Proposed Rule2023-03021
Information Disclosure Under Section 6(b) of the Consumer Product Safety Act
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Published
February 17, 2023
Issuing agencies
Consumer Product Safety Commission
Abstract
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.
Full Text
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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.
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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: <a href="http://www.regulations.gov">www.regulations.gov</a>. 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: <a href="http://www.regulations.gov">www.regulations.gov</a>. 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: <a href="/cdn-cgi/l/email-protection#e083909383cd8f93a083909383ce878f96"><span class="__cf_email__" data-cfemail="0c6f7c7f6f21637f4c6f7c7f6f226b637a">[email protected]</span></a>.
Docket: For access to the docket to read background documents or
comments received, go to: <a href="http://www.regulations.gov">www.regulations.gov</a>, 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: <a href="/cdn-cgi/l/email-protection#6b0a0804071d02052b081b1808450c041d"><span class="__cf_email__" data-cfemail="f8999b97948e9196b89b888b9bd69f978e">[email protected]</span></a>.
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 <a href="https://www.cpsc.gov/s3fs-public/pdfs/foia_RCAFY13MidyearReviewandOperatingPlanAdjustments%2520050313.pdf">https://www.cpsc.gov/s3fs-public/pdfs/foia_RCAFY13MidyearReviewandOperatingPlanAdjustments%2520050313.pdf</a>.
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):
<bullet> A report of harm posted on the publicly available consumer
product safety information database;
<bullet> Information that is publicly available; and
<bullet> 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a>) 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a>. Although
section 6A(f)(1) of the CPSA specifically excludes from the
requirements of section 6(b), reports of harm that are published on
<a href="http://SaferProducts.gov">SaferProducts.gov</a>, 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a>.
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 <a href="http://SaferProducts.gov">SaferProducts.gov</a>, 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
<a href="http://SaferProducts.gov">SaferProducts.gov</a> information is accurate and not misleading. For
example, the Commission could state that <a href="http://SaferProducts.gov">SaferProducts.gov</a> 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'':
<bullet> ``The persons or firms to whom the information to be
disclosed pertains, or their legal representatives'' (16 CFR
1101.12(d)); and
<bullet> ``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:
<bullet> 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.
<bullet> 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):
<bullet> In the second sentence, remove: ``while the proceeding is
pending.''
<bullet> 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, <a href="http://www.merriam-webster.com">http://www.merriam-webster.com</a> (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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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
<a href="http://SaferProducts.gov">SaferProducts.gov</a> to the list of information not subject to section
6(b)(1). These commenters state that reports of harm posted to
<a href="http://SaferProducts.gov">SaferProducts.gov</a> 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a> 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a> 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a> 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
<a href="http://SaferProducts.gov">SaferProducts.gov</a>); 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a>, 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a> 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a>; (2) correct the
materially inaccurate information in the report and add the report to
<a href="http://SaferProducts.gov">SaferProducts.gov</a>; or (3) add information to correct inaccurate
information in <a href="http://SaferProducts.gov">SaferProducts.gov</a>. 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a>, 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a>, 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a>, 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a> 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 <a href="https://www.cpsc.gov/Newsroom/FOIA/FOIA-Request-Logs">https://www.cpsc.gov/Newsroom/FOIA/FOIA-Request-Logs</a>).
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 <a href="https://www.saferproducts.gov/Business">https://www.saferproducts.gov/Business</a>) 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 <a href="http://SaferProducts.gov">SaferProducts.gov</a>. 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 t
[…truncated; see source link]Indexed from Federal Register on February 17, 2023.
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