)(A) Exception)
The 2014 NPR did not propose any
changes to § 1101.43.
The Supplemental NPR proposes to
delete the first sentence in paragraph (b)
because it repeats the information that
appears in paragraph (a) and to combine
paragraphs (a) and (b). In addition, the
Supplemental NPR proposes
conforming changes to align with the
statute and minor grammatical edits.
‘‘Reasonable cause to believe’’ is not
a defined phrase in either section
6(b)(4)(A) of the CPSA or § 1101.43. The
Commission believes that reasonable
cause exists when the belief is
supported by existing laws and
regulations and is based on factual
conclusions that have evidentiary
support. Cf. Fed. R. Civ. Proc. 11
(providing standard for filing pleadings
and motions with a Federal court).
Thus, for example, the Commission
would have ‘‘reasonable cause to
believe’’ a consumer product is in
violation if Commission testing
indicates that a toy contains excessive
levels of lead, Commission staff
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confirms that a toy lacks the requisite
General Conformity Certification, or
Commission staff determines that a
manufacturer is distributing ATVs
without the requisite ATV Action Plan.
The Commission will notify a
manufacturer or private labeler orally or
in writing if the Commission has
reasonable cause to believe a consumer
product is in violation of a consumer
product safety rule or provision of the
CPSA or similar rule or provision of any
other act enforced by the Commission.
4. Proposed Changes to § 1101.44
(Rulemaking Proceeding Exception)
The 2014 NPR did not propose any
changes to § 1101.44.
Section 6(b)(4) of the CPSA states that
the provisions of section 6(b)(1)–(3) do
not apply to the Commission’s ‘‘public
disclosure of . . . (B) information in the
course of or concerning a rulemaking
proceeding.’’ 15 U.S.C. 2055(b)(4)(B).
Current § 1101.44(d) interprets the term
‘‘concerning’’ as follows:
The phrase ‘‘concerning’’ refers to
information about the proceeding itself both
after the proceeding has begun and
indefinitely thereafter. Therefore, the
Commission may publicly disclose
information that describes the substance,
process and outcome of the proceeding. By
issuing opinions and public statements, the
Commissioners, and the presiding official,
who act as decisionmakers, may also publicly
explain their individual votes and any
decision rendered.
The Commission believes that this
explanation restricts the type of
information that falls under the
rulemaking proceeding exception,
beyond what Congress intended.
‘‘Concerning’’ is a broad term that can
be understood as synonymous with
‘‘relating to.’’ See United States v. OleaMonarez, 908 F.3d 636, 640 (10th Cir.
2018) (‘‘ ‘Concerning’ is a neutral term
meaning ‘relating to’ ’’) (citing Black’s
Law Dictionary (5th ed. 1979));
Bloomberg L.P. v. U.S. Food & Drug
Admin., 500 F.Supp.2d 371, 377
(S.D.N.Y. 2007) (‘‘Its definition is
‘relating to; to be about; to bear on.’ ’’)
(citing Merriam-Webster Online
Dictionary, https://www.merriamwebster.com (last visited Aug. 13,
2007)). To reflect the common
understanding of this term, the
Supplemental NPR proposes to insert
(1) ‘‘or addressing’’ after ‘‘information
about’’ in the first sentence of
§ 1101.44(d), and (2) ‘‘or relates to’’ after
‘‘describes’’ in the second sentence of
§ 1101.44(d). Incorporating these
revisions, as well as minor grammatical
edits for simplification, revised
§ 1101.44(d) now reads:
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The phrase ‘‘concerning’’ refers to
information about or addressing the
proceeding both after the proceeding has
begun and indefinitely thereafter. Therefore,
the Commission may at any time publicly
disclose information that describes or relates
to the substance, process, or outcome of the
proceeding. For example, Commissioners
may publicly explain their individual votes
and any decision rendered by issuing written
opinions and making public statements.
The Supplemental NPR also proposes
conforming changes to align with the
statute and minor grammatical edits.
5. Proposed Changes to § 1101.45
(Adjudicatory Proceeding Exception)
The 2014 NPR proposed a technical
correction to § 1101.45(b). 79 FR 10720.
This change has been superseded by the
Supplemental NPR’s proposed
revisions.
Section 6(b)(4)(B) of the CPSA states
that the provisions of section 6(b)(1)–(3)
do not apply to the Commission’s
‘‘public disclosure of . . . (B)
information in the course of or
concerning . . . an adjudicatory
proceeding (which shall commence
upon the issuance of a complaint).’’ 15
U.S.C. 2055(b)(4)(B). Current
§ 1101.45(d) interprets the term
‘‘concerning’’ as follows:
The phrase ‘‘concerning’’ refers to
information about the administrative
adjudication itself, both once it begins and
indefinitely thereafter. Therefore, the
Commission may publicly disclose
information that describes the substance,
process and outcome of the proceeding
including, for example, the effectiveness of
any corrective action such as information on
the number of products corrected as a result
of a remedial action. By issuing opinions and
public statements, the Commissioners and
the presiding official, who act as
decisionmakers, may publicly explain their
individual votes and any decision rendered.
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The Supplemental NPR proposes to
revise the discussion of ‘‘concerning’’
for the reasons stated in section II.F.4
above. Incorporating these revisions, as
well as minor grammatical edits for
simplification, revised § 1101.45(d) now
reads:
The phrase ‘‘concerning’’ refers to
information about or addressing the
administrative adjudication, both once it
begins and indefinitely thereafter. Therefore,
the Commission may at any time publicly
disclose information that describes or relates
to the substance, process, or outcome of the
proceeding. For example, (i) Commissioners
may publicly explain their individual votes
and any decision rendered by issuing written
opinions and making public statements and
(ii) the Commission may disclose information
regarding the effectiveness of any corrective
action, such as information on the number of
products corrected as a result of a remedial
action.
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The Supplemental NPR also proposes
conforming changes to align § 1101.45
with the statute and minor grammatical
edits for clarity. For example, in
§ 1101.45(a), the Supplemental NPR
proposes to insert ‘‘(which shall
commence upon the issuance of a
complaint)’’ after ‘‘adjudicatory
proceeding’’ to conform to the language
in the statute. In § 1101.45(b), the
Supplemental NPR proposes nonsubstantive edits for simplification.
These edits reflect that the exception
applies once the Commission files a
complaint under specific provisions of
the CPSA, FHSA, FFA, or PPPA.
6. Proposed Changes to § 1101.46 (Other
Administrative or Judicial Proceeding
Exception)
The 2014 NPR proposed removing
‘‘Secretary’’ and, in its place, adding
‘‘Secretariat’’ in § 1101.46(b)(7). 79 FR
10720. The Supplemental NPR no
longer proposes this revision, which
would be inconsistent with the
Commission’s current organization.
The Supplemental NPR proposes to
delete as unnecessary the last sentence
in § 1101.46(b)(1), which states:
‘‘Information subject to the exception
for petition proceedings is the petition
itself and the supporting
documentation, and information
subsequently compiled by the staff and
incorporated or referenced in the staff
briefing papers for and recommendation
to the Commission.’’ The other
examples listed in § 1101.46(b) do not
specify the types of information that are
subject to this exception, and the
language proposed for deletion could be
excessively restrictive in actual practice.
The Supplemental NPR proposes
conforming changes to align § 1101.46
with the statute and non-substantive
edits for clarity. For example, in
§ 1101.46(a), the Supplemental NPR
proposes to insert ‘‘–(3)’’ after ‘‘6(b)(1)’’.
In § 1101.46(b), the Supplemental NPR
proposes to insert ‘‘without limitation’’
after ‘‘Proceedings within this exception
include,’’ to clarify that the list
appearing at § 1101.46(b) is not
exhaustive and could include other
administrative or judicial proceedings
as authorized under section 6(b)(4)(B) of
the CPSA. In addition, the
Supplemental NPR proposes to revise
§ 1101.46(c) to state: ‘‘The phrase ‘in the
course of or concerning’ shall be
interpreted consistent with § 1101.44(c)
and (d) or § 1101.45(c) and (d), as
applicable.’’
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G. Subpart F—Retraction
1. Proposed Changes to § 1101.51
(Commission Interpretation)
The 2014 NPR proposed technical
corrections to § 1101.51(b). 79 FR 10720.
These changes have been superseded by
the Supplemental NPR’s proposal to
delete the first two sentences of
§ 1101.51(b) because these sentences
repeat the information contained in
§ 1101.51(a). The Supplemental NPR
also proposes changes to § 1101.51(b) to
conform to the language in section 6(b)
of the CPSA and minor grammatical
edits for clarity.
2. Proposed Changes to § 1101.52
(Procedure for Retraction)
Section 6(b)(7) of the CPSA states:
If the Commission finds that, in the
administration of this Act, it has made public
disclosure of inaccurate or misleading
information which reflects adversely upon
the safety of any consumer product or class
of consumer products, or the practices of any
manufacturer, private labeler, distributor, or
retailer of consumer products, it shall, in a
manner equivalent to that in which such
disclosure was made, take reasonable steps to
publish a retraction of such inaccurate of
misleading information.
15 U.S.C. 2055(b)(7). While section
6(b)(7) of the CPSA identifies four
categories of requesters (i.e.,
manufacturers, private labelers,
distributors, and retailers), current
§ 1101.52 authorizes an ‘‘any other
person’’ category as an additional group
that can request retraction. The
Supplemental NPR proposes to align the
retraction procedure in § 1101.52 with
the interested classes referenced in the
statute, and delete from this section all
references to ‘‘any other person.’’
Relatedly, in § 1101.52(c), which lists
the information that must appear in a
request for retraction, the Supplemental
NPR proposes to add as paragraph (1):
‘‘The identity and relationship (i.e.,
manufacturer, private labeler,
distributor, or retailer) of the requester.’’
In connection with this proposed
revision, the Supplemental NPR
proposes paragraph redesignations
throughout § 1101.52(c).
In § 1101.52(d), the Supplemental
NPR proposes to remove the language:
‘‘If the Commission finds that fuller
disclosure is necessary, it will publish
a retraction in the manner it determines
appropriate under the circumstances’’
and, in its place, add:
If publication in a manner equivalent to
that in which the disclosure was made is not
practicable or could result in further
disclosure of the information, the
Commission will publish a retraction or take
other action in a manner that the
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Commission determines appropriate under
the circumstances and consistent with the
purposes of section 6(b)(7).
This proposed revision makes the rule
flexible enough to address situations
such as, for example, a public disclosure
of inaccurate information by
Commission staff during a phone
conversation or in an email, where
publication of the correction would
result in further disclosure of the
inaccurate or misleading information. In
these instances, the Commission will
take other action that the Commission
deems appropriate under the
circumstances to correct the prior
release.
The 2014 NPR proposed technical and
conforming changes to § 1101.52. 79 FR
10720. The Supplemental NPR
continues to propose some of these
changes, along with additional
conforming changes to align with the
statute, particularly section 6(b)(7) of
the CPSA, and minor grammatical edits
for clarity. For example, the
Supplemental NPR proposes to revise
the paragraph heading for § 1101.52(a)
to reflect that retraction can occur upon
the Commission’s own initiative or
upon request. In § 1101.52(b), the
Supplemental NPR proposes revisions
to the contact information where a
request for retraction should be sent. In
addition, in redesignated
§ 1101.52(c)(1), which discusses the
information that a requester must
submit in connection with a retraction
request, the Supplemental NPR
proposes to update the rule by replacing
the language: ‘‘A photocopy of the
disclosure should accompany the
request,’’ with ‘‘A reproduction of the
disclosure (e.g., image, audio or video
file, copy of document) should
accompany the request, if practicable,’’
to reflect advancements in technology
that have occurred since 1983.
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H. Subpart G—Information Submitted
Pursuant to Section 15(b) of the CPSA
1. Proposed Changes to § 1101.61
(Generally)
The 2014 NPR proposed a technical
correction to § 1101.61(b)(3). 79 FR
10721. These changes have been
superseded by the Supplemental NPR’s
proposed revisions.
Section 6(b)(5) of the CPSA prohibits
the Commission from ‘‘disclos[ing] to
the public information submitted
pursuant to section 15(b) respecting a
consumer product’’ unless certain
conditions apply. 15 U.S.C. 2055(b)(5).
Current § 1101.61(b) states:
Criteria for disclosure. Under section
6(b)(5) the Commission shall not disclose to
the public information which is identified as
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being submitted pursuant to section 15(b) or
which is treated by the Commission staff as
being submitted pursuant to section 15(b).
Section 6(b)(5) also applies to information
voluntarily submitted after a firm’s initial
report to assist the Commission in its
evaluation of the section 15 report. However,
the Commission may disclose information
submitted pursuant to section 15(b) in
accordance with section 6(b)(1)–(3) if . . .
The Supplemental NPR proposes
several revisions to § 1101.61(b). First,
the Supplemental NPR proposes to
delete the phrase, ‘‘or which is treated
by the Commission staff as being
submitted pursuant to section 15(b).’’ As
explained in the 1983 final rule, the
Commission inserted this phrase in
response to comments that Commission
staff sometimes treated reports as being
filed under section 15(b), even when the
submitting firm disclaimed any legal
obligation to report. 48 FR 57428. The
Commission will continue to apply
section 6(b)(5)’s additional information
disclosure limitations when a firm
indicates that it is making a submission
pursuant to section 15(b) and 16 CFR
1115.13, even if, as authorized under 16
CFR 1115.12(a), the submitting firm
refuses to admit, or specifically denies,
in its report to the Commission that the
information reasonably supports the
conclusion that the submitting firm’s
consumer product is noncomplying,
contains a defect which could create a
substantial product hazard, or creates an
unreasonable risk of serious injury or
death. Absent exceptional
circumstances where a filing clearly
does not come within the requirements
of section 15(b), however, the
Commission will rely, for purposes of
applying section 6(b)(5), upon the filer’s
own characterization of its filing as
being submitted pursuant to section
15(b) and 16 CFR 1115.13.
Second, the Supplemental NPR
proposes to require that a submitting
firm identify the information as
submitted pursuant to both section 15(b)
of the CPSA and 16 CFR 1115.13. The
regulation at 16 CFR 1115.13 specifies
the information a submitting firm must
include in an initial report and a full
report under section 15(b) of the CPSA.
The revised sentence now reads: ‘‘Under
section 6(b)(5), the Commission shall
not disclose to the public information
that has been identified as submitted
pursuant to section 15(b) and 16 CFR
1115.13.’’
Finally, the Supplemental NPR
proposes to delete the second sentence
in § 1101.61(b), which states: ‘‘Section
6(b)(5) also applies to information
voluntarily submitted after a firm’s
initial report to assist the Commission
in its evaluation of the section 15
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report.’’ The proposed revisions to the
first sentence in § 1101.61(b), discussed
above, conform better to the language in
section 6(b)(5) of the CPSA and 16 CFR
1115.13.
Section 6(b)(5) of the CPSA lists four
instances in which its additional
information disclosure limitations do
not apply. The Supplemental NPR
proposes revisions to the instances
described in § 1101.61(b)(2) and (3).
First, in § 1101.61(b)(2), the
Supplemental NPR proposes to insert a
corrective action plan and a consent
order as examples of remedial
settlement agreements where section
6(b)(5)’s additional disclosure
limitations do not apply. The legislative
history demonstrates that Congress
envisioned formal documents, such as
consent orders, as well as informal
agreements, like corrective action plans,
would constitute ‘‘remedial settlement
agreements’’ under section 6(b)(5) of the
CPSA. See H.R. Rep. No. 97–208,
Consumer Product Safety Amendments
of 1981, at 1242 (1981) (‘‘The conferees
do not intend that a settlement
agreement must be made by a formal
written agreement, but rather, for
example, may be made by an exchange
of letters.’’). For nearly 40 years, the
Commission has interpreted remedial
settlement agreements to include letters
that embody corrective action plans.
Second, the Supplemental NPR
proposes to redesignate paragraph (3),
‘‘The person who submitted the
information under section 15(b) agrees
to its public disclosure,’’ as a new
paragraph (c), with minor clarifying
edits. The proposed paragraph reads:
‘‘Disclosure upon consent. The
Commission may disclose information
submitted pursuant to section 15(b)
without following the requirements of
section 6(a) or 6(b) if the person who
submitted the information under section
15(b) agrees to its public disclosure.’’
This proposal reflects instances in
which Commission staff and a
manufacturer or private labeler have
negotiated and agreed upon language,
for example in a news release such as
a recall alert. Section 6 notice is not
required for such consensual releases.
Paragraph (4) currently applies the
exception in section 6(b)(5)(D) where
‘‘[t]he Commission publishes a finding
that the public health and safety
requires public disclosure with a lesser
period of notice than is required by
section 6(b)(1).’’ The legislative history
of section 6(b)(5)(D) suggests that public
health and safety findings trigger an
exception to section 6(b)(3) and,
relatedly, section 6(b)(2), which requires
the Commission to notify the
manufacturer or private labeler if it
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intends to disclose information that the
firm claimed to be inaccurate. See H.R.
Rep. No. 110–501, Consumer Product
Safety Modernization Act (Dec. 19,
2007) (‘‘It is important to note that
section 6(b)(3) of CPSA, which allows
the affected company to seek an
injunction against the release of
information in Federal court, does not
apply to section 6(b)(5) and the new
health and safety exception.’’).
Congress, however, did not clearly
incorporate these exclusions into the
text of section 6(b)(5). Accordingly, the
Commission seeks comment on whether
sections 6(b)(2) and (b)(3) apply where
there has been a public health and
safety finding under section 6(b)(5)(D) of
the CPSA.
The Supplemental NPR proposes one
conforming change in § 1101.61(b), to
align with the statute and nonsubstantive edits for clarity. The
Supplemental NPR proposes to remove
‘‘section 6(b)(1)–(3)’’ and, in its place,
add ‘‘sections 6(a) and 6(b)(1)–(3)’’ to
reflect that the Commission may
disclose, in certain instances,
information submitted pursuant to 15(b)
of the CPSA only after complying with
the requirements of sections 6(a) and
6(b)(1)–(3) of the CPSA. The
Supplemental NPR also proposes to
redesignate paragraphs in § 1101.61(b)
and to insert minor grammatical edits
throughout § 1101.61 for clarity.
2. Proposed Changes to § 1101.62
(Statutory Exceptions to Section 6(b)(5)
Requirements)
The 2014 NPR did not propose any
changes to § 1101.62.
The Supplemental NPR proposes
conforming changes to align with the
statute and minor grammatical edits. For
example, in § 1101.62(a)(2), the
Supplemental NPR proposes to remove
‘‘under the Consumer Product Safety
Act (Pub. L. 92–573, 86 Stat. 1207, as
amended (15 U.S.C. 2051, et seq.))’’ and,
in its place, add ‘‘of the Acts’’.
3. Proposed Changes to § 1101.63
(Information Submitted Pursuant to
Section 15(b) of the CPSA)
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Current § 1101.63(c) reads: ‘‘Section
6(b)(5) does not apply to information
independently obtained or prepared by
the Commission staff.’’ The 2014 NPR
proposed revising this section to state:
Section 6(b)(5) does not apply to
information (1) independently obtained or
prepared by the Commission staff or (2)
identified by the Commission staff through
publicly available sources. For example,
information that is publicly available or that
has been disseminated in a manner intended
to reach the public in general, such as news
reports; articles in academic and scientific
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journals; press releases distributed through
news or wire services; information that is
available on the internet; or information
appearing on the publicly available consumer
product safety information database
established pursuant to section 6A of the
CPSA, 15 U.S.C. 2055a, does not fall within
section 6(b)(5)’s disclosure limits.
79 FR 10721.
The Supplemental NPR continues to
propose, with minor revisions, that
section 6(b)(5) does not apply to
information that is already available to
the public. The Commission disagrees
with commenters who asserted that the
Commission must withhold from
disclosure information that is already
available to the public, just because it
also appears in a report filed with the
Commission pursuant to section 15(b) of
the CPSA. The legislative history of
section 6 of the CPSA indicates that
Congress intended the Commission to
have access to information that would
not be available to the public and to
protect such non-public information
from disclosure. H.R. Rep. No. 92–1153,
at 31 (1972). But there is no indication
that Congress intended for section
6(b)(5) to apply to materials such as a
firm’s press release or product user
manual that a firm already has disclosed
to the public, or to retail locations or
sale prices that can be identified by
running a search on the internet or
visiting a retail store, even if this same
information appears in a section 15(b)
report. The Supplemental NPR thus
proposes to revise section 1101.63(c)(2),
redesignated as § 1101.63(b)(2), to
exclude: ‘‘Information that is already
available to the public, including but
not limited to, information appearing in
a company’s press statements, websites,
Frequently Asked Questions, product
user manuals, sales materials, Securities
and Exchange Commission filings, or
other public statements or documents
published or publicly disseminated by a
manufacturer, distributor, or retailer.’’
The Supplemental NPR also proposes
clarifying revisions to the phrase,
‘‘information independently obtained or
prepared by the Commission staff,’’
which the 2014 NPR proposed to
redesignate as § 1101.63(c)(1). A firm
submitting a section 15(b) report must
provide copies or a summary of any
complaints related to the safety of the
product, or any allegations or reports of
injuries associated with the product. 16
CFR 1115.13(d)(6). In addition, upon
request, the submitting firm must
provide the names and addresses of all
distributors, retailers, and purchasers,
including consumers, of the product. 16
CFR 1115.13(d)(14). We do not believe
that Congress intended section 6(b)(5) to
preclude the Commission from
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10445
contacting a consumer to obtain
additional information about an
incident referenced in a section 15(b)
report. Likewise, there is no indication
that Congress intended to restrict the
Commission from contacting other
purchasers, such as retailers and
distributors, to acquire additional
information about a product at issue in
a section 15(b) report, even if purchaser
information appears in a section 15(b)
report. If the Commission could not
investigate information contained in a
section 15(b) report, the benefit of those
reports would be largely lost.
Furthermore, the Commission would
not be able to ‘‘protect the public against
unreasonable risks of injury associated
with consumer products’’ or ‘‘promote
. . . investigation into the causes and
prevention of product-related deaths,
illnesses, and injuries,’’ as Congress
mandated. 15 U.S.C. 2051(b)(1), (4).
Accordingly, the Supplemental NPR
proposes to revise § 1101.63(c),
redesignated § 1101.63(b)(1), to state
that section 6(b)(5) does not apply to:
‘‘Information independently obtained or
prepared, or developed through
subsequent investigation and
verification, by the Commission, any
member of the Commission, or any
employee, agent, or representative,
including contractor, of the Commission
in an official capacity.’’
In § 1101.63(a), redesignated
§ 1101.63(a)(1), the Supplemental NPR
proposes revisions to align with revised
§ 1101.61(b). The Supplemental NPR
also proposes to insert at the end of
redesignated § 1101.63(a)(1) the citation
to 16 CFR 1115.13.
In addition, the Supplemental NPR
proposes throughout § 1101.63
conforming changes to align with the
statute, organizational edits to make this
section easier to read, and minor
grammatical edits for clarity. For
example, the Supplemental NPR
proposes to combine the information
contained in paragraphs (a) and (b) as
§ 1101.63(a), which now specifies all of
the information to which section 6(b)(5)
applies. The Supplemental NPR also
proposes to state explicitly that section
6(b)(5)’s additional disclosure
limitations apply not just to documents
generated by staff, but also to
documents generated by the
Commission, any member of the
Commission, or any employee, agent, or
representative, including contractor, of
the Commission in an official capacity,
and to any oral communications made
by these individuals or the Commission.
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I. Subpart H—Delegation of Authority to
Information Group
1. Proposed Changes to § 1101.71
(Delegation of Authority)
The 2014 NPR proposed technical
changes to § 1101.71. 79 FR 10721. The
Supplemental NPR continues to propose
most of these changes.
The Supplemental NPR proposes to
remove from § 1101.71 all references to
Commission delegation of authority to
the Secretary and/or his or her
designees. These proposed revisions
reflect the current organizational
structure of the Commission, in which
the Secretary reports directly to the
General Counsel. The Supplemental
NPR also proposes to remove all
references to the General Counsel’s
senior staff designees and the
establishment of an Information Group.
When making decisions under this
section, the General Counsel routinely
consults with staff across the Office of
the General Counsel, including the
Secretary of the Commission.
In addition, the Supplemental NPR
proposes conforming changes to align
with the statute, paragraph designations
in § 1101.71(a), and minor grammatical
edits for clarity. For example, in
§ 1101.71(a), the Supplemental NPR
proposes to (1) remove ‘‘release’’ and, in
its place, add ‘‘disclosure’’ and, (2)
remove ‘‘firms’’ and, in its place, add
‘‘the manufacturer or private labeler.’’
III. Public Comment on the 2014 NPR
In the 2014 NPR, the Commission
invited comments on the proposed
changes to 16 CFR part 1101. The
Commission received 24 comments. The
comments are available on
www.regulations.gov by searching under
docket number CPSC–2014–0005. This
section III responds to significant issues
raised by the commenters.
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A. General Comment
Comment 1—The Consumer
Federation of America (CFA),
Consumers Union, Kids in Danger,
National Consumers League, Public
Citizen, The Safety Institute, and the
U.S. Public Interest Research Group
(U.S. PIRG) stated that the 2014 NPR
proposes moderate revisions to
modernize the regulation and to make it
more consistent with the statute and
industry practice. Although these
commenters agreed with the 2014 NPR’s
provisions, they asserted that the
modest changes do not do enough to
ameliorate the inherent problem of
section 6(b), namely, its obstacles to
transparency and the immediate release
of crucial product safety information.
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Response 1—Section 6(b) imposes
unique requirements on the
Commission’s public disclosure of
information, that do not limit other
Federal safety agencies. In revising the
6(b) Regulation, the 2014 NPR sought to
improve transparency and openness in
the Commission’s disclosure of
information while maintaining
compliance with the stringent statutory
requirements. The Supplemental NPR
proposes additional revisions to
increase transparency and prevent
unnecessary delays in disclosing critical
health and safety information.
B. Comments Addressing Specific
Sections of the 6(b) Regulation
i. Insertion of the Word ‘‘Calendar’’
Before ‘‘Days’’ (§§ 1101.1 (Redesignated
§ 1101.2) and 1101.22, 1101.23, 1101.25,
and 1101.71)
Comment 2—The Outdoor Power
Equipment Institute (OPEI) objected to
the proposal in the 2014 NPR to insert
throughout the 6(b) Regulation the
word, ‘‘calendar’’, between ‘‘15’’ and
‘‘days’’. This commenter stated that
shortening a manufacturer or private
labeler’s response period from 15
business days to 15 calendar days
would place an additional burden on
firms to provide meaningful comments
within an already short period.
Response 2—Rather than shorten the
time to respond to section 6 notices, this
proposed revision reflects CPSC’s
practice since November 2008, when the
Commission published a final rule to
revise CFR part 1101 in accordance with
CPSIA’s 6(b) amendments. 73 FR 72334.
As part of these revisions, the
Commission amended § 1101.25 and
replaced the words, ‘‘10 working,’’ with
‘‘5’’. 73 FR 72335. Since then, the
Commission has calculated the time for
providing notice and for receiving
comments under section 6(b) as
calendar days.
Currently, however, only 16 CFR
1101.22(a)(1) specifies ‘‘calendar’’ days,
while the remaining sections in part
1101 that discuss notice and comment
timing simply state ‘‘days.’’ To remove
potential ambiguity, the Supplemental
NPR continues to propose inserting
‘‘calendar’’ before ‘‘days’’ in sections
that discuss timing and that do not
already refer to ‘‘calendar days.’’
ii. The Information Must Pertain to a
Specific Product (§ 1101.11(a)(1))
Comment 3—NAM, the Outdoor
Industry Association (OIA), and the
Upholstered Furniture Action Council
(UFAC) objected to the 2014 NPR
proposal to delete from § 1101.11(a)(1)
the phrase, ‘‘which is either designated
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or described in a manner which permits
its identity to be ascertained readily by
the public.’’ NAM stated that deleting
this phrase would narrow the type of
information subject to section 6(b), and
OIA maintained that because
‘‘descriptive, contextual or use
statements’’ will no longer be subject to
section 6(b), the Commission may reveal
the identity of a product under a trade
or brand name without providing a firm
with the requisite notice and
opportunity to comment. UFAC stated
that the Commission should reconsider
its proposal in the context of
rulemaking. According to UFAC, some
stakeholders provide information during
a rulemaking with the intent of
impacting negatively entire product
categories.
Response 3—The commenters’ belief
that the 2014 NPR proposal would
narrow the type of information that
triggers section 6(b)’s requirements, is
mistaken. Section 6(b)(1) requires the
Commission to provide a manufacturer
or private labeler with advance notice
and opportunity to comment on the
information, ‘‘if the manner in which
such consumer product is designated or
described in such information will
permit the public to ascertain readily
the identity of such manufacturer or
private labeler.’’ 15 U.S.C. 2055(b)(2)
(emphasis added). This statutory
provision is currently reflected in
§ 1101.11(a)(4), which the Supplemental
NPR proposes to redesignate as
§ 1101.11(a)(2) and to revise with minor
edits. Proposed § 1101.11(a)(2) now
reads: ‘‘The manner in which the
consumer product is designated or
described in the information must
permit the public to ascertain readily
the identity of the manufacturer or
private labeler (see § 1101.13).’’ In
addition, § 1101.11(a)(1) of the current
6(b) Regulation contains the following
additional requirement that serves to
limit the types of intended disclosures
that obligate the Commission to satisfy
the requirements of section 6(b)(1): ‘‘The
information must pertain to a specific
product which is either designated or
described in a manner which permits its
identity to be ascertained readily by the
public.’’ Thus, under the current
regulation, pursuant to § 1101.11(a)(1)
and (4), section 6(b)(1) notice and
opportunity to comment apply only if
the public could ascertain readily both
the identity of the manufacturer or
private labeler and the identity of the
product from the face of the information
proposed to be disclosed. The
requirement in § 1101.11(a)(1) could
result in instances where the
Commission does not provide 6(b)
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notice and opportunity to comment
because the public could ascertain
readily, from the information proposed
for disclosure, only the identity of the
product’s manufacturer or private
labeler, but not the identity of the
product itself.
Despite the 6(b) Regulation, the
Commission does not believe the
statutory language supports this
approach. Accordingly, the
Supplemental NPR proposes to delete
§ 1101.11(a)(1) to adhere more closely to
the statutory language and provide for
greater use of the section 6(b)
procedures.
Regarding rulemakings, the
Commission recognizes that
stakeholders may have differing views
on a proposed consumer product safety
regulation. However, the Commission
will not apply the requirements of
section 6(b)(1)–(3) of the CPSA to a
rulemaking proceeding because such
proceedings are specifically exempt.
Section 6(b)(4)(B) of the CPSA states
that the requirements of section 6(b)(1)–
(3) shall not apply to the public
disclosure of ‘‘information in the course
of or concerning a rulemaking
proceeding (which shall commence
upon the publication of an advance
notice of proposed rulemaking or a
notice of proposed rulemaking).’’ 15
U.S.C. 2055(b)(4)(B).
iii. Removal of the Phrase, ‘‘Individual
Members, Employees, Agents,
Contractors or Representatives of the
Commission Acting in Their Official
Capacities’’ (§ 1101.11(a)(2))
Comment 4—TIA observed that the
2014 NPR’s proposal to remove from
§ 1101.11(a)(2) the phrase, ‘‘individual
members, employees, agents,
contractors or representatives of the
Commission acting in their official
capacities,’’ could cause these
individuals to believe that they are no
longer subject to section 6(b).
Response 4—Section 6(d)(2) of the
CPSA states that the ‘‘provisions of
[section 6] shall apply whenever
information is to be disclosed by the
Commission, any member of the
Commission, or any employee, agent, or
representative of the Commission in an
official capacity.’’ 15 U.S.C. 2055(d)(2).
This statutory restriction on the
Commission and specified individuals
appears in § 1101.11(a)(3), which the
Supplemental NPR proposes to
redesignate as § 1101.11(a)(1) and to
revise with minor edits to conform to
the statute. Addressing the commenter’s
concern, revised § 1101.11(a)(1) would
read: ‘‘The Commission, any member of
the Commission, or any employee,
agent, or representative, including
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contractor, of the Commission in an
official capacity must propose to
disclose the information to the public
(see § 1101.12).’’
iv. Inclusion of Reports of Harm in the
List of Information Not Subject to
Section 6(b)’s Notice and Comment
Requirements (§ 1101.11(b)(6)
(Redesignated § 1101.11(b)(5))
Comment 5—CFA, Consumers Union,
Kids in Danger, National Consumers
League, Public Citizen, The Safety
Institute, and U.S. PIRG supported the
2014 NPR’s proposal to add reports of
harm posted on SaferProducts.gov to the
list of information not subject to section
6(b)(1). These commenters state that
reports of harm posted to
SaferProducts.gov specifically fall
outside the statutory requirements of
section 6(b). Several of these
commenters also noted that the
Commission should not have to ‘‘spend
resources hiding information that either
has already been disclosed by the
agency or available elsewhere.’’
On the other hand, the Juvenile
Products Manufacturer’s Association
(JPMA), NAM, and TIA objected to the
2014 NPR’s proposal to add reports of
harm posted on SaferProducts.gov to the
6(b) Regulation’s list of information not
subject to section 6(b)(1). TIA asserted
that the exclusion from section 6(b) for
reports of harm applies ‘‘only within the
confines’’ of SaferProducts.gov and
‘‘subject to the express disclaimers
provided therein.’’ Letter from Toy
Industry Association, Inc. (Apr. 28,
2014); see also Letter from National
Association of Manufacturers (Apr. 28,
2014) (asserting that 6(b) exclusion does
not apply to ‘‘alternative disclosures of
information contained in the report’’).
According to these associations, the
Commission’s proposal to categorically
exclude reports of harm from section
6(b) procedures creates fairness issues.
JPMA further stated that excluding from
the section 6(b) requirements disclosure
of a report of harm that is responsive to
a FOIA request deprives a firm of the
right to challenge the accuracy, fairness,
or responsiveness of the document.
Response 5—This Supplemental NPR
adopts the 2014 NPR’s proposed
revision. Reports of harm posted on
SaferProducts.gov are explicitly
excluded from the scope of the statutory
6(b) requirements by statute and the
Commission’s current regulations. See
15 U.S.C. 2055a(f)(1) (excluding from
section 6(b) reports of harm published
to SaferProducts.gov); 16 CFR
1102.44(a) (‘‘Sections 6(a) and 6(b) of
the CPSA shall not apply to the
submission, disclosure, and publication
of information provided in a report of
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harm that meets the minimum
requirements for publication in
§ 1102.10(d) in the Database’’ (emphasis
added)).
Once posted to SaferProducts.gov,
reports of harm are readily available to
the general public. Consequently, the
Commission will treat such reports in
accordance with the Commission’s
proposed approach for publicly
available information. As discussed in
section II.C.2.b.ii above, under this
approach, the Commission could release
reports of harm or information
contained in such reports, without
notice under section 6(b)(1), if the
Commission does not characterize the
information contained in the report or
also release other information that is
subject to section 6(b)(1), and the
Commission’s use of the
SaferProducts.gov information is
accurate and not misleading.
JPMA’s argument that excluding a
report of harm deemed responsive to a
FOIA request from the section 6(b)
process deprives a firm of the right to
challenge the accuracy of the document
is without merit. Pursuant to section
6A(c) of the CPSA, the Commission
must transmit a report a harm to a
manufacturer or private labeler
identified in a report and provide such
firm with an opportunity to submit
comments on the information contained
in the report, including claims regarding
accuracy. 15 U.S.C. 2055a(c)(1), (2), (4);
16 CFR 1102.12, 1102.20(a), 1102.26. If
the Commission determines that the
information is materially inaccurate, the
Commission must: (1) decline to add the
materially inaccurate information to
SaferProducts.gov; (2) correct the
materially inaccurate information in the
report and add the report to
SaferProducts.gov; or (3) add
information to correct inaccurate
information in SaferProducts.gov. 15
U.S.C. 2055a(c)(4)(A); see also 16 CFR
1102.26 (interpreting statutory
requirement).
Although section 6A(f)(1) of the CPSA
specifically excludes from the 6(b)
notice and comment requirements
reports of harm that are published on
SaferProducts.gov, this provision is
silent regarding reports of harm that do
not meet the criteria for publication. 15
U.S.C. 2055a(f)(1). For reports of harm
that the Commission has not published
on SaferProducts.gov, the Commission
will provide firms with the requisite
6(b) notice.
Comment 6—JPMA noted that the
Commission should not expend
resources to gather and produce
information, such as reports of harm
published on SaferProducts.gov, if such
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information is independently available
to the FOIA requester.
Response 6—We agree with this
comment. One of the purposes of the
CPSA is to ‘‘assist consumers in
evaluating the comparative safety of
consumer products.’’ 15 U.S.C.
2051(b)(2). If the Commission receives a
FOIA request specifically seeking
reports of harm, we will continue our
current practice of referring the
requester to SaferProducts.gov to
conduct their own search for this
publicly available information.
v. Inclusion of Information That Is
Already Available to the Public in the
List of Information Not Subject to
Section 6(b)’s Notice and Comment
Requirements (§ 1101.11(b)(7)
(Redesignated § 1101.11(b)(6))
Comment 7—Seven commenters
comprising consumer groups, including
CFA, Kids in Danger, and U.S. PIRG,
supported the 2014 NPR’s proposal to
include in the list of information not
subject to section 6(b)(1) the following:
‘‘Information that is publicly available
or that has been disseminated in a
manner intended to reach the public in
general, such as news reports; articles in
academic and scientific journals; press
releases distributed through news or
wire services; or information that is
available on the internet.’’
In contrast, 14 commenters, including
the Consumer Specialty Products
Association (CSPA), Footwear
Distributors and Retailers of America
(FDRA), and NAM, among others,
objected to the 2014 NPR’s proposal to
include publicly available information
in the list of information not subject to
section 6(b)(1). In general, these
commenters asserted that the
Commission’s proposal to exclude
publicly available information from the
notice and comment requirements
violates the CPSA. The commenters
stated that the 6(b) requirements apply
to any information the Commission
releases to the public, regardless of the
public’s pre-existing access to the
information.
Response 7—The Commission
disagrees with the assertion that section
6(b) applies to information that is
already available to the public. Section
6(b)(1) of the CPSA requires the
Commission to provide advance notice
and an opportunity to comment ‘‘prior
to [the Commission’s] public disclosure
of any information obtained under this
Act, or to be disclosed to the public in
connection therewith.’’ 15 U.S.C.
2055(b)(1). Black’s Law Dictionary
defines ‘‘disclosure’’ as ‘‘[t]he act or
process of making known something
that was previously unknown.’’ U.S. v.
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Fei Ye, 436 F.3d 1117, 1120 (9th Cir.
2006) (citing Black’s Law Dictionary 477
(7th ed. 1999)). The Commission’s use
of publicly available information, such
as information in a news article or an
academic or scientific journal, does not
constitute a ‘‘public disclosure’’ under
section 6(b) for which notice and
opportunity to comment are required,
because such information has already
been put in the public domain by the
Commission or by others.
However, commenters correctly noted
that publicly available information,
including but not limited to,
information that appears on the internet,
can be misleading or inaccurate—even
intentionally so. Commenters also
expressed concern that the
Commission’s public use of such
information may imply that the
information is verified, accurate, or
reliable.
Taking account of the comments
received, the Supplemental NPR
proposes a revised approach for
information already available to the
public. As discussed in section
II.C.2.b.ii above, under the revised
approach, the Commission will release
or identify information that the
Commission obtained from publicly
available sources only if (1) the
Commission does not characterize the
publicly available information or relay
new information, and (2) the
Commission’s use of the information is
accurate and not misleading. This
revised approach provides additional
protection against inaccurate or
misleading communications from the
Commission.
vi. Information Previously Disclosed
(Proposed § 1101.11(b)(7)) and
§§ 1101.21(b)(7) (Redesignated
§ 1101.21(b)(6)), and 1101.31(d)
(Redesignated § 1101.31(c))
Comment 8—Seven consumer groups
supported the 2014 NPR proposal to
include the following in the list of
information not subject to section
6(b)(1): ‘‘(8) Information that is
substantially the same as information
that the Commission previously
disclosed in accordance with section
6(b)(1), except as specified in
§ 1101.31(d).’’ In general, these
commenters noted that the proposal
would save the Commission time and
resources.
In contrast, 16 commenters
comprising one firm and trade
associations, including the Association
of Home Appliance Manufacturers
(AHAM), JPMA, and the National Retail
Federation (NRF), objected to the 2014
NPR proposal. In particular, 12
commenters asserted that the phrase,
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‘‘substantially the same,’’ is vague and
undefined.
Response 8—Section 6(b) does not
require a new notice and comment
process when the Commission discloses
for an additional time, information as to
which appropriate notice already has
been conveyed and applicable
procedures followed. Section 6(b)(1) of
the CPSA requires the Commission to
provide a manufacturer or private
labeler with notice and ‘‘a reasonable
opportunity to submit comments to the
Commission’’ on information proposed
for release. 15 U.S.C. 2055(b)(1)
(emphasis added). Likewise, section
6(b)(6) of the CPSA, which requires the
Commission to establish procedures to
ensure that information disclosed is
accurate and not misleading, applies
‘‘[w]here the Commission initiates the
public disclosure of information.’’ 15
U.S.C. 2055(b)(6). The phrase, ‘‘initiates
the public disclosure,’’ implies that
disclosure constitutes a single event.
Moreover, attempting to restrict
Commission communications by
requiring 6(b) notice and opportunity to
comment for each subsequent disclosure
would be futile, because the
Commission has already disclosed the
information to the public in accordance
with the section 6(b) requirements, and
the Commission does not control who
views the previously disclosed
information, or how it is further
disseminated.
Nevertheless, the Commission agrees
with commenters that the proposal
announced in the 2014 NPR could be
confusing. Upon further consideration,
the Commission proposes a different
approach for subsequent disclosures of
information that should be more
straightforward to apply. Under this
new approach, the 6(b) Regulation will
specify that the requirements of section
6(b)(1) do not apply to: ‘‘Information,
not previously disclosed, that in context
does not disclose materially more or
materially different information about
the consumer product than what the
Commission previously disclosed in
accordance with the law.’’
Comment 9—Thirteen commenters
comprising one firm and trade
associations, including the Fashion
Jewelry & Accessories Trade Association
(FJATA) and Philips Electronics North
America, maintained that renotification
for previously disclosed information is
critical because: (1) it allows firms to
provide new comments on information
that the Commission proposes to release
again, and (2) a release may be accurate
and/or fair at its initial disclosure, but
may be inaccurate and/or unfair at a
later time, because the firm or the
Commission receives or develops new
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or additional information, and/or the
understanding of information
previously disclosed may change.
Response 9—Renotification is not
necessary for manufacturers and private
labelers to provide the Commission, in
the course of its proceedings, with new
data or arguments regarding information
that CPSC disclosed previously.
Regarding commenters’ concerns that a
subsequent release of information may
be inaccurate or unfair, the Commission
has an ongoing duty under section
6(b)(7) of the CPSA to ensure that any
information it discloses is accurate and
not misleading.
Comment 10—The Motorcycle
Industry Counsel (MIC) argued that
without renotification, firms will not be
able to identify staff errors in
connection with FOIA requests.
Response 10—The Commission
provides firms with two opportunities
to review the materials that CPSC
intends to disclose in response to a
FOIA request. The 6(b)(1) notice
includes a copy of the materials that the
Commission proposes to disclose to the
FOIA requester. This material contains
any staff redactions to Personally
Identifiable Information (PII) and
information subject to Exemption 5 of
the FOIA, 5 U.S.C. 552(b)(5), which
protects ‘‘inter-agency or intra-agency
memorandums or letters that would not
be available by law to a party other than
an agency in litigation with the agency.’’
The 6(b)(2) notice, which informs the
manufacturer or private labeler that the
Commission disagrees with the firm’s
inaccuracy objections and will release
the documents, includes copies of the
final package of materials CPSC intends
to disclose to the FOIA requester. These
materials incorporate any comments
from the manufacturer or private labeler
with which Commission staff agrees,
and all redactions to the materials,
including information considered
confidential under section 6(a)(2) of the
CPSA. Commission staff also includes
with the 6(b)(2) notice a copy of the
cover letter to the FOIA requester,
explaining the information that the
Commission could not disclose.
Therefore, firms have several
opportunities before the Commission
discloses materials to identify staff
errors in connection with FOIA
requests.
Finally, as already noted, the
Commission cannot control further
distribution of information it makes
public through the section 6(b) process,
and thus attempts by manufacturers or
private labelers to limit subsequent
releases of previously disclosed
information could be futile even if they
were allowed under the 6(b) Regulation.
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Comment 11—FJATA, MIC, and TIA
stated that renotification is critical
because it allows manufacturers and
private labelers to know who requested
their information.
Response 11—Renotification is not
necessary for a firm to know who
submitted a FOIA request for its
information. The Commission posts on
its FOIA web page FOIA Request Logs,
which describe each FOIA request that
the Commission receives and identify
the FOIA requester (available at https://
www.cpsc.gov/Newsroom/FOIA/FOIARequest-Logs).
vii. The Commission Will Provide
Advance Notice and Opportunity To
Comment if There Is a Question
Whether the Public Could Readily
Ascertain the Identity of a Manufacturer
or Private Labeler (§ 1101.13)
Comment 12—The 2014 NPR
proposed deleting from § 1101.13 the
last sentence, which states, ‘‘The
Commission will provide the advance
notice and opportunity to comment if
there is a question whether the public
could readily ascertain the identity of a
manufacturer or private labeler.’’ 79 FR
10715. The Coalition for Sound Safety
Solutions (CS3), JPMA, MIC, NAM, and
NRF objected to this proposal. In
general, these commenters stated that
the Commission’s proposal to remove
this sentence implies that the
Commission will not provide notice,
even when there is ambiguity regarding
whether the public could ascertain the
identity of the firm. Two of these
commenters asserted that the proposed
revision conflicts with the statutory
language, legislative history, and
purpose of section 6(b).
Response 12—We disagree with these
comments. The sentence proposed for
deletion establishes a subjective
standard for section 6(b) notification
that would be difficult to apply
consistently. It is, moreover,
inconsistent with the objective
‘‘reasonable person’’ standard the
Commission adopted in the first
sentence of this section. Under the
objective standard, if a reasonable
person who lacks specialized expertise
can ascertain readily the identity of the
manufacturer or private labeler from the
information proposed to be disclosed,
the Commission will provide such
information to the firm for section 6(b)
comment. The proposed deletion
removes a potential source of confusion
around the more easily applied,
objective standard.
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viii. Electronic Notice and
Communication (§§ 1101.21, 1101.22(a)
(Removed), 1101.23(c) (Removed), and
1101.25(c) (Redesignated § 1101.25(b))
Comment 13—Commenters on
§§ 1101.21, 1101.22(a), 1101.23(c), and
1101.25(c) overwhelmingly supported
the 2014 NPR’s proposal to authorize
electronic 6(b) notices, direct
Commission staff to transmit requisite
notices through an electronic medium
whenever possible, and encourage
electronic communication with the
Commission. Some commenters sought
clarification of the Commission’s
process for sending the initial 6(b)
notice, including whether the
Commission will use the business portal
(available through https://
www.saferproducts.gov/Business) for
providing notice and receiving
comments and whether firms may
continue to submit and receive 6(b)
communications via U.S. mail and other
methods.
Response 13—Currently, when the
FOIA Office receives a request for
records pertaining to a manufacturer or
private labeler, the Commission sends
the section 6(b)(1) notice to the firm via
secure collaboration software. This
notice includes a copy of the FOIA
request, with redactions of any PII, and
a copy of the records requested, with
redactions of PII and any information
that falls under FOIA Exemption 5, 5
U.S.C. 552(b)(5). The FOIA Office also
uses secure collaboration software to
send to the manufacturer or private
labeler the section 6(b)(2) notice, a copy
of the redacted records, and a copy of
the Commission’s final letter to the
requester. To use the software, the FOIA
Office must have the current email
address of the firm’s representative. If
an email address cannot be found, the
FOIA Office sends the notice via
certified mail.
For other proposed disclosures, such
as a ‘‘unilateral’’ news release in which
the Commission warns consumers about
a potential defect or risk without the
relevant firm’s cooperation, the
Commission’s current practice is to
provide the section 6(b)(1) and (2)
notices via email. Where the
Commission does not have an email
address or the Commission cannot
confirm electronic receipt of the notice,
Commission staff will provide notice
using other methods, including delivery
via U.S. mail or other delivery service.
See proposed § 1101.21(b).
ix. Deletion of the Phrase, ‘‘Upon His or
Her Own Initiative Or’’ (§ 1101.22(a)(2))
Comment 14—CFA, Consumers
Union, Public Citizen, The Safety
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Institute, and U.S. PIRG supported the
2014 NPR’s proposal to delete the
phrase, ‘‘Upon his or her own initiative
or,’’ from the first sentence of
§ 1101.22(a)(2), which states: ‘‘Upon his
or her own initiative or upon request,
the Freedom of Information Officer may
provide a different amount of time for
comment, particularly for firms that
receive voluminous or complex
material.’’ The commenters noted that
this is a minor revision to reflect actual
practice.
Response 14—The Commission agrees
with these comments. Absent a specific
request from a manufacturer or private
labeler, the Freedom of Information
Officer typically has not provided a
longer amount of time for a firm to
comment. In general, firms are in the
best position to initiate a suggestion that
additional time may be necessary to
provide substantive comments on
information that the Commission
proposes to disclose.
x. Disclosure of a Firm’s Comments
(§§ 1101.21(b)(5) (Redesignated
1101.21(b)(4)), 1101.24(c), 1101.31(b)
(Redesignated 1101.31(a)), 1101.33(a)(1),
and 1101.33(b)(3) (Redesignated
1101.21(b)(4))
Comment 15—CFA, Consumers
Union, Kids in Danger, National
Consumers League, Public Citizen, The
Safety Institute, and U.S. PIRG
supported the 2014 NPR’s proposal to
require manufacturers and private
labelers to provide a rationale, such as
an applicable statutory or regulatory
basis or provision, to support
withholding their comments and an
explanation why disclosure of the firm’s
comments is not necessary to ensure
that the disclosure of the information
that is the subject of the comments is
fair in the circumstances. These
commenters noted that this proposal
will increase transparency unless there
is a valid reason for the information to
be withheld.
In contrast, 13 trade associations,
including the Art & Creative Materials
Institute, Inc., FDRA and the Retail
Industry Leaders Association (RILA),
objected to the 2014 NPR’s proposal.
These commenters stated that the
Commission’s proposal would chill
cooperation between firms and the
Commission, causing manufacturers and
private labelers to provide limited
comments and data regarding the
information proposed for disclosure.
Response 15—When the Commission
adopted the 6(b) Regulation in 1983, we
stated that a firm’s comments may
‘‘clarify questions of accuracy,
especially those concerning the factual
basis for specific statements and the
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qualifications of individuals to make
certain observations or to express
opinions.’’ 48 FR 57423. In addition, a
firm’s comments might ‘‘correct minor
inaccuracies although the overall
substance of the information to be
disclosed is accurate.’’ Id. For these
reasons, instead of requiring of a legal
rationale such as a statute or regulation,
the Supplemental NPR proposes to more
broadly require that the manufacturer or
private labeler provide the basis for why
it suggests the comments should not be
disclosed.
We do not expect that adopting this
proposal would reduce the usefulness of
information firms provide to the
Commission in response to section
6(b)(1) notices. We expect firms to
submit detailed comments on the
information proposed for disclosure,
particularly to make their opposition to
the proposal more forceful and credible.
Indeed, as the regulation explains, a
manufacturer or private labeler’s
submission ‘‘must be specific and
should be accompanied by
documentation, where available, if the
comments are to assist the Commission
in its evaluation of the information.’’ 16
CFR 1101.24(a).
Comment 16—FDRA, MIC, FJATA,
OIA, CS3, and JPMA argued that the
2014 NPR proposal requiring that
manufacturers and private labelers
provide a rationale to support
withholding their comments violates the
CPSA. JPMA stated that although the
CPSA requires the Commission to
disclose a manufacturer or private
labeler’s comments upon the firm’s
request, the CPSA does not similarly
require the Commission to disclose a
firm’s objection when the manufacturer
or private labeler objects to disclosure.
FJATA stated that the Commission
would violate the statute if the
Commission released a manufacturer’s
or private labeler’s comments without
first assessing whether such release is
fair and reasonably related to
effectuating the purposes of the CPSA.
Response 16—We do not agree with
the comments that the Commission’s
proposal to release a firm’s comments
violates the CPSA. Section 6(b)(1) states
that ‘‘the Commission may . . . include
with the disclosure any comments or
other information or a summary thereof
. . . to the extent permitted by and
subject to the requirements of this
section.’’ 15 U.S.C. 2055(b)(1) (emphasis
added). Thus, the Commission has
discretion in deciding whether to
release a firm’s comments, to the extent
permitted by and subject to the
requirements of section 6. As the
Commission explained in 1983,
disclosure of a firm’s comments may
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help to place the information that the
Commission proposes to disclose in the
proper context, particularly if releasing
the comments helps to assure the
accuracy of the underlying information
disclosure. 48 FR 57423.
The Commission agrees with the
comment that the Commission would
violate the CPSA if the Commission
discloses a manufacturer’s or private
labeler’s comments without first
assessing whether the information
contained in the comments is accurate
and that disclosure of the comments
would be fair and reasonably related to
the purposes of the CPSA. Thus, the
Commission will not disclose comments
that the Commission determines are
inaccurate or misleading.
Comment 17—ACMI and MIC argued
that the Commission’s proposal
regarding publication of comments
contradicts the legislative history of
section 6(b). These commenters cited
House Report 92–1153 as evidence that
Congress did not intend the
Commission to release a manufacturer’s
or private labeler’s comments. House
Report 92–1153 states:
There is no intention that the Commission
be required to include a manufacturer’s or
private labeler’s explanation in the materials
which it determines to disseminate at the end
of the 30-day period. This was suggested to
the committee and rejected.
Response 17—The proposal regarding
release of a firm’s comments is aligned
with the cited legislative history. While
section 6(b)(1) does not require the
Commission to disclose a
manufacturer’s or private labeler’s
comments, unless that firm specifically
requests disclosure, the Commission
nevertheless has discretion in deciding
whether to disclose a firm’s comments
absent a specific request from the firm.
See 15 U.S.C. 2055(b)(1) (‘‘In disclosing
any information under this subsection,
the Commission may, . . . include with
the disclosure any comments or other
information or a summary thereof.’’).
Comment 18—FDRA asserted that
section 6(a)(3)–(6) of the CPSA only
requires firms to mark information as
confidential and does not require that
firms provide a statutory or regulatory
basis for withholding. MIC maintained
that neither Exemption 4 of the FOIA,
5 U.S.C. 552(b)(4), nor section 6(a)(2) of
the CPSA, requires a firm to provide a
rationale to support withholding of
trade secret and confidential
commercial information. This
commenter also stated that without a
guarantee that Exemption 4 of the FOIA
will protect trade secrets and privileged
or confidential commercial information,
firms will not provide comments
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containing this information, which
could deprive the Commission of
relevant information.
Response 18—The proposed revisions
to the 6(b) Regulation maintain the
protections for trade secret or privileged
or confidential commercial or financial
information as delineated in the CPSA,
the FOIA, and our corresponding
regulations. See also revised 16 CFR
1101.24(b) (claims of confidentiality).
Contrary to the commenters’ suggestion,
merely marking information as
confidential is not sufficient to support
a claim of confidentiality. Firms should
consult the Commission’s FOIA
regulation at 16 CFR 1015.18, which
specifies the information that a firm
must provide with any request for
confidentiality, and 16 CFR 1015.19, for
additional information on Commission
determinations regarding confidentiality
requests.
Comment 19—ACMI, the American
Apparel & Footwear Association, CS3,
OIA, and OPEI stated that the
Commission’s proposed requirement
that a manufacturer or private labeler
provide a rationale to support
withholding of its comments would
create additional burdens for both the
Commission and firms. OPEI further
observed that the Commission’s
proposal will not create efficiencies
because Commission staff will have to
review two documents: (1) an argument
against disclosure of the information
that is the subject of the FOIA request,
and (2) an argument against disclosure
of the firm’s comments.
Response 19—The Commission
believes that any additional burdens
that the revised policy might create for
firms and Commission staff are minimal
and justified by legitimate
administrative interests as well as the
public benefit from greater transparency
about consumer product safety.
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xi. Disclosure of Information That Is
Attorney Work-Product or Subject to an
Attorney/Client Privilege
(§ 1101.33(b)(3))
Comment 20—Section 1101.33(b)
provides examples of disclosures of
information that generally would not be
fair in the circumstances. Five
commenters comprising consumer
groups, including Consumer Union and
Public Citizen, supported the 2014
NPR’s proposal to delete § 1101.33(b)(3),
which covers information that is workproduct or subject to an attorney/client
privilege. Public Citizen noted that
‘‘[t]he Commission is a government
agency, and not an arm, client or legal
advisor of manufacturers or their law
firms.’’
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In contrast, eight commenters
comprising a firm and trade
associations, including OPEI and TIA,
objected to the Commission’s proposal
to remove from § 1101.33(b) information
that is attorney work-product or subject
to the attorney/client privilege. These
commenters stated that this provision
encourages firms’ candor with the
Commission and that removal could
chill cooperation. OPEI observed that
when the Commission adopted the
regulation in 1983, the Commission
agreed with a comment that disclosure
of attorney work-product and
information subject to the attorney/
client privilege would be unfair.
According to this commenter,
‘‘[n]othing has changed that would now
render the disclosure of such
information fair.’’
Response 20—The Commission is
concerned that the current regulation
may cause a manufacturer or private
labeler mistakenly to believe that
information the firm intentionally
submits to the Commission that is
attorney work-product or subject to the
attorney/client privilege will remain
privileged. To the contrary, if a
manufacturer intentionally submits
information that is subject to the
attorney/client privilege and later
becomes involved in litigation with a
third party, including another
government agency, a court could
conclude that the manufacturer waived
the privilege when it voluntarily
provided the information to the
Commission. Moreover, the Commission
does not expect or encourage firms to
submit information that is legitimately
attorney work-product or subject to the
attorney/client privilege.
If a firm inadvertently submits
information that is attorney workproduct or subject to the attorney/client
privilege without intending a waiver,
the Commission will treat the
information in accordance with
applicable authorities governing waiver
and inadvertent disclosure. In addition,
the firm may request confidential
treatment of the information in
accordance with the Commission’s
FOIA regulation at 16 CFR 1015.18.
Comment 21—AHAM maintained that
even if the information is no longer
privileged, the information could still be
confidential, and its release would be
unfair. Similarly, TIA argued that this
provision is important for protecting
from disclosure information that
manufacturers or private labelers submit
to the Commission in connection with
section 15(b) of the CPSA, which also
may be referenced by staff in
preliminary determinations.
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Response 21—The submitting
manufacturer or private labeler may still
assert that other provisions in the CPSA
and corresponding regulations require
the Commission to maintain the
information as confidential. For
example, a manufacturer or private
labeler may claim that disclosure of the
information under section 6(b)(1) would
not be fair because the firm furnished
the information to facilitate prompt
remedial action or settlement of a case
and the firm had a reasonable
expectation that the information would
be maintained in confidence. 16 CFR
1101.33(b)(1). A manufacturer or private
labeler also may assert that disclosure is
prohibited under section 6(b)(5) of the
CPSA because the firm had identified
the information as submitted pursuant
to section 15(b) and 16 CFR 1115.13, as
explained in revised § 1101.61(b). In
addition, a manufacturer or private
labeler may contend that section 6(a)(2)
of the CPSA prohibits disclosure
because the information constitutes
trade secret or privileged or confidential
commercial or financial information
under 5 U.S.C. 552(b)(4).
xii. Information Submitted Pursuant to
Section 15(b) of the CPSA and Identified
by the Commission Staff Through
Publicly Available Sources
(§ 1101.63(c))
Comment 22—CFA, Consumers
Union, and the Safety Institute
supported the 2014 NPR’s proposal to
revise § 1101.63(c) to state that section
6(b)(5) does not apply to information (1)
independently obtained or prepared by
the Commission staff or (2) identified by
the Commission staff through publicly
available sources. The commenters
maintained that the Commission should
not have to use resources to withhold
information that is already available to
the public.
In contrast, CS3, JPMA, NAM, the
Outdoor Industry Council, RILA, and
TIA objected to this proposal. In
general, these commenters stated that
the Commission’s proposal violates the
CPSA, noting that section 6(b)(5) does
not include publicly available
information as one of the limited
exceptions to that paragraph’s extra
restriction. The commenters also
maintained that the Commission’s
proposal violates the legislative history
of the CPSA. According to TIA,
Congress’ intent in enacting section
6(b)(5) of the CPSA was to protect
information, including publicly
available information, that Commission
staff did not independently identify or
prepare. TIA noted that section 15
reports may reference publicly available
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information that was not known
previously to the Commission.
Response 22—There is no indication
that Congress intended the Commission
to withhold from disclosure information
that is already available to the public
and that appears in a report filed with
the Commission pursuant to section
15(b) of the CPSA. In CPSC v. GTE
Sylvania, Inc., 447 U.S. 102 (1980), the
Supreme Court examined the legislative
history of the CPSA, including the
House Report, and observed that ‘‘[t]he
CPSA gave the Commission broad
powers to gather, analyze, and
disseminate vast amounts of private
information.’’ Id. at 111 (emphasis
added). The House Report on the CPSA
states:
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If the Commission is to act responsibly and
with adequate basis, it must have complete
and full access to information relevant to its
statutory responsibilities. Accordingly, the
committee has built into this bill broad
information-gathering powers. It recognizes
that in so doing it has recommended giving
the Commission the means of gaining access
to a great deal of information which would
not otherwise be available to the public or to
Government. Much of this relates to trade
secrets or other sensitive cost and
competitive information. Accordingly, the
committee has written into section 6 of the
bill detailed requirements and limitations
relating to the Commission’s authority to
disclose information which it acquires in the
conduct of its responsibilities under this act.
Id. at 111–112 (citing H.R. Rep. No. 92–
1153, p. 31 (1972)).
In enacting the CPSA, in particular
section 15(b) and other ‘‘informationgathering’’ provisions, Congress
authorized the Commission to (1) obtain
information that would not be available
to the public and (2) protect such
information from disclosure. Therefore,
information that a firm maintains as
confidential and provides in a section
15(b) report, such as test results and the
names of manufacturers or suppliers,
may be subject to the additional
disclosure limitations under section
6(b)(5) of the CPSA. However,
information that a person can obtain
through a simple internet search or even
by entering a retail store that sells the
product, such as sales price or product
details, is not subject to section 6(b)(5)’s
additional disclosure protections.
Comment 23—JPMA and RILA
insisted that the Commission should
continue to protect from disclosure,
under section 6(a)(2) and 6(b)(5) of the
CPSA, confidential business
information provided in section 15(b)
reports.
Response 23—The Commission will
withhold under section 6(a)(2) of the
CPSA information that a firm considers
to be trade secret or privileged or
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confidential commercial or financial
information if the firm submitting the
information requests withholding and
specifically identifies those sections that
must be withheld, and the information
meets the statutory and regulatory
requirements for withholding. In
addition, as discussed in revised
§ 1101.61(b), the Commission will not
disclose information that a firm
identifies as submitted pursuant to
section 15(b) of the CPSA and 16 CFR
1115.13, unless one of the statutory
exceptions applies. If a statutory
exception applies, the Commission must
still comply with the requirements of
sections 6(a) and 6(b)(1)–(3) before
disclosing the information.
Comment 24—OIA and NAM
maintained that the Commission’s
disclosure of inaccurate, misleading, or
unfair information contained in a
section 15(b) report could damage a
firm’s reputation.
Response 24—The Commission
believes that most firms are diligent and
thorough in executing their CPSA
reporting obligations to the
Commission. To the extent that the
commenters suggest that the
Commission may have reason to believe
that a releasable section 15(b) report
contains inaccurate, misleading, or
unfair information, the Commission will
review its release of such submission in
accordance with the provisions of
section 6(b). See also 15 U.S.C.
2068(a)(13) (discussing
misrepresentation).
xiii. Voluntary Corrective Action Plans
and Remedial Settlement Agreements
Under Section 6(b)(5) of the CPSA
Comment 25—Section 6(b)(5) of the
CPSA states that, in addition to the
requirements of section 6(b)(1), ‘‘the
Commission shall not disclose to the
public information submitted pursuant
to section 15(b) respecting a consumer
product unless . . . (B) in lieu of
proceeding against such product under
section 15(c) or (d), the Commission has
accepted in writing a remedial
settlement agreement dealing with such
product.’’ JPMA and TIA asserted that
‘‘[n]either the CPSA nor the regulations
equate a ‘remedial settlement agreement
dealing with [a] product’ accepted by
the Commission ‘in lieu of proceeding
against such product [under] 15(c) or
(d)’ . . . with a voluntary recall
corrective action plan where no
administrative action is pending or
contemplated.’’ In addition, NRF urged
the Commission to maintain the
‘‘current and long-standing agency
practice (if not formal interpretive
position) that, in the absence of some
other exception under 6(b), all
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information’’ that a firm provides to the
Commission under section 15(b) will
not be disclosed, regardless of whether
the information results in a voluntary
recall.
Response 25—The legislative history
of the CPSA indicates that Congress did
not intend remedial settlement
agreements necessarily to be formal
written agreements. See H.R. Rep. No.
97–208, at 1242 (1981) (‘‘The conferees
do not intend that a settlement
agreement must be made by a formal
written agreement, but rather, for
example, may be made by an exchange
of letters.’’). For nearly 40 years, the
Commission has interpreted remedial
settlement agreements to include
voluntary corrective action plans:
A voluntary corrective action plan in effect
settles a potential administrative or judicial
action. Such corrective action can range in
scope from adding a label to a product or
altering future production to a total recall
and publication notification program. The
nature and extent of such an undertaking
however does not change the fact that it is
a remedial settlement agreement. 48 FR
57428 (emphasis added).
While section 6(b)(5)’s additional
layer of protection may no longer apply
to information that a manufacturer or
private labeler submits under section
15(b) of the CPSA because the firm and
the Commission have agreed to a
corrective action plan, the manufacturer
or private labeler may still assert that
the information must be withheld from
disclosure under section 6(a) and 6(b)(1)
of the CPSA and the corresponding
regulatory provisions.
Comment 26—NRF argued that if the
Commission determines that corrective
action plans are remedial settlement
agreements under section 6(b)(5) of the
CPSA, firms will provide the
Commission with only ‘‘bare bones’’
information under section 15(b).
According to this commenter, sharing
such limited information with the
Commission would ‘‘lead to more
protracted and less informed product
safety investigations,’’ which would
jeopardize consumer safety.
Response 26—Tactical submission of
only ‘‘bare bones’’ information to the
Commission in connection with section
15(b), while withholding other
information required to be submitted, is
prohibited under the requirements of
sections 15, 16, 19, and 27 of the CPSA
and the corresponding regulations. In
addition, we have no reason to believe
that restating established policy—that
remedial settlement agreements under
section 6(b)(5) include corrective action
plans—would impact the type and
extent of information that firms provide
to the Commission under section 15(b).
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Section 6(b)(5) of the CPSA creates an
additional layer of protection from the
disclosure of information that a firm
submits to the Commission pursuant to
section 15(b) of the CPSA. 15 U.S.C.
2055(b)(5) (‘‘In addition to the
requirements of paragraph 1 . . .’’).
Therefore, even if information
submitted in connection with section
15(b) is not protected from disclosure
under section 6(b)(5) of the CPSA, the
information nevertheless may be
protected under other withholding
provisions specified in the CPSA and
the corresponding regulations.
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xiv. Firms Can File a Lawsuit To Enjoin
the Disclosure of Information
Comment 27—CFA, Consumers
Union, National Consumers League, The
Safety Institute, and U.S. PIRG
expressed disappointment that the
proposed rule does not prevent a firm
from filing a lawsuit to enjoin the
Commission’s release of information.
These commenters stated that the threat
of a lawsuit ‘‘compels CPSC to maintain
the secrecy or delay the disclosure of
important product safety information.’’
Response 27—Congress specifically
authorized (1) the manufacturer and
private labeler to ‘‘bring an action in the
district court . . . to enjoin disclosure of
the document’’ at issue in a section
6(b)(1) notification, and (2) the district
court to ‘‘enjoin such disclosure if the
Commission has failed to take the
reasonable steps’’ established in section
6(b)(1). 15 U.S.C. 2055(b)(3)(A). In any
event, the commenters’ belief that the
Commission withholds releasable
information when faced with the threat
of a lawsuit is mistaken. The
Commission routinely discloses to the
public crucial product safety
information, even when a manufacturer
or private labeler does not agree to
conduct a recall or implement another
corrective action. In these instances, for
example, the Commission may publish
a ‘‘unilateral’’ press release after
complying with the notice and comment
requirements under section 6(b) of the
CPSA.
xv. Retailers Should Continue To Be
Included Among the Firms That Are
Covered Under Section 6(b)
Comment 28—RILA stated that the
Commission should continue to
withhold from disclosure information
that retailers, who are not acting as
manufacturers, private labelers, or
importers of a subject product, provide
to the Commission when the
Commission contacts the retailer to
obtain information regarding (1) an
issue that another firm reported to the
Commission under section 15(b) of the
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CPSA or (2) an incident reported to
SaferProducts.gov. RILA also requested
clarification that information a retailer
provides in connection with the Retailer
Reporting Program, including
confidential customer, supplier, and
sales data, will remain protected from
disclosure under sections 6(a)(2) and
6(b)(5) of the CPSA.
Response 28—Retailers are listed
among the entities that must report to
the Commission under section 15(b) of
the CPSA. 15 U.S.C. 2064(b). Thus,
under revised § 1101.63(a), section
6(b)(5)’s additional disclosure
limitations apply to information that a
retailer identifies as submitted pursuant
to section 15(b) of the CPSA and 16 CFR
1115.13, unless one of the exceptions
applies.
Before the Commission determines
whether particular information
proposed for disclosure is confidential,
the submitting firm must, among other
requirements, specifically identify those
portions that the firm claims are
confidential and exempt from
disclosure. 15 U.S.C. 2055(a)(3); 16 CFR
1015.18, 1015.19(a), 1101.24(b). The
Commission will review the information
proposed for disclosure, the firm’s
claims, and applicable authorities, and
determine whether the information can
be disclosed. 16 CFR 1015.19(a).
xvi. The Commission Should Establish
an Appeals Process for 6(b)
Determinations
Comment 29—TIA suggested that the
Commission create a process within the
Office of the General Counsel to enable
firms that have received notice to appeal
section 6(b) determinations.
Response 29—Section 27(b)(10) of the
CPSA, 15 U.S.C. 2076(b)(10), empowers
the Commission ‘‘to delegate any of its
functions or powers, other than the
power to issue subpoenas . . . to any
officer or employee of the Commission.’’
When the Commission adopted the 6(b)
Regulation in 1983, the Commission
delegated to the General Counsel ‘‘the
authority to render all decisions . . .
concerning the release of information
subject to section 6(b) when firms have
furnished section 6(b) comment,’’
except in certain situations. 16 CFR
1101.71(a). The Commission determined
that a decision by the General Counsel
is a final agency decision and is not
appealable as of right to the
Commission. 16 CFR 1101.71(c).
However, the General Counsel may refer
an issue to the Commission for decision
under 16 CFR 1101.71(c). Adding an
additional appeals process on top of the
current Commission process for
processing proposed public disclosures
would entail additional delay in
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10453
providing information to the public, that
is not justified by a countervailing
benefit.
IV. Environmental Considerations
The Commission’s regulations address
whether the Commission is required to
prepare an environmental assessment or
an environmental impact statement. 16
CFR part 1021. Those regulations
provide a categorical exclusion for
certain Commission actions that
normally have ‘‘little or no potential for
affecting the human environment.’’ 16
CFR 1021.5(c)(1). Like the 2014 NPR,
see 79 FR 10721, this Supplemental
NPR falls within the categorical
exclusion.
V. Regulatory Flexibility Analysis
Under section 603 of the Regulatory
Flexibility Act (RFA), when the
Administrative Procedure Act (APA)
requires an agency to publish a general
notice of proposed rulemaking, the
agency must prepare an initial
regulatory flexibility analysis (IRFA),
assessing the economic impact of the
proposed rule on small entities. 5 U.S.C.
603(a). As noted, the Commission is
proposing to update the regulation that
interprets section 6(b) of the CPSA.
Although the Commission is choosing to
issue the rule through notice and
comment procedures, the APA does not
require a proposed rule when an agency
issues rules of agency procedure and
practice. 5 U.S.C. 553(b). Therefore, the
CPSC is not required to prepare an IRFA
under the RFA. See 79 FR 10721
(discussing IRFA requirement).
Moreover, the Supplemental NPR does
not propose to establish mandatory
requirements for, and would not impose
any significant obligations on, small
entities (or any other entity or party).
VI. Paperwork Reduction Act
The Paperwork Reduction Act (PRA)
establishes certain requirements when
an agency conducts or sponsors a
‘‘collection of information.’’ 44 U.S.C.
3501–3520. The Supplemental NPR
proposes to amend the Commission’s
rule that describes the agency’s
procedures for providing manufacturers
and private labelers with advance notice
and ‘‘a reasonable opportunity to submit
comments’’ to the Commission on
proposed disclosures of information.
The Supplemental NPR does not
propose to create information collection
requirements. The PRA is not
implicated in this proposed rulemaking
because the existing rule and the
Supplemental NPR do not require or
request information from firms, but
rather, explain the Commission’s
procedures for providing firms with an
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opportunity to provide voluntary
comment on certain information before
disclosure. See 79 FR 10721.
VII. Executive Order 12988
(Preemption)
According to Executive Order 12988
(February 5, 1996), agencies must state
in clear language the preemptive effect,
if any, of new regulations. Section 26 of
the CPSA explains the preemptive effect
of consumer product safety standards
issued under the CPSA. 15 U.S.C. 2075.
The Supplemental NPR proposes
updates to the regulation that interprets
section 6(b) of the CPSA and does not
seek to issue a consumer product safety
standard. Accordingly, section 26 of the
CPSA does not apply to this rulemaking.
Furthermore, this Supplemental NPR
implements a provision of the CPSA
that is uniquely applicable to the
Commission, and is not enforced by
state or local governments. Preemption
therefore is not relevant.
VIII. Proposed Effective Date
The APA generally requires that the
effective date of a rule be at least 30
days after publication of the final rule.
5 U.S.C. 553(d). However, the APA
exempts interpretive rules and
statements of policy from the general
effective date requirement. 5 U.S.C.
553(d)(2). The Supplemental NPR
accordingly proposes to make the final
rule, if one is adopted, effective as of the
date of its publication in the Federal
Register.
IX. Request for Comments
The Commission requests comments
on all aspects of the Supplemental NPR.
Comments must be submitted in
accordance with the instructions in the
ADDRESSES section of the preamble.
Comments must be received no later
than April 3, 2023.
List of Subjects in 16 CFR Part 1101
Administrative practice and
procedure; Consumer protection.
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For the reasons set forth in the
preamble, the Commission proposes to
revise 16 CFR part 1101 to read as
follows:
PART 1101—INFORMATION
DISCLOSURE UNDER SECTION 6(b)
OF THE CONSUMER PRODUCT
SAFETY ACT
Subpart C—Procedure for Providing Notice
and Opportunity To Comment Under
Section 6(b)(1)
1101.21 Form, transmission, and content of
notice.
1101.22 Time for comment and requests for
extension of time.
1101.23 Providing less than 15 calendar
days’ notice before disclosing
information.
1101.24 Scope of comments Commission
seeks.
1101.25 Notice of intent to disclose.
1101.26 Circumstances when the
Commission does not provide notice and
opportunity to comment.
Subpart D—Reasonable Steps Commission
Will Take To Assure Public Disclosure of
Information Is Accurate, and That
Disclosure Is Fair in the Circumstances and
Reasonably Related To Effectuating the
Purposes of the Acts It Administers
1101.31 General requirements.
1101.32 Reasonable steps to assure
disclosure of information is accurate.
1101.33 Reasonable steps to assure
information disclosure is fair in the
circumstances.
1101.34 Reasonable steps to assure
information disclosure is ‘‘reasonably
related to effectuating the purposes of’’
the Acts.
Subpart E—Statutory Exceptions of Section
6(b)(4)
1101.41 Generally.
1101.42 Imminent hazard exception.
1101.43 Section 6(b)(4)(A) exception.
1101.44 Rulemaking proceeding exception.
1101.45. Adjudicatory proceeding
exception.
1101.46 Other administrative or judicial
proceeding exception.
Subpart F—Retraction
1101.51 Commission interpretation.
1101.52 Procedure for retraction.
Subpart G—Information Submitted
Pursuant to Section 15(b) of the CPSA
1101.61 Generally.
1101.62 Statutory exceptions to section
6(b)(5) requirements.
1101.63 Information submitted pursuant to
section 15(b) of the CPSA.
Subpart H—Delegation of Authority to
Information Group
1101.71 Delegation of authority.
Authority: 15 U.S.C. 2055(b).
Subpart A—Background
Subpart A—Background
Sec.
1101.1
1101.2
Subpart B—Information Subject to Notice
and Comment Provisions of Section 6(b)(1)
1101.11 General application of provisions
of section 6(b)(1).
1101.12 Definition of ‘‘public’’.
1101.13 Public ability to ascertain readily
identity of manufacturer or private
labeler.
§ 1101.1
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Scope.
These rules apply to the public
disclosure of any information obtained
Scope.
General background.
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under the Consumer Product Safety Act,
15 U.S.C. 2051–2090 (CPSA), the
Flammable Fabrics Act, 15 U.S.C. 1191–
1204 (FFA), the Poison Prevention
Packaging Act of 1970, 15 U.S.C. 1471–
1477 (PPPA), and the Federal Hazardous
Substances Act, 15 U.S.C. 1261–1278a
(FHSA) (collectively, ‘‘the Acts’’), or to
be disclosed to the public in connection
therewith.
§ 1101.2
General background.
(a) Basic purpose. These rules set
forth the Consumer Product Safety
Commission’s policy and procedure
under sections 6(b)(1)–(5) of the CPSA,
15 U.S.C. 2055(b)(1)–(5), which relate to
public disclosure of any information
obtained under the Acts, or to be
disclosed to the public in connection
therewith, from which the identity of a
manufacturer or private labeler of any
consumer product can be ascertained
readily. In addition, these rules provide
for retraction of inaccurate or
misleading information the Commission
has disclosed that reflects adversely
upon the safety of any consumer
product, class of consumer products, or
on the practices of any manufacturer,
private labeler, distributor or retailer of
consumer products as required by
section 6(b)(7) of the CPSA, 15 U.S.C.
2055(b)(7).
(b) Statutory requirements. Section
6(b) establishes procedures that the
Commission must follow prior to its
public disclosure of certain firm-specific
information and to retract certain
information the Commission has
publicly disclosed.
(1) Generally, section 6(b)(1) requires,
prior to the Commission’s public
disclosure of any information obtained
under the Acts, or to be disclosed to the
public in connection therewith, that the
Commission, to the extent practicable,
provide manufacturers or private
labelers with advance notice and
opportunity to comment on the
information, if the manner in which
such consumer product is designated or
described in the information permits the
public to ascertain readily the identity
of the manufacturer or private labeler.
Section 6(b)(1) also requires, prior to
such public disclosure, that the
Commission take reasonable steps to
assure that the information is accurate
and that disclosure is fair in the
circumstances and reasonably related to
effectuating the purposes of the Acts.
Disclosure of information may not occur
in fewer than 15 calendar days after
notice to the manufacturer or private
labeler unless the manufacturer or
private labeler consents or the
Commission publishes a finding that the
public health and safety requires a
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lesser period of notice. Section 6(b)(4)
establishes exceptions to these advance
notice requirements. In addition to the
requirements of Section 6(b)(1), Section
6(b)(5) creates additional limitations, as
well as additional exceptions to these
limitations, on the public disclosure of
information submitted to the
Commission under section 15(b) of the
CPSA. Section 15(b) of the CPSA, 15
U.S.C. 2064(b), requires every
manufacturer, distributor, and retailer of
a consumer product to immediately
inform the Commission once the firm
obtains information which reasonably
supports the conclusion that the
product (a) fails to comply with an
applicable consumer product safety rule
or with a voluntary consumer product
safety standard upon which the
Commission has relied under section 9
of the CPSA; (b) fails to comply with
any other rule, regulation, standard, or
ban under the CPSA or any other act
enforced by the Commission; (c)
contains a defect which could create a
substantial product hazard; or (d)
creates an unreasonable risk of serious
injury or death (see 16 CFR part 1115).
(2) Section 6(b)(2) requires the
Commission to provide further notice to
manufacturers or private labelers where
the Commission proposes to disclose
information the manufacturers or
private labelers have claimed to be
inaccurate.
(3) Section 6(b)(3) authorizes
manufacturers and private labelers to
bring lawsuits against the Commission
to prevent public disclosure of
information after receipt of notice from
the Commission designating the date set
for release of the information.
(c) Clearance procedures. Section
6(b)(6) requires the Commission to
establish procedures to ensure that
Commission-initiated disclosures of
information that reflect on the safety of
a consumer product or class of
consumer products are accurate and not
misleading, whether or not such
information would enable the public to
ascertain readily the identity of a
manufacturer or private labeler.
Subpart B—Information Subject to
Notice and Comment Provisions of
Section 6(b)(1)
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§ 1101.11 General application of
provisions of section 6(b)(1).
(a) Information subject to section
6(b)(1). To be subject to the notice and
comment provisions of section 6(b)(1),
information must meet all the following
criteria:
(1) The Commission, any member of
the Commission, or any employee,
agent, or representative, including
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contractor, of the Commission in an
official capacity must propose to
disclose the information to the public
(see § 1101.12).
(2) The manner in which the
consumer product is designated or
described in the information must
permit the public to ascertain readily
the identity of the manufacturer or
private labeler (see § 1101.13).
(3) The information must be obtained,
generated or received under the Acts, or
be disclosed to the public in connection
therewith.
(b) Information not subject to section
6(b)(1). The requirements of section
6(b)(1) do not apply to:
(1) Information described in the
exceptions contained in section 6(b)(4)
or (b)(5) of the CPSA (see subparts E and
G of this part).
(2) Information the Commission is
required by law to make publicly
available. This information includes, for
example, Commission notifications to
foreign governments regarding certain
products to be exported, as required by
section 18(b) of the CPSA, 15 U.S.C.
2067(b); section 14(d) of the FHSA, 15
U.S.C. 1273(d); and section 15(c) of the
FFA, 15 U.S.C. 1202(c) (see 16 CFR
1019.7).
(3) Information required to be
disclosed to the President and Congress
pursuant to section 27(j) of the CPSA, 15
U.S.C. 2076(j).
(4) Information filed or presented in
administrative proceedings or litigation
to which the Commission is a party and
which is not expressly subject to the
section 6(b)(4) exceptions (see subpart E
of this rule).
(5) A report of harm posted on the
publicly available consumer product
safety information database pursuant to
section 6A of the CPSA, 15 U.S.C.
2055a.
(6) Information that has already been
made available to the public through
sources other than the Commission,
provided the Commission clearly
indicates the source of the information
and the Commission’s use of the
information is accurate and not
misleading.
(7) Information, not previously
disclosed, that in context does not
disclose materially more or materially
different information about the
consumer product than what the
Commission previously disclosed in
accordance with the law.
§ 1101.12
Definition of ‘‘public’’.
Public. For the purposes of section
6(b)(1), the public includes any person
except:
(a) Any member of the Commission or
any employee, agent, or representative,
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including contractor, of the Commission
in an official capacity. However,
disclosures of information by such
persons are subject to section 6(b).
(b) State officials who are
commissioned officers under section
29(a)(2) of the CPSA, 15 U.S.C.
2078(a)(2), to the extent that the
Commission furnishes them information
necessary for them to perform their
duties under that section. However,
disclosures of information by such
officials are subject to section 6(b).
(c) Members of a Commission Chronic
Hazard Advisory Panel established
under section 28 of the CPSA, 15 U.S.C.
2077. However, disclosures of
information by such a Panel are subject
to section 6(b).
(d) Persons, including but not limited
to, consumers, manufacturers, private
labelers, retailers, or distributors, to
which the information to be disclosed
pertains, or their legal representatives.
(e) Persons, including but not limited
to, consumers, manufacturers, private
labelers, retailers, or distributors, which
provided the information to the
Commission, or their legal
representatives.
(f) Other Federal agencies or state or
local governments to which accident
and investigation reports are provided
pursuant to section 29(e) of the CPSA,
15 U.S.C. 2078(e). However, as required
by that section, employees of Federal
agencies or state or local governments
may not release to the public copies of
any accident or investigation report
made under the CPSA by an officer,
employee or agent of the Commission
unless CPSC has complied with the
applicable requirements of section 6(b).
(g) The Chairman or ranking minority
member of a committee or
subcommittee of Congress acting
pursuant to committee business and
having jurisdiction over the matter
which is the subject of the information
requested.
(h) Any Federal, state, local, or foreign
government agency pursuant to, and in
accordance with, section 29(f) of the
CPSA.
§ 1101.13 Public ability to ascertain readily
identity of manufacturer or private labeler.
The advance notice and comment
provisions of section 6(b)(1) apply only
when a reasonable person receiving the
information in the form in which the
information is to be disclosed and
lacking specialized expertise can
ascertain readily from the information
itself the identity of the manufacturer or
private labeler of a consumer product at
issue in the disclosure. Information
about categories of consumer products
is not within the scope of section
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6(b)(1), provided such information will
not permit the public to ascertain
readily the identity of the products’
manufacturers or private labelers.
Information about manufacturers or
private labelers is not within the scope
of section 6(b)(1), provided such
information does not designate or
describe a consumer product.
Subpart C—Procedure for Providing
Notice and Opportunity To Comment
Under Section 6(b)(1)
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§ 1101.21 Form, transmission, and content
of notice.
(a) Notice may be oral or written. The
Commission will generally provide to
manufacturers or private labelers
written notice and opportunity to
comment on information subject to
section 6(b)(1), except as provided in
§ 1101.26. However, if the Commission
determines that written notice is
impracticable, it will provide notice and
opportunity to comment orally, if
practicable.
(b) Electronic transmission. In the
interest of promoting timely
notification, the Commission, to the
extent practicable, will transmit any
notice required under this part via email
or other electronic means. If electronic
transmission is not practicable or the
Commission cannot confirm electronic
receipt of the notice, the Commission
will take appropriate steps to provide
notice using other methods, including
delivery via U.S. mail or other delivery
service.
(c) Content of notice. The Commission
shall, to the extent practicable, provide
the manufacturer or private labeler with:
(1) Either the actual text of the
information to be disclosed or a
summary of the information.
(2) A general description of the
manner in which the Commission will
disclose the information, including any
other relevant information the
Commission intends to include with the
disclosure.
(3) A request for comment with
respect to the information, including a
request for explanatory data or other
relevant information for the
Commission’s consideration.
(4) A statement that the Commission
may, and upon the written request of
the manufacturer or private labeler
shall, include with the disclosure any
comments or other information or a
summary thereof submitted by such
manufacturer or private labeler, to the
extent permitted by and subject to the
requirements of section 6 of the CPSA.
(5) Notice that the manufacturer or
private labeler may request confidential
treatment for the information, in
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accordance with section 6(a)(3) of the
CPSA, 15 U.S.C. 2055(a)(3) (see
§ 1101.24(b)).
(6) A statement that no further request
for comment will be sought by the
Commission if the Commission intends
to disclose information, not previously
disclosed, that in context does not
disclose materially more or materially
different information about the
consumer product than what the
Commission previously disclosed in
accordance with the law.
(7) The name, contact information,
and telephone number of the person to
whom comments should be sent and the
time when any comments are due (see
§ 1101.22).
§ 1101.22 Time for comment and requests
for extension of time.
(a) Time for comment. (1) Generally,
manufacturers and private labelers will
receive 10 calendar days from the date
on which the Commission transmits the
notice to furnish comments.
Manufacturers and private labelers that
receive requests for comments by mail
will receive an additional 3 calendar
days to comment to account for time in
the mail.
(2) The Commission may provide a
longer amount of time for comment,
particularly for manufacturers and
private labelers that receive from the
Commission voluminous or complex
material to review. In addition, the
Commission may publish a finding that
the public health and safety requires a
lesser period of notice and may require
a response in a shorter period of time
(see § 1101.23).
(b) No response submitted. If the
Commission has not received a response
within the time specified (subject to any
extension of time that has been granted
under paragraph (c)), the Commission
will analyze the information as
provided in subpart D and will not give
the further notice provided in section
6(b)(2).
(c) Requests extension of time. (1)
Requests for extension of time to
comment on information to be disclosed
must be in writing and submitted to the
person who provided the Commission’s
notice and opportunity to comment at
least 48 hours before the deadline to
respond. If the time for response has
been shortened due to a public health
and safety finding, no extension will be
granted except upon the Commission’s
own initiative. Requests for extension
must explain with specificity why the
extension is needed and how much
additional time is required.
(2) It is the policy of the Commission
to respond promptly to requests for
extension of time.
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§ 1101.23 Providing less than 15 calendar
days’ notice before disclosing information.
The Commission may disclose to the
public information subject to section
6(b)(1) in a time less than 15 calendar
days after providing notice to the
manufacturer or private labeler in the
following circumstances:
(a) Manufacturer or private labeler
agrees to lesser period or notifies the
Commission that the firm has no
comment or does not object to
disclosure. The Commission may
disclose to the public information
subject to section 6(b)(1) before the 15day period expires when, after receiving
the Commission’s notice and
opportunity to comment, the
manufacturer or private labeler agrees to
the earlier disclosure; notifies the
Commission that the firm has no
comment; or notifies the Commission
that the firm does not object to
disclosure.
(b) Commission finds a lesser period
is required. Section 6(b)(1) provides that
the Commission may publish a finding
that the public health and safety
requires a lesser period of notice than 15
calendar days. The Commission will
publish the finding in the disclosure
itself or elsewhere. The Commission
may find that the public health and
safety requires less than 15 calendar
days’ advance notice, for example, to
warn the public quickly of danger from
a product hazard or a potential hazard,
or to correct product safety information
released by third persons, which
mischaracterizes statements made by
the Commission about the consumer
product or which attributes to the
Commission statements about the
consumer product that the Commission
did not make.
§ 1101.24 Scope of comments
Commission seeks.
(a) Comment in regard to the
information. The section 6(b)
opportunity to comment on information
permits manufacturers and private
labelers to furnish information and data
to the Commission that will assist the
agency in its evaluation of the accuracy
of the information. A manufacturer or
private labeler’s submission, therefore,
must be specific and should be
accompanied by documentation, where
available, if the comments are to assist
the Commission in its evaluation of the
information. Comments of a general
nature, such as general suggestions or
allegations that a document is
inaccurate or that the Commission has
not taken reasonable steps to assure
accuracy, are not sufficient to assist the
Commission in its evaluation of the
information or to justify a claim of
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inaccuracy. The weight accorded a
manufacturer’s or private labeler’s
comments on the accuracy of
information and the degree of scrutiny
the Commission will exercise in
evaluating the information will depend
on the specificity and completeness of
the firm’s comments and of the
accompanying documentation. In
general, specific comments that are
accompanied by documentation will be
given more weight than those that are
non-specific and general in nature.
(b) Claims of confidentiality. If the
manufacturer or private labeler believes
the information involved cannot be
disclosed because of section 6(a)(2) of
the CPSA, 15 U.S.C. 2055(a)(2), which
refers to information reported to or
otherwise obtained by the Commission
that contains or relates to a trade secret
or other matter referred to in section
1905 of title 18 or subject to 5 U.S.C.
552(b)(4), the firm may make claims of
confidentiality at the time it submits its
comments to the Commission under this
section 1101.24. Such claims must
identify the specific information that the
manufacturer or private labeler believes
to be confidential or trade secret
material or subject to 5 U.S.C. 552(b)(4)
and must state with specificity the
grounds on which the firm bases its
claims (see Commission’s Freedom of
Information Act regulation, 16 CFR part
1015, particularly 16 CFR 1015.18).
(c) Requests for nondisclosure of
comments. If a manufacturer or private
labeler objects to the disclosure of its
comments or a portion thereof, it must
notify the Commission at the time the
manufacturer or private labeler submits
its comments and provide the basis for
its request. If the manufacturer or
private labeler objects to the disclosure
of only a portion of its comments, the
firm must identify with specificity those
portions that it requests be withheld.
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§ 1101.25
Notice of intent to disclose.
(a) Notice to manufacturer or private
labeler. In accordance with section
6(b)(2) of the CPSA, if the Commission,
after following the notice provisions of
section 6(b)(1), determines that
information claimed to be inaccurate by
a manufacturer or private labeler in
comments submitted under section
6(b)(1) should be disclosed because the
Commission believes it has complied
with section 6(b)(1), the Commission
shall notify the manufacturer or private
labeler that the Commission intends to
disclose the information and identify
the earliest time at which it intends to
do so.
(b) The Commission will inform a
manufacturer or private labeler of a
product that is the subject of a public
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health and safety finding that the public
health and safety requires less than 5
calendar days’ advance notice either
orally or in writing. If written notice is
provided, the Commission, to the extent
practicable, will transmit such notice
via email or other electronic means.
§ 1101.26 Circumstances when the
Commission does not provide notice and
opportunity to comment.
(a) Notice to the extent practicable.
Section 6(b)(1) requires that, ‘‘to the
extent practicable,’’ the Commission
must provide manufacturers and private
labelers notice and opportunity to
comment before disclosing information
from which the public can ascertain
readily their identity.
(b) Circumstances when notice and
opportunity to comment is not
practicable. Circumstances when notice
and opportunity to comment is not
practicable include, but are not
necessarily limited to, the following:
(1) When the Commission has taken
reasonable steps to assure that the
manufacturer or private labeler of any
consumer product to which the
information pertains is out of business
and has no identifiable successor.
(2) When the information is disclosed
in testimony in response to an order of
the court during litigation to which the
Commission is not a party.
(3) When the Commission has been
unable, after a diligent search, to obtain
contact information for the
manufacturer or private labeler of the
consumer product to which the
information pertains.
(4) When an extraordinary
circumstance necessitates the
immediate disclosure of information to
protect the public health and safety
while the Commission simultaneously
pursues notification of the manufacturer
or private labeler.
Subpart D—Reasonable Steps
Commission Will Take To Assure
Public Disclosure of Information Is
Accurate, and That Disclosure Is Fair
in the Circumstances and Reasonably
Related To Effectuating the Purposes
of the Acts It Administers
§ 1101.31
General requirements.
(a) Inclusion of comments. In
disclosing any information under this
section, the Commission may, and upon
the written request of the manufacturer
or private labeler shall, include any
comments or other information or a
summary thereof submitted by the
manufacturer or private labeler, to the
extent permitted by and subject to the
requirements of section 6 of the CPSA.
(b) Explanatory statement. The
Commission may accompany the
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disclosure of information subject to this
subpart with an explanatory statement
that makes the nature of the information
disclosed clear to the public. The
Commission also may accompany the
disclosure with any other relevant
information in the Commission’s
possession that places the disclosed
information in context.
(c) Disclosing materially more or
materially different information. If the
Commission intends to disclose
information, not previously disclosed,
that in context does not disclose
materially more or materially different
information about the consumer product
than what the Commission previously
disclosed in accordance with the law,
the Commission is not obligated to take
any additional steps to assure accuracy
unless the Commission has reason to
question the accuracy of the
information.
§ 1101.32 Reasonable steps to assure
disclosure of information is accurate.
(a) The following types of actions are
reasonable steps to assure the accuracy
of information that the Commission
proposes to disclose to the public:
(1) The Commission staff or a
qualified person or entity outside the
Commission (e.g., someone with
requisite training or experience, such as
a fire marshal, a fire investigator, an
electrical engineer, or an attending
physician) conducts an investigation
that yields or corroborates the
information to be disclosed;
(2) The Commission staff conducts a
technical, scientific, or other evaluation
that yields or corroborates the
information to be disclosed or the staff
obtains a copy of such an evaluation
conducted by a qualified person or
entity;
(3) The Commission staff relies on a
statement made under oath, or a similar
statement enforceable under penalty of
perjury (e.g., 28 U.S.C. 1746), that yields
or corroborates the information to be
disclosed; or
(4) The person who submitted the
information to the Commission confirms
the information as accurate to the best
of the submitter’s knowledge and belief,
provided that:
(i) The confirmation is made by the
person injured or nearly injured in an
incident involving the product;
(ii) The confirmation is made by a
person who, on the basis of his or her
own observation or experience,
identifies an alleged safety-related
defect in or problem with such a
product even though no incident or
injury associated with the defect or
problem may have occurred;
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(iii) The confirmation is made by an
eyewitness to an injury or safety-related
incident involving such a product;
(iv) The confirmation is made by an
individual with requisite training or
experience who has investigated and/or
determined the cause of deaths, injuries
or safety-related incidents involving
such a product. Such persons would
include, for example, a fire marshal, a
fire investigator, an electrical engineer,
an ambulance attendant, or an attending
physician; or
(v) The confirmation is made by a
parent or guardian of a child involved
in an incident involving such a product,
or by a person to whom a child is
entrusted on a temporary basis.
(b) In addition to the reasonable steps
specified in § 1101.32(a), the
Commission may include the
explanatory statement in § 1101.31(b) to
assure the accuracy of the information
proposed for disclosure.
(c) The steps set forth below are steps
the Commission will take to analyze the
accuracy of information that the
Commission proposes to disclose to the
public:
(1) The Commission will review each
proposed disclosure of information
which is susceptible of factual
verification to assure that reasonable
steps have been taken to assure accuracy
in accordance with paragraphs (a) and
(b).
(2) As described in subpart C, the
Commission will provide a
manufacturer or private labeler with a
summary or text of the information the
Commission proposes to disclose and
will invite comment with respect to that
information.
(3) If the Commission receives no
comments or only general, non-specific
comments claiming inaccuracy, the
Commission will review the information
in accordance with paragraph (a) and
disclose it, generally without further
investigating the accuracy of the
information, if there is nothing on the
face of the information that calls its
accuracy into question.
(4) If a manufacturer or private labeler
provides specific comments on the
accuracy of the information that the
Commission proposes to disclose, the
Commission will review the information
in light of the comments. The degree of
review by the Commission and the
weight accorded a manufacturer’s or
private labeler’s comments will be
directly related to the specificity and
completeness of the firm’s comments.
Specific comments supported by
documentation will be given more
weight than non-specific comments.
Further steps may be taken to determine
the accuracy of the information if the
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Commission determines such action
appropriate.
§ 1101.33 Reasonable steps to assure
information disclosure is fair in the
circumstances.
(a) The following types of actions are
reasonable steps to assure disclosure of
information to the public is fair in the
circumstances:
(1) To the extent permitted by and
subject to the requirements of section 6
of the CPSA, the Commission may, and
upon the written request of the
manufacturer or private labeler shall,
accompany information disclosed to the
public with the manufacturer’s or
private labeler’s comments or other
information or a summary thereof. If the
manufacturer or private labeler objects
to the disclosure of its comments or a
portion thereof, the manufacturer or
private labeler must provide the basis
for its request that the comments not be
disclosed.
(2) The Commission may accompany
the disclosure of information with an
explanatory statement that makes the
nature of the information disclosed clear
to the public. Subject to the
requirements of section 6(b)(1) and
other requirements of law, the
Commission also may disclose any other
relevant information in its possession
that will assure disclosure is fair in the
circumstances.
(b) The Commission will not disclose
information when it determines that
disclosure would not be fair in the
circumstances. The following are
examples of disclosures that generally
would not be fair in the circumstances:
(1) Disclosure of information
furnished by a manufacturer or private
labeler to facilitate prompt remedial
action or settlement of a case when the
firm has a reasonable expectation that
the information will be maintained by
the Commission in confidence.
(2) Disclosure of staff notes or minutes
of meetings to discuss or negotiate
settlement agreements and of drafts of
documents prepared during settlement
negotiations, where the manufacturer or
private labeler has a reasonable
expectation that such written materials
will be maintained by the Commission
in confidence.
(3) Disclosure of a manufacturer’s or
private labeler’s comments or other
information or a summary thereof
submitted under section 6(b)(1), when
the Commission deems the firm has
provided a sufficient basis for why the
comments should not be disclosed.
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§ 1101.34 Reasonable steps to assure
information disclosure is ‘‘reasonably
related to effectuating the purposes of’’ the
Acts.
(a) The following types of actions are
reasonable steps to assure that the
disclosure of information to the public
effectuates the purposes of the Acts:
(1) Purposes of the CPSA. The
Commission will review information to
determine whether disclosure is
reasonably related to effectuating one or
more of the specific purposes of the
CPSA, including as set forth in sections
2(b) and 5, 15 U.S.C. 2051(b) and 2054.
(2) Purposes of the FHSA, FFA, and
PPPA. The Commission will also review
information concerning consumer
products subject to the FHSA, FFA, or
PPPA and to the Commission’s specific
functions under those acts to determine
whether disclosure of information is
reasonably related to effectuating the
purposes of those acts.
(b) As part of its review of the
information proposed for disclosure, the
Commission will determine whether the
information was prepared or maintained
in the course of or to support an activity
of the Commission designed to
accomplish one or more of the statutory
purposes.
Subpart E—Statutory Exceptions of
Section 6(b)(4)
§ 1101.41
Generally.
This subpart describes and interprets
the exceptions to the requirements of
section 6(b)(1)–(b)(3) that are set forth in
section 6(b)(4). These exceptions apply
to:
(1) Information about any consumer
product with respect to which the
Commission has filed an action under
section 12 of the CPSA (relating to
imminently hazardous products);
(2) Information about any consumer
product which the Commission has
reasonable cause to believe is in
violation of any consumer product
safety rule or provision of the CPSA or
similar rule or provision of any other act
enforced by the Commission; or
(3) Information in the course of or
concerning:
(i) a rulemaking proceeding under the
Acts;
(ii) an adjudicatory proceeding under
the Acts; or
(iii) any other administrative or
judicial proceeding under the Acts.
§ 1101.42
Imminent hazard exception.
(a) Statutory provision. Section
6(b)(4)(A) provides that the
requirements of section 6(b)(1)–(3) do
not apply to public disclosure of
‘‘information about any consumer
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product with respect to which product
the Commission has filed an action
under section 12 (relating to imminently
hazardous products).’’
(b) Scope of exception. This exception
applies once the Commission has filed
an action under section 12 of the CPSA,
15 U.S.C. 2061, in a United States
district court. Once the exception
applies, information may be disclosed to
the public without following the
requirements of section 6(b)(1)–(3) if the
information concerns or relates to the
consumer product alleged to be
imminently hazardous.
§ 1101.43
Section 6(b)(4)(A) exception.
Section 6(b)(4)(A) provides that the
requirements of section 6(b)(1)–(3) do
not apply to public disclosure of
information about any consumer
product which the Commission has
reasonable cause to believe is in
violation of any consumer product
safety rule or provision of the CPSA or
similar rule or provision of any other act
enforced by the Commission. Once the
exception applies, the Commission may
disclose information to the public
without following the requirements of
section 6(b)(1)–(3) if the information
concerning the consumer product is
reasonably related to the violation.
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§ 1101.44 Rulemaking proceeding
exception.
(a) Statutory provision. Section
6(b)(4)(B) provides that the
requirements of section 6(b)(1)–(3) do
not apply to public disclosure of
information ‘‘in the course of or
concerning a rulemaking proceeding
(which shall commence upon the
publication of an advance notice of
proposed rulemaking or a notice of
proposed rulemaking) * * * under this
Act.’’
(b) Scope of exception. This exception
applies upon publication in the Federal
Register of an advance notice of
proposed rulemaking or, if no advance
notice of proposed rulemaking is issued,
upon publication in the Federal
Register of a notice of proposed
rulemaking, under any of the Acts. Once
the exception applies, the Commission
may publicly disclose information in
the course of the rulemaking
proceeding, which is presented during
the proceeding, which is contained or
referenced in the public record of the
proceeding, or which concerns the
proceeding, without regard to the
requirements of section 6(b)(1)–(3).
Documentation supporting the public
record is also excepted from section
6(b)(1)–(3). A rulemaking proceeding
includes a proceeding to consider
issuing, amending, or revoking a rule.
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(c) The phrase ‘‘in the course of’’
refers to information disclosed as part of
the proceeding and may, therefore,
include information generated before
the proceeding began and later
presented as part of the proceeding. A
rulemaking proceeding ends once the
Commission has published the final rule
or a notice of termination of the
rulemaking in the Federal Register.
(d) The phrase ‘‘concerning’’ refers to
information about or addressing the
proceeding both after the proceeding
has begun and indefinitely thereafter.
Therefore, the Commission may at any
time publicly disclose information that
describes or relates to the substance,
process, or outcome of the proceeding.
For example, Commissioners may
publicly explain their individual votes
and any decision rendered by issuing
written opinions and making public
statements.
§ 1101.45 Adjudicatory proceeding
exception.
(a) Statutory provision. Section
6(b)(4)(B) provides that the
requirements of section 6(b)(1)–(3) do
not apply to public disclosure of
‘‘information in the course of or
concerning * * * [an] adjudicatory
proceeding (which shall commence
upon the issuance of a complaint) * * *
under this Act.’’
(b) Scope of exception. This exception
applies once the Commission files a
complaint under section 15(c) or (d),
17(a)(1) or (3), or 20 of the CPSA, 15
U.S.C. 2064(c) or (d), 2066(a)(1), or (3),
or 2069; section 15 of the FHSA, 15
U.S.C. 1274; section 5(b) of the FFA, 15
U.S.C. 1194(b); or section 4(c) of the
PPPA, 15 U.S.C. 1473(c). An
adjudicatory proceeding ends when the
Commission issues a final order, 16 CFR
1025.51–1025.58.
(c) The phrase ‘‘in the course of’’
refers to information disclosed as part of
the adjudication, whether in documents
filed or exchanged during discovery, or
in testimony given in such proceedings,
and may therefore, include disclosure
during the adjudication of information
generated before the adjudication began.
(d) The phrase ‘‘concerning’’ refers to
information about or addressing the
administrative adjudication, both once
it begins and indefinitely thereafter.
Therefore, the Commission may at any
time publicly disclose information that
describes or relates to the substance,
process, or outcome of the proceeding.
For example, (i) Commissioners may
publicly explain their individual votes
and any decision rendered by issuing
written opinions and making public
statements and (ii) the Commission may
disclose information regarding the
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10459
effectiveness of any corrective action,
such as information on the number of
products corrected as a result of a
remedial action.
§ 1101.46 Other administrative or judicial
proceeding exception.
(a) Statutory provision. Section
6(b)(4)(B) provides that the
requirements of section 6(b)(1)–(3) do
not apply to public disclosure of
‘‘information in the course of or
concerning any * * * other
administrative or judicial proceeding
under this Act.’’
(b) Scope of exception. This exception
applies to an administrative or judicial
proceeding, other than a rulemaking or
administrative adjudicatory proceeding,
under the Acts. Proceedings within this
exception include without limitation:
(1) A proceeding to act on a petition
to start a rulemaking proceeding. This
proceeding begins with the filing of a
petition and ends when the petition is
denied or, if granted, when the
rulemaking proceeding begins.
(2) A proceeding to act on a request
for exemption from a rule or regulation.
This proceeding begins with the filing of
a request for exemption and ends when
the request is denied or, if granted,
when the Commission takes the first
step to implement the exemption, e.g.,
when an amendment to the rule or
regulation is proposed.
(3) A proceeding to issue a subpoena
or general or special order. This
proceeding begins with a staff request to
the Commission to issue a subpoena or
general or special order and ends once
the request is granted or denied.
(4) A proceeding to act on a motion
to quash or to limit a subpoena or
general or special order. This
proceeding begins with the filing with
the Commission of a motion to quash or
to limit and ends when the motion is
granted or denied.
(5) Any judicial proceeding to which
the Commission is a party. This
proceeding begins when a complaint or
other pleading is filed and ends when
a final decision (including appeal) is
rendered with respect to the
Commission.
(6) Any administrative proceeding to
which the Commission is a party, such
as an administrative proceeding before
the Merit Systems Protection Board or
the Federal Labor Relations Authority.
This proceeding begins and ends in
accordance with the applicable
regulations or procedures of the
administrative body before which the
proceeding is heard.
(7) A proceeding to obtain a retraction
from the Commission pursuant to
subpart F of these rules. This
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proceeding begins with the filing with
the Secretary of the Commission of a
request for retraction and ends when the
request is denied or, if granted, when
the information is retracted.
(c) The phrase ‘‘in the course of or
concerning’’ shall be interpreted
consistent with § 1101.44 (c) and (d) or
§ 1101.45(c) and (d), as applicable.
Subpart F—Retraction
§ 1101.51
Commission interpretation.
(a) Statutory provisions. Section
6(b)(7) of the CPSA provides: ‘‘If the
Commission finds that, in the
administration of this Act, it has made
public disclosure of inaccurate or
misleading information which reflects
adversely upon the safety of any
consumer product or class of consumer
products, or the practices of any
manufacturer, private labeler,
distributor, or retailer of consumer
products, it shall, in a manner
equivalent to that in which such
disclosure was made, take reasonable
steps to publish a retraction of such
inaccurate or misleading information.’’
(b) Scope. Section 6(b)(7) applies to
information disclosed by the
Commission, any member of the
Commission, or any employee, agent, or
representative, including contractor, of
the Commission in an official capacity,
in the course of administration of the
Acts.
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§ 1101.52
Procedure for retraction.
(a) Retraction Upon Commission’s
Own Initiative or Request. The
Commission may publish a retraction of
information under section 6(b)(7) upon
the initiative of the Commission or upon
the request of a manufacturer, private
labeler, distributor, or retailer of a
consumer product, in accordance with
the procedures provided in this section.
(b) Request for retraction. Any
manufacturer, private labeler,
distributor, or retailer of a consumer
product may request that the
Commission publish a retraction if they
believe the Commission, any member of
the Commission, or any employee,
agent, or representative, including
contractor, of the Commission in an
official capacity has, in the course of
administration of the Acts, made public
disclosure of inaccurate or misleading
information, which reflects adversely
upon the safety of any consumer
product or class of consumer products,
or the practices of a covered firm. The
request must be in writing and sent via
either electronic mail to cpsc-os@
cpsc.gov or first class mail addressed to
the Office of the Secretary, U.S.
Consumer Product Safety Commission,
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4330 East West Highway, Bethesda, MD
20814–4408.
(c) Content of request. A request that
the Commission publish a retraction
must include the following information
to the extent it is reasonably available:
(1) The identity and relationship (i.e.,
manufacturer, private labeler,
distributor, or retailer) of the requester.
(2) The information disclosed for
which retraction is requested, the date
on which the information was
disclosed, the manner in which it was
disclosed, who disclosed it, the type of
document (e.g., letter, memorandum,
news release) and any other relevant
information the requester has to assist
the Commission in identifying the
information. A reproduction of the
disclosure (e.g., image, audio or video
file, copy of document) should
accompany the request, if practicable.
(3) A statement of the specific aspects
of the information that the requester
believes are inaccurate or misleading
and reflect adversely upon the safety of
a consumer product or class of
consumer products, or the practices of
a covered firm.
(4) A statement of the reasons the
requester believes the information is
inaccurate or misleading and reflects
adversely upon the safety of a consumer
product or class of consumer products,
or the practices of a covered firm.
(5) A statement of the specific action
the requester asks the Commission to
take in publishing a retraction in a
manner equivalent to that in which
disclosure was made.
(6) Any additional data or information
the requester believes is relevant.
(d) Commission action on request.
The Commission will act expeditiously
on any request that the Commission
publish a retraction within 30 working
days unless the Commission
determines, for good cause, that a longer
time period is appropriate. If the
Commission finds that the Commission,
any member of the Commission, or any
employee, agent, or representative,
including contractor, of the Commission
in an official capacity has, in the course
of administration of the Acts, made
public disclosure of inaccurate or
misleading information that reflects
adversely upon the safety of a consumer
product or class of consumer products,
or the practices of a covered firm, the
Commission will publish a retraction of
information in a manner equivalent to
that in which the disclosure was made.
If publication in a manner equivalent to
that in which the disclosure was made
is not practicable or could result in
further disclosure of the information,
the Commission will publish a
retraction or take other action in a
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manner that the Commission determines
appropriate under the circumstances
and consistent with the purposes of
section 6(b)(7).
(e) Notification to requester. The
Commission will promptly notify the
requester in writing of the Commission’s
decision on the request to publish a
retraction. Notification shall set forth
the reasons for the Commission’s
decision.
Subpart G—Information Submitted
Pursuant to Section 15(b) of the CPSA
§ 1101.61
Generally.
(a) Generally. In addition to the
requirements of section 6(b)(1), section
6(b)(5) of the CPSA imposes further
limitations on the disclosure of
information submitted to the
Commission pursuant to section 15(b) of
the CPSA, 15 U.S.C. 2064(b).
(b) Criteria for disclosure. Under
section 6(b)(5), the Commission shall
not disclose to the public information
that has been identified as submitted
pursuant to section 15(b) and 16 CFR
1115.13. The Commission may disclose
information submitted pursuant to
section 15(b) in accordance with
sections 6(a) and 6(b)(1)–(3) if:
(i) The Commission has issued a
complaint under section 15(c) or (d) of
the CPSA alleging that the product
presents a substantial product hazard;
(ii) In lieu of proceeding against such
product under section 15(c) or (d), the
Commission has accepted in writing a
remedial settlement agreement,
including but not limited to, a corrective
action plan or consent order, dealing
with such product; or
(iii) The Commission publishes a
finding that the public health and safety
requires public disclosure with a lesser
period of notice than is required by
section 6(b)(1).
(c) Disclosure upon consent. The
Commission may disclose information
submitted pursuant to section 15(b)
without following the requirements of
section 6(a) or 6(b) if the person who
submitted the information under section
15(b) agrees to its public disclosure.
§ 1101.62 Statutory exceptions to section
6(b)(5) requirements.
(a) Scope. The limitations established
by section 6(b)(5) do not apply to the
public disclosure of:
(1) Information with respect to a
consumer product which is the subject
of an action brought under section 12
(see § 1101.42);
(2) Information with respect to a
consumer product which the
Commission has reasonable cause to
believe is in violation of any consumer
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product safety rule or provision under
the CPSA or similar rule or provision of
any other act enforced by the
Commission; or
(3) Information in the course of or
concerning a judicial proceeding (see
§ 1101.45).
§ 1101.63 Information submitted pursuant
to section 15(b) of the CPSA.
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(a) Section 6(b)(5) applies to:
(1) Information provided to the
Commission by a manufacturer,
distributor, or retailer that has been
identified by the manufacturer,
distributor or retailer as submitted
pursuant to section 15(b) and 16 CFR
1115.13;
(2) Any portions of documents
generated by the Commission, any
member of the Commission, or any
employee, agent, or representative,
including contractor, of the Commission
in an official capacity that contain,
summarize or otherwise reveal such
information identified as submitted
pursuant to section 15(b) and 16 CFR
1115.13; and
(3) Any oral communications made by
the Commission, any member of the
Commission, or any employee, agent, or
representative, including contractor, of
the Commission in an official capacity
that reveal or refer to information
identified as submitted pursuant to
section 15(b) and 16 CFR 1115.13.
(b) Section 6(b)(5) does not apply to:
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(1) Information independently
obtained or prepared, or developed
through subsequent investigation and
verification, by the Commission, any
member of the Commission, or any
employee, agent, or representative,
including contractor, of the Commission
in an official capacity; or
(2) Information that is already
available to the public, including but
not limited to, information appearing in
a company’s press statements, websites,
Frequently Asked Questions, product
user manuals, sales materials, Securities
and Exchange Commission filings, or
other public statements or documents
published or publicly disseminated by a
manufacturer, distributor, or retailer.
Subpart H—Delegation of Authority to
Information Group
§ 1101.71
Delegation of authority.
(a) Delegation. Pursuant to section
27(b)(10) of the CPSA, 15 U.S.C.
2076(b)(10), the Commission delegates
to the General Counsel:
(1) The authority to render all
decisions under this part concerning the
disclosure of information subject to
section 6(b) when the manufacturer or
private labeler furnished section 6(b)
comment, except as provided in
paragraph (b); and
(2) The authority to make all
decisions under this part concerning the
disclosure of information under section
6(b) when the manufacturer or private
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10461
labeler failed to furnish section 6(b)
comment or has consented to
disclosure, except as provided in
paragraph (b).
(b) Findings not delegated. The
Commission does not delegate its
authority—
(1) To find, pursuant to section 6(b)(1)
and § 1101.23(b) of this part, that the
public health and safety requires less
than 15 calendar days’ advance notice of
proposed disclosures of information;
(2) To find, pursuant to section 6(b)(2)
and § 1101.25(b) of this part, that the
public health and safety requires less
than 5 calendar days’ advance notice of
its intent to disclose information
claimed to be inaccurate; and
(3) To decide whether the
Commission should take reasonable
steps to publish a retraction of
information in accordance with section
6(b)(7) and § 1101.52 of this part.
(c) Final agency action; Commission
decision. A decision of the General
Counsel on delegated authority under
paragraph (a) shall not be appealable as
of right to the Commission. However,
the General Counsel may in his or her
discretion refer an issue to the
Commission for final decision.
Alberta E. Mills,
Secretary, Consumer Product Safety
Commission.
[FR Doc. 2023–03021 Filed 2–16–23; 8:45 am]
BILLING CODE 6355–01–P
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]]>Agencies
[Federal Register Volume 88, Number 33 (Friday, February 17, 2023)]
[Proposed Rules]
[Pages 10432-10461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03021]
[[Page 10431]]
Vol. 88
Friday,
No. 33
February 17, 2023
Part II
Consumer Product Safety Commission
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16 CFR Part 1101
Information Disclosure Under Section 6(b) of the Consumer Product
Safety Act; Proposed Rule
Federal Register / Vol. 88, No. 33 / Friday, February 17, 2023 /
Proposed Rules
[[Page 10432]]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1101
[CPSC Docket No. CPSC-2014-0005]
Information Disclosure Under Section 6(b) of the Consumer Product
Safety Act
AGENCY: Consumer Product Safety Commission.
ACTION: Supplemental notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The U.S. Consumer Product Safety Commission (CPSC or
Commission) is issuing this supplemental notice of proposed rulemaking
(Supplemental NPR) to update its regulation interpreting section 6(b)
of the Consumer Product Safety Act (CPSA) (6(b) Regulation). On
February 26, 2014, the Commission issued a notice of proposed
rulemaking in this matter (2014 NPR). The 2014 NPR proposed to
modernize the 6(b) Regulation to account for the significant
improvements in information technology that have occurred since the
regulation's initial adoption in 1983, and streamline the 6(b)
Regulation to align more closely with the text of section 6(b),
including with respect to protecting information filed by
manufacturers, distributors, and retailers in accordance with the
requirements of section 15(b) of the CPSA. This Supplemental NPR
responds to public comments on the 2014 NPR and proposes additional
changes to the 6(b) Regulation to further modernize and align the
regulation with the statute.
DATES: Submit comments by April 3, 2023.
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2014-
0005, by any of the following methods:
Electronic Submissions: Submit electronic comments to the Federal
eRulemaking Portal at: www.regulations.gov. Follow the instructions for
submitting comments. Do not submit through this website: confidential
business information, trade secret information, or other sensitive or
protected information that you do not want to be available to the
public. CPSC typically does not accept comments submitted by electronic
mail (email), except as described below.
Mail/hand delivery/courier: CPSC encourages you to submit
electronic comments by using the Federal eRulemaking Portal. You may,
however, submit comments by mail, hand delivery, or courier to: Office
of the Secretary, Consumer Product Safety Commission, 4330 East West
Highway, Bethesda, MD 20814; telephone (301) 504-7479.
Instructions: All submissions must include the agency name and
docket number. CPSC may post all comments without change, including any
personal identifiers, contact information, or other personal
information provided, to: www.regulations.gov. If you wish to submit
confidential business information, trade secret information, or other
sensitive or protected information that you do not want to be available
to the public, you may submit such comments by mail, hand delivery, or
courier, or you may email them to: [email protected].
Docket: For access to the docket to read background documents or
comments received, go to: www.regulations.gov, and insert the docket
number, CPSC-2014-0005, into the ``Search'' box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Amy S. Colvin, Attorney, Division of
Federal Court Litigation, Office of the General Counsel, Consumer
Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814;
telephone: 301-504-7639; email: [email protected].
SUPPLEMENTARY INFORMATION: The Commission issues this Supplemental NPR
proposing to amend the CPSC's regulation, Information Disclosure Under
Section 6(b) of the Consumer Product Safety Act, codified at 16 CFR
part 1101.
I. Background
A. Statutory Authority
Section 6(b) of the CPSA governs the Commission's disclosure of
certain information to the public. In general, section 6(b)(1)
requires, ``prior to its public disclosure of any information obtained
under this Act, or to be disclosed to the public in connection
therewith,'' that the Commission, ``to the extent practicable,''
provide manufacturers or private labelers with advance notice and
opportunity to comment on the proposed disclosure, if the manner in
which such consumer product is designated or described in such
information ``permit[s] the public to ascertain readily the identity of
such manufacturer or private labeler.'' 15 U.S.C. 2055(b)(1). The CPSA
defines ``manufacturer'' to include an importer. 15 U.S.C. 2052(a)(11).
Section 6(b)(1) also requires the Commission, prior to such public
disclosure, to ``take reasonable steps to assure'' that the information
CPSC intends to disclose ``is accurate, and that such disclosure is
fair in the circumstances and reasonably related to effectuating the
purposes of this Act.'' Id. In 1980, the U.S. Supreme Court ruled that
CPSC's disclosures under the Freedom of Information Act (FOIA) are
among the public releases covered by the section 6(b)(1) restrictions.
CPSC v. GTE Sylvania, Inc., 447 U.S. 102 (1980).
The Consumer Product Safety Improvement Act of 2008 (CPSIA), Public
Law 110-314, 122 Stat. 3016, enacted on August 14, 2008, amended
section 6 of the CPSA. The amendments shortened, from 30 days to 15
days, the period for manufacturers and private labelers to receive
advance notice and have an opportunity to comment on information that
the Commission proposes to disclose. In addition, the amendments
eliminated the requirement that the Commission publish a Federal
Register notice when the Commission makes a finding that the public
health and safety necessitates public disclosure with less notice than
the default period specified in section 6(b)(1). CPSIA also broadened
the statutory exceptions to section 6(b). For example, the amendments
excluded from the requirements of section 6(b)(1)-(3) a public
disclosure of information about any consumer product which the
Commission has reasonable cause to believe is in violation of any
consumer product safety rule or provision of the CPSA, or similar rule
or provision of any other act enforced by the Commission.
B. History of the 6(b) Regulation
On December 29, 1983, the Commission published a final rule
interpreting section 6(b) of the CPSA. 48 FR 57406; see 49 FR 8428
(Mar. 7, 1984) (technical correction). The 6(b) Regulation, 16 CFR part
1101, describes the Commission's procedures for providing manufacturers
and private labelers advance notice and ``a reasonable opportunity to
submit comments'' to the Commission on proposed disclosures of certain
information. In addition, the 6(b) Regulation explains the ``reasonable
steps'' the Commission will take pursuant to section 6(b) to assure,
prior to public disclosure of covered information, that the information
``is accurate, and that such disclosure is fair in the circumstances
and reasonably related to effectuating the purposes of this Act.'' In
2008, the Commission amended the 6(b) Regulation to reflect the CPSIA
amendments. 73 FR 72334 (Nov. 28, 2008).
[[Page 10433]]
C. The 2014 NPR
On February 26, 2014, the Commission published the 2014 NPR.
Information Disclosure Under Section 6(b) of the Consumer Product
Safety Act, 79 FR 10712 (Feb. 26, 2014). The 2014 NPR was based on the
following guiding principles:
1. Modernize the 6(b) Regulation to account for the significant
advancements in information technology that have taken place since its
initial adoption in 1983;
2. Streamline the 6(b) Regulation to be as closely aligned with 15
U.S.C. 2055(b) as possible, with the objectives of: (a) eliminating
unnecessary administrative burdens to the agency; (b) removing extra-
statutory requirements; (c) eliminating redundancies in providing
notice; (d) minimizing FOIA backlogs; and (e) maximizing transparency
and openness in the agency's disclosure of information;
3. Maintain CPSC's compliance with the statutory requirements of 15
U.S.C. 2055(b) (i.e., requirements related to notice, opportunity to
submit comments, and taking reasonable steps to assure accuracy,
fairness in the circumstances, and reasonable relation to effectuating
the purposes of the CPSA outlined in 15 U.S.C. 2051(b)); and
4. Maintain the protections of 15 U.S.C. 2055(b)(5) for information
filed in accordance with the requirements of 15 U.S.C. 2064(b) (i.e.,
Section 15(b) reports).
See Fiscal Year 2013 Midyear Review and Operating Plan Adjustments,
available at https://www.cpsc.gov/s3fs-public/pdfs/foia_RCAFY13MidyearReviewandOperatingPlanAdjustments%2520050313.pdf.
The Commission received 24 comments on the 2014 NPR. As discussed
in section III below, seven consumer groups supported the proposed
revisions to modernize the regulation and make it more consistent with
the statute and industry practice. However, these commenters were
concerned that section 6(b)'s obstacles to transparency and the
immediate release of crucial product safety information remain. The
other commenters, comprising trade associations and one firm, objected
to various proposals contained in the 2014 NPR. In general, these
commenters asserted that the proposed revisions would result in the
disclosure of inaccurate or misleading information. Moreover, according
to these commenters, some of the proposed changes could chill
cooperation between the Commission and industry.
II. Detailed Description of the Proposed Revisions to the 6(b)
Regulation
This section describes the changes proposed by this Supplemental
NPR, in the order in which they appear in the proposed revised part
1101 of the Commission's rules.
A. Table of Contents
1. Proposed Changes to the Table of Contents
The 2014 NPR proposed a technical change to the Table of Contents.
79 FR 10713. The Supplemental NPR continues to propose this change. In
addition, the Supplemental NPR proposes conforming changes to align the
6(b) Regulation with the statute, and minor grammatical edits for
clarity. For example, the Supplemental NPR proposes to remove
``release'' and, in its place, add ``disclosure'' because section
6(b)(1) of the CPSA uses the terms, ``public disclosure,''
``disclosure,'' ``disclosed,'' and ``disclosing.'' The Supplemental NPR
also proposes to remove ``analysis'' and, in its place, add
``comment,'' because section 6(b)(1) requires the Commission to provide
manufacturers and private labelers ``with a reasonable opportunity to
submit comments.'' The Supplemental NPR proposes these conforming
changes throughout the 6(b) Regulation. To improve clarity, the
Supplemental NPR also proposes to redesignate Sec. 1101.1 as ``Scope''
and Sec. 1101.2 as ``General background.''
B. Subpart A--Background
1. Proposed Changes to Sec. 1101.1 (General Background.)
To improve organization, the Supplemental NPR proposes to
redesignate current Sec. 1101.2 (Scope) as Sec. 1101.1.
The 2014 NPR proposed technical changes to current Sec. 1101.2
(which becomes Sec. 1101.1). 79 FR 10713. The Supplemental NPR
continues to propose only one of these technical changes: removing
``1476'' as a statutory section reference and, in its place, adding
``1477.''
Section 6(b)(1) of the CPSA applies to the Commission's ``public
disclosure of any information obtained under this Act, or to be
disclosed to the public in connection therewith.'' 15 U.S.C.
2055(b)(1). Section 6(d)(1) of the CPSA defines ``Act'' as the CPSA,
FFA, PPPA, and FHSA. 15 U.S.C. 2055(d)(1). Current Sec. 1101.2,
however, more broadly defines the legislative acts that are relevant to
section 6(b) to include not only the laws specified in section 6(d)(1)
of the CPSA, but also the Refrigerator Safety Act, the Virginia Graeme
Baker Pool and Spa Safety Act, and the Children's Gasoline Burn
Prevention Act. The Supplemental NPR proposes to revise this section to
conform to the language in section 6(b)(1) and (d)(1) of the CPSA, by
removing the additional laws. In connection with this revision, the
Supplemental NPR proposes to refer collectively to the CPSA, FFA, PPPA,
and FHSA as ``the Acts'' and to use this defined term throughout the
6(b) Regulation. The Supplemental NPR also proposes edits to the
statutory citations. Thus, revised proposed Sec. 1101.1 reads:
These rules apply to the public disclosure of any information
obtained under the Consumer Product Safety Act, 15 U.S.C. 2051-2090
(CPSA), the Flammable Fabrics Act, 15 U.S.C. 1191-1204 (FFA), the
Poison Prevention Packaging Act of 1970, 15 U.S.C. 1471-1477 (PPPA),
and the Federal Hazardous Substances Act, 15 U.S.C. 1261-1278a
(FHSA) (collectively, ``the Acts''), or to be disclosed to the
public in connection therewith.
2. Proposed Changes to Sec. 1101.2 (Scope.)
To improve organization, the Supplemental NPR proposes to
redesignate current Sec. 1101.1 (General background) as Sec. 1101.2.
The 2014 NPR proposed revising current Sec. 1101.1(b)(1) to
reflect more clearly that there are exceptions to section 6(b)(5)'s
limitations on the disclosure of information submitted to the
Commission under section 15(b) of the CPSA. 79 FR 10713. The
Supplemental NPR builds upon this approach and proposes additional
changes throughout redesignated Sec. 1101.2 to conform to the statute.
For example, the Supplemental NPR proposes to revise the first sentence
in renumbered Sec. 1101.2(b)(1) to conform to the language in section
6(b)(1). This revised sentence now reads:
Generally, section 6(b)(1) requires, prior to the Commission's
public disclosure of any information obtained under the Acts, or to
be disclosed to the public in connection therewith, that the
Commission, to the extent practicable, provide manufacturers or
private labelers with advance notice and opportunity to comment on
the information, if the manner in which such consumer product is
designated or described in the information permits the public to
ascertain readily the identity of the manufacturer or private
labeler.
Likewise, the Supplemental NPR proposes to add ``consumer'' before
``product'' because section 6(b)(1) refers to ``consumer product,'' a
term defined in section 3(a)(5) of the CPSA. 15 U.S.C. 2052(a)(5). The
Supplemental NPR
[[Page 10434]]
proposes this conforming revision throughout the 6(b) Regulation.
The 2014 NPR also proposed inserting in Sec. 1101.1(b)(1) the
word, ``calendar,'' between ``15'' and ``days.'' 79 FR 10713. For
clarity and consistency, the Supplemental NPR continues to propose this
change, without revision, in those sections of the 6(b) Regulation that
discuss timing. The specification of calendar days reflects CPSC's
practice since 2008, when the Commission published a final rule to
revise the 6(b) Regulation in accordance with the 6(b) amendments under
CPSIA. 73 FR 72334.
The 2014 NPR proposed revising the date of CPSC's internal
Directive 1450.2 as listed in current Sec. 1101.1(c). 79 FR 10713. The
Supplemental NPR proposes to delete the reference to Directive 1450.2
entirely, to avoid obsolescence if the Commission chooses to update or
revise that document. The Supplemental NPR also proposes removing from
current Sec. 1101.2(c) the words, ``internal'' and ``internal
clearance,'' to conform to the language in section 6(b)(6) of the CPSA,
which does not use these terms.
Finally, to provide clarity to covered firms, the Supplemental NPR
proposes to add a sentence at the end of current Sec. 1101.2(b)(1),
explaining the requirements of section 15(b) of the CPSA. The
Supplemental NPR, for clarity, also proposes minor grammatical edits
throughout redesignated Sec. 1101.2.
C. Subpart B--Information Subject to Notice and Analysis Provisions of
Section 6(b)(1)
1. Proposed Changes to Subpart B Heading
The Supplemental NPR proposes to remove ``Analysis'' and, in its
place, add ``Comment'' to conform to the language in section 6(b)(1) of
the CPSA.
2. Proposed Changes to Sec. 1101.11 (General Application of Provisions
of Section 6(b)(1).)
a. Proposed Changes to Sec. 1101.11(a)
In Sec. 1101.11(a), the Supplemental NPR proposes to remove
``analysis'' and, in its place, add ``comment'' to conform to the
statute.
i. Proposed Changes to Sec. 1101.11(a)(1)
Current Sec. 1101.11(a)(1) states: ``The information must pertain
to a specific product which is either designated or described in a
manner which permits its identity to be ascertained readily by the
public.'' The 2014 NPR proposed deleting the phrase, ``which is either
designated or described in a manner which permits its identity to be
ascertained readily by the public.'' 79 FR 10713-14. The Supplemental
NPR proposes to delete Sec. 1101.11(a)(1) entirely because section
6(b)(1) of the CPSA does not require that the information proposed for
disclosure pertain to a specific product. Instead, section 6(b)(1)
requires the Commission to provide a manufacturer or private labeler
with advance notice and an opportunity to comment on the information,
``if the manner in which such consumer product is to be designated or
described in such information will permit the public to ascertain
readily the identity of such manufacturer or private labeler.'' 15
U.S.C. 2055(b)(1) (emphasis added). This statutory requirement that the
public must be able to ascertain readily the identity of the
manufacturer or private labeler of the consumer product is reflected in
current Sec. 1101.11(a)(4), which the Supplemental NPR proposes to
redesignate as Sec. 1101.11(a)(2).
ii. Proposed Changes to Sec. 1101.11(a)(2) and (3)
Current Sec. 1101.11(a)(2) states: ``The information must be
obtained, generated or received by the Commission as an entity or by
individual members, employees, agents, contractors or representatives
of the Commission acting in their official capacities.'' The 2014 NPR
proposed to revise Sec. 1101.11(a)(2) to state: ``The information must
be obtained under the acts the Commission administers, or be disclosed
to the public in connection therewith.'' 79 FR 10714. The Supplemental
NPR proposes additional changes to Sec. 1101.11(a)(2) to align with
the statute. Revised Sec. 1101.11(a)(2), which the Supplemental NPR
proposes to redesignate as Sec. 1101.11(a)(3), now reads: ``The
information must be obtained, generated or received under the Acts, or
be disclosed to the public in connection therewith.''
The Toy Industry Association (TIA) suggested that the 2014 NPR's
proposal to remove from Sec. 1101.11(a)(2) the phrase, ``individual
members, employees, agents, contractors or representatives of the
Commission acting in their official capacities,'' could cause these
individuals to believe that they are no longer subject to section 6(b).
We disagree. Section 6(d)(2) of the CPSA states that the ``provisions
of [section 6] shall apply whenever information is to be disclosed by
the Commission, any member of the Commission, or any employee, agent,
or representative of the Commission in an official capacity.'' This
statutory provision is repeated in current Sec. 1101.11(a)(3), which
the Supplemental NPR proposes to redesignate as Sec. 1101.11(a)(1) and
to revise with minor edits to conform to the statute. Revised Sec.
1101.11(a)(1) now reads: ``The Commission, any member of the
Commission, or any employee, agent, or representative, including
contractor, of the Commission in an official capacity must propose to
disclose the information to the public (see Sec. 1101.12).''
iii. Proposed Changes to Sec. 1101.11(a)(4)
The Supplemental NPR proposes to redesignate Sec. 1101.11(a)(4) as
Sec. 1101.11(a)(2) and to insert ``consumer'' between ``the'' and
``product'' to align with the statute. The Supplemental NPR also
proposes minor grammatical edits to this section.
b. Proposed Changes to Sec. 1101.11(b)
The 2014 NPR proposed revising Sec. 1101.11(b)(1) to clarify that
the requirements of section 6(b)(1) do not apply to the information
described in the exceptions listed in section 6(b)(5) of the CPSA.
These exceptions include the public disclosure of information with
respect to a consumer product which is the subject of an action brought
under section 12, or which the Commission has reasonable cause to
believe is in violation of any consumer product safety rule or
provision under the CPSA or similar rule or provision of any other act
enforced by the Commission, or information in the course of or
concerning a judicial proceeding. 15 U.S.C. 2055(b)(5). The
Supplemental NPR continues to propose this change, incorporating a
technical revision and minor grammatical edit.
The 2014 NPR also proposed adding the following three categories to
the list of information not subject to the requirements of section
6(b):
A report of harm posted on the publicly available consumer
product safety information database;
Information that is publicly available; and
Information that is substantially the same as information
that the Commission previously disclosed in accordance with section
6(b)(1), except as specified in Sec. 1101.31(d).
i. Reports of Harm
The 2014 NPR proposed including reports of harm posted on the
publicly available consumer product safety information database
(currently known as and accessible at SaferProducts.gov) in the list of
information not subject to section 6(b)(1), because section 6A(f)(1) of
the CPSA specifically excludes such reports from the provisions of
section
[[Page 10435]]
6(b). 15 U.S.C. 2055a(f)(1). 79 FR 10714. The Supplemental NPR
continues to propose implementing this revision.
The Commission acknowledges commenters' concerns with the
Commission disclosing, without following the section 6(b) requirements,
reports of harm that are not published on SaferProducts.gov. Although
section 6A(f)(1) of the CPSA specifically excludes from the
requirements of section 6(b), reports of harm that are published on
SaferProducts.gov, this provision does not address reports of harm that
do not meet the criteria for publication. Id. Accordingly, the
Commission will provide firms with any requisite 6(b) notice for
reports of harm that are not published on SaferProducts.gov.
The National Association of Manufacturers (NAM) asserted that the
section 6(b) exclusion for reports of harm ``applies strictly to the
reports of harm on the database and does not apply to alternative
disclosures of information contained in the report.'' Without examples
or explanation of the phrase ``alternative disclosures,'' we are unable
to respond meaningfully to this comment. In general, however, the
Commission may release or identify information contained in a report of
harm that is posted to SaferProducts.gov, without notice under section
6(b)(1), if (1) the Commission does not characterize the information
contained in the report, and (2) the Commission's use of
SaferProducts.gov information is accurate and not misleading. For
example, the Commission could state that SaferProducts.gov received 15
reports of harm involving Manufacturer ABC's lamp. In contrast, the
Commission would have to provide 6(b) notice and opportunity to comment
if that same release also warned consumers to stop using the lamps due
to a hazard, or contained other information that is a public disclosure
subject to the notice requirement of section 6(b)(1).
ii. Information That Is Publicly Available
The 2014 NPR proposed including in the list of information not
subject to section 6(b)(1) the following: ``Information that is
publicly available or that has been disseminated in a manner intended
to reach the public in general, such as news reports; articles in
academic and scientific journals; press releases distributed through
news or wire services; or information that is available on the
Internet.'' 79 FR 10714. Commenters raised concerns regarding the scope
of the 2014 NPR's proposed revision, noting that publicly available
information may be inaccurate, biased, or misleading and the
Commission's reference to such information implies that the information
is verified, accurate, or reliable. The Commission recognizes that even
though information appearing in a news article or in an organization's
published report is available to the general public, the Commission's
repetition of that information could be inconsistent with the intent of
section 6.
Based upon the comments that we received, this Supplemental NPR
proposes a different approach for information that is already available
to the public. Specifically, the Commission proposes to specify that
the requirements of section 6(b)(1) do not apply to: ``Information that
has already been made available to the public through sources other
than the Commission, provided the Commission clearly indicates the
source of the information and the Commission's use of the information
is accurate and not misleading.''
Under the revised approach proposed here, the Commission may
release or identify information that the Commission obtained from
publicly available sources (e.g., news clippings), without notice under
section 6(b)(1), if (1) the Commission does not characterize the
publicly available information or relay new information, and (2) the
Commission's use of the information is accurate and not misleading. In
determining whether the Commission's use of the information is accurate
and not misleading, the integrity of the source may be relevant. For
example, the Commission could state that it is aware of an identified
newspaper's article reporting 10 incidents involving Manufacturer ABC's
stroller, provided it is reasonable to attribute integrity to the
source of the information (e.g., the newspaper follows journalistic
standards) and the Commission's description of the newspaper's report
is accurate and not misleading. However, the Commission would provide
6(b) notice and opportunity to comment before posting to a social media
platform: ``Check your ABC stroller for dangerous hinges--[Newspaper
name] reports injuries to 10 kids.'' In this example, the Commission's
social media message implies that the Commission considers the
information contained in the news article to be a basis for action, or
even that the Commission has itself determined the stroller hinges pose
a hazard.
iii. Information That Is Substantially the Same as Information That the
Commission Previously Disclosed
The 2014 NPR proposed including the following to the list of
information not subject to section 6(b)(1): ``(8) Information that is
substantially the same as information that the Commission previously
disclosed in accordance with section 6(b)(1), except as specified in
Sec. 1101.31(d).'' 79 FR 10715.
Based upon comments that the Commission received, which asserted
that the 2014 NPR proposal is vague and difficult to apply, and upon
further consideration, the Commission proposes a modified approach.
Under this new approach, the requirements of section 6(b)(1) do not
apply to: ``Information, not previously disclosed, that in context does
not disclose materially more or materially different information about
the consumer product than what the Commission previously disclosed in
accordance with the law.'' For example, under this proposal, a
Commissioner may relate in a speech the findings regarding Manufacturer
A's blender that appeared in a published CPSC report on kitchen
appliances, for which the Commission provided the requisite 6(b)
notice. However, the Commissioner would not discuss other staff
findings that do not appear in the published report, unless the
Commission previously provided Manufacturer A with 6(b) notice
regarding those additional findings.
iv. Press Releases Issued by Firms
The Supplemental NPR proposes to delete Sec. 1101.11(b)(4),
``Press releases issued by firms.'' While we do not believe that
section 6(b) requires the Commission to provide a manufacturer or
private labeler with 6(b) notice and an opportunity to comment before
the Commission provides the public with information that is available
in the firm's own publicly available press release, we hold to the
Supplemental NPR's position that it is unnecessary to state in the 6(b)
Regulation this specific application of general principals.
c. Proposed Technical and Conforming Changes to Sec. 1101.11
The 2014 NPR proposed three technical and conforming changes to
Sec. 1101.11. 79 FR 10715. The Supplemental NPR continues to propose
these revisions, except for the proposal to remove ``16 CFR part
1017,'' which is listed as ``Reserved,'' and, in its place, add ``16
CFR part 1019,'' which is titled ``Export of Noncomplying, Misbranded,
or Banned Products,'' in Sec. 1101.11(b)(2).
[[Page 10436]]
Instead, the Supplemental NPR proposes to remove the reference to the
Commission's Export Policy Statement, which is not applicable, and
insert the relevant regulatory citation, 16 CFR 1019.7. In addition,
the Supplemental NPR proposes to re-number the paragraphs in Sec.
1101.11(b) to reflect the proposed deletion of ``(4) Press releases
issued by firms'' and insert a cross-reference to subpart E in
redesignated Sec. 1101.11(b)(4).
3. Proposed Changes to Sec. 1101.12 (Commission Must Disclose
Information to the Public)
The 2014 NPR proposed technical and conforming changes to Sec.
1101.12, including revising the heading to state: ``Definition of
`public.' '' 79 FR 10715. The Supplemental NPR continues to propose
these changes, without revision.
For the requirements of section 6(b) to apply, the Commission, any
member of the Commission, or any employee, agent, or representative,
including contractor, of the Commission in an official capacity, must
propose to disclose the information to the public. See revised Sec.
1101.11a(1). Current Sec. 1101.12 includes in the list of persons who
are not considered members of the ``public'':
``The persons or firms to whom the information to be
disclosed pertains, or their legal representatives'' (16 CFR
1101.12(d)); and
``The persons or firms who provided the information to the
Commission, or their legal representatives'' (16 CFR 1101.12(e)).
For greater specificity, the Supplemental NPR proposes to remove
the reference to ``persons or firms'' and, in its place, add ``Persons,
including but not limited to, consumers, manufacturers, private
labelers, retailers, or distributors.''
The Commission may (and routinely does) contact consumers or firms
to discuss information involving that particular consumer or firm. For
example, when a manufacturer or private labeler provides the Commission
with incident information that also identifies the consumers involved
in those incidents, the Commission may use that information to contact
the consumers to conduct in-depth investigations of the incidents.
Similarly, when a manufacturer or private labeler provides the
Commission with the names of firms that distributed or sold a violative
or defective product, the Commission may contact the distributor or
retailer to obtain additional information about the product. In these
instances, neither the consumer, distributor, nor retailer constitutes
the ``public'' under Sec. 1101.12, because the information to be
disclosed pertains to (1) the particular consumer who experienced an
incident with the product, or (2) the particular distributor or
retailer who distributed or sold the product.
The Supplemental NPR proposes additional technical and conforming
changes, as well as minor grammatical edits, to Sec. 1101.12 to
provide clarity and to align with the statute. For example, the
Supplemental NPR proposes to revise Sec. 1101.12(a) and (b) to explain
that section 6(b) applies to disclosures of information by state
officials who are commissioned officers under section 29(a)(2) of the
CPSA, and by any member of the Commission or any employee, agent, or
representative, including contractor, of the Commission, in an official
capacity. In Sec. 1101.12(h), the Supplemental NPR proposes to remove
the reference to ``CPSIA'' and, in its place, insert ``CPSA,'' which
the CPSIA amended.
4. Proposed Changes to Sec. 1101.13 (Public Ability To Ascertain
Readily Identity of Manufacturer or Private Labeler)
The 2014 NPR proposed deleting from Sec. 1101.13 the last
sentence, which states, ``The Commission will provide the advance
notice and opportunity to comment if there is a question whether the
public could readily ascertain the identity of a manufacturer or
private labeler.'' 79 FR 10715. The 2014 NPR explained that this
sentence is vague and inconsistent with the reasonable person standard
that the Commission adopted in the first sentence of this section. Id.
Under that standard, if a reasonable person who lacks specialized
expertise can readily ascertain the identity of the firm from the
information proposed to be disclosed, the Commission will provide such
information to the firm for section 6(b) comment. The Supplemental NPR
continues to propose deleting the last sentence of Sec. 1101.13, while
retaining the reasonable person standard.
The Supplemental NPR proposes to insert two sentences in Sec.
1101.13 to clarify that the following types of information are not
within the scope of section 6(b)(1): (1) information about categories
of consumer products, provided such information will not permit the
public to ascertain readily the identity of the products' manufacturers
or private labelers, and (2) information about manufacturers or private
labelers, provided such information does not designate or describe a
consumer product. Consistent with section 6(b)(6) of the CPSA, the
Commission will ensure, pursuant to its established procedures, that
information the Commission intends to disclose that reflects on the
safety of a class of consumer products or on a manufacturer or private
labeler of consumer products, is accurate and not misleading.
The 2014 NPR also proposed a technical change to Sec. 1101.13. 79
FR 10715. The Supplemental NPR continues to propose this change,
without revision. In addition, the Supplemental NPR proposes conforming
changes to Sec. 1101.13 to align with the statute and minor
grammatical edits for clarity.
D. Subpart C--Procedure for Providing Notice and Opportunity To Comment
Under Section 6(b)(1)
1. Proposed Changes to Sec. 1101.21 (Form of Notice and Opportunity To
Comment)
To increase efficiency and reduce burdens on the Commission and
private parties, the 2014 NPR proposed revising the 6(b) Regulation to
authorize electronic 6(b) notices, direct Commission staff to transmit
notices electronically when possible, and encourage electronic
communication back to the Commission. 79 FR 10715. Commenters
overwhelmingly supported this proposal. The Supplemental NPR builds
upon the 2014 NPR's approach. The Supplemental NPR proposes a new
paragraph at Sec. 1101.21(b) that requires, to the extent practicable,
electronic transmission to avoid delays inherent in methods such as
mail delivery. In response to commenters' questions, the new paragraph
also clarifies the procedure if electronic transmission is not
practicable or the Commission cannot confirm electronic receipt of the
notice. In such instances, the Commission will take appropriate steps
to provide notice using other methods, including delivery via U.S. mail
or other delivery service.
Section 6(b)(1) of the CPSA states: ``In disclosing any information
under [section 6(b)], the Commission may, and upon the request of the
manufacturer or private labeler shall, include with the disclosure any
comments or other information or a summary thereof submitted by such
manufacturer or private labeler to the extent permitted by and subject
to the requirements of [section 6].'' 15 U.S.C. 2055(b)(1). Thus,
unless a manufacturer or private labeler specifically requests that the
Commission disclose the firm's ``comments or other information or a
summary thereof'' that is submitted in
[[Page 10437]]
response to a section 6(b)(1) notice from CPSC, the Commission is not
required to disclose the firm's comments. Current Sec. 1101.21(b)(4),
however, requires the Commission to disclose comments even when a
manufacturer or private labeler does not request disclosure. The
Supplemental NPR proposes to revise this section to conform to the
language in section 6(b)(1) and to require that requests for
withholding be made in writing to assist Commission staff with
processing and tracking such requests. Revised Sec. 1101.21(b)(4) now
reads: ``A statement that the Commission may, and upon the written
request of the manufacturer or private labeler shall, include with the
disclosure any comments or other information or a summary thereof
submitted by such manufacturer or private labeler, to the extent
permitted by and subject to the requirements of section 6 of the
CPSA.''
Current Sec. 1101.21(b) specifies the information that will appear
in a section 6(b) notice to a manufacturer or private labeler. This
information includes, among other contents, ``[a] statement that a
request for comments be withheld from disclosure will be honored.'' The
2014 NPR proposed revising Sec. 1101.21(b)(5). 79 FR 10715-16. The
Supplemental NPR instead proposes to delete Sec. 1101.21(b)(5)
entirely. A blanket policy of always allowing a manufacturer or private
labeler to have its comments withheld, even when such comments are not
confidential commercial or trade secret information, and disclosure of
the comments is not otherwise prohibited by law, may conflict with the
public interest in transparency. Under the Commission's proposed
revision at Sec. 1101.24(c), a manufacturer or private labeler must
explain its basis for requesting that the Commission exercise its
discretion to not disclose the comments.
Current Sec. 1101.21(b)(7) states that firms may request
renotification, or the opportunity to comment on subsequent disclosures
of ``identical information'' that is ``in the same format.'' The 2014
NPR proposed revisions to this section. 79 FR 10716. As discussed in
section II.C.2.b.iii above, the Commission proposes a different
approach for subsequent disclosures of information. In connection with
this new approach, the Supplemental NPR proposes to revise Sec.
1101.21(b)(7), now redesignated as Sec. 1101.21(b)(6), to provide for
delivery to the manufacturer or private labeler of: ``A statement that
no further request for comment will be sought by the Commission if the
Commission intends to disclose information, not previously disclosed,
that in context does not disclose materially more or materially
different information about the consumer product than what the
Commission previously disclosed in accordance with the law.'' For
example, the Commission would not have to provide another 6(b) notice
before restating the contents of a CPSC news release that was issued
after a notice and comment process under section 6(b).
Current Sec. 1101.21(b)(2) calls for the inclusion in a section
6(b)(1) notice of:
A general description of the manner in which the Commission will
disclose the information, including any other relevant information the
Commission intends to include with the disclosure. If the Commission
advises that the form of disclosure will be by press release, for
example, the Commission need not provide further notice to disclose a
summary of the press release.
The Supplemental NPR proposes to delete the last sentence of this
provision because it concerns renotification, which is addressed in
redesignated Sec. 1101.21(b)(6), rather than initial notification. The
Supplemental NPR includes this example in redesignated Sec.
1101.21(b)(6).
The 2014 NPR proposed two technical and conforming changes to Sec.
1101.21. 79 FR 10716. The Supplemental NPR continues to propose only
the conforming change in Sec. 1101.21(b), redesignated Sec.
1101.21(c). In addition, the Supplemental NPR proposes a technical
change in Sec. 1101.21(a) to cross-reference revised Sec. 1101.26,
which identifies circumstances when notice and opportunity to comment
are not practicable. Finally, the Supplemental NPR proposes changes to
conform to the statute and minor grammatical edits throughout Sec.
1101.21 for simplification and clarity. For example, in Sec.
1101.21(b)(6), redesignated Sec. 1101.21(c)(5), the Supplemental NPR
proposes to remove ``firm'' and, in its place, add ``manufacturer or
private labeler.'' The Supplemental NPR also proposes to redesignate
certain paragraphs and sub-paragraphs.
2. Proposed Changes to Sec. 1101.22 (Timing: Request for Time
Extensions)
The 2014 NPR proposed inserting a sentence into Sec. 1101.22(a)(1)
regarding electronic transmission of the 6(b) notice. 79 FR 10716. The
Supplemental NPR proposes to move discussion of electronic transmission
to proposed Sec. 1101.21(b).
Currently, the first sentence of Sec. 1101.22(a)(2) states: ``Upon
his or her own initiative or upon request, the Freedom of Information
Officer may provide a different amount of time for comment,
particularly for firms that receive voluminous or complex material.''
The 2014 NPR proposed deleting from Sec. 1101.22(a)(2) the phrase,
``Upon his or her own initiative or,'' because, absent a request from a
manufacturer or private labeler, the Freedom of Information Officer
generally will not provide a firm with additional time to comment on
information proposed for disclosure. 79 FR 10716. The Supplemental NPR
proposes additional non-substantive edits to the first sentence of
Sec. 1101.22(a)(2). The proposed revised sentence reads: ``The
Commission may provide a longer amount of time for comment,
particularly for manufacturers and private labelers that receive from
the Commission voluminous or complex material to review.''
The 2014 NPR proposed revisions to Sec. 1101.22(b)(2) to clarify
when the Commission will disclose information in fewer than 15 calendar
days. 79 FR 10716. The Supplemental NPR proposes to delete Sec.
1101.22(b)(2) entirely because this section concerns timing, which is
addressed in Sec. Sec. 1101.22(a)(1) and 1101.23.
Current Sec. 1101.22(b)(1) states: ``If the Commission has not
received a response within the time specified and if it has received no
request for extension of time, the Commission will analyze the
information as provided in subpart D. If no comments are submitted the
Commission will not give the further notice provided in section
6(b)(2).'' The Supplemental NPR proposes minor grammatical and
clarifying revisions to this section to reflect that an extension
request is not a substantive response. Revised Sec. 1101.21(b)(1),
redesignated Sec. 1101.21(b), now reads: ``If the Commission has not
received a response within the time specified (subject to any extension
of time that has been granted under paragraph (c)), the Commission will
analyze the information as provided in subpart D and will not give the
further notice provided in section 6(b)(2).'' The Commission expects
manufacturers and private labelers to submit comments by the deadline
indicated in the 6(b) notice or otherwise given. The Commission
ordinarily will disregard comments that are not submitted by the stated
deadline.
The Supplemental NPR also proposes edits to provide manufacturers
and private labelers more specific instructions regarding the
Commission's process for requesting an extension of time to comment on
information that the Commission proposes to disclose. The Supplemental
NPR proposes requiring in Sec. 1101.22(c) that such requests be in
writing and submitted at least 48 hours before the deadline to
[[Page 10438]]
respond. The Commission believes this is a reasonable approach for
processing and tracking any extension requests that staff may receive
and for ensuring that proposed disclosures of information are not
unnecessarily delayed. In addition, the Supplemental NPR clarifies that
if the time for response has been shortened due to a public health and
safety finding, no extension will be granted, except upon the
Commission's initiative; in other words, extension requests from the
party receiving notice will not be entertained in this situation.
The Supplemental NPR proposes to move the sentence in Sec.
1101.22(c)(2) to the end of Sec. 1101.22(c)(1) and to redesignate
``(3)'' as ``(2)''. In addition, in redesignated Sec. 1101.22(c)(2),
the Supplemental NPR proposes to remove, ``The Commission will promptly
respond to requests for extension of time'' and, in its place, add ``It
is the policy of the Commission to respond promptly to requests for
extension of time.'' This change reflects that the statute does not
require the Commission to respond promptly to an extension request,
although the Commission endeavors to do so.
The 2014 NPR proposed two technical changes to Sec. 1101.22. 79 FR
10716. In Sec. 1101.22(a)(2), the Supplemental NPR continues to
propose removing ``Sec. 1101.24'' and, in its place, adding ``Sec.
1101.23.'' The 2014 NPR's proposed revision to Sec. 1101.22(b)(1) is
no longer necessary in light of other revisions to this sentence.
The Supplemental NPR proposes additional conforming changes to
align with the statute and minor grammatical edits for clarity. For
example, the Supplemental NPR proposes to remove ``firm'' and, in its
place, add ``manufacturer or private labeler'' to conform to the
statute and to provide clarity about the types of entities that are
subject to section 6(b)(1) of the CPSA. The Supplemental NPR proposes
this revision at appropriate places throughout the 6(b) Regulation. The
Supplemental NPR also proposes to revise the heading of Sec. 1101.22
so that it reads: ``Time for comment and requests for extension of
time''.
3. Proposed Changes to Sec. 1101.23 (Providing Less Than 15 Days
Notice Before Disclosing Information)
Current Sec. 1101.23(c), titled ``Notice of finding,'' states that
the Commission will provide the manufacturer or private labeler with
notice of a public health and safety finding. The 2014 NPR proposed
revisions to Sec. 1101.23(c) to direct the Commission to provide such
notice electronically. 79 FR 10716. The Supplemental NPR proposes to
delete Sec. 1101.23(c) entirely, because section 6(b) does not require
the Commission to provide the manufacturer or private labeler direct
notice of the finding. Rather, when the Commission finds that the
public health and safety requires a lesser period of notice, section
6(b)(1) requires the Commission to publish such finding. In addition,
section 6(b)(2) requires the Commission to notify the manufacturer or
private labeler of the date set for public disclosure.
The Supplemental NPR proposes to revise the heading in Sec.
1101.23(a) to include instances where the firm notifies the Commission
that the firm has no comment. This provision currently appears in the
text of Sec. 1101.23(a).
In addition, the Supplemental NPR proposes to insert the following
sentence into Sec. 1101.23(b): ``The Commission will publish the
finding in the disclosure itself or elsewhere.'' The CPSIA amendments
in 2008 removed the previous requirement in section 6(b)(1) of the CPSA
that the Commission publish its health and safety finding in the
Federal Register. The House Report accompanying the CPSIA bill
explained this revision as follows:
[S]ection 205 further amends section 6(b)(1) to allow the
Commission, in the case of a public health or safety hazard posed by
a product, to simply publish its finding (presumably on the
Commission's website) before disclosing the relevant information to
the public. Currently, section 6(b)(1) requires the Commission to
publish its finding in the Federal Register, which can needlessly
delay the process for as long as five additional days.
H.R. Rep. No. 110-501, Consumer Product Safety Modernization Act
(Dec. 19, 2007). Based upon this statutory revision and the
accompanying legislative history, the Commission concludes that
Congress intended the Commission to publish the finding quickly, such
as in the press release or other public disclosure itself. This
proposed revision, however, does not impact the requirement under
section 6(b)(1) of the CPSA that the Commission, to the extent
practicable, provide the manufacturer or private labeler with notice
and an opportunity to comment on the information prior to disclosure.
The Supplemental NPR proposes additional conforming changes to
align with the statute and minor grammatical edits for clarity
throughout Sec. 1101.23. For example, the Supplemental NPR proposes to
replace ``firm'' with ``manufacturer or private labeler''; insert
``calendar'' between ``15'' and ``days''; and insert ``consumer''
between ``the'' and ``product''.
4. Proposed Changes to Sec. 1101.24 (Scope of Comments Commission
Seeks)
Section 6(b)(1) of the CPSA states: ``In disclosing any information
under [section 6(b)], the Commission may, and upon the request of the
manufacturer or private labeler shall, include with the disclosure any
comments or other information or a summary thereof submitted by such
manufacturer or private labeler to the extent permitted by and subject
to the requirements of [section 6].'' 15 U.S.C. 2055(b)(1). The 2014
NPR proposed revising Sec. 1101.24(c) to require that a manufacturer
or private labeler provide a rationale to support withholding the
firm's comments and an explanation of why disclosure of the comments is
not necessary to assure that the disclosure of the information that is
the subject of the comments is fair in the circumstances. 79 FR 10716-
17. The Commission proposed this revision ``[t]o obtain more
substantive and useful information from firms who object to disclosure
of comments.'' 79 FR 10718. The 2014 NPR explained that ``[c]onclusory
assertions that comments be withheld without a rationale will not be
sufficient to withhold comments'' and that ``a firm's comment that it
has no objection to disclosure, without any additional comments, will
not be sufficient to justify withholding.'' Id.
The Supplemental NPR revises this approach and proposes that a
manufacturer or private labeler must provide a basis if it requests
that the comments not be disclosed. For example, if a firm submits
comments on what it believes is inaccurate information in the
Commission's planned disclosure, and the Commission agrees with the
comments and revises the proposed statement, the firm might contend
that releasing comments referencing the inaccurate information in the
proposed disclosure would not be a reasonable step to assure accuracy
or fairness under the 6(b) requirements.
In addition, the Supplemental NPR proposes to revise the last
sentence of Sec. 1101.24(c) to clarify that if a manufacturer or
private labeler objects to the disclosure of a portion of its comments,
the firm must specifically identify that portion. Incorporating these
revisions, along with conforming and grammatical edits, the revised
proposed Sec. 1101.24(c) now reads:
Requests for nondisclosure of comments. If a manufacturer or
private labeler objects to the disclosure of its comments or a
portion thereof, it must notify the Commission at the time the
manufacturer or private labeler submits its comments and provide the
basis
[[Page 10439]]
for its request. If the manufacturer or private labeler objects to
the disclosure of only a portion of its comments, the firm must
identify with specificity those portions that it requests be
withheld.
In response to the 2014 NPR, commenters expressed concern with the
Commission's treatment of trade secret or privileged or confidential
commercial or financial information that may appear in a firm's
comments. The proposed revision in no way affects the Commission's
treatment of such information. The Commission will maintain the
protections on disclosure of trade secret or privileged or confidential
commercial or financial information, as delineated in the CPSA, the
FOIA, and our corresponding regulations, and in applicable case law.
Firms should consult the Commission's FOIA regulation at 16 CFR
1015.18, which specifies the information a firm must provide with any
request that the Commission withhold trade secret or privileged or
confidential commercial or financial information.
The 2014 NPR proposed two technical changes to Sec. 1101.24(b). 79
FR 10717. The Supplemental NPR no longer proposes the change to the
first sentence of Sec. 1101.24(b); instead, the Supplemental NPR
proposes revisions to conform to the language in section 6(a)(2) of the
CPSA. The Supplemental NPR continues to propose the change to the
second sentence, along with other clarifying edits to the sentence. In
addition, throughout Sec. 1101.24, the Supplemental NPR proposes
conforming changes to align with the statute and minor grammatical
edits for simplification and clarity. For example, in Sec. 1101.24(a),
the Supplemental NPR proposes to delete ``undocumented'' and, in its
place, add ``non-specific''.
5. Proposed Changes to Sec. 1101.25 (Notice of Intent To Disclose)
The 2014 NPR proposed adding the following sentence to the end of
Sec. 1101.25(c): ``If written notice is provided, the Commission,
whenever possible, will transmit such notice electronically.'' 79 FR
10717. The Supplemental NPR continues to propose this revision, with
minor grammatical edits.
In Sec. 1101.25(a), the Supplemental NPR proposes non-substantive
revisions to clarify the time at which the Commission may disclose the
information. In addition, the Supplemental NPR proposes to remove the
last sentence in Sec. 1101.25(a), which states: ``The notice of intent
to disclose will include an explanation of the reason for the
Commission's decision [and] copies of any additional materials, such as
explanatory statements and letters to FOIA requesters, which were not
previously sent to the firm.'' Section 6(b)(2) of the CPSA only
requires that the Commission ``notify the manufacturer or private
labeler that the Commission intends to disclose [the information] at a
date not less than 5 days after the date of the receipt of
notification.'' For FOIA requests, however, it is the Commission's
current practice to include, with the section 6(b)(2) notice, copies of
the final package of materials that the Commission intends to disclose
to the FOIA requester.
The Supplemental NPR proposes to delete Sec. 1101.25(b) entirely,
because the information in this paragraph appears in Sec. 1101.23(b).
In connection with this revision, the Supplemental NPR redesignates
paragraph (c) as (b).
The 2014 NPR proposed technical changes to Sec. 1101.25. 79 FR
10717. The Supplemental NPR continues to propose some of these changes.
In addition, the Supplemental NPR proposes minor grammatical edits and
conforming changes to align Sec. 1101.23 with the statute. For
example, in redesignated Sec. 1101.25(b), the Supplemental NPR
proposes to delete, ``depending on the immediacy of the need for quick
action,'' because a health and safety finding itself constitutes a
Commission determination regarding immediacy.
6. Proposed Changes to Sec. 1101.26 (Circumstances When the Commission
Does Not Provide Notice and Opportunity To Comment)
The 2014 NPR did not propose any changes to this section.
Section 6(b)(1) of the CPSA requires that, ``to the extent
practicable,'' the Commission must provide manufacturers and private
labelers notice and an opportunity to comment before disclosing
information about a consumer product from which the public can
ascertain readily the manufacturer's or private labeler's identity.
Current Sec. 1101.26(b) offers examples of circumstances in which
notice and opportunity to comment is not practicable. The Supplemental
NPR proposes to add to this list the following:
When the Commission has been unable, after a diligent
search, to obtain contact information for the manufacturer or private
labeler of the consumer product to which the information pertains.
When an extraordinary circumstance necessitates the
immediate disclosure of information to protect the public health and
safety while the Commission simultaneously pursues notification of the
manufacturer or private labeler.
Regarding the first example, Commission staff conducts thorough
searches in internal databases and other sources to locate contact
information for manufacturers and private labelers. There have been
occasions when staff was unable to find contact information for a
particular firm after a diligent search, and thus, the Commission could
not provide the requisite notice.
Regarding the second example, there may be emergency situations
where the Commission must warn the public immediately about a
particular hazard or risk while simultaneously pursuing notification to
the manufacturer or private labeler. For example, on a holiday weekend
the Commission might become aware of a serious hazard involving a new
consumer product associated with the holiday, but the Commission's
attempts to contact the manufacturer go unanswered. In that situation,
the Commission might immediately notify the public of the hazard while
awaiting a response from the firm. Importantly, consistent with the
requirements in section 6(b)(1) of the CPSA, the Commission would take
reasonable steps to assure that the information is accurate and that
disclosure is fair in the circumstances and reasonably related to
effectuating the purposes of the Acts.
The Supplemental NPR also proposes conforming changes to align with
the statute and minor grammatical edits for clarity and simplification
throughout Sec. 1101.26. For example, the Supplemental NPR proposes to
revise the sentence in Sec. 1101.26(b) to state: ``Circumstances when
notice and opportunity to comment is not practicable include, but are
not necessarily limited to, the following . . .'' In Sec.
1101.26(b)(1), the Supplemental NPR proposes to remove ``company'' and,
in its place, add ``manufacturer or private labeler of any consumer
product''.
E. Subpart D--Reasonable Steps Commission Will Take To Assure
Information It Discloses Is Accurate, and That Disclosure Is Fair in
the Circumstances and Reasonably Related To Effectuating the Purposes
of the Acts It Administers
1. Proposed Changes to Subpart D Heading
The Supplemental NPR proposes minor edits to the heading of Subpart
D for clarity and consistency. For example, the Supplemental NPR
proposes to remove ``Assure Information It Discloses Is Accurate'' and,
in its
[[Page 10440]]
place, add ``Assure Public Disclosure of Information Is Accurate.''
2. Proposed Changes to Sec. 1101.31 (General Requirements)
Current Sec. 1101.31(b) states:
Inclusion of comments. In disclosing any information under this
section, the Commission will include any comments or other
information submitted by the manufacturer or private labeler unless
the manufacturer or private labeler at the time it submits its
section 6(b) comments specifically requests the Commission not to
include the comments or to include only a designated portion of the
comments and disclosure of the comments on such a designated portion
is not necessary to assure that the disclosure of the information
which is the subject of the comments is fair in the circumstances.
The 2014 NPR proposed revisions to this section. 79 FR 10717. The
Supplemental NPR proposes to revise Sec. 1101.31(b) to conform to the
statute and to require all requests regarding the disclosure of a
manufacturer's or private labeler's comments to be in writing. Revised
Sec. 1101.31(b), redesignated Sec. 1101.31(a), now reads: ``Inclusion
of comments. In disclosing any information under this section, the
Commission may, and upon the written request of the manufacturer or
private labeler shall, include any comments or other information or a
summary thereof submitted by the manufacturer or private labeler, to
the extent permitted by and subject to the requirements of section 6 of
the CPSA.''
Current Sec. 1101.31(d) states:
Information previously disclosed. If the Commission has
previously disclosed, in accordance with section 6(b)(1), the
identical information it intends to disclose again in the same
format, it will not customarily take any additional steps to assure
accuracy unless the Commission has some reason to question its
accuracy or unless the firm, in its comments responding to the
Commission's initial section 6(b) notice, specifically requests the
opportunity to comment on subsequent disclosures, or unless the
Commission determines that sufficient time has passed to warrant
seeking section 6(b) comment again. Before disclosing the
information, the Commission will again review the information to see
if accuracy is called into question and will further look to whether
disclosure is fair in the circumstances and reasonably related to
effectuating the purposes of the Acts the Commission administers.
The 2014 NPR proposed deleting substantially all of Sec.
1101.31(d). 79 FR 10718.
Upon further consideration, the Commission now proposes a more
straightforward approach for releasing information that does not
disclose materially more or materially different information than what
was previously disclosed. Proposed Sec. 1101.31(d), redesignated Sec.
1101.31(c), now reads: ``Disclosing materially more or materially
different information. If the Commission intends to disclose
information, not previously disclosed, that in context does not
disclose materially more or materially different information about the
consumer product than what the Commission previously disclosed in
accordance with the law, the Commission is not obligated to take any
additional steps to assure accuracy unless the Commission has reason to
question the accuracy of the information.'' This provision reflects
that, in the situation described, the notice and comment process has
already occurred for the substance of the proposed disclosure, and
repeating that process would not advance the purposes of section 6(b).
The Supplemental NPR also proposes to delete Sec. 1101.31(a),
which states that the Commission will attempt to make its decision on
disclosure ``as soon as is reasonably possible after expiration of the
statutory fifteen day moratorium on disclosure.'' There is no statutory
requirement that the Commission disclose information within a certain
time after the 15-day period has expired, assuming that the surrounding
circumstances have not significantly changed.
In Sec. 1101.31(c), now redesignated Sec. 1101.31(b), the
Supplemental NPR proposes to delete the sentence: ``Inclusion of an
explanatory statement is in addition to, and not a substitute for,
taking reasonable steps to assure the accuracy of information.'' The
Supplemental NPR proposes instead to include a reference to an
explanatory statement as a new paragraph (b) in revised Sec. 1101.32
(Reasonable steps to assure disclosure of information is accurate). The
Supplemental NPR also proposes other revisions to conform to the
statute and clarify that the Commission is not required under section
6(b)(1) of the CPSA to provide an explanatory statement with
information that it discloses to the public. These revisions include:
(1) removing ``Where appropriate''; (2) removing ``will'' and, in its
place, adding ``may''; and (3) removing ``To the extent practicable''.
The Supplemental NPR also proposes to remove ``released'' and, in its
place, add ``disclosed'' to conform to the statute.
The 2014 NPR proposed two technical and conforming changes to Sec.
1101.31. 79 FR 10718-19. These changes have been superseded by the
Supplemental NPR's proposed revisions.
3. Proposed Changes to Sec. 1101.32 (Reasonable Steps To Assure
Information Is Accurate)
The 2014 NPR proposed technical changes to Sec. 1101.32. 79 FR
10719. The Supplemental NPR continues to propose these changes, without
revision.
Section 6(b)(1) of the CPSA requires the Commission to take
reasonable steps to assure, prior to disclosing information, that such
information is accurate. Section 1101.32(a) of the 6(b) Regulation
specifies the types of actions that the Commission considers to be
reasonable steps to assure the accuracy of information that the
Commission proposes to disclose to the public. The Supplemental NPR
proposes to add the following as a reasonable step to assure the
accuracy of the information: ``(3) The Commission staff relies on a
statement made under oath, or a similar statement enforceable under
penalty of perjury (e.g., 28 U.S.C. 1746), that yields or corroborates
the information to be disclosed.'' The making of a statement under
penalty of perjury, such as in a sworn affidavit or declaration
provided under 28 U.S.C. 1746, is generally accepted as sufficient
indicia of reliability and appropriate for the Commission to similarly
credit. In connection with this proposed addition, the Supplemental NPR
proposes to redesignate current paragraph ``(3)'' as paragraph ``(4)''.
Current Sec. 1101.32(a)(1) provides another action that the
Commission considers to be a reasonable step: ``The Commission staff or
a qualified person or entity outside the Commission . . . conducts an
investigation or an inspection which yields or corroborates the product
information to be disclosed.'' The Supplemental NPR proposes to delete
``or an inspection'' from this sentence because ``investigation'' is a
broad term under the Commission's regulations that encompasses
``inspection.'' See 16 CFR 1118.1(a)(4) (``The term investigation
includes, but is not limited to, inspections . . .'').
The Supplemental NPR proposes to add a new paragraph (b) explaining
that in addition to the reasonable steps specified in Sec. 1101.32(a),
the Commission may include the explanatory statement referenced in
proposed Sec. 1101.31(b) to assure the accuracy of the information
proposed for disclosure. In connection with this proposed revision, the
Supplemental NPR proposes to redesignate current paragraph (b) as
paragraph (c).
The Supplemental NPR also proposes conforming changes to align with
the statute and other non-substantive
[[Page 10441]]
revisions for simplification throughout Sec. 1101.32. For example, the
Supplemental NPR proposes to revise Sec. 1101.32(a)(3), redesignated
as Sec. 1101.32(a)(4), to state: ``The person who submitted the
information to the Commission confirms the information as accurate to
the best of the submitter's knowledge and belief, provided that . . .
.'' In Sec. 1101.32(b)(4), the Supplemental NPR proposes to delete the
sentence, ``Specific comments will be given more weight than general
comments.'' The Supplemental NPR also proposes a technical change to
redesignated Sec. 1101.32(c)(1) and minor grammatical edits throughout
Sec. 1101.32.
4. Proposed Changes to Sec. 1101.33 (Reasonable Steps To Assure
Information Release Is Fair in the Circumstances)
Current Sec. 1101.33(a) specifies the types of actions that
constitute reasonable steps to assure disclosure of information to the
public is fair in the circumstances. The Supplemental NPR proposes
several revisions to Sec. 1101.33(a).
First, in Sec. 1101.33(a)(1), the Supplemental NPR revises the
approach proposed in the 2014 NPR regarding the disclosure of a firm's
comments. The Supplemental NPR proposes that a manufacturer or private
labeler must provide a basis, as opposed to a legal rationale, if the
firm requests that its comments not be disclosed. The Supplemental NPR
also proposes revisions that conform Sec. 1101.33(a)(1) to the statute
and require requests regarding the disclosure of a manufacturer's or
private labeler's comments to be in writing.
Second, in Sec. 1101.33(a)(2), the Supplemental NPR proposes
revisions to conform to the statute and to clarify that the Commission
may, but is not required to, (1) accompany the disclosure with an
explanatory statement that makes the nature of the information
disclosed clear to the public and (2) assure disclosure is fair in the
circumstances by disclosing other relevant information in the
Commission's possession, subject to the requirements of section 6(b)(1)
and other requirements of law.
Third, the Supplemental NPR proposes to delete Sec. 1101.33(a)(3),
which states: ``The Commission will limit the form of disclosure to
that which it considers appropriate in the circumstances. For example,
the Commission may determine it is not appropriate to issue a
nationwide press release in a particular situation and rather will
issue a press release directed at certain localities, regions, or user
populations.'' The Commission believes that this section is obsolete
given the general absence of geographic restrictions when information
is posted on the internet.
Finally, the Supplemental NPR proposes to delete, as unnecessary,
Sec. 1101.33(a)(4), which states: ``The Commission may delay
disclosure of information in some circumstances. For example, the
Commission may elect to postpone an information release until an
investigation, analysis or test of a product is complete, rather than
releasing information piecemeal.'' There is no need for notice under
section 6(b) of the CPSA if the Commission decides to delay disclosure
of the information.
Current Sec. 1101.33(b) provides examples of disclosures that
generally would not be fair in the circumstances. The Supplemental NPR
proposes two substantive revisions to Sec. 1101.33(b).
First, consistent with the 2014 NPR, the Supplemental NPR continues
to propose deleting Sec. 1101.33(b)(3), which identifies as
inappropriate:
Disclosure of the work-product of attorneys employed by a firm
and information subject to an attorney/client privilege, if the
Commission has obtained the information from the client or the
attorney, the attorney or client advises the Commission of the
confidential nature of the information at the time it is submitted
to the Commission, and the information has been maintained in
confidence by the client and the attorney.
As explained in the 2014 NPR, in general, we believe that firms
waive these protections when they intentionally submit to CPSC
information that is attorney work-product or subject to the attorney/
client privilege. 79 FR 10719. The Commission does not expect, nor do
we want, firms to provide legally privileged information to the
Commission. However, if a firm inadvertently submits such information
without intending a waiver, the Commission will treat the information
in accordance with applicable authorities governing inadvertent
disclosure. Moreover, if the submitted information contains trade
secret or privileged or confidential commercial or financial
information, the firm may request confidentiality of the information in
accordance with the Commission's FOIA regulation at 16 CFR 1015.18.
Second, the Supplemental NPR proposes to revise Sec.
1101.33(b)(4), which states: ``Disclosure of a firm's comments (or a
portion thereof) submitted under section 6(b)(1) over the firm's
objection.'' The 2014 NPR proposed revising Sec. 1101.33(b)(4) to
require a rationale for why the comments should not be disclosed. 79 FR
10719-20. Instead of requiring a legal rationale such as a statute or
regulation, the Supplemental NPR recognizes that the Commission
generally has broad discretion whether to grant a request for non-
disclosure of such comments, and accordingly proposes that the
manufacturer or private labeler must simply provide some basis for why
it believes the Commission should decide against disclosing the
comments. The Supplemental NPR also proposes revisions to conform to
the statute and minor edits for clarity.
The Supplemental NPR proposes conforming changes to align with the
statute and minor grammatical edits throughout Sec. 1101.33. In
addition, the Supplemental NPR proposes to redesignate Sec.
1101.33(b)(4) as (b)(3) to reflect the proposed deletion of Sec.
1101.33(b)(3).
5. Proposed Changes to Sec. 1101.34 (Reasonable Steps To Assure
Information Release Is ``Reasonably Related To Effectuating the
Purposes of the Acts'' the Commission Administers)
The 2014 NPR proposed technical changes to Sec. 1101.34(a)(2). 79
FR 10720. The Supplemental NPR no longer proposes these changes.
As discussed in section II.B.1 above, section 6(b)(1) of the CPSA
applies to the Commission's ``public disclosure of any information
obtained under this Act, or to be disclosed to the public in connection
therewith.'' 15 U.S.C. 2055(b)(1). Section 6(d)(1) of the CPSA defines
``Act'' as the CPSA, FFA, PPPA, and FHSA. 15 U.S.C. 2055(d)(1). The
Supplemental NPR proposes conforming revisions to align Sec.
1101.34(a) with section 6(b)(1) and (d)(1) of the CPSA by removing
references to acts other than the CPSA, FHSA, FFA, and PPPA.
Section 6(b)(1) requires the Commission to take reasonable steps to
assure that ``disclosure is . . . reasonably related to effectuating
the purposes of'' the CPSA, FFA, PPPA, and FHSA. 15 U.S.C. 2055(b)(1).
Current Sec. 1101.34(a)(3), which addresses FOIA requests, requires
the Commission to determine whether disclosure of information in
response to a FOIA request is reasonably related to effectuating one or
more of the purposes of the acts administered by the Commission and
that, in the event of a close question on this issue, the Commission
will defer to the purposes of the FOIA. The FOIA is not one of the
enumerated acts in section 6(d)(1) of the CPSA, and thus, the
Commission is not required to determine whether disclosure of the
information would be
[[Page 10442]]
reasonably related to effectuating the purposes of the FOIA. Therefore,
the Supplemental NPR proposes to delete Sec. 1101.34(a)(3) entirely.
However, this proposed revision does not affect the Commission's
obligation, as determined by the U.S. Supreme Court in CPSC v. GTE
Sylvania, Inc., to comply with the requirements of section 6(b) of the
CPSA before disclosing any information in response to a FOIA request.
447 U.S. 102 (1980).
The Supplemental NPR also proposes conforming changes and non-
substantive revisions for simplification and clarity throughout Sec.
1101.34. For example, in the heading for Sec. 1101.34, the
Supplemental NPR proposes to remove ``release'' and, in its place, add
``disclosure''; and in Sec. 1101.34(a)(2), the Supplemental NPR
proposes to insert ``consumer'' between ``concerning'' and
``products.''
F. Subpart E--Statutory Exceptions of Section 6(b)(4)
1. Proposed Changes to Sec. 1101.41 (Generally)
The 2014 NPR proposed technical changes to Sec. 1101.41. 79 FR
10720. The Supplemental NPR no longer proposes those revisions.
The Supplemental NPR instead proposes conforming revisions to align
with the statute and non-substantive revisions for clarity and
simplification throughout Sec. 1101.41. For example, the Supplemental
NPR proposes to insert ``Acts'' to clarify that these exceptions apply
specifically to the CPSA, FHSA. FFA, and PPPA. The Supplemental NPR
also proposes to delete Sec. 1101.41(b), which states that the
Commission will apply the section 6(b)(4) exceptions to ``the
transferred acts.'' Section 1101.41(b) is duplicative and repeats the
information already contained in revised Sec. 1101.41, as well as in
revised Sec. 1101.1 (Scope). In addition, the Supplemental NPR
proposes to reformat the information in paragraphs (a)(3) and (a)(4) as
a combined list under paragraph (3). Proposed Sec. 1101.41(3) now
states that the statutory exceptions in section 6(b)(4) apply to (among
other disclosures) ``[i]nformation in the course of or concerning: (i)
a rulemaking proceeding under the Acts; (ii) an adjudicatory proceeding
under the Acts; or (iii) any other administrative or judicial
proceeding under the Acts.'' The Supplemental NPR also proposes to
remove paragraph designation and subheading ``(a) Scope'' to reflect
the proposed removal of paragraph (b).
2. Proposed Changes to Sec. 1101.42 (Imminent Hazard Exception)
Current Sec. 1101.42(b) states:
Scope of exception. This exception applies once the Commission
has filed an action under section 12 of the CPSA (15 U.S.C. 2061),
in a United States district court. Once the exception applies,
information may be disclosed to the public while the proceeding is
pending without following the requirements of section 6(b)(1) if the
information concerns or relates to the product alleged to be
imminently hazardous. Upon termination of the proceeding,
information filed with the court or otherwise made public is not
subject to section 6(b). Information in the Commission's possession
which has not been made public is subject to section 6(b).
The 2014 NPR proposed the following revisions to Sec. 1101.42(b):
In the second sentence, remove: ``while the proceeding is
pending.''
Remove the third and fourth sentences.
79 FR 10720. The 2014 NPR explained the Commission's belief that,
upon filing a section 12 action, information may be disclosed to the
public during and after the proceeding, even if the information was not
filed with the court or otherwise made public. Id. The Supplemental NPR
continues to propose these revisions, without change.
In addition, the Supplemental NPR proposes conforming changes to
align with the statute and minor grammatical edits.
3. Proposed Changes to Sec. 1101.43 (Section 6(b)(4)(A) Exception)
The 2014 NPR did not propose any changes to Sec. 1101.43.
The Supplemental NPR proposes to delete the first sentence in
paragraph (b) because it repeats the information that appears in
paragraph (a) and to combine paragraphs (a) and (b). In addition, the
Supplemental NPR proposes conforming changes to align with the statute
and minor grammatical edits.
``Reasonable cause to believe'' is not a defined phrase in either
section 6(b)(4)(A) of the CPSA or Sec. 1101.43. The Commission
believes that reasonable cause exists when the belief is supported by
existing laws and regulations and is based on factual conclusions that
have evidentiary support. Cf. Fed. R. Civ. Proc. 11 (providing standard
for filing pleadings and motions with a Federal court). Thus, for
example, the Commission would have ``reasonable cause to believe'' a
consumer product is in violation if Commission testing indicates that a
toy contains excessive levels of lead, Commission staff confirms that a
toy lacks the requisite General Conformity Certification, or Commission
staff determines that a manufacturer is distributing ATVs without the
requisite ATV Action Plan. The Commission will notify a manufacturer or
private labeler orally or in writing if the Commission has reasonable
cause to believe a consumer product is in violation of a consumer
product safety rule or provision of the CPSA or similar rule or
provision of any other act enforced by the Commission.
4. Proposed Changes to Sec. 1101.44 (Rulemaking Proceeding Exception)
The 2014 NPR did not propose any changes to Sec. 1101.44.
Section 6(b)(4) of the CPSA states that the provisions of section
6(b)(1)-(3) do not apply to the Commission's ``public disclosure of . .
. (B) information in the course of or concerning a rulemaking
proceeding.'' 15 U.S.C. 2055(b)(4)(B). Current Sec. 1101.44(d)
interprets the term ``concerning'' as follows:
The phrase ``concerning'' refers to information about the
proceeding itself both after the proceeding has begun and
indefinitely thereafter. Therefore, the Commission may publicly
disclose information that describes the substance, process and
outcome of the proceeding. By issuing opinions and public
statements, the Commissioners, and the presiding official, who act
as decisionmakers, may also publicly explain their individual votes
and any decision rendered.
The Commission believes that this explanation restricts the type of
information that falls under the rulemaking proceeding exception,
beyond what Congress intended. ``Concerning'' is a broad term that can
be understood as synonymous with ``relating to.'' See United States v.
Olea-Monarez, 908 F.3d 636, 640 (10th Cir. 2018) (`` `Concerning' is a
neutral term meaning `relating to' '') (citing Black's Law Dictionary
(5th ed. 1979)); Bloomberg L.P. v. U.S. Food & Drug Admin., 500
F.Supp.2d 371, 377 (S.D.N.Y. 2007) (``Its definition is `relating to;
to be about; to bear on.' '') (citing Merriam-Webster Online
Dictionary, https://www.merriam-webster.com (last visited Aug. 13,
2007)). To reflect the common understanding of this term, the
Supplemental NPR proposes to insert (1) ``or addressing'' after
``information about'' in the first sentence of Sec. 1101.44(d), and
(2) ``or relates to'' after ``describes'' in the second sentence of
Sec. 1101.44(d). Incorporating these revisions, as well as minor
grammatical edits for simplification, revised Sec. 1101.44(d) now
reads:
[[Page 10443]]
The phrase ``concerning'' refers to information about or
addressing the proceeding both after the proceeding has begun and
indefinitely thereafter. Therefore, the Commission may at any time
publicly disclose information that describes or relates to the
substance, process, or outcome of the proceeding. For example,
Commissioners may publicly explain their individual votes and any
decision rendered by issuing written opinions and making public
statements.
The Supplemental NPR also proposes conforming changes to align with
the statute and minor grammatical edits.
5. Proposed Changes to Sec. 1101.45 (Adjudicatory Proceeding
Exception)
The 2014 NPR proposed a technical correction to Sec. 1101.45(b).
79 FR 10720. This change has been superseded by the Supplemental NPR's
proposed revisions.
Section 6(b)(4)(B) of the CPSA states that the provisions of
section 6(b)(1)-(3) do not apply to the Commission's ``public
disclosure of . . . (B) information in the course of or concerning . .
. an adjudicatory proceeding (which shall commence upon the issuance of
a complaint).'' 15 U.S.C. 2055(b)(4)(B). Current Sec. 1101.45(d)
interprets the term ``concerning'' as follows:
The phrase ``concerning'' refers to information about the
administrative adjudication itself, both once it begins and
indefinitely thereafter. Therefore, the Commission may publicly
disclose information that describes the substance, process and
outcome of the proceeding including, for example, the effectiveness
of any corrective action such as information on the number of
products corrected as a result of a remedial action. By issuing
opinions and public statements, the Commissioners and the presiding
official, who act as decisionmakers, may publicly explain their
individual votes and any decision rendered.
The Supplemental NPR proposes to revise the discussion of
``concerning'' for the reasons stated in section II.F.4 above.
Incorporating these revisions, as well as minor grammatical edits for
simplification, revised Sec. 1101.45(d) now reads:
The phrase ``concerning'' refers to information about or
addressing the administrative adjudication, both once it begins and
indefinitely thereafter. Therefore, the Commission may at any time
publicly disclose information that describes or relates to the
substance, process, or outcome of the proceeding. For example, (i)
Commissioners may publicly explain their individual votes and any
decision rendered by issuing written opinions and making public
statements and (ii) the Commission may disclose information
regarding the effectiveness of any corrective action, such as
information on the number of products corrected as a result of a
remedial action.
The Supplemental NPR also proposes conforming changes to align
Sec. 1101.45 with the statute and minor grammatical edits for clarity.
For example, in Sec. 1101.45(a), the Supplemental NPR proposes to
insert ``(which shall commence upon the issuance of a complaint)''
after ``adjudicatory proceeding'' to conform to the language in the
statute. In Sec. 1101.45(b), the Supplemental NPR proposes non-
substantive edits for simplification. These edits reflect that the
exception applies once the Commission files a complaint under specific
provisions of the CPSA, FHSA, FFA, or PPPA.
6. Proposed Changes to Sec. 1101.46 (Other Administrative or Judicial
Proceeding Exception)
The 2014 NPR proposed removing ``Secretary'' and, in its place,
adding ``Secretariat'' in Sec. 1101.46(b)(7). 79 FR 10720. The
Supplemental NPR no longer proposes this revision, which would be
inconsistent with the Commission's current organization.
The Supplemental NPR proposes to delete as unnecessary the last
sentence in Sec. 1101.46(b)(1), which states: ``Information subject to
the exception for petition proceedings is the petition itself and the
supporting documentation, and information subsequently compiled by the
staff and incorporated or referenced in the staff briefing papers for
and recommendation to the Commission.'' The other examples listed in
Sec. 1101.46(b) do not specify the types of information that are
subject to this exception, and the language proposed for deletion could
be excessively restrictive in actual practice.
The Supplemental NPR proposes conforming changes to align Sec.
1101.46 with the statute and non-substantive edits for clarity. For
example, in Sec. 1101.46(a), the Supplemental NPR proposes to insert
``-(3)'' after ``6(b)(1)''. In Sec. 1101.46(b), the Supplemental NPR
proposes to insert ``without limitation'' after ``Proceedings within
this exception include,'' to clarify that the list appearing at Sec.
1101.46(b) is not exhaustive and could include other administrative or
judicial proceedings as authorized under section 6(b)(4)(B) of the
CPSA. In addition, the Supplemental NPR proposes to revise Sec.
1101.46(c) to state: ``The phrase `in the course of or concerning'
shall be interpreted consistent with Sec. 1101.44(c) and (d) or Sec.
1101.45(c) and (d), as applicable.''
G. Subpart F--Retraction
1. Proposed Changes to Sec. 1101.51 (Commission Interpretation)
The 2014 NPR proposed technical corrections to Sec. 1101.51(b). 79
FR 10720. These changes have been superseded by the Supplemental NPR's
proposal to delete the first two sentences of Sec. 1101.51(b) because
these sentences repeat the information contained in Sec. 1101.51(a).
The Supplemental NPR also proposes changes to Sec. 1101.51(b) to
conform to the language in section 6(b) of the CPSA and minor
grammatical edits for clarity.
2. Proposed Changes to Sec. 1101.52 (Procedure for Retraction)
Section 6(b)(7) of the CPSA states:
If the Commission finds that, in the administration of this Act,
it has made public disclosure of inaccurate or misleading
information which reflects adversely upon the safety of any consumer
product or class of consumer products, or the practices of any
manufacturer, private labeler, distributor, or retailer of consumer
products, it shall, in a manner equivalent to that in which such
disclosure was made, take reasonable steps to publish a retraction
of such inaccurate of misleading information.
15 U.S.C. 2055(b)(7). While section 6(b)(7) of the CPSA identifies four
categories of requesters (i.e., manufacturers, private labelers,
distributors, and retailers), current Sec. 1101.52 authorizes an ``any
other person'' category as an additional group that can request
retraction. The Supplemental NPR proposes to align the retraction
procedure in Sec. 1101.52 with the interested classes referenced in
the statute, and delete from this section all references to ``any other
person.''
Relatedly, in Sec. 1101.52(c), which lists the information that
must appear in a request for retraction, the Supplemental NPR proposes
to add as paragraph (1): ``The identity and relationship (i.e.,
manufacturer, private labeler, distributor, or retailer) of the
requester.'' In connection with this proposed revision, the
Supplemental NPR proposes paragraph redesignations throughout Sec.
1101.52(c).
In Sec. 1101.52(d), the Supplemental NPR proposes to remove the
language: ``If the Commission finds that fuller disclosure is
necessary, it will publish a retraction in the manner it determines
appropriate under the circumstances'' and, in its place, add:
If publication in a manner equivalent to that in which the
disclosure was made is not practicable or could result in further
disclosure of the information, the Commission will publish a
retraction or take other action in a manner that the
[[Page 10444]]
Commission determines appropriate under the circumstances and
consistent with the purposes of section 6(b)(7).
This proposed revision makes the rule flexible enough to address
situations such as, for example, a public disclosure of inaccurate
information by Commission staff during a phone conversation or in an
email, where publication of the correction would result in further
disclosure of the inaccurate or misleading information. In these
instances, the Commission will take other action that the Commission
deems appropriate under the circumstances to correct the prior release.
The 2014 NPR proposed technical and conforming changes to Sec.
1101.52. 79 FR 10720. The Supplemental NPR continues to propose some of
these changes, along with additional conforming changes to align with
the statute, particularly section 6(b)(7) of the CPSA, and minor
grammatical edits for clarity. For example, the Supplemental NPR
proposes to revise the paragraph heading for Sec. 1101.52(a) to
reflect that retraction can occur upon the Commission's own initiative
or upon request. In Sec. 1101.52(b), the Supplemental NPR proposes
revisions to the contact information where a request for retraction
should be sent. In addition, in redesignated Sec. 1101.52(c)(1), which
discusses the information that a requester must submit in connection
with a retraction request, the Supplemental NPR proposes to update the
rule by replacing the language: ``A photocopy of the disclosure should
accompany the request,'' with ``A reproduction of the disclosure (e.g.,
image, audio or video file, copy of document) should accompany the
request, if practicable,'' to reflect advancements in technology that
have occurred since 1983.
H. Subpart G--Information Submitted Pursuant to Section 15(b) of the
CPSA
1. Proposed Changes to Sec. 1101.61 (Generally)
The 2014 NPR proposed a technical correction to Sec.
1101.61(b)(3). 79 FR 10721. These changes have been superseded by the
Supplemental NPR's proposed revisions.
Section 6(b)(5) of the CPSA prohibits the Commission from
``disclos[ing] to the public information submitted pursuant to section
15(b) respecting a consumer product'' unless certain conditions apply.
15 U.S.C. 2055(b)(5). Current Sec. 1101.61(b) states:
Criteria for disclosure. Under section 6(b)(5) the Commission
shall not disclose to the public information which is identified as
being submitted pursuant to section 15(b) or which is treated by the
Commission staff as being submitted pursuant to section 15(b).
Section 6(b)(5) also applies to information voluntarily submitted
after a firm's initial report to assist the Commission in its
evaluation of the section 15 report. However, the Commission may
disclose information submitted pursuant to section 15(b) in
accordance with section 6(b)(1)-(3) if . . .
The Supplemental NPR proposes several revisions to Sec.
1101.61(b). First, the Supplemental NPR proposes to delete the phrase,
``or which is treated by the Commission staff as being submitted
pursuant to section 15(b).'' As explained in the 1983 final rule, the
Commission inserted this phrase in response to comments that Commission
staff sometimes treated reports as being filed under section 15(b),
even when the submitting firm disclaimed any legal obligation to
report. 48 FR 57428. The Commission will continue to apply section
6(b)(5)'s additional information disclosure limitations when a firm
indicates that it is making a submission pursuant to section 15(b) and
16 CFR 1115.13, even if, as authorized under 16 CFR 1115.12(a), the
submitting firm refuses to admit, or specifically denies, in its report
to the Commission that the information reasonably supports the
conclusion that the submitting firm's consumer product is noncomplying,
contains a defect which could create a substantial product hazard, or
creates an unreasonable risk of serious injury or death. Absent
exceptional circumstances where a filing clearly does not come within
the requirements of section 15(b), however, the Commission will rely,
for purposes of applying section 6(b)(5), upon the filer's own
characterization of its filing as being submitted pursuant to section
15(b) and 16 CFR 1115.13.
Second, the Supplemental NPR proposes to require that a submitting
firm identify the information as submitted pursuant to both section
15(b) of the CPSA and 16 CFR 1115.13. The regulation at 16 CFR 1115.13
specifies the information a submitting firm must include in an initial
report and a full report under section 15(b) of the CPSA. The revised
sentence now reads: ``Under section 6(b)(5), the Commission shall not
disclose to the public information that has been identified as
submitted pursuant to section 15(b) and 16 CFR 1115.13.''
Finally, the Supplemental NPR proposes to delete the second
sentence in Sec. 1101.61(b), which states: ``Section 6(b)(5) also
applies to information voluntarily submitted after a firm's initial
report to assist the Commission in its evaluation of the section 15
report.'' The proposed revisions to the first sentence in Sec.
1101.61(b), discussed above, conform better to the language in section
6(b)(5) of the CPSA and 16 CFR 1115.13.
Section 6(b)(5) of the CPSA lists four instances in which its
additional information disclosure limitations do not apply. The
Supplemental NPR proposes revisions to the instances described in Sec.
1101.61(b)(2) and (3). First, in Sec. 1101.61(b)(2), the Supplemental
NPR proposes to insert a corrective action plan and a consent order as
examples of remedial settlement agreements where section 6(b)(5)'s
additional disclosure limitations do not apply. The legislative history
demonstrates that Congress envisioned formal documents, such as consent
orders, as well as informal agreements, like corrective action plans,
would constitute ``remedial settlement agreements'' under section
6(b)(5) of the CPSA. See H.R. Rep. No. 97-208, Consumer Product Safety
Amendments of 1981, at 1242 (1981) (``The conferees do not intend that
a settlement agreement must be made by a formal written agreement, but
rather, for example, may be made by an exchange of letters.''). For
nearly 40 years, the Commission has interpreted remedial settlement
agreements to include letters that embody corrective action plans.
Second, the Supplemental NPR proposes to redesignate paragraph (3),
``The person who submitted the information under section 15(b) agrees
to its public disclosure,'' as a new paragraph (c), with minor
clarifying edits. The proposed paragraph reads: ``Disclosure upon
consent. The Commission may disclose information submitted pursuant to
section 15(b) without following the requirements of section 6(a) or
6(b) if the person who submitted the information under section 15(b)
agrees to its public disclosure.'' This proposal reflects instances in
which Commission staff and a manufacturer or private labeler have
negotiated and agreed upon language, for example in a news release such
as a recall alert. Section 6 notice is not required for such consensual
releases.
Paragraph (4) currently applies the exception in section 6(b)(5)(D)
where ``[t]he Commission publishes a finding that the public health and
safety requires public disclosure with a lesser period of notice than
is required by section 6(b)(1).'' The legislative history of section
6(b)(5)(D) suggests that public health and safety findings trigger an
exception to section 6(b)(3) and, relatedly, section 6(b)(2), which
requires the Commission to notify the manufacturer or private labeler
if it
[[Page 10445]]
intends to disclose information that the firm claimed to be inaccurate.
See H.R. Rep. No. 110-501, Consumer Product Safety Modernization Act
(Dec. 19, 2007) (``It is important to note that section 6(b)(3) of
CPSA, which allows the affected company to seek an injunction against
the release of information in Federal court, does not apply to section
6(b)(5) and the new health and safety exception.''). Congress, however,
did not clearly incorporate these exclusions into the text of section
6(b)(5). Accordingly, the Commission seeks comment on whether sections
6(b)(2) and (b)(3) apply where there has been a public health and
safety finding under section 6(b)(5)(D) of the CPSA.
The Supplemental NPR proposes one conforming change in Sec.
1101.61(b), to align with the statute and non-substantive edits for
clarity. The Supplemental NPR proposes to remove ``section 6(b)(1)-
(3)'' and, in its place, add ``sections 6(a) and 6(b)(1)-(3)'' to
reflect that the Commission may disclose, in certain instances,
information submitted pursuant to 15(b) of the CPSA only after
complying with the requirements of sections 6(a) and 6(b)(1)-(3) of the
CPSA. The Supplemental NPR also proposes to redesignate paragraphs in
Sec. 1101.61(b) and to insert minor grammatical edits throughout Sec.
1101.61 for clarity.
2. Proposed Changes to Sec. 1101.62 (Statutory Exceptions to Section
6(b)(5) Requirements)
The 2014 NPR did not propose any changes to Sec. 1101.62.
The Supplemental NPR proposes conforming changes to align with the
statute and minor grammatical edits. For example, in Sec.
1101.62(a)(2), the Supplemental NPR proposes to remove ``under the
Consumer Product Safety Act (Pub. L. 92-573, 86 Stat. 1207, as amended
(15 U.S.C. 2051, et seq.))'' and, in its place, add ``of the Acts''.
3. Proposed Changes to Sec. 1101.63 (Information Submitted Pursuant to
Section 15(b) of the CPSA)
Current Sec. 1101.63(c) reads: ``Section 6(b)(5) does not apply to
information independently obtained or prepared by the Commission
staff.'' The 2014 NPR proposed revising this section to state:
Section 6(b)(5) does not apply to information (1) independently
obtained or prepared by the Commission staff or (2) identified by
the Commission staff through publicly available sources. For
example, information that is publicly available or that has been
disseminated in a manner intended to reach the public in general,
such as news reports; articles in academic and scientific journals;
press releases distributed through news or wire services;
information that is available on the internet; or information
appearing on the publicly available consumer product safety
information database established pursuant to section 6A of the CPSA,
15 U.S.C. 2055a, does not fall within section 6(b)(5)'s disclosure
limits.
79 FR 10721.
The Supplemental NPR continues to propose, with minor revisions,
that section 6(b)(5) does not apply to information that is already
available to the public. The Commission disagrees with commenters who
asserted that the Commission must withhold from disclosure information
that is already available to the public, just because it also appears
in a report filed with the Commission pursuant to section 15(b) of the
CPSA. The legislative history of section 6 of the CPSA indicates that
Congress intended the Commission to have access to information that
would not be available to the public and to protect such non-public
information from disclosure. H.R. Rep. No. 92-1153, at 31 (1972). But
there is no indication that Congress intended for section 6(b)(5) to
apply to materials such as a firm's press release or product user
manual that a firm already has disclosed to the public, or to retail
locations or sale prices that can be identified by running a search on
the internet or visiting a retail store, even if this same information
appears in a section 15(b) report. The Supplemental NPR thus proposes
to revise section 1101.63(c)(2), redesignated as Sec. 1101.63(b)(2),
to exclude: ``Information that is already available to the public,
including but not limited to, information appearing in a company's
press statements, websites, Frequently Asked Questions, product user
manuals, sales materials, Securities and Exchange Commission filings,
or other public statements or documents published or publicly
disseminated by a manufacturer, distributor, or retailer.''
The Supplemental NPR also proposes clarifying revisions to the
phrase, ``information independently obtained or prepared by the
Commission staff,'' which the 2014 NPR proposed to redesignate as Sec.
1101.63(c)(1). A firm submitting a section 15(b) report must provide
copies or a summary of any complaints related to the safety of the
product, or any allegations or reports of injuries associated with the
product. 16 CFR 1115.13(d)(6). In addition, upon request, the
submitting firm must provide the names and addresses of all
distributors, retailers, and purchasers, including consumers, of the
product. 16 CFR 1115.13(d)(14). We do not believe that Congress
intended section 6(b)(5) to preclude the Commission from contacting a
consumer to obtain additional information about an incident referenced
in a section 15(b) report. Likewise, there is no indication that
Congress intended to restrict the Commission from contacting other
purchasers, such as retailers and distributors, to acquire additional
information about a product at issue in a section 15(b) report, even if
purchaser information appears in a section 15(b) report. If the
Commission could not investigate information contained in a section
15(b) report, the benefit of those reports would be largely lost.
Furthermore, the Commission would not be able to ``protect the public
against unreasonable risks of injury associated with consumer
products'' or ``promote . . . investigation into the causes and
prevention of product-related deaths, illnesses, and injuries,'' as
Congress mandated. 15 U.S.C. 2051(b)(1), (4). Accordingly, the
Supplemental NPR proposes to revise Sec. 1101.63(c), redesignated
Sec. 1101.63(b)(1), to state that section 6(b)(5) does not apply to:
``Information independently obtained or prepared, or developed through
subsequent investigation and verification, by the Commission, any
member of the Commission, or any employee, agent, or representative,
including contractor, of the Commission in an official capacity.''
In Sec. 1101.63(a), redesignated Sec. 1101.63(a)(1), the
Supplemental NPR proposes revisions to align with revised Sec.
1101.61(b). The Supplemental NPR also proposes to insert at the end of
redesignated Sec. 1101.63(a)(1) the citation to 16 CFR 1115.13.
In addition, the Supplemental NPR proposes throughout Sec. 1101.63
conforming changes to align with the statute, organizational edits to
make this section easier to read, and minor grammatical edits for
clarity. For example, the Supplemental NPR proposes to combine the
information contained in paragraphs (a) and (b) as Sec. 1101.63(a),
which now specifies all of the information to which section 6(b)(5)
applies. The Supplemental NPR also proposes to state explicitly that
section 6(b)(5)'s additional disclosure limitations apply not just to
documents generated by staff, but also to documents generated by the
Commission, any member of the Commission, or any employee, agent, or
representative, including contractor, of the Commission in an official
capacity, and to any oral communications made by these individuals or
the Commission.
[[Page 10446]]
I. Subpart H--Delegation of Authority to Information Group
1. Proposed Changes to Sec. 1101.71 (Delegation of Authority)
The 2014 NPR proposed technical changes to Sec. 1101.71. 79 FR
10721. The Supplemental NPR continues to propose most of these changes.
The Supplemental NPR proposes to remove from Sec. 1101.71 all
references to Commission delegation of authority to the Secretary and/
or his or her designees. These proposed revisions reflect the current
organizational structure of the Commission, in which the Secretary
reports directly to the General Counsel. The Supplemental NPR also
proposes to remove all references to the General Counsel's senior staff
designees and the establishment of an Information Group. When making
decisions under this section, the General Counsel routinely consults
with staff across the Office of the General Counsel, including the
Secretary of the Commission.
In addition, the Supplemental NPR proposes conforming changes to
align with the statute, paragraph designations in Sec. 1101.71(a), and
minor grammatical edits for clarity. For example, in Sec. 1101.71(a),
the Supplemental NPR proposes to (1) remove ``release'' and, in its
place, add ``disclosure'' and, (2) remove ``firms'' and, in its place,
add ``the manufacturer or private labeler.''
III. Public Comment on the 2014 NPR
In the 2014 NPR, the Commission invited comments on the proposed
changes to 16 CFR part 1101. The Commission received 24 comments. The
comments are available on www.regulations.gov by searching under docket
number CPSC-2014-0005. This section III responds to significant issues
raised by the commenters.
A. General Comment
Comment 1--The Consumer Federation of America (CFA), Consumers
Union, Kids in Danger, National Consumers League, Public Citizen, The
Safety Institute, and the U.S. Public Interest Research Group (U.S.
PIRG) stated that the 2014 NPR proposes moderate revisions to modernize
the regulation and to make it more consistent with the statute and
industry practice. Although these commenters agreed with the 2014 NPR's
provisions, they asserted that the modest changes do not do enough to
ameliorate the inherent problem of section 6(b), namely, its obstacles
to transparency and the immediate release of crucial product safety
information.
Response 1--Section 6(b) imposes unique requirements on the
Commission's public disclosure of information, that do not limit other
Federal safety agencies. In revising the 6(b) Regulation, the 2014 NPR
sought to improve transparency and openness in the Commission's
disclosure of information while maintaining compliance with the
stringent statutory requirements. The Supplemental NPR proposes
additional revisions to increase transparency and prevent unnecessary
delays in disclosing critical health and safety information.
B. Comments Addressing Specific Sections of the 6(b) Regulation
i. Insertion of the Word ``Calendar'' Before ``Days'' (Sec. Sec.
1101.1 (Redesignated Sec. 1101.2) and 1101.22, 1101.23, 1101.25, and
1101.71)
Comment 2--The Outdoor Power Equipment Institute (OPEI) objected to
the proposal in the 2014 NPR to insert throughout the 6(b) Regulation
the word, ``calendar'', between ``15'' and ``days''. This commenter
stated that shortening a manufacturer or private labeler's response
period from 15 business days to 15 calendar days would place an
additional burden on firms to provide meaningful comments within an
already short period.
Response 2--Rather than shorten the time to respond to section 6
notices, this proposed revision reflects CPSC's practice since November
2008, when the Commission published a final rule to revise CFR part
1101 in accordance with CPSIA's 6(b) amendments. 73 FR 72334. As part
of these revisions, the Commission amended Sec. 1101.25 and replaced
the words, ``10 working,'' with ``5''. 73 FR 72335. Since then, the
Commission has calculated the time for providing notice and for
receiving comments under section 6(b) as calendar days.
Currently, however, only 16 CFR 1101.22(a)(1) specifies
``calendar'' days, while the remaining sections in part 1101 that
discuss notice and comment timing simply state ``days.'' To remove
potential ambiguity, the Supplemental NPR continues to propose
inserting ``calendar'' before ``days'' in sections that discuss timing
and that do not already refer to ``calendar days.''
ii. The Information Must Pertain to a Specific Product (Sec.
1101.11(a)(1))
Comment 3--NAM, the Outdoor Industry Association (OIA), and the
Upholstered Furniture Action Council (UFAC) objected to the 2014 NPR
proposal to delete from Sec. 1101.11(a)(1) the phrase, ``which is
either designated or described in a manner which permits its identity
to be ascertained readily by the public.'' NAM stated that deleting
this phrase would narrow the type of information subject to section
6(b), and OIA maintained that because ``descriptive, contextual or use
statements'' will no longer be subject to section 6(b), the Commission
may reveal the identity of a product under a trade or brand name
without providing a firm with the requisite notice and opportunity to
comment. UFAC stated that the Commission should reconsider its proposal
in the context of rulemaking. According to UFAC, some stakeholders
provide information during a rulemaking with the intent of impacting
negatively entire product categories.
Response 3--The commenters' belief that the 2014 NPR proposal would
narrow the type of information that triggers section 6(b)'s
requirements, is mistaken. Section 6(b)(1) requires the Commission to
provide a manufacturer or private labeler with advance notice and
opportunity to comment on the information, ``if the manner in which
such consumer product is designated or described in such information
will permit the public to ascertain readily the identity of such
manufacturer or private labeler.'' 15 U.S.C. 2055(b)(2) (emphasis
added). This statutory provision is currently reflected in Sec.
1101.11(a)(4), which the Supplemental NPR proposes to redesignate as
Sec. 1101.11(a)(2) and to revise with minor edits. Proposed Sec.
1101.11(a)(2) now reads: ``The manner in which the consumer product is
designated or described in the information must permit the public to
ascertain readily the identity of the manufacturer or private labeler
(see Sec. 1101.13).'' In addition, Sec. 1101.11(a)(1) of the current
6(b) Regulation contains the following additional requirement that
serves to limit the types of intended disclosures that obligate the
Commission to satisfy the requirements of section 6(b)(1): ``The
information must pertain to a specific product which is either
designated or described in a manner which permits its identity to be
ascertained readily by the public.'' Thus, under the current
regulation, pursuant to Sec. 1101.11(a)(1) and (4), section 6(b)(1)
notice and opportunity to comment apply only if the public could
ascertain readily both the identity of the manufacturer or private
labeler and the identity of the product from the face of the
information proposed to be disclosed. The requirement in Sec.
1101.11(a)(1) could result in instances where the Commission does not
provide 6(b)
[[Page 10447]]
notice and opportunity to comment because the public could ascertain
readily, from the information proposed for disclosure, only the
identity of the product's manufacturer or private labeler, but not the
identity of the product itself.
Despite the 6(b) Regulation, the Commission does not believe the
statutory language supports this approach. Accordingly, the
Supplemental NPR proposes to delete Sec. 1101.11(a)(1) to adhere more
closely to the statutory language and provide for greater use of the
section 6(b) procedures.
Regarding rulemakings, the Commission recognizes that stakeholders
may have differing views on a proposed consumer product safety
regulation. However, the Commission will not apply the requirements of
section 6(b)(1)-(3) of the CPSA to a rulemaking proceeding because such
proceedings are specifically exempt. Section 6(b)(4)(B) of the CPSA
states that the requirements of section 6(b)(1)-(3) shall not apply to
the public disclosure of ``information in the course of or concerning a
rulemaking proceeding (which shall commence upon the publication of an
advance notice of proposed rulemaking or a notice of proposed
rulemaking).'' 15 U.S.C. 2055(b)(4)(B).
iii. Removal of the Phrase, ``Individual Members, Employees, Agents,
Contractors or Representatives of the Commission Acting in Their
Official Capacities'' (Sec. 1101.11(a)(2))
Comment 4--TIA observed that the 2014 NPR's proposal to remove from
Sec. 1101.11(a)(2) the phrase, ``individual members, employees,
agents, contractors or representatives of the Commission acting in
their official capacities,'' could cause these individuals to believe
that they are no longer subject to section 6(b).
Response 4--Section 6(d)(2) of the CPSA states that the
``provisions of [section 6] shall apply whenever information is to be
disclosed by the Commission, any member of the Commission, or any
employee, agent, or representative of the Commission in an official
capacity.'' 15 U.S.C. 2055(d)(2). This statutory restriction on the
Commission and specified individuals appears in Sec. 1101.11(a)(3),
which the Supplemental NPR proposes to redesignate as Sec.
1101.11(a)(1) and to revise with minor edits to conform to the statute.
Addressing the commenter's concern, revised Sec. 1101.11(a)(1) would
read: ``The Commission, any member of the Commission, or any employee,
agent, or representative, including contractor, of the Commission in an
official capacity must propose to disclose the information to the
public (see Sec. 1101.12).''
iv. Inclusion of Reports of Harm in the List of Information Not Subject
to Section 6(b)'s Notice and Comment Requirements (Sec. 1101.11(b)(6)
(Redesignated Sec. 1101.11(b)(5))
Comment 5--CFA, Consumers Union, Kids in Danger, National Consumers
League, Public Citizen, The Safety Institute, and U.S. PIRG supported
the 2014 NPR's proposal to add reports of harm posted on
SaferProducts.gov to the list of information not subject to section
6(b)(1). These commenters state that reports of harm posted to
SaferProducts.gov specifically fall outside the statutory requirements
of section 6(b). Several of these commenters also noted that the
Commission should not have to ``spend resources hiding information that
either has already been disclosed by the agency or available
elsewhere.''
On the other hand, the Juvenile Products Manufacturer's Association
(JPMA), NAM, and TIA objected to the 2014 NPR's proposal to add reports
of harm posted on SaferProducts.gov to the 6(b) Regulation's list of
information not subject to section 6(b)(1). TIA asserted that the
exclusion from section 6(b) for reports of harm applies ``only within
the confines'' of SaferProducts.gov and ``subject to the express
disclaimers provided therein.'' Letter from Toy Industry Association,
Inc. (Apr. 28, 2014); see also Letter from National Association of
Manufacturers (Apr. 28, 2014) (asserting that 6(b) exclusion does not
apply to ``alternative disclosures of information contained in the
report''). According to these associations, the Commission's proposal
to categorically exclude reports of harm from section 6(b) procedures
creates fairness issues. JPMA further stated that excluding from the
section 6(b) requirements disclosure of a report of harm that is
responsive to a FOIA request deprives a firm of the right to challenge
the accuracy, fairness, or responsiveness of the document.
Response 5--This Supplemental NPR adopts the 2014 NPR's proposed
revision. Reports of harm posted on SaferProducts.gov are explicitly
excluded from the scope of the statutory 6(b) requirements by statute
and the Commission's current regulations. See 15 U.S.C. 2055a(f)(1)
(excluding from section 6(b) reports of harm published to
SaferProducts.gov); 16 CFR 1102.44(a) (``Sections 6(a) and 6(b) of the
CPSA shall not apply to the submission, disclosure, and publication of
information provided in a report of harm that meets the minimum
requirements for publication in Sec. 1102.10(d) in the Database''
(emphasis added)).
Once posted to SaferProducts.gov, reports of harm are readily
available to the general public. Consequently, the Commission will
treat such reports in accordance with the Commission's proposed
approach for publicly available information. As discussed in section
II.C.2.b.ii above, under this approach, the Commission could release
reports of harm or information contained in such reports, without
notice under section 6(b)(1), if the Commission does not characterize
the information contained in the report or also release other
information that is subject to section 6(b)(1), and the Commission's
use of the SaferProducts.gov information is accurate and not
misleading.
JPMA's argument that excluding a report of harm deemed responsive
to a FOIA request from the section 6(b) process deprives a firm of the
right to challenge the accuracy of the document is without merit.
Pursuant to section 6A(c) of the CPSA, the Commission must transmit a
report a harm to a manufacturer or private labeler identified in a
report and provide such firm with an opportunity to submit comments on
the information contained in the report, including claims regarding
accuracy. 15 U.S.C. 2055a(c)(1), (2), (4); 16 CFR 1102.12, 1102.20(a),
1102.26. If the Commission determines that the information is
materially inaccurate, the Commission must: (1) decline to add the
materially inaccurate information to SaferProducts.gov; (2) correct the
materially inaccurate information in the report and add the report to
SaferProducts.gov; or (3) add information to correct inaccurate
information in SaferProducts.gov. 15 U.S.C. 2055a(c)(4)(A); see also 16
CFR 1102.26 (interpreting statutory requirement).
Although section 6A(f)(1) of the CPSA specifically excludes from
the 6(b) notice and comment requirements reports of harm that are
published on SaferProducts.gov, this provision is silent regarding
reports of harm that do not meet the criteria for publication. 15
U.S.C. 2055a(f)(1). For reports of harm that the Commission has not
published on SaferProducts.gov, the Commission will provide firms with
the requisite 6(b) notice.
Comment 6--JPMA noted that the Commission should not expend
resources to gather and produce information, such as reports of harm
published on SaferProducts.gov, if such
[[Page 10448]]
information is independently available to the FOIA requester.
Response 6--We agree with this comment. One of the purposes of the
CPSA is to ``assist consumers in evaluating the comparative safety of
consumer products.'' 15 U.S.C. 2051(b)(2). If the Commission receives a
FOIA request specifically seeking reports of harm, we will continue our
current practice of referring the requester to SaferProducts.gov to
conduct their own search for this publicly available information.
v. Inclusion of Information That Is Already Available to the Public in
the List of Information Not Subject to Section 6(b)'s Notice and
Comment Requirements (Sec. 1101.11(b)(7) (Redesignated Sec.
1101.11(b)(6))
Comment 7--Seven commenters comprising consumer groups, including
CFA, Kids in Danger, and U.S. PIRG, supported the 2014 NPR's proposal
to include in the list of information not subject to section 6(b)(1)
the following: ``Information that is publicly available or that has
been disseminated in a manner intended to reach the public in general,
such as news reports; articles in academic and scientific journals;
press releases distributed through news or wire services; or
information that is available on the internet.''
In contrast, 14 commenters, including the Consumer Specialty
Products Association (CSPA), Footwear Distributors and Retailers of
America (FDRA), and NAM, among others, objected to the 2014 NPR's
proposal to include publicly available information in the list of
information not subject to section 6(b)(1). In general, these
commenters asserted that the Commission's proposal to exclude publicly
available information from the notice and comment requirements violates
the CPSA. The commenters stated that the 6(b) requirements apply to any
information the Commission releases to the public, regardless of the
public's pre-existing access to the information.
Response 7--The Commission disagrees with the assertion that
section 6(b) applies to information that is already available to the
public. Section 6(b)(1) of the CPSA requires the Commission to provide
advance notice and an opportunity to comment ``prior to [the
Commission's] public disclosure of any information obtained under this
Act, or to be disclosed to the public in connection therewith.'' 15
U.S.C. 2055(b)(1). Black's Law Dictionary defines ``disclosure'' as
``[t]he act or process of making known something that was previously
unknown.'' U.S. v. Fei Ye, 436 F.3d 1117, 1120 (9th Cir. 2006) (citing
Black's Law Dictionary 477 (7th ed. 1999)). The Commission's use of
publicly available information, such as information in a news article
or an academic or scientific journal, does not constitute a ``public
disclosure'' under section 6(b) for which notice and opportunity to
comment are required, because such information has already been put in
the public domain by the Commission or by others.
However, commenters correctly noted that publicly available
information, including but not limited to, information that appears on
the internet, can be misleading or inaccurate--even intentionally so.
Commenters also expressed concern that the Commission's public use of
such information may imply that the information is verified, accurate,
or reliable.
Taking account of the comments received, the Supplemental NPR
proposes a revised approach for information already available to the
public. As discussed in section II.C.2.b.ii above, under the revised
approach, the Commission will release or identify information that the
Commission obtained from publicly available sources only if (1) the
Commission does not characterize the publicly available information or
relay new information, and (2) the Commission's use of the information
is accurate and not misleading. This revised approach provides
additional protection against inaccurate or misleading communications
from the Commission.
vi. Information Previously Disclosed (Proposed Sec. 1101.11(b)(7)) and
Sec. Sec. 1101.21(b)(7) (Redesignated Sec. 1101.21(b)(6)), and
1101.31(d) (Redesignated Sec. 1101.31(c))
Comment 8--Seven consumer groups supported the 2014 NPR proposal to
include the following in the list of information not subject to section
6(b)(1): ``(8) Information that is substantially the same as
information that the Commission previously disclosed in accordance with
section 6(b)(1), except as specified in Sec. 1101.31(d).'' In general,
these commenters noted that the proposal would save the Commission time
and resources.
In contrast, 16 commenters comprising one firm and trade
associations, including the Association of Home Appliance Manufacturers
(AHAM), JPMA, and the National Retail Federation (NRF), objected to the
2014 NPR proposal. In particular, 12 commenters asserted that the
phrase, ``substantially the same,'' is vague and undefined.
Response 8--Section 6(b) does not require a new notice and comment
process when the Commission discloses for an additional time,
information as to which appropriate notice already has been conveyed
and applicable procedures followed. Section 6(b)(1) of the CPSA
requires the Commission to provide a manufacturer or private labeler
with notice and ``a reasonable opportunity to submit comments to the
Commission'' on information proposed for release. 15 U.S.C. 2055(b)(1)
(emphasis added). Likewise, section 6(b)(6) of the CPSA, which requires
the Commission to establish procedures to ensure that information
disclosed is accurate and not misleading, applies ``[w]here the
Commission initiates the public disclosure of information.'' 15 U.S.C.
2055(b)(6). The phrase, ``initiates the public disclosure,'' implies
that disclosure constitutes a single event. Moreover, attempting to
restrict Commission communications by requiring 6(b) notice and
opportunity to comment for each subsequent disclosure would be futile,
because the Commission has already disclosed the information to the
public in accordance with the section 6(b) requirements, and the
Commission does not control who views the previously disclosed
information, or how it is further disseminated.
Nevertheless, the Commission agrees with commenters that the
proposal announced in the 2014 NPR could be confusing. Upon further
consideration, the Commission proposes a different approach for
subsequent disclosures of information that should be more
straightforward to apply. Under this new approach, the 6(b) Regulation
will specify that the requirements of section 6(b)(1) do not apply to:
``Information, not previously disclosed, that in context does not
disclose materially more or materially different information about the
consumer product than what the Commission previously disclosed in
accordance with the law.''
Comment 9--Thirteen commenters comprising one firm and trade
associations, including the Fashion Jewelry & Accessories Trade
Association (FJATA) and Philips Electronics North America, maintained
that renotification for previously disclosed information is critical
because: (1) it allows firms to provide new comments on information
that the Commission proposes to release again, and (2) a release may be
accurate and/or fair at its initial disclosure, but may be inaccurate
and/or unfair at a later time, because the firm or the Commission
receives or develops new
[[Page 10449]]
or additional information, and/or the understanding of information
previously disclosed may change.
Response 9--Renotification is not necessary for manufacturers and
private labelers to provide the Commission, in the course of its
proceedings, with new data or arguments regarding information that CPSC
disclosed previously. Regarding commenters' concerns that a subsequent
release of information may be inaccurate or unfair, the Commission has
an ongoing duty under section 6(b)(7) of the CPSA to ensure that any
information it discloses is accurate and not misleading.
Comment 10--The Motorcycle Industry Counsel (MIC) argued that
without renotification, firms will not be able to identify staff errors
in connection with FOIA requests.
Response 10--The Commission provides firms with two opportunities
to review the materials that CPSC intends to disclose in response to a
FOIA request. The 6(b)(1) notice includes a copy of the materials that
the Commission proposes to disclose to the FOIA requester. This
material contains any staff redactions to Personally Identifiable
Information (PII) and information subject to Exemption 5 of the FOIA, 5
U.S.C. 552(b)(5), which protects ``inter-agency or intra-agency
memorandums or letters that would not be available by law to a party
other than an agency in litigation with the agency.'' The 6(b)(2)
notice, which informs the manufacturer or private labeler that the
Commission disagrees with the firm's inaccuracy objections and will
release the documents, includes copies of the final package of
materials CPSC intends to disclose to the FOIA requester. These
materials incorporate any comments from the manufacturer or private
labeler with which Commission staff agrees, and all redactions to the
materials, including information considered confidential under section
6(a)(2) of the CPSA. Commission staff also includes with the 6(b)(2)
notice a copy of the cover letter to the FOIA requester, explaining the
information that the Commission could not disclose. Therefore, firms
have several opportunities before the Commission discloses materials to
identify staff errors in connection with FOIA requests.
Finally, as already noted, the Commission cannot control further
distribution of information it makes public through the section 6(b)
process, and thus attempts by manufacturers or private labelers to
limit subsequent releases of previously disclosed information could be
futile even if they were allowed under the 6(b) Regulation.
Comment 11--FJATA, MIC, and TIA stated that renotification is
critical because it allows manufacturers and private labelers to know
who requested their information.
Response 11--Renotification is not necessary for a firm to know who
submitted a FOIA request for its information. The Commission posts on
its FOIA web page FOIA Request Logs, which describe each FOIA request
that the Commission receives and identify the FOIA requester (available
at https://www.cpsc.gov/Newsroom/FOIA/FOIA-Request-Logs).
vii. The Commission Will Provide Advance Notice and Opportunity To
Comment if There Is a Question Whether the Public Could Readily
Ascertain the Identity of a Manufacturer or Private Labeler (Sec.
1101.13)
Comment 12--The 2014 NPR proposed deleting from Sec. 1101.13 the
last sentence, which states, ``The Commission will provide the advance
notice and opportunity to comment if there is a question whether the
public could readily ascertain the identity of a manufacturer or
private labeler.'' 79 FR 10715. The Coalition for Sound Safety
Solutions (CS3), JPMA, MIC, NAM, and NRF objected to this proposal. In
general, these commenters stated that the Commission's proposal to
remove this sentence implies that the Commission will not provide
notice, even when there is ambiguity regarding whether the public could
ascertain the identity of the firm. Two of these commenters asserted
that the proposed revision conflicts with the statutory language,
legislative history, and purpose of section 6(b).
Response 12--We disagree with these comments. The sentence proposed
for deletion establishes a subjective standard for section 6(b)
notification that would be difficult to apply consistently. It is,
moreover, inconsistent with the objective ``reasonable person''
standard the Commission adopted in the first sentence of this section.
Under the objective standard, if a reasonable person who lacks
specialized expertise can ascertain readily the identity of the
manufacturer or private labeler from the information proposed to be
disclosed, the Commission will provide such information to the firm for
section 6(b) comment. The proposed deletion removes a potential source
of confusion around the more easily applied, objective standard.
viii. Electronic Notice and Communication (Sec. Sec. 1101.21,
1101.22(a) (Removed), 1101.23(c) (Removed), and 1101.25(c)
(Redesignated Sec. 1101.25(b))
Comment 13--Commenters on Sec. Sec. 1101.21, 1101.22(a),
1101.23(c), and 1101.25(c) overwhelmingly supported the 2014 NPR's
proposal to authorize electronic 6(b) notices, direct Commission staff
to transmit requisite notices through an electronic medium whenever
possible, and encourage electronic communication with the Commission.
Some commenters sought clarification of the Commission's process for
sending the initial 6(b) notice, including whether the Commission will
use the business portal (available through https://www.saferproducts.gov/Business) for providing notice and receiving
comments and whether firms may continue to submit and receive 6(b)
communications via U.S. mail and other methods.
Response 13--Currently, when the FOIA Office receives a request for
records pertaining to a manufacturer or private labeler, the Commission
sends the section 6(b)(1) notice to the firm via secure collaboration
software. This notice includes a copy of the FOIA request, with
redactions of any PII, and a copy of the records requested, with
redactions of PII and any information that falls under FOIA Exemption
5, 5 U.S.C. 552(b)(5). The FOIA Office also uses secure collaboration
software to send to the manufacturer or private labeler the section
6(b)(2) notice, a copy of the redacted records, and a copy of the
Commission's final letter to the requester. To use the software, the
FOIA Office must have the current email address of the firm's
representative. If an email address cannot be found, the FOIA Office
sends the notice via certified mail.
For other proposed disclosures, such as a ``unilateral'' news
release in which the Commission warns consumers about a potential
defect or risk without the relevant firm's cooperation, the
Commission's current practice is to provide the section 6(b)(1) and (2)
notices via email. Where the Commission does not have an email address
or the Commission cannot confirm electronic receipt of the notice,
Commission staff will provide notice using other methods, including
delivery via U.S. mail or other delivery service. See proposed Sec.
1101.21(b).
ix. Deletion of the Phrase, ``Upon His or Her Own Initiative Or''
(Sec. 1101.22(a)(2))
Comment 14--CFA, Consumers Union, Public Citizen, The Safety
[[Page 10450]]
Institute, and U.S. PIRG supported the 2014 NPR's proposal to delete
the phrase, ``Upon his or her own initiative or,'' from the first
sentence of Sec. 1101.22(a)(2), which states: ``Upon his or her own
initiative or upon request, the Freedom of Information Officer may
provide a different amount of time for comment, particularly for firms
that receive voluminous or complex material.'' The commenters noted
that this is a minor revision to reflect actual practice.
Response 14--The Commission agrees with these comments. Absent a
specific request from a manufacturer or private labeler, the Freedom of
Information Officer typically has not provided a longer amount of time
for a firm to comment. In general, firms are in the best position to
initiate a suggestion that additional time may be necessary to provide
substantive comments on information that the Commission proposes to
disclose.
x. Disclosure of a Firm's Comments (Sec. Sec. 1101.21(b)(5)
(Redesignated 1101.21(b)(4)), 1101.24(c), 1101.31(b) (Redesignated
1101.31(a)), 1101.33(a)(1), and 1101.33(b)(3) (Redesignated
1101.21(b)(4))
Comment 15--CFA, Consumers Union, Kids in Danger, National
Consumers League, Public Citizen, The Safety Institute, and U.S. PIRG
supported the 2014 NPR's proposal to require manufacturers and private
labelers to provide a rationale, such as an applicable statutory or
regulatory basis or provision, to support withholding their comments
and an explanation why disclosure of the firm's comments is not
necessary to ensure that the disclosure of the information that is the
subject of the comments is fair in the circumstances. These commenters
noted that this proposal will increase transparency unless there is a
valid reason for the information to be withheld.
In contrast, 13 trade associations, including the Art & Creative
Materials Institute, Inc., FDRA and the Retail Industry Leaders
Association (RILA), objected to the 2014 NPR's proposal. These
commenters stated that the Commission's proposal would chill
cooperation between firms and the Commission, causing manufacturers and
private labelers to provide limited comments and data regarding the
information proposed for disclosure.
Response 15--When the Commission adopted the 6(b) Regulation in
1983, we stated that a firm's comments may ``clarify questions of
accuracy, especially those concerning the factual basis for specific
statements and the qualifications of individuals to make certain
observations or to express opinions.'' 48 FR 57423. In addition, a
firm's comments might ``correct minor inaccuracies although the overall
substance of the information to be disclosed is accurate.'' Id. For
these reasons, instead of requiring of a legal rationale such as a
statute or regulation, the Supplemental NPR proposes to more broadly
require that the manufacturer or private labeler provide the basis for
why it suggests the comments should not be disclosed.
We do not expect that adopting this proposal would reduce the
usefulness of information firms provide to the Commission in response
to section 6(b)(1) notices. We expect firms to submit detailed comments
on the information proposed for disclosure, particularly to make their
opposition to the proposal more forceful and credible. Indeed, as the
regulation explains, a manufacturer or private labeler's submission
``must be specific and should be accompanied by documentation, where
available, if the comments are to assist the Commission in its
evaluation of the information.'' 16 CFR 1101.24(a).
Comment 16--FDRA, MIC, FJATA, OIA, CS3, and JPMA argued that the
2014 NPR proposal requiring that manufacturers and private labelers
provide a rationale to support withholding their comments violates the
CPSA. JPMA stated that although the CPSA requires the Commission to
disclose a manufacturer or private labeler's comments upon the firm's
request, the CPSA does not similarly require the Commission to disclose
a firm's objection when the manufacturer or private labeler objects to
disclosure. FJATA stated that the Commission would violate the statute
if the Commission released a manufacturer's or private labeler's
comments without first assessing whether such release is fair and
reasonably related to effectuating the purposes of the CPSA.
Response 16--We do not agree with the comments that the
Commission's proposal to release a firm's comments violates the CPSA.
Section 6(b)(1) states that ``the Commission may . . . include with the
disclosure any comments or other information or a summary thereof . . .
to the extent permitted by and subject to the requirements of this
section.'' 15 U.S.C. 2055(b)(1) (emphasis added). Thus, the Commission
has discretion in deciding whether to release a firm's comments, to the
extent permitted by and subject to the requirements of section 6. As
the Commission explained in 1983, disclosure of a firm's comments may
help to place the information that the Commission proposes to disclose
in the proper context, particularly if releasing the comments helps to
assure the accuracy of the underlying information disclosure. 48 FR
57423.
The Commission agrees with the comment that the Commission would
violate the CPSA if the Commission discloses a manufacturer's or
private labeler's comments without first assessing whether the
information contained in the comments is accurate and that disclosure
of the comments would be fair and reasonably related to the purposes of
the CPSA. Thus, the Commission will not disclose comments that the
Commission determines are inaccurate or misleading.
Comment 17--ACMI and MIC argued that the Commission's proposal
regarding publication of comments contradicts the legislative history
of section 6(b). These commenters cited House Report 92-1153 as
evidence that Congress did not intend the Commission to release a
manufacturer's or private labeler's comments. House Report 92-1153
states:
There is no intention that the Commission be required to include
a manufacturer's or private labeler's explanation in the materials
which it determines to disseminate at the end of the 30-day period.
This was suggested to the committee and rejected.
Response 17--The proposal regarding release of a firm's comments is
aligned with the cited legislative history. While section 6(b)(1) does
not require the Commission to disclose a manufacturer's or private
labeler's comments, unless that firm specifically requests disclosure,
the Commission nevertheless has discretion in deciding whether to
disclose a firm's comments absent a specific request from the firm. See
15 U.S.C. 2055(b)(1) (``In disclosing any information under this
subsection, the Commission may, . . . include with the disclosure any
comments or other information or a summary thereof.'').
Comment 18--FDRA asserted that section 6(a)(3)-(6) of the CPSA only
requires firms to mark information as confidential and does not require
that firms provide a statutory or regulatory basis for withholding. MIC
maintained that neither Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4),
nor section 6(a)(2) of the CPSA, requires a firm to provide a rationale
to support withholding of trade secret and confidential commercial
information. This commenter also stated that without a guarantee that
Exemption 4 of the FOIA will protect trade secrets and privileged or
confidential commercial information, firms will not provide comments
[[Page 10451]]
containing this information, which could deprive the Commission of
relevant information.
Response 18--The proposed revisions to the 6(b) Regulation maintain
the protections for trade secret or privileged or confidential
commercial or financial information as delineated in the CPSA, the
FOIA, and our corresponding regulations. See also revised 16 CFR
1101.24(b) (claims of confidentiality). Contrary to the commenters'
suggestion, merely marking information as confidential is not
sufficient to support a claim of confidentiality. Firms should consult
the Commission's FOIA regulation at 16 CFR 1015.18, which specifies the
information that a firm must provide with any request for
confidentiality, and 16 CFR 1015.19, for additional information on
Commission determinations regarding confidentiality requests.
Comment 19--ACMI, the American Apparel & Footwear Association, CS3,
OIA, and OPEI stated that the Commission's proposed requirement that a
manufacturer or private labeler provide a rationale to support
withholding of its comments would create additional burdens for both
the Commission and firms. OPEI further observed that the Commission's
proposal will not create efficiencies because Commission staff will
have to review two documents: (1) an argument against disclosure of the
information that is the subject of the FOIA request, and (2) an
argument against disclosure of the firm's comments.
Response 19--The Commission believes that any additional burdens
that the revised policy might create for firms and Commission staff are
minimal and justified by legitimate administrative interests as well as
the public benefit from greater transparency about consumer product
safety.
xi. Disclosure of Information That Is Attorney Work-Product or Subject
to an Attorney/Client Privilege (Sec. 1101.33(b)(3))
Comment 20--Section 1101.33(b) provides examples of disclosures of
information that generally would not be fair in the circumstances. Five
commenters comprising consumer groups, including Consumer Union and
Public Citizen, supported the 2014 NPR's proposal to delete Sec.
1101.33(b)(3), which covers information that is work-product or subject
to an attorney/client privilege. Public Citizen noted that ``[t]he
Commission is a government agency, and not an arm, client or legal
advisor of manufacturers or their law firms.''
In contrast, eight commenters comprising a firm and trade
associations, including OPEI and TIA, objected to the Commission's
proposal to remove from Sec. 1101.33(b) information that is attorney
work-product or subject to the attorney/client privilege. These
commenters stated that this provision encourages firms' candor with the
Commission and that removal could chill cooperation. OPEI observed that
when the Commission adopted the regulation in 1983, the Commission
agreed with a comment that disclosure of attorney work-product and
information subject to the attorney/client privilege would be unfair.
According to this commenter, ``[n]othing has changed that would now
render the disclosure of such information fair.''
Response 20--The Commission is concerned that the current
regulation may cause a manufacturer or private labeler mistakenly to
believe that information the firm intentionally submits to the
Commission that is attorney work-product or subject to the attorney/
client privilege will remain privileged. To the contrary, if a
manufacturer intentionally submits information that is subject to the
attorney/client privilege and later becomes involved in litigation with
a third party, including another government agency, a court could
conclude that the manufacturer waived the privilege when it voluntarily
provided the information to the Commission. Moreover, the Commission
does not expect or encourage firms to submit information that is
legitimately attorney work-product or subject to the attorney/client
privilege.
If a firm inadvertently submits information that is attorney work-
product or subject to the attorney/client privilege without intending a
waiver, the Commission will treat the information in accordance with
applicable authorities governing waiver and inadvertent disclosure. In
addition, the firm may request confidential treatment of the
information in accordance with the Commission's FOIA regulation at 16
CFR 1015.18.
Comment 21--AHAM maintained that even if the information is no
longer privileged, the information could still be confidential, and its
release would be unfair. Similarly, TIA argued that this provision is
important for protecting from disclosure information that manufacturers
or private labelers submit to the Commission in connection with section
15(b) of the CPSA, which also may be referenced by staff in preliminary
determinations.
Response 21--The submitting manufacturer or private labeler may
still assert that other provisions in the CPSA and corresponding
regulations require the Commission to maintain the information as
confidential. For example, a manufacturer or private labeler may claim
that disclosure of the information under section 6(b)(1) would not be
fair because the firm furnished the information to facilitate prompt
remedial action or settlement of a case and the firm had a reasonable
expectation that the information would be maintained in confidence. 16
CFR 1101.33(b)(1). A manufacturer or private labeler also may assert
that disclosure is prohibited under section 6(b)(5) of the CPSA because
the firm had identified the information as submitted pursuant to
section 15(b) and 16 CFR 1115.13, as explained in revised Sec.
1101.61(b). In addition, a manufacturer or private labeler may contend
that section 6(a)(2) of the CPSA prohibits disclosure because the
information constitutes trade secret or privileged or confidential
commercial or financial information under 5 U.S.C. 552(b)(4).
xii. Information Submitted Pursuant to Section 15(b) of the CPSA and
Identified by the Commission Staff Through Publicly Available Sources
(Sec. 1101.63(c))
Comment 22--CFA, Consumers Union, and the Safety Institute
supported the 2014 NPR's proposal to revise Sec. 1101.63(c) to state
that section 6(b)(5) does not apply to information (1) independently
obtained or prepared by the Commission staff or (2) identified by the
Commission staff through publicly available sources. The commenters
maintained that the Commission should not have to use resources to
withhold information that is already available to the public.
In contrast, CS3, JPMA, NAM, the Outdoor Industry Council, RILA,
and TIA objected to this proposal. In general, these commenters stated
that the Commission's proposal violates the CPSA, noting that section
6(b)(5) does not include publicly available information as one of the
limited exceptions to that paragraph's extra restriction. The
commenters also maintained that the Commission's proposal violates the
legislative history of the CPSA. According to TIA, Congress' intent in
enacting section 6(b)(5) of the CPSA was to protect information,
including publicly available information, that Commission staff did not
independently identify or prepare. TIA noted that section 15 reports
may reference publicly available
[[Page 10452]]
information that was not known previously to the Commission.
Response 22--There is no indication that Congress intended the
Commission to withhold from disclosure information that is already
available to the public and that appears in a report filed with the
Commission pursuant to section 15(b) of the CPSA. In CPSC v. GTE
Sylvania, Inc., 447 U.S. 102 (1980), the Supreme Court examined the
legislative history of the CPSA, including the House Report, and
observed that ``[t]he CPSA gave the Commission broad powers to gather,
analyze, and disseminate vast amounts of private information.'' Id. at
111 (emphasis added). The House Report on the CPSA states:
If the Commission is to act responsibly and with adequate basis,
it must have complete and full access to information relevant to its
statutory responsibilities. Accordingly, the committee has built
into this bill broad information-gathering powers. It recognizes
that in so doing it has recommended giving the Commission the means
of gaining access to a great deal of information which would not
otherwise be available to the public or to Government. Much of this
relates to trade secrets or other sensitive cost and competitive
information. Accordingly, the committee has written into section 6
of the bill detailed requirements and limitations relating to the
Commission's authority to disclose information which it acquires in
the conduct of its responsibilities under this act.
Id. at 111-112 (citing H.R. Rep. No. 92-1153, p. 31 (1972)).
In enacting the CPSA, in particular section 15(b) and other
``information-gathering'' provisions, Congress authorized the
Commission to (1) obtain information that would not be available to the
public and (2) protect such information from disclosure. Therefore,
information that a firm maintains as confidential and provides in a
section 15(b) report, such as test results and the names of
manufacturers or suppliers, may be subject to the additional disclosure
limitations under section 6(b)(5) of the CPSA. However, information
that a person can obtain through a simple internet search or even by
entering a retail store that sells the product, such as sales price or
product details, is not subject to section 6(b)(5)'s additional
disclosure protections.
Comment 23--JPMA and RILA insisted that the Commission should
continue to protect from disclosure, under section 6(a)(2) and 6(b)(5)
of the CPSA, confidential business information provided in section
15(b) reports.
Response 23--The Commission will withhold under section 6(a)(2) of
the CPSA information that a firm considers to be trade secret or
privileged or confidential commercial or financial information if the
firm submitting the information requests withholding and specifically
identifies those sections that must be withheld, and the information
meets the statutory and regulatory requirements for withholding. In
addition, as discussed in revised Sec. 1101.61(b), the Commission will
not disclose information that a firm identifies as submitted pursuant
to section 15(b) of the CPSA and 16 CFR 1115.13, unless one of the
statutory exceptions applies. If a statutory exception applies, the
Commission must still comply with the requirements of sections 6(a) and
6(b)(1)-(3) before disclosing the information.
Comment 24--OIA and NAM maintained that the Commission's disclosure
of inaccurate, misleading, or unfair information contained in a section
15(b) report could damage a firm's reputation.
Response 24--The Commission believes that most firms are diligent
and thorough in executing their CPSA reporting obligations to the
Commission. To the extent that the commenters suggest that the
Commission may have reason to believe that a releasable section 15(b)
report contains inaccurate, misleading, or unfair information, the
Commission will review its release of such submission in accordance
with the provisions of section 6(b). See also 15 U.S.C. 2068(a)(13)
(discussing misrepresentation).
xiii. Voluntary Corrective Action Plans and Remedial Settlement
Agreements Under Section 6(b)(5) of the CPSA
Comment 25--Section 6(b)(5) of the CPSA states that, in addition to
the requirements of section 6(b)(1), ``the Commission shall not
disclose to the public information submitted pursuant to section 15(b)
respecting a consumer product unless . . . (B) in lieu of proceeding
against such product under section 15(c) or (d), the Commission has
accepted in writing a remedial settlement agreement dealing with such
product.'' JPMA and TIA asserted that ``[n]either the CPSA nor the
regulations equate a `remedial settlement agreement dealing with [a]
product' accepted by the Commission `in lieu of proceeding against such
product [under] 15(c) or (d)' . . . with a voluntary recall corrective
action plan where no administrative action is pending or
contemplated.'' In addition, NRF urged the Commission to maintain the
``current and long-standing agency practice (if not formal interpretive
position) that, in the absence of some other exception under 6(b), all
information'' that a firm provides to the Commission under section
15(b) will not be disclosed, regardless of whether the information
results in a voluntary recall.
Response 25--The legislative history of the CPSA indicates that
Congress did not intend remedial settlement agreements necessarily to
be formal written agreements. See H.R. Rep. No. 97-208, at 1242 (1981)
(``The conferees do not intend that a settlement agreement must be made
by a formal written agreement, but rather, for example, may be made by
an exchange of letters.''). For nearly 40 years, the Commission has
interpreted remedial settlement agreements to include voluntary
corrective action plans:
A voluntary corrective action plan in effect settles a potential
administrative or judicial action. Such corrective action can range
in scope from adding a label to a product or altering future
production to a total recall and publication notification program.
The nature and extent of such an undertaking however does not change
the fact that it is a remedial settlement agreement. 48 FR 57428
(emphasis added).
While section 6(b)(5)'s additional layer of protection may no
longer apply to information that a manufacturer or private labeler
submits under section 15(b) of the CPSA because the firm and the
Commission have agreed to a corrective action plan, the manufacturer or
private labeler may still assert that the information must be withheld
from disclosure under section 6(a) and 6(b)(1) of the CPSA and the
corresponding regulatory provisions.
Comment 26--NRF argued that if the Commission determines that
corrective action plans are remedial settlement agreements under
section 6(b)(5) of the CPSA, firms will provide the Commission with
only ``bare bones'' information under section 15(b). According to this
commenter, sharing such limited information with the Commission would
``lead to more protracted and less informed product safety
investigations,'' which would jeopardize consumer safety.
Response 26--Tactical submission of only ``bare bones'' information
to the Commission in connection with section 15(b), while withholding
other information required to be submitted, is prohibited under the
requirements of sections 15, 16, 19, and 27 of the CPSA and the
corresponding regulations. In addition, we have no reason to believe
that restating established policy--that remedial settlement agreements
under section 6(b)(5) include corrective action plans--would impact the
type and extent of information that firms provide to the Commission
under section 15(b).
[[Page 10453]]
Section 6(b)(5) of the CPSA creates an additional layer of protection
from the disclosure of information that a firm submits to the
Commission pursuant to section 15(b) of the CPSA. 15 U.S.C. 2055(b)(5)
(``In addition to the requirements of paragraph 1 . . .''). Therefore,
even if information submitted in connection with section 15(b) is not
protected from disclosure under section 6(b)(5) of the CPSA, the
information nevertheless may be protected under other withholding
provisions specified in the CPSA and the corresponding regulations.
xiv. Firms Can File a Lawsuit To Enjoin the Disclosure of Information
Comment 27--CFA, Consumers Union, National Consumers League, The
Safety Institute, and U.S. PIRG expressed disappointment that the
proposed rule does not prevent a firm from filing a lawsuit to enjoin
the Commission's release of information. These commenters stated that
the threat of a lawsuit ``compels CPSC to maintain the secrecy or delay
the disclosure of important product safety information.''
Response 27--Congress specifically authorized (1) the manufacturer
and private labeler to ``bring an action in the district court . . . to
enjoin disclosure of the document'' at issue in a section 6(b)(1)
notification, and (2) the district court to ``enjoin such disclosure if
the Commission has failed to take the reasonable steps'' established in
section 6(b)(1). 15 U.S.C. 2055(b)(3)(A). In any event, the commenters'
belief that the Commission withholds releasable information when faced
with the threat of a lawsuit is mistaken. The Commission routinely
discloses to the public crucial product safety information, even when a
manufacturer or private labeler does not agree to conduct a recall or
implement another corrective action. In these instances, for example,
the Commission may publish a ``unilateral'' press release after
complying with the notice and comment requirements under section 6(b)
of the CPSA.
xv. Retailers Should Continue To Be Included Among the Firms That Are
Covered Under Section 6(b)
Comment 28--RILA stated that the Commission should continue to
withhold from disclosure information that retailers, who are not acting
as manufacturers, private labelers, or importers of a subject product,
provide to the Commission when the Commission contacts the retailer to
obtain information regarding (1) an issue that another firm reported to
the Commission under section 15(b) of the CPSA or (2) an incident
reported to SaferProducts.gov. RILA also requested clarification that
information a retailer provides in connection with the Retailer
Reporting Program, including confidential customer, supplier, and sales
data, will remain protected from disclosure under sections 6(a)(2) and
6(b)(5) of the CPSA.
Response 28--Retailers are listed among the entities that must
report to the Commission under section 15(b) of the CPSA. 15 U.S.C.
2064(b). Thus, under revised Sec. 1101.63(a), section 6(b)(5)'s
additional disclosure limitations apply to information that a retailer
identifies as submitted pursuant to section 15(b) of the CPSA and 16
CFR 1115.13, unless one of the exceptions applies.
Before the Commission determines whether particular information
proposed for disclosure is confidential, the submitting firm must,
among other requirements, specifically identify those portions that the
firm claims are confidential and exempt from disclosure. 15 U.S.C.
2055(a)(3); 16 CFR 1015.18, 1015.19(a), 1101.24(b). The Commission will
review the information proposed for disclosure, the firm's claims, and
applicable authorities, and determine whether the information can be
disclosed. 16 CFR 1015.19(a).
xvi. The Commission Should Establish an Appeals Process for 6(b)
Determinations
Comment 29--TIA suggested that the Commission create a process
within the Office of the General Counsel to enable firms that have
received notice to appeal section 6(b) determinations.
Response 29--Section 27(b)(10) of the CPSA, 15 U.S.C. 2076(b)(10),
empowers the Commission ``to delegate any of its functions or powers,
other than the power to issue subpoenas . . . to any officer or
employee of the Commission.'' When the Commission adopted the 6(b)
Regulation in 1983, the Commission delegated to the General Counsel
``the authority to render all decisions . . . concerning the release of
information subject to section 6(b) when firms have furnished section
6(b) comment,'' except in certain situations. 16 CFR 1101.71(a). The
Commission determined that a decision by the General Counsel is a final
agency decision and is not appealable as of right to the Commission. 16
CFR 1101.71(c). However, the General Counsel may refer an issue to the
Commission for decision under 16 CFR 1101.71(c). Adding an additional
appeals process on top of the current Commission process for processing
proposed public disclosures would entail additional delay in providing
information to the public, that is not justified by a countervailing
benefit.
IV. Environmental Considerations
The Commission's regulations address whether the Commission is
required to prepare an environmental assessment or an environmental
impact statement. 16 CFR part 1021. Those regulations provide a
categorical exclusion for certain Commission actions that normally have
``little or no potential for affecting the human environment.'' 16 CFR
1021.5(c)(1). Like the 2014 NPR, see 79 FR 10721, this Supplemental NPR
falls within the categorical exclusion.
V. Regulatory Flexibility Analysis
Under section 603 of the Regulatory Flexibility Act (RFA), when the
Administrative Procedure Act (APA) requires an agency to publish a
general notice of proposed rulemaking, the agency must prepare an
initial regulatory flexibility analysis (IRFA), assessing the economic
impact of the proposed rule on small entities. 5 U.S.C. 603(a). As
noted, the Commission is proposing to update the regulation that
interprets section 6(b) of the CPSA. Although the Commission is
choosing to issue the rule through notice and comment procedures, the
APA does not require a proposed rule when an agency issues rules of
agency procedure and practice. 5 U.S.C. 553(b). Therefore, the CPSC is
not required to prepare an IRFA under the RFA. See 79 FR 10721
(discussing IRFA requirement). Moreover, the Supplemental NPR does not
propose to establish mandatory requirements for, and would not impose
any significant obligations on, small entities (or any other entity or
party).
VI. Paperwork Reduction Act
The Paperwork Reduction Act (PRA) establishes certain requirements
when an agency conducts or sponsors a ``collection of information.'' 44
U.S.C. 3501-3520. The Supplemental NPR proposes to amend the
Commission's rule that describes the agency's procedures for providing
manufacturers and private labelers with advance notice and ``a
reasonable opportunity to submit comments'' to the Commission on
proposed disclosures of information. The Supplemental NPR does not
propose to create information collection requirements. The PRA is not
implicated in this proposed rulemaking because the existing rule and
the Supplemental NPR do not require or request information from firms,
but rather, explain the Commission's procedures for providing firms
with an
[[Page 10454]]
opportunity to provide voluntary comment on certain information before
disclosure. See 79 FR 10721.
VII. Executive Order 12988 (Preemption)
According to Executive Order 12988 (February 5, 1996), agencies
must state in clear language the preemptive effect, if any, of new
regulations. Section 26 of the CPSA explains the preemptive effect of
consumer product safety standards issued under the CPSA. 15 U.S.C.
2075. The Supplemental NPR proposes updates to the regulation that
interprets section 6(b) of the CPSA and does not seek to issue a
consumer product safety standard. Accordingly, section 26 of the CPSA
does not apply to this rulemaking. Furthermore, this Supplemental NPR
implements a provision of the CPSA that is uniquely applicable to the
Commission, and is not enforced by state or local governments.
Preemption therefore is not relevant.
VIII. Proposed Effective Date
The APA generally requires that the effective date of a rule be at
least 30 days after publication of the final rule. 5 U.S.C. 553(d).
However, the APA exempts interpretive rules and statements of policy
from the general effective date requirement. 5 U.S.C. 553(d)(2). The
Supplemental NPR accordingly proposes to make the final rule, if one is
adopted, effective as of the date of its publication in the Federal
Register.
IX. Request for Comments
The Commission requests comments on all aspects of the Supplemental
NPR. Comments must be submitted in accordance with the instructions in
the ADDRESSES section of the preamble. Comments must be received no
later than April 3, 2023.
List of Subjects in 16 CFR Part 1101
Administrative practice and procedure; Consumer protection.
For the reasons set forth in the preamble, the Commission proposes
to revise 16 CFR part 1101 to read as follows:
PART 1101--INFORMATION DISCLOSURE UNDER SECTION 6(b) OF THE
CONSUMER PRODUCT SAFETY ACT
Subpart A--Background
Sec.
1101.1 Scope.
1101.2 General background.
Subpart B--Information Subject to Notice and Comment Provisions of
Section 6(b)(1)
1101.11 General application of provisions of section 6(b)(1).
1101.12 Definition of ``public''.
1101.13 Public ability to ascertain readily identity of manufacturer
or private labeler.
Subpart C--Procedure for Providing Notice and Opportunity To Comment
Under Section 6(b)(1)
1101.21 Form, transmission, and content of notice.
1101.22 Time for comment and requests for extension of time.
1101.23 Providing less than 15 calendar days' notice before
disclosing information.
1101.24 Scope of comments Commission seeks.
1101.25 Notice of intent to disclose.
1101.26 Circumstances when the Commission does not provide notice
and opportunity to comment.
Subpart D--Reasonable Steps Commission Will Take To Assure Public
Disclosure of Information Is Accurate, and That Disclosure Is Fair in
the Circumstances and Reasonably Related To Effectuating the Purposes
of the Acts It Administers
1101.31 General requirements.
1101.32 Reasonable steps to assure disclosure of information is
accurate.
1101.33 Reasonable steps to assure information disclosure is fair in
the circumstances.
1101.34 Reasonable steps to assure information disclosure is
``reasonably related to effectuating the purposes of'' the Acts.
Subpart E--Statutory Exceptions of Section 6(b)(4)
1101.41 Generally.
1101.42 Imminent hazard exception.
1101.43 Section 6(b)(4)(A) exception.
1101.44 Rulemaking proceeding exception.
1101.45. Adjudicatory proceeding exception.
1101.46 Other administrative or judicial proceeding exception.
Subpart F--Retraction
1101.51 Commission interpretation.
1101.52 Procedure for retraction.
Subpart G--Information Submitted Pursuant to Section 15(b) of the CPSA
1101.61 Generally.
1101.62 Statutory exceptions to section 6(b)(5) requirements.
1101.63 Information submitted pursuant to section 15(b) of the CPSA.
Subpart H--Delegation of Authority to Information Group
1101.71 Delegation of authority.
Authority: 15 U.S.C. 2055(b).
Subpart A--Background
Sec. 1101.1 Scope.
These rules apply to the public disclosure of any information
obtained under the Consumer Product Safety Act, 15 U.S.C. 2051-2090
(CPSA), the Flammable Fabrics Act, 15 U.S.C. 1191-1204 (FFA), the
Poison Prevention Packaging Act of 1970, 15 U.S.C. 1471-1477 (PPPA),
and the Federal Hazardous Substances Act, 15 U.S.C. 1261-1278a (FHSA)
(collectively, ``the Acts''), or to be disclosed to the public in
connection therewith.
Sec. 1101.2 General background.
(a) Basic purpose. These rules set forth the Consumer Product
Safety Commission's policy and procedure under sections 6(b)(1)-(5) of
the CPSA, 15 U.S.C. 2055(b)(1)-(5), which relate to public disclosure
of any information obtained under the Acts, or to be disclosed to the
public in connection therewith, from which the identity of a
manufacturer or private labeler of any consumer product can be
ascertained readily. In addition, these rules provide for retraction of
inaccurate or misleading information the Commission has disclosed that
reflects adversely upon the safety of any consumer product, class of
consumer products, or on the practices of any manufacturer, private
labeler, distributor or retailer of consumer products as required by
section 6(b)(7) of the CPSA, 15 U.S.C. 2055(b)(7).
(b) Statutory requirements. Section 6(b) establishes procedures
that the Commission must follow prior to its public disclosure of
certain firm-specific information and to retract certain information
the Commission has publicly disclosed.
(1) Generally, section 6(b)(1) requires, prior to the Commission's
public disclosure of any information obtained under the Acts, or to be
disclosed to the public in connection therewith, that the Commission,
to the extent practicable, provide manufacturers or private labelers
with advance notice and opportunity to comment on the information, if
the manner in which such consumer product is designated or described in
the information permits the public to ascertain readily the identity of
the manufacturer or private labeler. Section 6(b)(1) also requires,
prior to such public disclosure, that the Commission take reasonable
steps to assure that the information is accurate and that disclosure is
fair in the circumstances and reasonably related to effectuating the
purposes of the Acts. Disclosure of information may not occur in fewer
than 15 calendar days after notice to the manufacturer or private
labeler unless the manufacturer or private labeler consents or the
Commission publishes a finding that the public health and safety
requires a
[[Page 10455]]
lesser period of notice. Section 6(b)(4) establishes exceptions to
these advance notice requirements. In addition to the requirements of
Section 6(b)(1), Section 6(b)(5) creates additional limitations, as
well as additional exceptions to these limitations, on the public
disclosure of information submitted to the Commission under section
15(b) of the CPSA. Section 15(b) of the CPSA, 15 U.S.C. 2064(b),
requires every manufacturer, distributor, and retailer of a consumer
product to immediately inform the Commission once the firm obtains
information which reasonably supports the conclusion that the product
(a) fails to comply with an applicable consumer product safety rule or
with a voluntary consumer product safety standard upon which the
Commission has relied under section 9 of the CPSA; (b) fails to comply
with any other rule, regulation, standard, or ban under the CPSA or any
other act enforced by the Commission; (c) contains a defect which could
create a substantial product hazard; or (d) creates an unreasonable
risk of serious injury or death (see 16 CFR part 1115).
(2) Section 6(b)(2) requires the Commission to provide further
notice to manufacturers or private labelers where the Commission
proposes to disclose information the manufacturers or private labelers
have claimed to be inaccurate.
(3) Section 6(b)(3) authorizes manufacturers and private labelers
to bring lawsuits against the Commission to prevent public disclosure
of information after receipt of notice from the Commission designating
the date set for release of the information.
(c) Clearance procedures. Section 6(b)(6) requires the Commission
to establish procedures to ensure that Commission-initiated disclosures
of information that reflect on the safety of a consumer product or
class of consumer products are accurate and not misleading, whether or
not such information would enable the public to ascertain readily the
identity of a manufacturer or private labeler.
Subpart B--Information Subject to Notice and Comment Provisions of
Section 6(b)(1)
Sec. 1101.11 General application of provisions of section 6(b)(1).
(a) Information subject to section 6(b)(1). To be subject to the
notice and comment provisions of section 6(b)(1), information must meet
all the following criteria:
(1) The Commission, any member of the Commission, or any employee,
agent, or representative, including contractor, of the Commission in an
official capacity must propose to disclose the information to the
public (see Sec. 1101.12).
(2) The manner in which the consumer product is designated or
described in the information must permit the public to ascertain
readily the identity of the manufacturer or private labeler (see Sec.
1101.13).
(3) The information must be obtained, generated or received under
the Acts, or be disclosed to the public in connection therewith.
(b) Information not subject to section 6(b)(1). The requirements of
section 6(b)(1) do not apply to:
(1) Information described in the exceptions contained in section
6(b)(4) or (b)(5) of the CPSA (see subparts E and G of this part).
(2) Information the Commission is required by law to make publicly
available. This information includes, for example, Commission
notifications to foreign governments regarding certain products to be
exported, as required by section 18(b) of the CPSA, 15 U.S.C. 2067(b);
section 14(d) of the FHSA, 15 U.S.C. 1273(d); and section 15(c) of the
FFA, 15 U.S.C. 1202(c) (see 16 CFR 1019.7).
(3) Information required to be disclosed to the President and
Congress pursuant to section 27(j) of the CPSA, 15 U.S.C. 2076(j).
(4) Information filed or presented in administrative proceedings or
litigation to which the Commission is a party and which is not
expressly subject to the section 6(b)(4) exceptions (see subpart E of
this rule).
(5) A report of harm posted on the publicly available consumer
product safety information database pursuant to section 6A of the CPSA,
15 U.S.C. 2055a.
(6) Information that has already been made available to the public
through sources other than the Commission, provided the Commission
clearly indicates the source of the information and the Commission's
use of the information is accurate and not misleading.
(7) Information, not previously disclosed, that in context does not
disclose materially more or materially different information about the
consumer product than what the Commission previously disclosed in
accordance with the law.
Sec. 1101.12 Definition of ``public''.
Public. For the purposes of section 6(b)(1), the public includes
any person except:
(a) Any member of the Commission or any employee, agent, or
representative, including contractor, of the Commission in an official
capacity. However, disclosures of information by such persons are
subject to section 6(b).
(b) State officials who are commissioned officers under section
29(a)(2) of the CPSA, 15 U.S.C. 2078(a)(2), to the extent that the
Commission furnishes them information necessary for them to perform
their duties under that section. However, disclosures of information by
such officials are subject to section 6(b).
(c) Members of a Commission Chronic Hazard Advisory Panel
established under section 28 of the CPSA, 15 U.S.C. 2077. However,
disclosures of information by such a Panel are subject to section 6(b).
(d) Persons, including but not limited to, consumers,
manufacturers, private labelers, retailers, or distributors, to which
the information to be disclosed pertains, or their legal
representatives.
(e) Persons, including but not limited to, consumers,
manufacturers, private labelers, retailers, or distributors, which
provided the information to the Commission, or their legal
representatives.
(f) Other Federal agencies or state or local governments to which
accident and investigation reports are provided pursuant to section
29(e) of the CPSA, 15 U.S.C. 2078(e). However, as required by that
section, employees of Federal agencies or state or local governments
may not release to the public copies of any accident or investigation
report made under the CPSA by an officer, employee or agent of the
Commission unless CPSC has complied with the applicable requirements of
section 6(b).
(g) The Chairman or ranking minority member of a committee or
subcommittee of Congress acting pursuant to committee business and
having jurisdiction over the matter which is the subject of the
information requested.
(h) Any Federal, state, local, or foreign government agency
pursuant to, and in accordance with, section 29(f) of the CPSA.
Sec. 1101.13 Public ability to ascertain readily identity of
manufacturer or private labeler.
The advance notice and comment provisions of section 6(b)(1) apply
only when a reasonable person receiving the information in the form in
which the information is to be disclosed and lacking specialized
expertise can ascertain readily from the information itself the
identity of the manufacturer or private labeler of a consumer product
at issue in the disclosure. Information about categories of consumer
products is not within the scope of section
[[Page 10456]]
6(b)(1), provided such information will not permit the public to
ascertain readily the identity of the products' manufacturers or
private labelers. Information about manufacturers or private labelers
is not within the scope of section 6(b)(1), provided such information
does not designate or describe a consumer product.
Subpart C--Procedure for Providing Notice and Opportunity To
Comment Under Section 6(b)(1)
Sec. 1101.21 Form, transmission, and content of notice.
(a) Notice may be oral or written. The Commission will generally
provide to manufacturers or private labelers written notice and
opportunity to comment on information subject to section 6(b)(1),
except as provided in Sec. 1101.26. However, if the Commission
determines that written notice is impracticable, it will provide notice
and opportunity to comment orally, if practicable.
(b) Electronic transmission. In the interest of promoting timely
notification, the Commission, to the extent practicable, will transmit
any notice required under this part via email or other electronic
means. If electronic transmission is not practicable or the Commission
cannot confirm electronic receipt of the notice, the Commission will
take appropriate steps to provide notice using other methods, including
delivery via U.S. mail or other delivery service.
(c) Content of notice. The Commission shall, to the extent
practicable, provide the manufacturer or private labeler with:
(1) Either the actual text of the information to be disclosed or a
summary of the information.
(2) A general description of the manner in which the Commission
will disclose the information, including any other relevant information
the Commission intends to include with the disclosure.
(3) A request for comment with respect to the information,
including a request for explanatory data or other relevant information
for the Commission's consideration.
(4) A statement that the Commission may, and upon the written
request of the manufacturer or private labeler shall, include with the
disclosure any comments or other information or a summary thereof
submitted by such manufacturer or private labeler, to the extent
permitted by and subject to the requirements of section 6 of the CPSA.
(5) Notice that the manufacturer or private labeler may request
confidential treatment for the information, in accordance with section
6(a)(3) of the CPSA, 15 U.S.C. 2055(a)(3) (see Sec. 1101.24(b)).
(6) A statement that no further request for comment will be sought
by the Commission if the Commission intends to disclose information,
not previously disclosed, that in context does not disclose materially
more or materially different information about the consumer product
than what the Commission previously disclosed in accordance with the
law.
(7) The name, contact information, and telephone number of the
person to whom comments should be sent and the time when any comments
are due (see Sec. 1101.22).
Sec. 1101.22 Time for comment and requests for extension of time.
(a) Time for comment. (1) Generally, manufacturers and private
labelers will receive 10 calendar days from the date on which the
Commission transmits the notice to furnish comments. Manufacturers and
private labelers that receive requests for comments by mail will
receive an additional 3 calendar days to comment to account for time in
the mail.
(2) The Commission may provide a longer amount of time for comment,
particularly for manufacturers and private labelers that receive from
the Commission voluminous or complex material to review. In addition,
the Commission may publish a finding that the public health and safety
requires a lesser period of notice and may require a response in a
shorter period of time (see Sec. 1101.23).
(b) No response submitted. If the Commission has not received a
response within the time specified (subject to any extension of time
that has been granted under paragraph (c)), the Commission will analyze
the information as provided in subpart D and will not give the further
notice provided in section 6(b)(2).
(c) Requests extension of time. (1) Requests for extension of time
to comment on information to be disclosed must be in writing and
submitted to the person who provided the Commission's notice and
opportunity to comment at least 48 hours before the deadline to
respond. If the time for response has been shortened due to a public
health and safety finding, no extension will be granted except upon the
Commission's own initiative. Requests for extension must explain with
specificity why the extension is needed and how much additional time is
required.
(2) It is the policy of the Commission to respond promptly to
requests for extension of time.
Sec. 1101.23 Providing less than 15 calendar days' notice before
disclosing information.
The Commission may disclose to the public information subject to
section 6(b)(1) in a time less than 15 calendar days after providing
notice to the manufacturer or private labeler in the following
circumstances:
(a) Manufacturer or private labeler agrees to lesser period or
notifies the Commission that the firm has no comment or does not object
to disclosure. The Commission may disclose to the public information
subject to section 6(b)(1) before the 15-day period expires when, after
receiving the Commission's notice and opportunity to comment, the
manufacturer or private labeler agrees to the earlier disclosure;
notifies the Commission that the firm has no comment; or notifies the
Commission that the firm does not object to disclosure.
(b) Commission finds a lesser period is required. Section 6(b)(1)
provides that the Commission may publish a finding that the public
health and safety requires a lesser period of notice than 15 calendar
days. The Commission will publish the finding in the disclosure itself
or elsewhere. The Commission may find that the public health and safety
requires less than 15 calendar days' advance notice, for example, to
warn the public quickly of danger from a product hazard or a potential
hazard, or to correct product safety information released by third
persons, which mischaracterizes statements made by the Commission about
the consumer product or which attributes to the Commission statements
about the consumer product that the Commission did not make.
Sec. 1101.24 Scope of comments Commission seeks.
(a) Comment in regard to the information. The section 6(b)
opportunity to comment on information permits manufacturers and private
labelers to furnish information and data to the Commission that will
assist the agency in its evaluation of the accuracy of the information.
A manufacturer or private labeler's submission, therefore, must be
specific and should be accompanied by documentation, where available,
if the comments are to assist the Commission in its evaluation of the
information. Comments of a general nature, such as general suggestions
or allegations that a document is inaccurate or that the Commission has
not taken reasonable steps to assure accuracy, are not sufficient to
assist the Commission in its evaluation of the information or to
justify a claim of
[[Page 10457]]
inaccuracy. The weight accorded a manufacturer's or private labeler's
comments on the accuracy of information and the degree of scrutiny the
Commission will exercise in evaluating the information will depend on
the specificity and completeness of the firm's comments and of the
accompanying documentation. In general, specific comments that are
accompanied by documentation will be given more weight than those that
are non-specific and general in nature.
(b) Claims of confidentiality. If the manufacturer or private
labeler believes the information involved cannot be disclosed because
of section 6(a)(2) of the CPSA, 15 U.S.C. 2055(a)(2), which refers to
information reported to or otherwise obtained by the Commission that
contains or relates to a trade secret or other matter referred to in
section 1905 of title 18 or subject to 5 U.S.C. 552(b)(4), the firm may
make claims of confidentiality at the time it submits its comments to
the Commission under this section 1101.24. Such claims must identify
the specific information that the manufacturer or private labeler
believes to be confidential or trade secret material or subject to 5
U.S.C. 552(b)(4) and must state with specificity the grounds on which
the firm bases its claims (see Commission's Freedom of Information Act
regulation, 16 CFR part 1015, particularly 16 CFR 1015.18).
(c) Requests for nondisclosure of comments. If a manufacturer or
private labeler objects to the disclosure of its comments or a portion
thereof, it must notify the Commission at the time the manufacturer or
private labeler submits its comments and provide the basis for its
request. If the manufacturer or private labeler objects to the
disclosure of only a portion of its comments, the firm must identify
with specificity those portions that it requests be withheld.
Sec. 1101.25 Notice of intent to disclose.
(a) Notice to manufacturer or private labeler. In accordance with
section 6(b)(2) of the CPSA, if the Commission, after following the
notice provisions of section 6(b)(1), determines that information
claimed to be inaccurate by a manufacturer or private labeler in
comments submitted under section 6(b)(1) should be disclosed because
the Commission believes it has complied with section 6(b)(1), the
Commission shall notify the manufacturer or private labeler that the
Commission intends to disclose the information and identify the
earliest time at which it intends to do so.
(b) The Commission will inform a manufacturer or private labeler of
a product that is the subject of a public health and safety finding
that the public health and safety requires less than 5 calendar days'
advance notice either orally or in writing. If written notice is
provided, the Commission, to the extent practicable, will transmit such
notice via email or other electronic means.
Sec. 1101.26 Circumstances when the Commission does not provide
notice and opportunity to comment.
(a) Notice to the extent practicable. Section 6(b)(1) requires
that, ``to the extent practicable,'' the Commission must provide
manufacturers and private labelers notice and opportunity to comment
before disclosing information from which the public can ascertain
readily their identity.
(b) Circumstances when notice and opportunity to comment is not
practicable. Circumstances when notice and opportunity to comment is
not practicable include, but are not necessarily limited to, the
following:
(1) When the Commission has taken reasonable steps to assure that
the manufacturer or private labeler of any consumer product to which
the information pertains is out of business and has no identifiable
successor.
(2) When the information is disclosed in testimony in response to
an order of the court during litigation to which the Commission is not
a party.
(3) When the Commission has been unable, after a diligent search,
to obtain contact information for the manufacturer or private labeler
of the consumer product to which the information pertains.
(4) When an extraordinary circumstance necessitates the immediate
disclosure of information to protect the public health and safety while
the Commission simultaneously pursues notification of the manufacturer
or private labeler.
Subpart D--Reasonable Steps Commission Will Take To Assure Public
Disclosure of Information Is Accurate, and That Disclosure Is Fair
in the Circumstances and Reasonably Related To Effectuating the
Purposes of the Acts It Administers
Sec. 1101.31 General requirements.
(a) Inclusion of comments. In disclosing any information under this
section, the Commission may, and upon the written request of the
manufacturer or private labeler shall, include any comments or other
information or a summary thereof submitted by the manufacturer or
private labeler, to the extent permitted by and subject to the
requirements of section 6 of the CPSA.
(b) Explanatory statement. The Commission may accompany the
disclosure of information subject to this subpart with an explanatory
statement that makes the nature of the information disclosed clear to
the public. The Commission also may accompany the disclosure with any
other relevant information in the Commission's possession that places
the disclosed information in context.
(c) Disclosing materially more or materially different information.
If the Commission intends to disclose information, not previously
disclosed, that in context does not disclose materially more or
materially different information about the consumer product than what
the Commission previously disclosed in accordance with the law, the
Commission is not obligated to take any additional steps to assure
accuracy unless the Commission has reason to question the accuracy of
the information.
Sec. 1101.32 Reasonable steps to assure disclosure of information is
accurate.
(a) The following types of actions are reasonable steps to assure
the accuracy of information that the Commission proposes to disclose to
the public:
(1) The Commission staff or a qualified person or entity outside
the Commission (e.g., someone with requisite training or experience,
such as a fire marshal, a fire investigator, an electrical engineer, or
an attending physician) conducts an investigation that yields or
corroborates the information to be disclosed;
(2) The Commission staff conducts a technical, scientific, or other
evaluation that yields or corroborates the information to be disclosed
or the staff obtains a copy of such an evaluation conducted by a
qualified person or entity;
(3) The Commission staff relies on a statement made under oath, or
a similar statement enforceable under penalty of perjury (e.g., 28
U.S.C. 1746), that yields or corroborates the information to be
disclosed; or
(4) The person who submitted the information to the Commission
confirms the information as accurate to the best of the submitter's
knowledge and belief, provided that:
(i) The confirmation is made by the person injured or nearly
injured in an incident involving the product;
(ii) The confirmation is made by a person who, on the basis of his
or her own observation or experience, identifies an alleged safety-
related defect in or problem with such a product even though no
incident or injury associated with the defect or problem may have
occurred;
[[Page 10458]]
(iii) The confirmation is made by an eyewitness to an injury or
safety-related incident involving such a product;
(iv) The confirmation is made by an individual with requisite
training or experience who has investigated and/or determined the cause
of deaths, injuries or safety-related incidents involving such a
product. Such persons would include, for example, a fire marshal, a
fire investigator, an electrical engineer, an ambulance attendant, or
an attending physician; or
(v) The confirmation is made by a parent or guardian of a child
involved in an incident involving such a product, or by a person to
whom a child is entrusted on a temporary basis.
(b) In addition to the reasonable steps specified in Sec.
1101.32(a), the Commission may include the explanatory statement in
Sec. 1101.31(b) to assure the accuracy of the information proposed for
disclosure.
(c) The steps set forth below are steps the Commission will take to
analyze the accuracy of information that the Commission proposes to
disclose to the public:
(1) The Commission will review each proposed disclosure of
information which is susceptible of factual verification to assure that
reasonable steps have been taken to assure accuracy in accordance with
paragraphs (a) and (b).
(2) As described in subpart C, the Commission will provide a
manufacturer or private labeler with a summary or text of the
information the Commission proposes to disclose and will invite comment
with respect to that information.
(3) If the Commission receives no comments or only general, non-
specific comments claiming inaccuracy, the Commission will review the
information in accordance with paragraph (a) and disclose it, generally
without further investigating the accuracy of the information, if there
is nothing on the face of the information that calls its accuracy into
question.
(4) If a manufacturer or private labeler provides specific comments
on the accuracy of the information that the Commission proposes to
disclose, the Commission will review the information in light of the
comments. The degree of review by the Commission and the weight
accorded a manufacturer's or private labeler's comments will be
directly related to the specificity and completeness of the firm's
comments. Specific comments supported by documentation will be given
more weight than non-specific comments. Further steps may be taken to
determine the accuracy of the information if the Commission determines
such action appropriate.
Sec. 1101.33 Reasonable steps to assure information disclosure is
fair in the circumstances.
(a) The following types of actions are reasonable steps to assure
disclosure of information to the public is fair in the circumstances:
(1) To the extent permitted by and subject to the requirements of
section 6 of the CPSA, the Commission may, and upon the written request
of the manufacturer or private labeler shall, accompany information
disclosed to the public with the manufacturer's or private labeler's
comments or other information or a summary thereof. If the manufacturer
or private labeler objects to the disclosure of its comments or a
portion thereof, the manufacturer or private labeler must provide the
basis for its request that the comments not be disclosed.
(2) The Commission may accompany the disclosure of information with
an explanatory statement that makes the nature of the information
disclosed clear to the public. Subject to the requirements of section
6(b)(1) and other requirements of law, the Commission also may disclose
any other relevant information in its possession that will assure
disclosure is fair in the circumstances.
(b) The Commission will not disclose information when it determines
that disclosure would not be fair in the circumstances. The following
are examples of disclosures that generally would not be fair in the
circumstances:
(1) Disclosure of information furnished by a manufacturer or
private labeler to facilitate prompt remedial action or settlement of a
case when the firm has a reasonable expectation that the information
will be maintained by the Commission in confidence.
(2) Disclosure of staff notes or minutes of meetings to discuss or
negotiate settlement agreements and of drafts of documents prepared
during settlement negotiations, where the manufacturer or private
labeler has a reasonable expectation that such written materials will
be maintained by the Commission in confidence.
(3) Disclosure of a manufacturer's or private labeler's comments or
other information or a summary thereof submitted under section 6(b)(1),
when the Commission deems the firm has provided a sufficient basis for
why the comments should not be disclosed.
Sec. 1101.34 Reasonable steps to assure information disclosure is
``reasonably related to effectuating the purposes of'' the Acts.
(a) The following types of actions are reasonable steps to assure
that the disclosure of information to the public effectuates the
purposes of the Acts:
(1) Purposes of the CPSA. The Commission will review information to
determine whether disclosure is reasonably related to effectuating one
or more of the specific purposes of the CPSA, including as set forth in
sections 2(b) and 5, 15 U.S.C. 2051(b) and 2054.
(2) Purposes of the FHSA, FFA, and PPPA. The Commission will also
review information concerning consumer products subject to the FHSA,
FFA, or PPPA and to the Commission's specific functions under those
acts to determine whether disclosure of information is reasonably
related to effectuating the purposes of those acts.
(b) As part of its review of the information proposed for
disclosure, the Commission will determine whether the information was
prepared or maintained in the course of or to support an activity of
the Commission designed to accomplish one or more of the statutory
purposes.
Subpart E--Statutory Exceptions of Section 6(b)(4)
Sec. 1101.41 Generally.
This subpart describes and interprets the exceptions to the
requirements of section 6(b)(1)-(b)(3) that are set forth in section
6(b)(4). These exceptions apply to:
(1) Information about any consumer product with respect to which
the Commission has filed an action under section 12 of the CPSA
(relating to imminently hazardous products);
(2) Information about any consumer product which the Commission has
reasonable cause to believe is in violation of any consumer product
safety rule or provision of the CPSA or similar rule or provision of
any other act enforced by the Commission; or
(3) Information in the course of or concerning:
(i) a rulemaking proceeding under the Acts;
(ii) an adjudicatory proceeding under the Acts; or
(iii) any other administrative or judicial proceeding under the
Acts.
Sec. 1101.42 Imminent hazard exception.
(a) Statutory provision. Section 6(b)(4)(A) provides that the
requirements of section 6(b)(1)-(3) do not apply to public disclosure
of ``information about any consumer
[[Page 10459]]
product with respect to which product the Commission has filed an
action under section 12 (relating to imminently hazardous products).''
(b) Scope of exception. This exception applies once the Commission
has filed an action under section 12 of the CPSA, 15 U.S.C. 2061, in a
United States district court. Once the exception applies, information
may be disclosed to the public without following the requirements of
section 6(b)(1)-(3) if the information concerns or relates to the
consumer product alleged to be imminently hazardous.
Sec. 1101.43 Section 6(b)(4)(A) exception.
Section 6(b)(4)(A) provides that the requirements of section
6(b)(1)-(3) do not apply to public disclosure of information about any
consumer product which the Commission has reasonable cause to believe
is in violation of any consumer product safety rule or provision of the
CPSA or similar rule or provision of any other act enforced by the
Commission. Once the exception applies, the Commission may disclose
information to the public without following the requirements of section
6(b)(1)-(3) if the information concerning the consumer product is
reasonably related to the violation.
Sec. 1101.44 Rulemaking proceeding exception.
(a) Statutory provision. Section 6(b)(4)(B) provides that the
requirements of section 6(b)(1)-(3) do not apply to public disclosure
of information ``in the course of or concerning a rulemaking proceeding
(which shall commence upon the publication of an advance notice of
proposed rulemaking or a notice of proposed rulemaking) * * * under
this Act.''
(b) Scope of exception. This exception applies upon publication in
the Federal Register of an advance notice of proposed rulemaking or, if
no advance notice of proposed rulemaking is issued, upon publication in
the Federal Register of a notice of proposed rulemaking, under any of
the Acts. Once the exception applies, the Commission may publicly
disclose information in the course of the rulemaking proceeding, which
is presented during the proceeding, which is contained or referenced in
the public record of the proceeding, or which concerns the proceeding,
without regard to the requirements of section 6(b)(1)-(3).
Documentation supporting the public record is also excepted from
section 6(b)(1)-(3). A rulemaking proceeding includes a proceeding to
consider issuing, amending, or revoking a rule.
(c) The phrase ``in the course of'' refers to information disclosed
as part of the proceeding and may, therefore, include information
generated before the proceeding began and later presented as part of
the proceeding. A rulemaking proceeding ends once the Commission has
published the final rule or a notice of termination of the rulemaking
in the Federal Register.
(d) The phrase ``concerning'' refers to information about or
addressing the proceeding both after the proceeding has begun and
indefinitely thereafter. Therefore, the Commission may at any time
publicly disclose information that describes or relates to the
substance, process, or outcome of the proceeding. For example,
Commissioners may publicly explain their individual votes and any
decision rendered by issuing written opinions and making public
statements.
Sec. 1101.45 Adjudicatory proceeding exception.
(a) Statutory provision. Section 6(b)(4)(B) provides that the
requirements of section 6(b)(1)-(3) do not apply to public disclosure
of ``information in the course of or concerning * * * [an] adjudicatory
proceeding (which shall commence upon the issuance of a complaint) * *
* under this Act.''
(b) Scope of exception. This exception applies once the Commission
files a complaint under section 15(c) or (d), 17(a)(1) or (3), or 20 of
the CPSA, 15 U.S.C. 2064(c) or (d), 2066(a)(1), or (3), or 2069;
section 15 of the FHSA, 15 U.S.C. 1274; section 5(b) of the FFA, 15
U.S.C. 1194(b); or section 4(c) of the PPPA, 15 U.S.C. 1473(c). An
adjudicatory proceeding ends when the Commission issues a final order,
16 CFR 1025.51-1025.58.
(c) The phrase ``in the course of'' refers to information disclosed
as part of the adjudication, whether in documents filed or exchanged
during discovery, or in testimony given in such proceedings, and may
therefore, include disclosure during the adjudication of information
generated before the adjudication began.
(d) The phrase ``concerning'' refers to information about or
addressing the administrative adjudication, both once it begins and
indefinitely thereafter. Therefore, the Commission may at any time
publicly disclose information that describes or relates to the
substance, process, or outcome of the proceeding. For example, (i)
Commissioners may publicly explain their individual votes and any
decision rendered by issuing written opinions and making public
statements and (ii) the Commission may disclose information regarding
the effectiveness of any corrective action, such as information on the
number of products corrected as a result of a remedial action.
Sec. 1101.46 Other administrative or judicial proceeding exception.
(a) Statutory provision. Section 6(b)(4)(B) provides that the
requirements of section 6(b)(1)-(3) do not apply to public disclosure
of ``information in the course of or concerning any * * * other
administrative or judicial proceeding under this Act.''
(b) Scope of exception. This exception applies to an administrative
or judicial proceeding, other than a rulemaking or administrative
adjudicatory proceeding, under the Acts. Proceedings within this
exception include without limitation:
(1) A proceeding to act on a petition to start a rulemaking
proceeding. This proceeding begins with the filing of a petition and
ends when the petition is denied or, if granted, when the rulemaking
proceeding begins.
(2) A proceeding to act on a request for exemption from a rule or
regulation. This proceeding begins with the filing of a request for
exemption and ends when the request is denied or, if granted, when the
Commission takes the first step to implement the exemption, e.g., when
an amendment to the rule or regulation is proposed.
(3) A proceeding to issue a subpoena or general or special order.
This proceeding begins with a staff request to the Commission to issue
a subpoena or general or special order and ends once the request is
granted or denied.
(4) A proceeding to act on a motion to quash or to limit a subpoena
or general or special order. This proceeding begins with the filing
with the Commission of a motion to quash or to limit and ends when the
motion is granted or denied.
(5) Any judicial proceeding to which the Commission is a party.
This proceeding begins when a complaint or other pleading is filed and
ends when a final decision (including appeal) is rendered with respect
to the Commission.
(6) Any administrative proceeding to which the Commission is a
party, such as an administrative proceeding before the Merit Systems
Protection Board or the Federal Labor Relations Authority. This
proceeding begins and ends in accordance with the applicable
regulations or procedures of the administrative body before which the
proceeding is heard.
(7) A proceeding to obtain a retraction from the Commission
pursuant to subpart F of these rules. This
[[Page 10460]]
proceeding begins with the filing with the Secretary of the Commission
of a request for retraction and ends when the request is denied or, if
granted, when the information is retracted.
(c) The phrase ``in the course of or concerning'' shall be
interpreted consistent with Sec. 1101.44 (c) and (d) or Sec.
1101.45(c) and (d), as applicable.
Subpart F--Retraction
Sec. 1101.51 Commission interpretation.
(a) Statutory provisions. Section 6(b)(7) of the CPSA provides:
``If the Commission finds that, in the administration of this Act, it
has made public disclosure of inaccurate or misleading information
which reflects adversely upon the safety of any consumer product or
class of consumer products, or the practices of any manufacturer,
private labeler, distributor, or retailer of consumer products, it
shall, in a manner equivalent to that in which such disclosure was
made, take reasonable steps to publish a retraction of such inaccurate
or misleading information.''
(b) Scope. Section 6(b)(7) applies to information disclosed by the
Commission, any member of the Commission, or any employee, agent, or
representative, including contractor, of the Commission in an official
capacity, in the course of administration of the Acts.
Sec. 1101.52 Procedure for retraction.
(a) Retraction Upon Commission's Own Initiative or Request. The
Commission may publish a retraction of information under section
6(b)(7) upon the initiative of the Commission or upon the request of a
manufacturer, private labeler, distributor, or retailer of a consumer
product, in accordance with the procedures provided in this section.
(b) Request for retraction. Any manufacturer, private labeler,
distributor, or retailer of a consumer product may request that the
Commission publish a retraction if they believe the Commission, any
member of the Commission, or any employee, agent, or representative,
including contractor, of the Commission in an official capacity has, in
the course of administration of the Acts, made public disclosure of
inaccurate or misleading information, which reflects adversely upon the
safety of any consumer product or class of consumer products, or the
practices of a covered firm. The request must be in writing and sent
via either electronic mail to [email protected] or first class mail
addressed to the Office of the Secretary, U.S. Consumer Product Safety
Commission, 4330 East West Highway, Bethesda, MD 20814-4408.
(c) Content of request. A request that the Commission publish a
retraction must include the following information to the extent it is
reasonably available:
(1) The identity and relationship (i.e., manufacturer, private
labeler, distributor, or retailer) of the requester.
(2) The information disclosed for which retraction is requested,
the date on which the information was disclosed, the manner in which it
was disclosed, who disclosed it, the type of document (e.g., letter,
memorandum, news release) and any other relevant information the
requester has to assist the Commission in identifying the information.
A reproduction of the disclosure (e.g., image, audio or video file,
copy of document) should accompany the request, if practicable.
(3) A statement of the specific aspects of the information that the
requester believes are inaccurate or misleading and reflect adversely
upon the safety of a consumer product or class of consumer products, or
the practices of a covered firm.
(4) A statement of the reasons the requester believes the
information is inaccurate or misleading and reflects adversely upon the
safety of a consumer product or class of consumer products, or the
practices of a covered firm.
(5) A statement of the specific action the requester asks the
Commission to take in publishing a retraction in a manner equivalent to
that in which disclosure was made.
(6) Any additional data or information the requester believes is
relevant.
(d) Commission action on request. The Commission will act
expeditiously on any request that the Commission publish a retraction
within 30 working days unless the Commission determines, for good
cause, that a longer time period is appropriate. If the Commission
finds that the Commission, any member of the Commission, or any
employee, agent, or representative, including contractor, of the
Commission in an official capacity has, in the course of administration
of the Acts, made public disclosure of inaccurate or misleading
information that reflects adversely upon the safety of a consumer
product or class of consumer products, or the practices of a covered
firm, the Commission will publish a retraction of information in a
manner equivalent to that in which the disclosure was made. If
publication in a manner equivalent to that in which the disclosure was
made is not practicable or could result in further disclosure of the
information, the Commission will publish a retraction or take other
action in a manner that the Commission determines appropriate under the
circumstances and consistent with the purposes of section 6(b)(7).
(e) Notification to requester. The Commission will promptly notify
the requester in writing of the Commission's decision on the request to
publish a retraction. Notification shall set forth the reasons for the
Commission's decision.
Subpart G--Information Submitted Pursuant to Section 15(b) of the
CPSA
Sec. 1101.61 Generally.
(a) Generally. In addition to the requirements of section 6(b)(1),
section 6(b)(5) of the CPSA imposes further limitations on the
disclosure of information submitted to the Commission pursuant to
section 15(b) of the CPSA, 15 U.S.C. 2064(b).
(b) Criteria for disclosure. Under section 6(b)(5), the Commission
shall not disclose to the public information that has been identified
as submitted pursuant to section 15(b) and 16 CFR 1115.13. The
Commission may disclose information submitted pursuant to section 15(b)
in accordance with sections 6(a) and 6(b)(1)-(3) if:
(i) The Commission has issued a complaint under section 15(c) or
(d) of the CPSA alleging that the product presents a substantial
product hazard;
(ii) In lieu of proceeding against such product under section 15(c)
or (d), the Commission has accepted in writing a remedial settlement
agreement, including but not limited to, a corrective action plan or
consent order, dealing with such product; or
(iii) The Commission publishes a finding that the public health and
safety requires public disclosure with a lesser period of notice than
is required by section 6(b)(1).
(c) Disclosure upon consent. The Commission may disclose
information submitted pursuant to section 15(b) without following the
requirements of section 6(a) or 6(b) if the person who submitted the
information under section 15(b) agrees to its public disclosure.
Sec. 1101.62 Statutory exceptions to section 6(b)(5) requirements.
(a) Scope. The limitations established by section 6(b)(5) do not
apply to the public disclosure of:
(1) Information with respect to a consumer product which is the
subject of an action brought under section 12 (see Sec. 1101.42);
(2) Information with respect to a consumer product which the
Commission has reasonable cause to believe is in violation of any
consumer
[[Page 10461]]
product safety rule or provision under the CPSA or similar rule or
provision of any other act enforced by the Commission; or
(3) Information in the course of or concerning a judicial
proceeding (see Sec. 1101.45).
Sec. 1101.63 Information submitted pursuant to section 15(b) of the
CPSA.
(a) Section 6(b)(5) applies to:
(1) Information provided to the Commission by a manufacturer,
distributor, or retailer that has been identified by the manufacturer,
distributor or retailer as submitted pursuant to section 15(b) and 16
CFR 1115.13;
(2) Any portions of documents generated by the Commission, any
member of the Commission, or any employee, agent, or representative,
including contractor, of the Commission in an official capacity that
contain, summarize or otherwise reveal such information identified as
submitted pursuant to section 15(b) and 16 CFR 1115.13; and
(3) Any oral communications made by the Commission, any member of
the Commission, or any employee, agent, or representative, including
contractor, of the Commission in an official capacity that reveal or
refer to information identified as submitted pursuant to section 15(b)
and 16 CFR 1115.13.
(b) Section 6(b)(5) does not apply to:
(1) Information independently obtained or prepared, or developed
through subsequent investigation and verification, by the Commission,
any member of the Commission, or any employee, agent, or
representative, including contractor, of the Commission in an official
capacity; or
(2) Information that is already available to the public, including
but not limited to, information appearing in a company's press
statements, websites, Frequently Asked Questions, product user manuals,
sales materials, Securities and Exchange Commission filings, or other
public statements or documents published or publicly disseminated by a
manufacturer, distributor, or retailer.
Subpart H--Delegation of Authority to Information Group
Sec. 1101.71 Delegation of authority.
(a) Delegation. Pursuant to section 27(b)(10) of the CPSA, 15
U.S.C. 2076(b)(10), the Commission delegates to the General Counsel:
(1) The authority to render all decisions under this part
concerning the disclosure of information subject to section 6(b) when
the manufacturer or private labeler furnished section 6(b) comment,
except as provided in paragraph (b); and
(2) The authority to make all decisions under this part concerning
the disclosure of information under section 6(b) when the manufacturer
or private labeler failed to furnish section 6(b) comment or has
consented to disclosure, except as provided in paragraph (b).
(b) Findings not delegated. The Commission does not delegate its
authority--
(1) To find, pursuant to section 6(b)(1) and Sec. 1101.23(b) of
this part, that the public health and safety requires less than 15
calendar days' advance notice of proposed disclosures of information;
(2) To find, pursuant to section 6(b)(2) and Sec. 1101.25(b) of
this part, that the public health and safety requires less than 5
calendar days' advance notice of its intent to disclose information
claimed to be inaccurate; and
(3) To decide whether the Commission should take reasonable steps
to publish a retraction of information in accordance with section
6(b)(7) and Sec. 1101.52 of this part.
(c) Final agency action; Commission decision. A decision of the
General Counsel on delegated authority under paragraph (a) shall not be
appealable as of right to the Commission. However, the General Counsel
may in his or her discretion refer an issue to the Commission for final
decision.
Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2023-03021 Filed 2-16-23; 8:45 am]
BILLING CODE 6355-01-P
