[Federal Register Volume 88, Number 33 (Friday, February 17, 2023)]
[Proposed Rules]
[Pages 10432-10461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03021]



[[Page 10431]]

Vol. 88

Friday,

No. 33

February 17, 2023

Part II





Consumer Product Safety Commission





-----------------------------------------------------------------------





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]]


-----------------------------------------------------------------------

CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1101

[CPSC Docket No. CPSC-2014-0005]


Information Disclosure Under Section 6(b) of the Consumer Product 
Safety Act

AGENCY: Consumer Product Safety Commission.

ACTION: Supplemental notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The U.S. Consumer Product Safety Commission (CPSC or 
Commission) is issuing this supplemental notice of proposed rulemaking 
(Supplemental NPR) to update its regulation interpreting section 6(b) 
of the Consumer Product Safety Act (CPSA) (6(b) Regulation). On 
February 26, 2014, the Commission issued a notice of proposed 
rulemaking in this matter (2014 NPR). The 2014 NPR proposed to 
modernize the 6(b) Regulation to account for the significant 
improvements in information technology that have occurred since the 
regulation's initial adoption in 1983, and streamline the 6(b) 
Regulation to align more closely with the text of section 6(b), 
including with respect to protecting information filed by 
manufacturers, distributors, and retailers in accordance with the 
requirements of section 15(b) of the CPSA. This Supplemental NPR 
responds to public comments on the 2014 NPR and proposes additional 
changes to the 6(b) Regulation to further modernize and align the 
regulation with the statute.

DATES: Submit comments by April 3, 2023.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2014-
0005, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: www.regulations.gov. Follow the instructions for 
submitting comments. Do not submit through this website: confidential 
business information, trade secret information, or other sensitive or 
protected information that you do not want to be available to the 
public. CPSC typically does not accept comments submitted by electronic 
mail (email), except as described below.
    Mail/hand delivery/courier: CPSC encourages you to submit 
electronic comments by using the Federal eRulemaking Portal. You may, 
however, submit comments by mail, hand delivery, or courier to: Office 
of the Secretary, Consumer Product Safety Commission, 4330 East West 
Highway, Bethesda, MD 20814; telephone (301) 504-7479.
    Instructions: All submissions must include the agency name and 
docket number. CPSC may post all comments without change, including any 
personal identifiers, contact information, or other personal 
information provided, to: www.regulations.gov. If you wish to submit 
confidential business information, trade secret information, or other 
sensitive or protected information that you do not want to be available 
to the public, you may submit such comments by mail, hand delivery, or 
courier, or you may email them to: [email protected].
    Docket: For access to the docket to read background documents or 
comments received, go to: www.regulations.gov, and insert the docket 
number, CPSC-2014-0005, into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Amy S. Colvin, Attorney, Division of 
Federal Court Litigation, Office of the General Counsel, Consumer 
Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; 
telephone: 301-504-7639; email: [email protected].

SUPPLEMENTARY INFORMATION: The Commission issues this Supplemental NPR 
proposing to amend the CPSC's regulation, Information Disclosure Under 
Section 6(b) of the Consumer Product Safety Act, codified at 16 CFR 
part 1101.

I. Background

A. Statutory Authority

    Section 6(b) of the CPSA governs the Commission's disclosure of 
certain information to the public. In general, section 6(b)(1) 
requires, ``prior to its public disclosure of any information obtained 
under this Act, or to be disclosed to the public in connection 
therewith,'' that the Commission, ``to the extent practicable,'' 
provide manufacturers or private labelers with advance notice and 
opportunity to comment on the proposed disclosure, if the manner in 
which such consumer product is designated or described in such 
information ``permit[s] the public to ascertain readily the identity of 
such manufacturer or private labeler.'' 15 U.S.C. 2055(b)(1). The CPSA 
defines ``manufacturer'' to include an importer. 15 U.S.C. 2052(a)(11). 
Section 6(b)(1) also requires the Commission, prior to such public 
disclosure, to ``take reasonable steps to assure'' that the information 
CPSC intends to disclose ``is accurate, and that such disclosure is 
fair in the circumstances and reasonably related to effectuating the 
purposes of this Act.'' Id. In 1980, the U.S. Supreme Court ruled that 
CPSC's disclosures under the Freedom of Information Act (FOIA) are 
among the public releases covered by the section 6(b)(1) restrictions. 
CPSC v. GTE Sylvania, Inc., 447 U.S. 102 (1980).
    The Consumer Product Safety Improvement Act of 2008 (CPSIA), Public 
Law 110-314, 122 Stat. 3016, enacted on August 14, 2008, amended 
section 6 of the CPSA. The amendments shortened, from 30 days to 15 
days, the period for manufacturers and private labelers to receive 
advance notice and have an opportunity to comment on information that 
the Commission proposes to disclose. In addition, the amendments 
eliminated the requirement that the Commission publish a Federal 
Register notice when the Commission makes a finding that the public 
health and safety necessitates public disclosure with less notice than 
the default period specified in section 6(b)(1). CPSIA also broadened 
the statutory exceptions to section 6(b). For example, the amendments 
excluded from the requirements of section 6(b)(1)-(3) a public 
disclosure of information about any consumer product which the 
Commission has reasonable cause to believe is in violation of any 
consumer product safety rule or provision of the CPSA, or similar rule 
or provision of any other act enforced by the Commission.

B. History of the 6(b) Regulation

    On December 29, 1983, the Commission published a final rule 
interpreting section 6(b) of the CPSA. 48 FR 57406; see 49 FR 8428 
(Mar. 7, 1984) (technical correction). The 6(b) Regulation, 16 CFR part 
1101, describes the Commission's procedures for providing manufacturers 
and private labelers advance notice and ``a reasonable opportunity to 
submit comments'' to the Commission on proposed disclosures of certain 
information. In addition, the 6(b) Regulation explains the ``reasonable 
steps'' the Commission will take pursuant to section 6(b) to assure, 
prior to public disclosure of covered information, that the information 
``is accurate, and that such disclosure is fair in the circumstances 
and reasonably related to effectuating the purposes of this Act.'' In 
2008, the Commission amended the 6(b) Regulation to reflect the CPSIA 
amendments. 73 FR 72334 (Nov. 28, 2008).

[[Page 10433]]

C. The 2014 NPR

    On February 26, 2014, the Commission published the 2014 NPR. 
Information Disclosure Under Section 6(b) of the Consumer Product 
Safety Act, 79 FR 10712 (Feb. 26, 2014). The 2014 NPR was based on the 
following guiding principles:
    1. Modernize the 6(b) Regulation to account for the significant 
advancements in information technology that have taken place since its 
initial adoption in 1983;
    2. Streamline the 6(b) Regulation to be as closely aligned with 15 
U.S.C. 2055(b) as possible, with the objectives of: (a) eliminating 
unnecessary administrative burdens to the agency; (b) removing extra-
statutory requirements; (c) eliminating redundancies in providing 
notice; (d) minimizing FOIA backlogs; and (e) maximizing transparency 
and openness in the agency's disclosure of information;
    3. Maintain CPSC's compliance with the statutory requirements of 15 
U.S.C. 2055(b) (i.e., requirements related to notice, opportunity to 
submit comments, and taking reasonable steps to assure accuracy, 
fairness in the circumstances, and reasonable relation to effectuating 
the purposes of the CPSA outlined in 15 U.S.C. 2051(b)); and
    4. Maintain the protections of 15 U.S.C. 2055(b)(5) for information 
filed in accordance with the requirements of 15 U.S.C. 2064(b) (i.e., 
Section 15(b) reports).
    See Fiscal Year 2013 Midyear Review and Operating Plan Adjustments, 
available at https://www.cpsc.gov/s3fs-public/pdfs/foia_RCAFY13MidyearReviewandOperatingPlanAdjustments%2520050313.pdf.
    The Commission received 24 comments on the 2014 NPR. As discussed 
in section III below, seven consumer groups supported the proposed 
revisions to modernize the regulation and make it more consistent with 
the statute and industry practice. However, these commenters were 
concerned that section 6(b)'s obstacles to transparency and the 
immediate release of crucial product safety information remain. The 
other commenters, comprising trade associations and one firm, objected 
to various proposals contained in the 2014 NPR. In general, these 
commenters asserted that the proposed revisions would result in the 
disclosure of inaccurate or misleading information. Moreover, according 
to these commenters, some of the proposed changes could chill 
cooperation between the Commission and industry.

II. Detailed Description of the Proposed Revisions to the 6(b) 
Regulation

    This section describes the changes proposed by this Supplemental 
NPR, in the order in which they appear in the proposed revised part 
1101 of the Commission's rules.

A. Table of Contents

1. Proposed Changes to the Table of Contents
    The 2014 NPR proposed a technical change to the Table of Contents. 
79 FR 10713. The Supplemental NPR continues to propose this change. In 
addition, the Supplemental NPR proposes conforming changes to align the 
6(b) Regulation with the statute, and minor grammatical edits for 
clarity. For example, the Supplemental NPR proposes to remove 
``release'' and, in its place, add ``disclosure'' because section 
6(b)(1) of the CPSA uses the terms, ``public disclosure,'' 
``disclosure,'' ``disclosed,'' and ``disclosing.'' The Supplemental NPR 
also proposes to remove ``analysis'' and, in its place, add 
``comment,'' because section 6(b)(1) requires the Commission to provide 
manufacturers and private labelers ``with a reasonable opportunity to 
submit comments.'' The Supplemental NPR proposes these conforming 
changes throughout the 6(b) Regulation. To improve clarity, the 
Supplemental NPR also proposes to redesignate Sec.  1101.1 as ``Scope'' 
and Sec.  1101.2 as ``General background.''

B. Subpart A--Background

1. Proposed Changes to Sec.  1101.1 (General Background.)
    To improve organization, the Supplemental NPR proposes to 
redesignate current Sec.  1101.2 (Scope) as Sec.  1101.1.
    The 2014 NPR proposed technical changes to current Sec.  1101.2 
(which becomes Sec.  1101.1). 79 FR 10713. The Supplemental NPR 
continues to propose only one of these technical changes: removing 
``1476'' as a statutory section reference and, in its place, adding 
``1477.''
    Section 6(b)(1) of the CPSA applies to the Commission's ``public 
disclosure of any information obtained under this Act, or to be 
disclosed to the public in connection therewith.'' 15 U.S.C. 
2055(b)(1). Section 6(d)(1) of the CPSA defines ``Act'' as the CPSA, 
FFA, PPPA, and FHSA. 15 U.S.C. 2055(d)(1). Current Sec.  1101.2, 
however, more broadly defines the legislative acts that are relevant to 
section 6(b) to include not only the laws specified in section 6(d)(1) 
of the CPSA, but also the Refrigerator Safety Act, the Virginia Graeme 
Baker Pool and Spa Safety Act, and the Children's Gasoline Burn 
Prevention Act. The Supplemental NPR proposes to revise this section to 
conform to the language in section 6(b)(1) and (d)(1) of the CPSA, by 
removing the additional laws. In connection with this revision, the 
Supplemental NPR proposes to refer collectively to the CPSA, FFA, PPPA, 
and FHSA as ``the Acts'' and to use this defined term throughout the 
6(b) Regulation. The Supplemental NPR also proposes edits to the 
statutory citations. Thus, revised proposed Sec.  1101.1 reads:

    These rules apply to the public disclosure of any information 
obtained under the Consumer Product Safety Act, 15 U.S.C. 2051-2090 
(CPSA), the Flammable Fabrics Act, 15 U.S.C. 1191-1204 (FFA), the 
Poison Prevention Packaging Act of 1970, 15 U.S.C. 1471-1477 (PPPA), 
and the Federal Hazardous Substances Act, 15 U.S.C. 1261-1278a 
(FHSA) (collectively, ``the Acts''), or to be disclosed to the 
public in connection therewith.
2. Proposed Changes to Sec.  1101.2 (Scope.)
    To improve organization, the Supplemental NPR proposes to 
redesignate current Sec.  1101.1 (General background) as Sec.  1101.2.
    The 2014 NPR proposed revising current Sec.  1101.1(b)(1) to 
reflect more clearly that there are exceptions to section 6(b)(5)'s 
limitations on the disclosure of information submitted to the 
Commission under section 15(b) of the CPSA. 79 FR 10713. The 
Supplemental NPR builds upon this approach and proposes additional 
changes throughout redesignated Sec.  1101.2 to conform to the statute. 
For example, the Supplemental NPR proposes to revise the first sentence 
in renumbered Sec.  1101.2(b)(1) to conform to the language in section 
6(b)(1). This revised sentence now reads:

    Generally, section 6(b)(1) requires, prior to the Commission's 
public disclosure of any information obtained under the Acts, or to 
be disclosed to the public in connection therewith, that the 
Commission, to the extent practicable, provide manufacturers or 
private labelers with advance notice and opportunity to comment on 
the information, if the manner in which such consumer product is 
designated or described in the information permits the public to 
ascertain readily the identity of the manufacturer or private 
labeler.

    Likewise, the Supplemental NPR proposes to add ``consumer'' before 
``product'' because section 6(b)(1) refers to ``consumer product,'' a 
term defined in section 3(a)(5) of the CPSA. 15 U.S.C. 2052(a)(5). The 
Supplemental NPR

[[Page 10434]]

proposes this conforming revision throughout the 6(b) Regulation.
    The 2014 NPR also proposed inserting in Sec.  1101.1(b)(1) the 
word, ``calendar,'' between ``15'' and ``days.'' 79 FR 10713. For 
clarity and consistency, the Supplemental NPR continues to propose this 
change, without revision, in those sections of the 6(b) Regulation that 
discuss timing. The specification of calendar days reflects CPSC's 
practice since 2008, when the Commission published a final rule to 
revise the 6(b) Regulation in accordance with the 6(b) amendments under 
CPSIA. 73 FR 72334.
    The 2014 NPR proposed revising the date of CPSC's internal 
Directive 1450.2 as listed in current Sec.  1101.1(c). 79 FR 10713. The 
Supplemental NPR proposes to delete the reference to Directive 1450.2 
entirely, to avoid obsolescence if the Commission chooses to update or 
revise that document. The Supplemental NPR also proposes removing from 
current Sec.  1101.2(c) the words, ``internal'' and ``internal 
clearance,'' to conform to the language in section 6(b)(6) of the CPSA, 
which does not use these terms.
    Finally, to provide clarity to covered firms, the Supplemental NPR 
proposes to add a sentence at the end of current Sec.  1101.2(b)(1), 
explaining the requirements of section 15(b) of the CPSA. The 
Supplemental NPR, for clarity, also proposes minor grammatical edits 
throughout redesignated Sec.  1101.2.

C. Subpart B--Information Subject to Notice and Analysis Provisions of 
Section 6(b)(1)

1. Proposed Changes to Subpart B Heading
    The Supplemental NPR proposes to remove ``Analysis'' and, in its 
place, add ``Comment'' to conform to the language in section 6(b)(1) of 
the CPSA.
2. Proposed Changes to Sec.  1101.11 (General Application of Provisions 
of Section 6(b)(1).)
a. Proposed Changes to Sec.  1101.11(a)
    In Sec.  1101.11(a), the Supplemental NPR proposes to remove 
``analysis'' and, in its place, add ``comment'' to conform to the 
statute.
i. Proposed Changes to Sec.  1101.11(a)(1)
    Current Sec.  1101.11(a)(1) states: ``The information must pertain 
to a specific product which is either designated or described in a 
manner which permits its identity to be ascertained readily by the 
public.'' The 2014 NPR proposed deleting the phrase, ``which is either 
designated or described in a manner which permits its identity to be 
ascertained readily by the public.'' 79 FR 10713-14. The Supplemental 
NPR proposes to delete Sec.  1101.11(a)(1) entirely because section 
6(b)(1) of the CPSA does not require that the information proposed for 
disclosure pertain to a specific product. Instead, section 6(b)(1) 
requires the Commission to provide a manufacturer or private labeler 
with advance notice and an opportunity to comment on the information, 
``if the manner in which such consumer product is to be designated or 
described in such information will permit the public to ascertain 
readily the identity of such manufacturer or private labeler.'' 15 
U.S.C. 2055(b)(1) (emphasis added). This statutory requirement that the 
public must be able to ascertain readily the identity of the 
manufacturer or private labeler of the consumer product is reflected in 
current Sec.  1101.11(a)(4), which the Supplemental NPR proposes to 
redesignate as Sec.  1101.11(a)(2).
ii. Proposed Changes to Sec.  1101.11(a)(2) and (3)
    Current Sec.  1101.11(a)(2) states: ``The information must be 
obtained, generated or received by the Commission as an entity or by 
individual members, employees, agents, contractors or representatives 
of the Commission acting in their official capacities.'' The 2014 NPR 
proposed to revise Sec.  1101.11(a)(2) to state: ``The information must 
be obtained under the acts the Commission administers, or be disclosed 
to the public in connection therewith.'' 79 FR 10714. The Supplemental 
NPR proposes additional changes to Sec.  1101.11(a)(2) to align with 
the statute. Revised Sec.  1101.11(a)(2), which the Supplemental NPR 
proposes to redesignate as Sec.  1101.11(a)(3), now reads: ``The 
information must be obtained, generated or received under the Acts, or 
be disclosed to the public in connection therewith.''
    The Toy Industry Association (TIA) suggested that the 2014 NPR's 
proposal to remove from Sec.  1101.11(a)(2) the phrase, ``individual 
members, employees, agents, contractors or representatives of the 
Commission acting in their official capacities,'' could cause these 
individuals to believe that they are no longer subject to section 6(b). 
We disagree. Section 6(d)(2) of the CPSA states that the ``provisions 
of [section 6] shall apply whenever information is to be disclosed by 
the Commission, any member of the Commission, or any employee, agent, 
or representative of the Commission in an official capacity.'' This 
statutory provision is repeated in current Sec.  1101.11(a)(3), which 
the Supplemental NPR proposes to redesignate as Sec.  1101.11(a)(1) and 
to revise with minor edits to conform to the statute. Revised Sec.  
1101.11(a)(1) now reads: ``The Commission, any member of the 
Commission, or any employee, agent, or representative, including 
contractor, of the Commission in an official capacity must propose to 
disclose the information to the public (see Sec.  1101.12).''
iii. Proposed Changes to Sec.  1101.11(a)(4)
    The Supplemental NPR proposes to redesignate Sec.  1101.11(a)(4) as 
Sec.  1101.11(a)(2) and to insert ``consumer'' between ``the'' and 
``product'' to align with the statute. The Supplemental NPR also 
proposes minor grammatical edits to this section.
b. Proposed Changes to Sec.  1101.11(b)
    The 2014 NPR proposed revising Sec.  1101.11(b)(1) to clarify that 
the requirements of section 6(b)(1) do not apply to the information 
described in the exceptions listed in section 6(b)(5) of the CPSA. 
These exceptions include the public disclosure of information with 
respect to a consumer product which is the subject of an action brought 
under section 12, or which the Commission has reasonable cause to 
believe is in violation of any consumer product safety rule or 
provision under the CPSA or similar rule or provision of any other act 
enforced by the Commission, or information in the course of or 
concerning a judicial proceeding. 15 U.S.C. 2055(b)(5). The 
Supplemental NPR continues to propose this change, incorporating a 
technical revision and minor grammatical edit.
    The 2014 NPR also proposed adding the following three categories to 
the list of information not subject to the requirements of section 
6(b):
     A report of harm posted on the publicly available consumer 
product safety information database;
     Information that is publicly available; and
     Information that is substantially the same as information 
that the Commission previously disclosed in accordance with section 
6(b)(1), except as specified in Sec.  1101.31(d).
i. Reports of Harm
    The 2014 NPR proposed including reports of harm posted on the 
publicly available consumer product safety information database 
(currently known as and accessible at SaferProducts.gov) in the list of 
information not subject to section 6(b)(1), because section 6A(f)(1) of 
the CPSA specifically excludes such reports from the provisions of 
section

[[Page 10435]]

6(b). 15 U.S.C. 2055a(f)(1). 79 FR 10714. The Supplemental NPR 
continues to propose implementing this revision.
    The Commission acknowledges commenters' concerns with the 
Commission disclosing, without following the section 6(b) requirements, 
reports of harm that are not published on SaferProducts.gov. Although 
section 6A(f)(1) of the CPSA specifically excludes from the 
requirements of section 6(b), reports of harm that are published on 
SaferProducts.gov, this provision does not address reports of harm that 
do not meet the criteria for publication. Id. Accordingly, the 
Commission will provide firms with any requisite 6(b) notice for 
reports of harm that are not published on SaferProducts.gov.
    The National Association of Manufacturers (NAM) asserted that the 
section 6(b) exclusion for reports of harm ``applies strictly to the 
reports of harm on the database and does not apply to alternative 
disclosures of information contained in the report.'' Without examples 
or explanation of the phrase ``alternative disclosures,'' we are unable 
to respond meaningfully to this comment. In general, however, the 
Commission may release or identify information contained in a report of 
harm that is posted to SaferProducts.gov, without notice under section 
6(b)(1), if (1) the Commission does not characterize the information 
contained in the report, and (2) the Commission's use of 
SaferProducts.gov information is accurate and not misleading. For 
example, the Commission could state that SaferProducts.gov received 15 
reports of harm involving Manufacturer ABC's lamp. In contrast, the 
Commission would have to provide 6(b) notice and opportunity to comment 
if that same release also warned consumers to stop using the lamps due 
to a hazard, or contained other information that is a public disclosure 
subject to the notice requirement of section 6(b)(1).
ii. Information That Is Publicly Available
    The 2014 NPR proposed including in the list of information not 
subject to section 6(b)(1) the following: ``Information that is 
publicly available or that has been disseminated in a manner intended 
to reach the public in general, such as news reports; articles in 
academic and scientific journals; press releases distributed through 
news or wire services; or information that is available on the 
Internet.'' 79 FR 10714. Commenters raised concerns regarding the scope 
of the 2014 NPR's proposed revision, noting that publicly available 
information may be inaccurate, biased, or misleading and the 
Commission's reference to such information implies that the information 
is verified, accurate, or reliable. The Commission recognizes that even 
though information appearing in a news article or in an organization's 
published report is available to the general public, the Commission's 
repetition of that information could be inconsistent with the intent of 
section 6.
    Based upon the comments that we received, this Supplemental NPR 
proposes a different approach for information that is already available 
to the public. Specifically, the Commission proposes to specify that 
the requirements of section 6(b)(1) do not apply to: ``Information that 
has already been made available to the public through sources other 
than the Commission, provided the Commission clearly indicates the 
source of the information and the Commission's use of the information 
is accurate and not misleading.''
    Under the revised approach proposed here, the Commission may 
release or identify information that the Commission obtained from 
publicly available sources (e.g., news clippings), without notice under 
section 6(b)(1), if (1) the Commission does not characterize the 
publicly available information or relay new information, and (2) the 
Commission's use of the information is accurate and not misleading. In 
determining whether the Commission's use of the information is accurate 
and not misleading, the integrity of the source may be relevant. For 
example, the Commission could state that it is aware of an identified 
newspaper's article reporting 10 incidents involving Manufacturer ABC's 
stroller, provided it is reasonable to attribute integrity to the 
source of the information (e.g., the newspaper follows journalistic 
standards) and the Commission's description of the newspaper's report 
is accurate and not misleading. However, the Commission would provide 
6(b) notice and opportunity to comment before posting to a social media 
platform: ``Check your ABC stroller for dangerous hinges--[Newspaper 
name] reports injuries to 10 kids.'' In this example, the Commission's 
social media message implies that the Commission considers the 
information contained in the news article to be a basis for action, or 
even that the Commission has itself determined the stroller hinges pose 
a hazard.
iii. Information That Is Substantially the Same as Information That the 
Commission Previously Disclosed
    The 2014 NPR proposed including the following to the list of 
information not subject to section 6(b)(1): ``(8) Information that is 
substantially the same as information that the Commission previously 
disclosed in accordance with section 6(b)(1), except as specified in 
Sec.  1101.31(d).'' 79 FR 10715.
    Based upon comments that the Commission received, which asserted 
that the 2014 NPR proposal is vague and difficult to apply, and upon 
further consideration, the Commission proposes a modified approach. 
Under this new approach, the requirements of section 6(b)(1) do not 
apply to: ``Information, not previously disclosed, that in context does 
not disclose materially more or materially different information about 
the consumer product than what the Commission previously disclosed in 
accordance with the law.'' For example, under this proposal, a 
Commissioner may relate in a speech the findings regarding Manufacturer 
A's blender that appeared in a published CPSC report on kitchen 
appliances, for which the Commission provided the requisite 6(b) 
notice. However, the Commissioner would not discuss other staff 
findings that do not appear in the published report, unless the 
Commission previously provided Manufacturer A with 6(b) notice 
regarding those additional findings.
iv. Press Releases Issued by Firms
    The Supplemental NPR proposes to delete Sec.  1101.11(b)(4), 
``Press releases issued by firms.'' While we do not believe that 
section 6(b) requires the Commission to provide a manufacturer or 
private labeler with 6(b) notice and an opportunity to comment before 
the Commission provides the public with information that is available 
in the firm's own publicly available press release, we hold to the 
Supplemental NPR's position that it is unnecessary to state in the 6(b) 
Regulation this specific application of general principals.
c. Proposed Technical and Conforming Changes to Sec.  1101.11
    The 2014 NPR proposed three technical and conforming changes to 
Sec.  1101.11. 79 FR 10715. The Supplemental NPR continues to propose 
these revisions, except for the proposal to remove ``16 CFR part 
1017,'' which is listed as ``Reserved,'' and, in its place, add ``16 
CFR part 1019,'' which is titled ``Export of Noncomplying, Misbranded, 
or Banned Products,'' in Sec.  1101.11(b)(2).

[[Page 10436]]

Instead, the Supplemental NPR proposes to remove the reference to the 
Commission's Export Policy Statement, which is not applicable, and 
insert the relevant regulatory citation, 16 CFR 1019.7. In addition, 
the Supplemental NPR proposes to re-number the paragraphs in Sec.  
1101.11(b) to reflect the proposed deletion of ``(4) Press releases 
issued by firms'' and insert a cross-reference to subpart E in 
redesignated Sec.  1101.11(b)(4).
3. Proposed Changes to Sec.  1101.12 (Commission Must Disclose 
Information to the Public)
    The 2014 NPR proposed technical and conforming changes to Sec.  
1101.12, including revising the heading to state: ``Definition of 
`public.' '' 79 FR 10715. The Supplemental NPR continues to propose 
these changes, without revision.
    For the requirements of section 6(b) to apply, the Commission, any 
member of the Commission, or any employee, agent, or representative, 
including contractor, of the Commission in an official capacity, must 
propose to disclose the information to the public. See revised Sec.  
1101.11a(1). Current Sec.  1101.12 includes in the list of persons who 
are not considered members of the ``public'':
     ``The persons or firms to whom the information to be 
disclosed pertains, or their legal representatives'' (16 CFR 
1101.12(d)); and
     ``The persons or firms who provided the information to the 
Commission, or their legal representatives'' (16 CFR 1101.12(e)).
    For greater specificity, the Supplemental NPR proposes to remove 
the reference to ``persons or firms'' and, in its place, add ``Persons, 
including but not limited to, consumers, manufacturers, private 
labelers, retailers, or distributors.''
    The Commission may (and routinely does) contact consumers or firms 
to discuss information involving that particular consumer or firm. For 
example, when a manufacturer or private labeler provides the Commission 
with incident information that also identifies the consumers involved 
in those incidents, the Commission may use that information to contact 
the consumers to conduct in-depth investigations of the incidents. 
Similarly, when a manufacturer or private labeler provides the 
Commission with the names of firms that distributed or sold a violative 
or defective product, the Commission may contact the distributor or 
retailer to obtain additional information about the product. In these 
instances, neither the consumer, distributor, nor retailer constitutes 
the ``public'' under Sec.  1101.12, because the information to be 
disclosed pertains to (1) the particular consumer who experienced an 
incident with the product, or (2) the particular distributor or 
retailer who distributed or sold the product.
    The Supplemental NPR proposes additional technical and conforming 
changes, as well as minor grammatical edits, to Sec.  1101.12 to 
provide clarity and to align with the statute. For example, the 
Supplemental NPR proposes to revise Sec.  1101.12(a) and (b) to explain 
that section 6(b) applies to disclosures of information by state 
officials who are commissioned officers under section 29(a)(2) of the 
CPSA, and by any member of the Commission or any employee, agent, or 
representative, including contractor, of the Commission, in an official 
capacity. In Sec.  1101.12(h), the Supplemental NPR proposes to remove 
the reference to ``CPSIA'' and, in its place, insert ``CPSA,'' which 
the CPSIA amended.
4. Proposed Changes to Sec.  1101.13 (Public Ability To Ascertain 
Readily Identity of Manufacturer or Private Labeler)
    The 2014 NPR proposed deleting from Sec.  1101.13 the last 
sentence, which states, ``The Commission will provide the advance 
notice and opportunity to comment if there is a question whether the 
public could readily ascertain the identity of a manufacturer or 
private labeler.'' 79 FR 10715. The 2014 NPR explained that this 
sentence is vague and inconsistent with the reasonable person standard 
that the Commission adopted in the first sentence of this section. Id. 
Under that standard, if a reasonable person who lacks specialized 
expertise can readily ascertain the identity of the firm from the 
information proposed to be disclosed, the Commission will provide such 
information to the firm for section 6(b) comment. The Supplemental NPR 
continues to propose deleting the last sentence of Sec.  1101.13, while 
retaining the reasonable person standard.
    The Supplemental NPR proposes to insert two sentences in Sec.  
1101.13 to clarify that the following types of information are not 
within the scope of section 6(b)(1): (1) information about categories 
of consumer products, provided such information will not permit the 
public to ascertain readily the identity of the products' manufacturers 
or private labelers, and (2) information about manufacturers or private 
labelers, provided such information does not designate or describe a 
consumer product. Consistent with section 6(b)(6) of the CPSA, the 
Commission will ensure, pursuant to its established procedures, that 
information the Commission intends to disclose that reflects on the 
safety of a class of consumer products or on a manufacturer or private 
labeler of consumer products, is accurate and not misleading.
    The 2014 NPR also proposed a technical change to Sec.  1101.13. 79 
FR 10715. The Supplemental NPR continues to propose this change, 
without revision. In addition, the Supplemental NPR proposes conforming 
changes to Sec.  1101.13 to align with the statute and minor 
grammatical edits for clarity.

D. Subpart C--Procedure for Providing Notice and Opportunity To Comment 
Under Section 6(b)(1)

1. Proposed Changes to Sec.  1101.21 (Form of Notice and Opportunity To 
Comment)
    To increase efficiency and reduce burdens on the Commission and 
private parties, the 2014 NPR proposed revising the 6(b) Regulation to 
authorize electronic 6(b) notices, direct Commission staff to transmit 
notices electronically when possible, and encourage electronic 
communication back to the Commission. 79 FR 10715. Commenters 
overwhelmingly supported this proposal. The Supplemental NPR builds 
upon the 2014 NPR's approach. The Supplemental NPR proposes a new 
paragraph at Sec.  1101.21(b) that requires, to the extent practicable, 
electronic transmission to avoid delays inherent in methods such as 
mail delivery. In response to commenters' questions, the new paragraph 
also clarifies the procedure if electronic transmission is not 
practicable or the Commission cannot confirm electronic receipt of the 
notice. In such instances, the Commission will take appropriate steps 
to provide notice using other methods, including delivery via U.S. mail 
or other delivery service.
    Section 6(b)(1) of the CPSA states: ``In disclosing any information 
under [section 6(b)], the Commission may, and upon the request of the 
manufacturer or private labeler shall, include with the disclosure any 
comments or other information or a summary thereof submitted by such 
manufacturer or private labeler to the extent permitted by and subject 
to the requirements of [section 6].'' 15 U.S.C. 2055(b)(1). Thus, 
unless a manufacturer or private labeler specifically requests that the 
Commission disclose the firm's ``comments or other information or a 
summary thereof'' that is submitted in

[[Page 10437]]

response to a section 6(b)(1) notice from CPSC, the Commission is not 
required to disclose the firm's comments. Current Sec.  1101.21(b)(4), 
however, requires the Commission to disclose comments even when a 
manufacturer or private labeler does not request disclosure. The 
Supplemental NPR proposes to revise this section to conform to the 
language in section 6(b)(1) and to require that requests for 
withholding be made in writing to assist Commission staff with 
processing and tracking such requests. Revised Sec.  1101.21(b)(4) now 
reads: ``A statement that the Commission may, and upon the written 
request of the manufacturer or private labeler shall, include with the 
disclosure any comments or other information or a summary thereof 
submitted by such manufacturer or private labeler, to the extent 
permitted by and subject to the requirements of section 6 of the 
CPSA.''
    Current Sec.  1101.21(b) specifies the information that will appear 
in a section 6(b) notice to a manufacturer or private labeler. This 
information includes, among other contents, ``[a] statement that a 
request for comments be withheld from disclosure will be honored.'' The 
2014 NPR proposed revising Sec.  1101.21(b)(5). 79 FR 10715-16. The 
Supplemental NPR instead proposes to delete Sec.  1101.21(b)(5) 
entirely. A blanket policy of always allowing a manufacturer or private 
labeler to have its comments withheld, even when such comments are not 
confidential commercial or trade secret information, and disclosure of 
the comments is not otherwise prohibited by law, may conflict with the 
public interest in transparency. Under the Commission's proposed 
revision at Sec.  1101.24(c), a manufacturer or private labeler must 
explain its basis for requesting that the Commission exercise its 
discretion to not disclose the comments.
    Current Sec.  1101.21(b)(7) states that firms may request 
renotification, or the opportunity to comment on subsequent disclosures 
of ``identical information'' that is ``in the same format.'' The 2014 
NPR proposed revisions to this section. 79 FR 10716. As discussed in 
section II.C.2.b.iii above, the Commission proposes a different 
approach for subsequent disclosures of information. In connection with 
this new approach, the Supplemental NPR proposes to revise Sec.  
1101.21(b)(7), now redesignated as Sec.  1101.21(b)(6), to provide for 
delivery to the manufacturer or private labeler of: ``A statement that 
no further request for comment will be sought by the Commission if the 
Commission intends to disclose information, not previously disclosed, 
that in context does not disclose materially more or materially 
different information about the consumer product than what the 
Commission previously disclosed in accordance with the law.'' For 
example, the Commission would not have to provide another 6(b) notice 
before restating the contents of a CPSC news release that was issued 
after a notice and comment process under section 6(b).
    Current Sec.  1101.21(b)(2) calls for the inclusion in a section 
6(b)(1) notice of:
    A general description of the manner in which the Commission will 
disclose the information, including any other relevant information the 
Commission intends to include with the disclosure. If the Commission 
advises that the form of disclosure will be by press release, for 
example, the Commission need not provide further notice to disclose a 
summary of the press release.
    The Supplemental NPR proposes to delete the last sentence of this 
provision because it concerns renotification, which is addressed in 
redesignated Sec.  1101.21(b)(6), rather than initial notification. The 
Supplemental NPR includes this example in redesignated Sec.  
1101.21(b)(6).
    The 2014 NPR proposed two technical and conforming changes to Sec.  
1101.21. 79 FR 10716. The Supplemental NPR continues to propose only 
the conforming change in Sec.  1101.21(b), redesignated Sec.  
1101.21(c). In addition, the Supplemental NPR proposes a technical 
change in Sec.  1101.21(a) to cross-reference revised Sec.  1101.26, 
which identifies circumstances when notice and opportunity to comment 
are not practicable. Finally, the Supplemental NPR proposes changes to 
conform to the statute and minor grammatical edits throughout Sec.  
1101.21 for simplification and clarity. For example, in Sec.  
1101.21(b)(6), redesignated Sec.  1101.21(c)(5), the Supplemental NPR 
proposes to remove ``firm'' and, in its place, add ``manufacturer or 
private labeler.'' The Supplemental NPR also proposes to redesignate 
certain paragraphs and sub-paragraphs.
2. Proposed Changes to Sec.  1101.22 (Timing: Request for Time 
Extensions)
    The 2014 NPR proposed inserting a sentence into Sec.  1101.22(a)(1) 
regarding electronic transmission of the 6(b) notice. 79 FR 10716. The 
Supplemental NPR proposes to move discussion of electronic transmission 
to proposed Sec.  1101.21(b).
    Currently, the first sentence of Sec.  1101.22(a)(2) states: ``Upon 
his or her own initiative or upon request, the Freedom of Information 
Officer may provide a different amount of time for comment, 
particularly for firms that receive voluminous or complex material.'' 
The 2014 NPR proposed deleting from Sec.  1101.22(a)(2) the phrase, 
``Upon his or her own initiative or,'' because, absent a request from a 
manufacturer or private labeler, the Freedom of Information Officer 
generally will not provide a firm with additional time to comment on 
information proposed for disclosure. 79 FR 10716. The Supplemental NPR 
proposes additional non-substantive edits to the first sentence of 
Sec.  1101.22(a)(2). The proposed revised sentence reads: ``The 
Commission may provide a longer amount of time for comment, 
particularly for manufacturers and private labelers that receive from 
the Commission voluminous or complex material to review.''
    The 2014 NPR proposed revisions to Sec.  1101.22(b)(2) to clarify 
when the Commission will disclose information in fewer than 15 calendar 
days. 79 FR 10716. The Supplemental NPR proposes to delete Sec.  
1101.22(b)(2) entirely because this section concerns timing, which is 
addressed in Sec. Sec.  1101.22(a)(1) and 1101.23.
    Current Sec.  1101.22(b)(1) states: ``If the Commission has not 
received a response within the time specified and if it has received no 
request for extension of time, the Commission will analyze the 
information as provided in subpart D. If no comments are submitted the 
Commission will not give the further notice provided in section 
6(b)(2).'' The Supplemental NPR proposes minor grammatical and 
clarifying revisions to this section to reflect that an extension 
request is not a substantive response. Revised Sec.  1101.21(b)(1), 
redesignated Sec.  1101.21(b), now reads: ``If the Commission has not 
received a response within the time specified (subject to any extension 
of time that has been granted under paragraph (c)), the Commission will 
analyze the information as provided in subpart D and will not give the 
further notice provided in section 6(b)(2).'' The Commission expects 
manufacturers and private labelers to submit comments by the deadline 
indicated in the 6(b) notice or otherwise given. The Commission 
ordinarily will disregard comments that are not submitted by the stated 
deadline.
    The Supplemental NPR also proposes edits to provide manufacturers 
and private labelers more specific instructions regarding the 
Commission's process for requesting an extension of time to comment on 
information that the Commission proposes to disclose. The Supplemental 
NPR proposes requiring in Sec.  1101.22(c) that such requests be in 
writing and submitted at least 48 hours before the deadline to

[[Page 10438]]

respond. The Commission believes this is a reasonable approach for 
processing and tracking any extension requests that staff may receive 
and for ensuring that proposed disclosures of information are not 
unnecessarily delayed. In addition, the Supplemental NPR clarifies that 
if the time for response has been shortened due to a public health and 
safety finding, no extension will be granted, except upon the 
Commission's initiative; in other words, extension requests from the 
party receiving notice will not be entertained in this situation.
    The Supplemental NPR proposes to move the sentence in Sec.  
1101.22(c)(2) to the end of Sec.  1101.22(c)(1) and to redesignate 
``(3)'' as ``(2)''. In addition, in redesignated Sec.  1101.22(c)(2), 
the Supplemental NPR proposes to remove, ``The Commission will promptly 
respond to requests for extension of time'' and, in its place, add ``It 
is the policy of the Commission to respond promptly to requests for 
extension of time.'' This change reflects that the statute does not 
require the Commission to respond promptly to an extension request, 
although the Commission endeavors to do so.
    The 2014 NPR proposed two technical changes to Sec.  1101.22. 79 FR 
10716. In Sec.  1101.22(a)(2), the Supplemental NPR continues to 
propose removing ``Sec.  1101.24'' and, in its place, adding ``Sec.  
1101.23.'' The 2014 NPR's proposed revision to Sec.  1101.22(b)(1) is 
no longer necessary in light of other revisions to this sentence.
    The Supplemental NPR proposes additional conforming changes to 
align with the statute and minor grammatical edits for clarity. For 
example, the Supplemental NPR proposes to remove ``firm'' and, in its 
place, add ``manufacturer or private labeler'' to conform to the 
statute and to provide clarity about the types of entities that are 
subject to section 6(b)(1) of the CPSA. The Supplemental NPR proposes 
this revision at appropriate places throughout the 6(b) Regulation. The 
Supplemental NPR also proposes to revise the heading of Sec.  1101.22 
so that it reads: ``Time for comment and requests for extension of 
time''.
3. Proposed Changes to Sec.  1101.23 (Providing Less Than 15 Days 
Notice Before Disclosing Information)
    Current Sec.  1101.23(c), titled ``Notice of finding,'' states that 
the Commission will provide the manufacturer or private labeler with 
notice of a public health and safety finding. The 2014 NPR proposed 
revisions to Sec.  1101.23(c) to direct the Commission to provide such 
notice electronically. 79 FR 10716. The Supplemental NPR proposes to 
delete Sec.  1101.23(c) entirely, because section 6(b) does not require 
the Commission to provide the manufacturer or private labeler direct 
notice of the finding. Rather, when the Commission finds that the 
public health and safety requires a lesser period of notice, section 
6(b)(1) requires the Commission to publish such finding. In addition, 
section 6(b)(2) requires the Commission to notify the manufacturer or 
private labeler of the date set for public disclosure.
    The Supplemental NPR proposes to revise the heading in Sec.  
1101.23(a) to include instances where the firm notifies the Commission 
that the firm has no comment. This provision currently appears in the 
text of Sec.  1101.23(a).
    In addition, the Supplemental NPR proposes to insert the following 
sentence into Sec.  1101.23(b): ``The Commission will publish the 
finding in the disclosure itself or elsewhere.'' The CPSIA amendments 
in 2008 removed the previous requirement in section 6(b)(1) of the CPSA 
that the Commission publish its health and safety finding in the 
Federal Register. The House Report accompanying the CPSIA bill 
explained this revision as follows:

    [S]ection 205 further amends section 6(b)(1) to allow the 
Commission, in the case of a public health or safety hazard posed by 
a product, to simply publish its finding (presumably on the 
Commission's website) before disclosing the relevant information to 
the public. Currently, section 6(b)(1) requires the Commission to 
publish its finding in the Federal Register, which can needlessly 
delay the process for as long as five additional days.

    H.R. Rep. No. 110-501, Consumer Product Safety Modernization Act 
(Dec. 19, 2007). Based upon this statutory revision and the 
accompanying legislative history, the Commission concludes that 
Congress intended the Commission to publish the finding quickly, such 
as in the press release or other public disclosure itself. This 
proposed revision, however, does not impact the requirement under 
section 6(b)(1) of the CPSA that the Commission, to the extent 
practicable, provide the manufacturer or private labeler with notice 
and an opportunity to comment on the information prior to disclosure.
    The Supplemental NPR proposes additional conforming changes to 
align with the statute and minor grammatical edits for clarity 
throughout Sec.  1101.23. For example, the Supplemental NPR proposes to 
replace ``firm'' with ``manufacturer or private labeler''; insert 
``calendar'' between ``15'' and ``days''; and insert ``consumer'' 
between ``the'' and ``product''.
4. Proposed Changes to Sec.  1101.24 (Scope of Comments Commission 
Seeks)
    Section 6(b)(1) of the CPSA states: ``In disclosing any information 
under [section 6(b)], the Commission may, and upon the request of the 
manufacturer or private labeler shall, include with the disclosure any 
comments or other information or a summary thereof submitted by such 
manufacturer or private labeler to the extent permitted by and subject 
to the requirements of [section 6].'' 15 U.S.C. 2055(b)(1). The 2014 
NPR proposed revising Sec.  1101.24(c) to require that a manufacturer 
or private labeler provide a rationale to support withholding the 
firm's comments and an explanation of why disclosure of the comments is 
not necessary to assure that the disclosure of the information that is 
the subject of the comments is fair in the circumstances. 79 FR 10716-
17. The Commission proposed this revision ``[t]o obtain more 
substantive and useful information from firms who object to disclosure 
of comments.'' 79 FR 10718. The 2014 NPR explained that ``[c]onclusory 
assertions that comments be withheld without a rationale will not be 
sufficient to withhold comments'' and that ``a firm's comment that it 
has no objection to disclosure, without any additional comments, will 
not be sufficient to justify withholding.'' Id.
    The Supplemental NPR revises this approach and proposes that a 
manufacturer or private labeler must provide a basis if it requests 
that the comments not be disclosed. For example, if a firm submits 
comments on what it believes is inaccurate information in the 
Commission's planned disclosure, and the Commission agrees with the 
comments and revises the proposed statement, the firm might contend 
that releasing comments referencing the inaccurate information in the 
proposed disclosure would not be a reasonable step to assure accuracy 
or fairness under the 6(b) requirements.
    In addition, the Supplemental NPR proposes to revise the last 
sentence of Sec.  1101.24(c) to clarify that if a manufacturer or 
private labeler objects to the disclosure of a portion of its comments, 
the firm must specifically identify that portion. Incorporating these 
revisions, along with conforming and grammatical edits, the revised 
proposed Sec.  1101.24(c) now reads:

    Requests for nondisclosure of comments. If a manufacturer or 
private labeler objects to the disclosure of its comments or a 
portion thereof, it must notify the Commission at the time the 
manufacturer or private labeler submits its comments and provide the 
basis

[[Page 10439]]

for its request. If the manufacturer or private labeler objects to 
the disclosure of only a portion of its comments, the firm must 
identify with specificity those portions that it requests be 
withheld.

    In response to the 2014 NPR, commenters expressed concern with the 
Commission's treatment of trade secret or privileged or confidential 
commercial or financial information that may appear in a firm's 
comments. The proposed revision in no way affects the Commission's 
treatment of such information. The Commission will maintain the 
protections on disclosure of trade secret or privileged or confidential 
commercial or financial information, as delineated in the CPSA, the 
FOIA, and our corresponding regulations, and in applicable case law. 
Firms should consult the Commission's FOIA regulation at 16 CFR 
1015.18, which specifies the information a firm must provide with any 
request that the Commission withhold trade secret or privileged or 
confidential commercial or financial information.
    The 2014 NPR proposed two technical changes to Sec.  1101.24(b). 79 
FR 10717. The Supplemental NPR no longer proposes the change to the 
first sentence of Sec.  1101.24(b); instead, the Supplemental NPR 
proposes revisions to conform to the language in section 6(a)(2) of the 
CPSA. The Supplemental NPR continues to propose the change to the 
second sentence, along with other clarifying edits to the sentence. In 
addition, throughout Sec.  1101.24, the Supplemental NPR proposes 
conforming changes to align with the statute and minor grammatical 
edits for simplification and clarity. For example, in Sec.  1101.24(a), 
the Supplemental NPR proposes to delete ``undocumented'' and, in its 
place, add ``non-specific''.
5. Proposed Changes to Sec.  1101.25 (Notice of Intent To Disclose)
    The 2014 NPR proposed adding the following sentence to the end of 
Sec.  1101.25(c): ``If written notice is provided, the Commission, 
whenever possible, will transmit such notice electronically.'' 79 FR 
10717. The Supplemental NPR continues to propose this revision, with 
minor grammatical edits.
    In Sec.  1101.25(a), the Supplemental NPR proposes non-substantive 
revisions to clarify the time at which the Commission may disclose the 
information. In addition, the Supplemental NPR proposes to remove the 
last sentence in Sec.  1101.25(a), which states: ``The notice of intent 
to disclose will include an explanation of the reason for the 
Commission's decision [and] copies of any additional materials, such as 
explanatory statements and letters to FOIA requesters, which were not 
previously sent to the firm.'' Section 6(b)(2) of the CPSA only 
requires that the Commission ``notify the manufacturer or private 
labeler that the Commission intends to disclose [the information] at a 
date not less than 5 days after the date of the receipt of 
notification.'' For FOIA requests, however, it is the Commission's 
current practice to include, with the section 6(b)(2) notice, copies of 
the final package of materials that the Commission intends to disclose 
to the FOIA requester.
    The Supplemental NPR proposes to delete Sec.  1101.25(b) entirely, 
because the information in this paragraph appears in Sec.  1101.23(b). 
In connection with this revision, the Supplemental NPR redesignates 
paragraph (c) as (b).
    The 2014 NPR proposed technical changes to Sec.  1101.25. 79 FR 
10717. The Supplemental NPR continues to propose some of these changes. 
In addition, the Supplemental NPR proposes minor grammatical edits and 
conforming changes to align Sec.  1101.23 with the statute. For 
example, in redesignated Sec.  1101.25(b), the Supplemental NPR 
proposes to delete, ``depending on the immediacy of the need for quick 
action,'' because a health and safety finding itself constitutes a 
Commission determination regarding immediacy.
6. Proposed Changes to Sec.  1101.26 (Circumstances When the Commission 
Does Not Provide Notice and Opportunity To Comment)
    The 2014 NPR did not propose any changes to this section.
    Section 6(b)(1) of the CPSA requires that, ``to the extent 
practicable,'' the Commission must provide manufacturers and private 
labelers notice and an opportunity to comment before disclosing 
information about a consumer product from which the public can 
ascertain readily the manufacturer's or private labeler's identity. 
Current Sec.  1101.26(b) offers examples of circumstances in which 
notice and opportunity to comment is not practicable. The Supplemental 
NPR proposes to add to this list the following:
     When the Commission has been unable, after a diligent 
search, to obtain contact information for the manufacturer or private 
labeler of the consumer product to which the information pertains.
     When an extraordinary circumstance necessitates the 
immediate disclosure of information to protect the public health and 
safety while the Commission simultaneously pursues notification of the 
manufacturer or private labeler.
    Regarding the first example, Commission staff conducts thorough 
searches in internal databases and other sources to locate contact 
information for manufacturers and private labelers. There have been 
occasions when staff was unable to find contact information for a 
particular firm after a diligent search, and thus, the Commission could 
not provide the requisite notice.
    Regarding the second example, there may be emergency situations 
where the Commission must warn the public immediately about a 
particular hazard or risk while simultaneously pursuing notification to 
the manufacturer or private labeler. For example, on a holiday weekend 
the Commission might become aware of a serious hazard involving a new 
consumer product associated with the holiday, but the Commission's 
attempts to contact the manufacturer go unanswered. In that situation, 
the Commission might immediately notify the public of the hazard while 
awaiting a response from the firm. Importantly, consistent with the 
requirements in section 6(b)(1) of the CPSA, the Commission would take 
reasonable steps to assure that the information is accurate and that 
disclosure is fair in the circumstances and reasonably related to 
effectuating the purposes of the Acts.
    The Supplemental NPR also proposes conforming changes to align with 
the statute and minor grammatical edits for clarity and simplification 
throughout Sec.  1101.26. For example, the Supplemental NPR proposes to 
revise the sentence in Sec.  1101.26(b) to state: ``Circumstances when 
notice and opportunity to comment is not practicable include, but are 
not necessarily limited to, the following . . .'' In Sec.  
1101.26(b)(1), the Supplemental NPR proposes to remove ``company'' and, 
in its place, add ``manufacturer or private labeler of any consumer 
product''.

E. Subpart D--Reasonable Steps Commission Will Take To Assure 
Information It Discloses Is Accurate, and That Disclosure Is Fair in 
the Circumstances and Reasonably Related To Effectuating the Purposes 
of the Acts It Administers

1. Proposed Changes to Subpart D Heading
    The Supplemental NPR proposes minor edits to the heading of Subpart 
D for clarity and consistency. For example, the Supplemental NPR 
proposes to remove ``Assure Information It Discloses Is Accurate'' and, 
in its

[[Page 10440]]

place, add ``Assure Public Disclosure of Information Is Accurate.''
2. Proposed Changes to Sec.  1101.31 (General Requirements)
    Current Sec.  1101.31(b) states:

    Inclusion of comments. In disclosing any information under this 
section, the Commission will include any comments or other 
information submitted by the manufacturer or private labeler unless 
the manufacturer or private labeler at the time it submits its 
section 6(b) comments specifically requests the Commission not to 
include the comments or to include only a designated portion of the 
comments and disclosure of the comments on such a designated portion 
is not necessary to assure that the disclosure of the information 
which is the subject of the comments is fair in the circumstances.

    The 2014 NPR proposed revisions to this section. 79 FR 10717. The 
Supplemental NPR proposes to revise Sec.  1101.31(b) to conform to the 
statute and to require all requests regarding the disclosure of a 
manufacturer's or private labeler's comments to be in writing. Revised 
Sec.  1101.31(b), redesignated Sec.  1101.31(a), now reads: ``Inclusion 
of comments. In disclosing any information under this section, the 
Commission may, and upon the written request of the manufacturer or 
private labeler shall, include any comments or other information or a 
summary thereof submitted by the manufacturer or private labeler, to 
the extent permitted by and subject to the requirements of section 6 of 
the CPSA.''
    Current Sec.  1101.31(d) states:

    Information previously disclosed. If the Commission has 
previously disclosed, in accordance with section 6(b)(1), the 
identical information it intends to disclose again in the same 
format, it will not customarily take any additional steps to assure 
accuracy unless the Commission has some reason to question its 
accuracy or unless the firm, in its comments responding to the 
Commission's initial section 6(b) notice, specifically requests the 
opportunity to comment on subsequent disclosures, or unless the 
Commission determines that sufficient time has passed to warrant 
seeking section 6(b) comment again. Before disclosing the 
information, the Commission will again review the information to see 
if accuracy is called into question and will further look to whether 
disclosure is fair in the circumstances and reasonably related to 
effectuating the purposes of the Acts the Commission administers.

    The 2014 NPR proposed deleting substantially all of Sec.  
1101.31(d). 79 FR 10718.
    Upon further consideration, the Commission now proposes a more 
straightforward approach for releasing information that does not 
disclose materially more or materially different information than what 
was previously disclosed. Proposed Sec.  1101.31(d), redesignated Sec.  
1101.31(c), now reads: ``Disclosing materially more or materially 
different information. If the Commission intends to disclose 
information, not previously disclosed, that in context does not 
disclose materially more or materially different information about the 
consumer product than what the Commission previously disclosed in 
accordance with the law, the Commission is not obligated to take any 
additional steps to assure accuracy unless the Commission has reason to 
question the accuracy of the information.'' This provision reflects 
that, in the situation described, the notice and comment process has 
already occurred for the substance of the proposed disclosure, and 
repeating that process would not advance the purposes of section 6(b).
    The Supplemental NPR also proposes to delete Sec.  1101.31(a), 
which states that the Commission will attempt to make its decision on 
disclosure ``as soon as is reasonably possible after expiration of the 
statutory fifteen day moratorium on disclosure.'' There is no statutory 
requirement that the Commission disclose information within a certain 
time after the 15-day period has expired, assuming that the surrounding 
circumstances have not significantly changed.
    In Sec.  1101.31(c), now redesignated Sec.  1101.31(b), the 
Supplemental NPR proposes to delete the sentence: ``Inclusion of an 
explanatory statement is in addition to, and not a substitute for, 
taking reasonable steps to assure the accuracy of information.'' The 
Supplemental NPR proposes instead to include a reference to an 
explanatory statement as a new paragraph (b) in revised Sec.  1101.32 
(Reasonable steps to assure disclosure of information is accurate). The 
Supplemental NPR also proposes other revisions to conform to the 
statute and clarify that the Commission is not required under section 
6(b)(1) of the CPSA to provide an explanatory statement with 
information that it discloses to the public. These revisions include: 
(1) removing ``Where appropriate''; (2) removing ``will'' and, in its 
place, adding ``may''; and (3) removing ``To the extent practicable''. 
The Supplemental NPR also proposes to remove ``released'' and, in its 
place, add ``disclosed'' to conform to the statute.
    The 2014 NPR proposed two technical and conforming changes to Sec.  
1101.31. 79 FR 10718-19. These changes have been superseded by the 
Supplemental NPR's proposed revisions.
3. Proposed Changes to Sec.  1101.32 (Reasonable Steps To Assure 
Information Is Accurate)
    The 2014 NPR proposed technical changes to Sec.  1101.32. 79 FR 
10719. The Supplemental NPR continues to propose these changes, without 
revision.
    Section 6(b)(1) of the CPSA requires the Commission to take 
reasonable steps to assure, prior to disclosing information, that such 
information is accurate. Section 1101.32(a) of the 6(b) Regulation 
specifies the types of actions that the Commission considers to be 
reasonable steps to assure the accuracy of information that the 
Commission proposes to disclose to the public. The Supplemental NPR 
proposes to add the following as a reasonable step to assure the 
accuracy of the information: ``(3) The Commission staff relies on a 
statement made under oath, or a similar statement enforceable under 
penalty of perjury (e.g., 28 U.S.C. 1746), that yields or corroborates 
the information to be disclosed.'' The making of a statement under 
penalty of perjury, such as in a sworn affidavit or declaration 
provided under 28 U.S.C. 1746, is generally accepted as sufficient 
indicia of reliability and appropriate for the Commission to similarly 
credit. In connection with this proposed addition, the Supplemental NPR 
proposes to redesignate current paragraph ``(3)'' as paragraph ``(4)''.
    Current Sec.  1101.32(a)(1) provides another action that the 
Commission considers to be a reasonable step: ``The Commission staff or 
a qualified person or entity outside the Commission . . . conducts an 
investigation or an inspection which yields or corroborates the product 
information to be disclosed.'' The Supplemental NPR proposes to delete 
``or an inspection'' from this sentence because ``investigation'' is a 
broad term under the Commission's regulations that encompasses 
``inspection.'' See 16 CFR 1118.1(a)(4) (``The term investigation 
includes, but is not limited to, inspections . . .'').
    The Supplemental NPR proposes to add a new paragraph (b) explaining 
that in addition to the reasonable steps specified in Sec.  1101.32(a), 
the Commission may include the explanatory statement referenced in 
proposed Sec.  1101.31(b) to assure the accuracy of the information 
proposed for disclosure. In connection with this proposed revision, the 
Supplemental NPR proposes to redesignate current paragraph (b) as 
paragraph (c).
    The Supplemental NPR also proposes conforming changes to align with 
the statute and other non-substantive

[[Page 10441]]

revisions for simplification throughout Sec.  1101.32. For example, the 
Supplemental NPR proposes to revise Sec.  1101.32(a)(3), redesignated 
as Sec.  1101.32(a)(4), to state: ``The person who submitted the 
information to the Commission confirms the information as accurate to 
the best of the submitter's knowledge and belief, provided that . . . 
.'' In Sec.  1101.32(b)(4), the Supplemental NPR proposes to delete the 
sentence, ``Specific comments will be given more weight than general 
comments.'' The Supplemental NPR also proposes a technical change to 
redesignated Sec.  1101.32(c)(1) and minor grammatical edits throughout 
Sec.  1101.32.
4. Proposed Changes to Sec.  1101.33 (Reasonable Steps To Assure 
Information Release Is Fair in the Circumstances)
    Current Sec.  1101.33(a) specifies the types of actions that 
constitute reasonable steps to assure disclosure of information to the 
public is fair in the circumstances. The Supplemental NPR proposes 
several revisions to Sec.  1101.33(a).
    First, in Sec.  1101.33(a)(1), the Supplemental NPR revises the 
approach proposed in the 2014 NPR regarding the disclosure of a firm's 
comments. The Supplemental NPR proposes that a manufacturer or private 
labeler must provide a basis, as opposed to a legal rationale, if the 
firm requests that its comments not be disclosed. The Supplemental NPR 
also proposes revisions that conform Sec.  1101.33(a)(1) to the statute 
and require requests regarding the disclosure of a manufacturer's or 
private labeler's comments to be in writing.
    Second, in Sec.  1101.33(a)(2), the Supplemental NPR proposes 
revisions to conform to the statute and to clarify that the Commission 
may, but is not required to, (1) accompany the disclosure with an 
explanatory statement that makes the nature of the information 
disclosed clear to the public and (2) assure disclosure is fair in the 
circumstances by disclosing other relevant information in the 
Commission's possession, subject to the requirements of section 6(b)(1) 
and other requirements of law.
    Third, the Supplemental NPR proposes to delete Sec.  1101.33(a)(3), 
which states: ``The Commission will limit the form of disclosure to 
that which it considers appropriate in the circumstances. For example, 
the Commission may determine it is not appropriate to issue a 
nationwide press release in a particular situation and rather will 
issue a press release directed at certain localities, regions, or user 
populations.'' The Commission believes that this section is obsolete 
given the general absence of geographic restrictions when information 
is posted on the internet.
    Finally, the Supplemental NPR proposes to delete, as unnecessary, 
Sec.  1101.33(a)(4), which states: ``The Commission may delay 
disclosure of information in some circumstances. For example, the 
Commission may elect to postpone an information release until an 
investigation, analysis or test of a product is complete, rather than 
releasing information piecemeal.'' There is no need for notice under 
section 6(b) of the CPSA if the Commission decides to delay disclosure 
of the information.
    Current Sec.  1101.33(b) provides examples of disclosures that 
generally would not be fair in the circumstances. The Supplemental NPR 
proposes two substantive revisions to Sec.  1101.33(b).
    First, consistent with the 2014 NPR, the Supplemental NPR continues 
to propose deleting Sec.  1101.33(b)(3), which identifies as 
inappropriate:

    Disclosure of the work-product of attorneys employed by a firm 
and information subject to an attorney/client privilege, if the 
Commission has obtained the information from the client or the 
attorney, the attorney or client advises the Commission of the 
confidential nature of the information at the time it is submitted 
to the Commission, and the information has been maintained in 
confidence by the client and the attorney.

    As explained in the 2014 NPR, in general, we believe that firms 
waive these protections when they intentionally submit to CPSC 
information that is attorney work-product or subject to the attorney/
client privilege. 79 FR 10719. The Commission does not expect, nor do 
we want, firms to provide legally privileged information to the 
Commission. However, if a firm inadvertently submits such information 
without intending a waiver, the Commission will treat the information 
in accordance with applicable authorities governing inadvertent 
disclosure. Moreover, if the submitted information contains trade 
secret or privileged or confidential commercial or financial 
information, the firm may request confidentiality of the information in 
accordance with the Commission's FOIA regulation at 16 CFR 1015.18.
    Second, the Supplemental NPR proposes to revise Sec.  
1101.33(b)(4), which states: ``Disclosure of a firm's comments (or a 
portion thereof) submitted under section 6(b)(1) over the firm's 
objection.'' The 2014 NPR proposed revising Sec.  1101.33(b)(4) to 
require a rationale for why the comments should not be disclosed. 79 FR 
10719-20. Instead of requiring a legal rationale such as a statute or 
regulation, the Supplemental NPR recognizes that the Commission 
generally has broad discretion whether to grant a request for non-
disclosure of such comments, and accordingly proposes that the 
manufacturer or private labeler must simply provide some basis for why 
it believes the Commission should decide against disclosing the 
comments. The Supplemental NPR also proposes revisions to conform to 
the statute and minor edits for clarity.
    The Supplemental NPR proposes conforming changes to align with the 
statute and minor grammatical edits throughout Sec.  1101.33. In 
addition, the Supplemental NPR proposes to redesignate Sec.  
1101.33(b)(4) as (b)(3) to reflect the proposed deletion of Sec.  
1101.33(b)(3).
5. Proposed Changes to Sec.  1101.34 (Reasonable Steps To Assure 
Information Release Is ``Reasonably Related To Effectuating the 
Purposes of the Acts'' the Commission Administers)
    The 2014 NPR proposed technical changes to Sec.  1101.34(a)(2). 79 
FR 10720. The Supplemental NPR no longer proposes these changes.
    As discussed in section II.B.1 above, section 6(b)(1) of the CPSA 
applies to the Commission's ``public disclosure of any information 
obtained under this Act, or to be disclosed to the public in connection 
therewith.'' 15 U.S.C. 2055(b)(1). Section 6(d)(1) of the CPSA defines 
``Act'' as the CPSA, FFA, PPPA, and FHSA. 15 U.S.C. 2055(d)(1). The 
Supplemental NPR proposes conforming revisions to align Sec.  
1101.34(a) with section 6(b)(1) and (d)(1) of the CPSA by removing 
references to acts other than the CPSA, FHSA, FFA, and PPPA.
    Section 6(b)(1) requires the Commission to take reasonable steps to 
assure that ``disclosure is . . . reasonably related to effectuating 
the purposes of'' the CPSA, FFA, PPPA, and FHSA. 15 U.S.C. 2055(b)(1). 
Current Sec.  1101.34(a)(3), which addresses FOIA requests, requires 
the Commission to determine whether disclosure of information in 
response to a FOIA request is reasonably related to effectuating one or 
more of the purposes of the acts administered by the Commission and 
that, in the event of a close question on this issue, the Commission 
will defer to the purposes of the FOIA. The FOIA is not one of the 
enumerated acts in section 6(d)(1) of the CPSA, and thus, the 
Commission is not required to determine whether disclosure of the 
information would be

[[Page 10442]]

reasonably related to effectuating the purposes of the FOIA. Therefore, 
the Supplemental NPR proposes to delete Sec.  1101.34(a)(3) entirely. 
However, this proposed revision does not affect the Commission's 
obligation, as determined by the U.S. Supreme Court in CPSC v. GTE 
Sylvania, Inc., to comply with the requirements of section 6(b) of the 
CPSA before disclosing any information in response to a FOIA request. 
447 U.S. 102 (1980).
    The Supplemental NPR also proposes conforming changes and non-
substantive revisions for simplification and clarity throughout Sec.  
1101.34. For example, in the heading for Sec.  1101.34, the 
Supplemental NPR proposes to remove ``release'' and, in its place, add 
``disclosure''; and in Sec.  1101.34(a)(2), the Supplemental NPR 
proposes to insert ``consumer'' between ``concerning'' and 
``products.''

F. Subpart E--Statutory Exceptions of Section 6(b)(4)

1. Proposed Changes to Sec.  1101.41 (Generally)
    The 2014 NPR proposed technical changes to Sec.  1101.41. 79 FR 
10720. The Supplemental NPR no longer proposes those revisions.
    The Supplemental NPR instead proposes conforming revisions to align 
with the statute and non-substantive revisions for clarity and 
simplification throughout Sec.  1101.41. For example, the Supplemental 
NPR proposes to insert ``Acts'' to clarify that these exceptions apply 
specifically to the CPSA, FHSA. FFA, and PPPA. The Supplemental NPR 
also proposes to delete Sec.  1101.41(b), which states that the 
Commission will apply the section 6(b)(4) exceptions to ``the 
transferred acts.'' Section 1101.41(b) is duplicative and repeats the 
information already contained in revised Sec.  1101.41, as well as in 
revised Sec.  1101.1 (Scope). In addition, the Supplemental NPR 
proposes to reformat the information in paragraphs (a)(3) and (a)(4) as 
a combined list under paragraph (3). Proposed Sec.  1101.41(3) now 
states that the statutory exceptions in section 6(b)(4) apply to (among 
other disclosures) ``[i]nformation in the course of or concerning: (i) 
a rulemaking proceeding under the Acts; (ii) an adjudicatory proceeding 
under the Acts; or (iii) any other administrative or judicial 
proceeding under the Acts.'' The Supplemental NPR also proposes to 
remove paragraph designation and subheading ``(a) Scope'' to reflect 
the proposed removal of paragraph (b).
2. Proposed Changes to Sec.  1101.42 (Imminent Hazard Exception)
    Current Sec.  1101.42(b) states:

    Scope of exception. This exception applies once the Commission 
has filed an action under section 12 of the CPSA (15 U.S.C. 2061), 
in a United States district court. Once the exception applies, 
information may be disclosed to the public while the proceeding is 
pending without following the requirements of section 6(b)(1) if the 
information concerns or relates to the product alleged to be 
imminently hazardous. Upon termination of the proceeding, 
information filed with the court or otherwise made public is not 
subject to section 6(b). Information in the Commission's possession 
which has not been made public is subject to section 6(b).

    The 2014 NPR proposed the following revisions to Sec.  1101.42(b):
     In the second sentence, remove: ``while the proceeding is 
pending.''
     Remove the third and fourth sentences.
    79 FR 10720. The 2014 NPR explained the Commission's belief that, 
upon filing a section 12 action, information may be disclosed to the 
public during and after the proceeding, even if the information was not 
filed with the court or otherwise made public. Id. The Supplemental NPR 
continues to propose these revisions, without change.
    In addition, the Supplemental NPR proposes conforming changes to 
align with the statute and minor grammatical edits.
3. Proposed Changes to Sec.  1101.43 (Section 6(b)(4)(A) Exception)
    The 2014 NPR did not propose any changes to Sec.  1101.43.
    The Supplemental NPR proposes to delete the first sentence in 
paragraph (b) because it repeats the information that appears in 
paragraph (a) and to combine paragraphs (a) and (b). In addition, the 
Supplemental NPR proposes conforming changes to align with the statute 
and minor grammatical edits.
    ``Reasonable cause to believe'' is not a defined phrase in either 
section 6(b)(4)(A) of the CPSA or Sec.  1101.43. The Commission 
believes that reasonable cause exists when the belief is supported by 
existing laws and regulations and is based on factual conclusions that 
have evidentiary support. Cf. Fed. R. Civ. Proc. 11 (providing standard 
for filing pleadings and motions with a Federal court). Thus, for 
example, the Commission would have ``reasonable cause to believe'' a 
consumer product is in violation if Commission testing indicates that a 
toy contains excessive levels of lead, Commission staff confirms that a 
toy lacks the requisite General Conformity Certification, or Commission 
staff determines that a manufacturer is distributing ATVs without the 
requisite ATV Action Plan. The Commission will notify a manufacturer or 
private labeler orally or in writing if the Commission has reasonable 
cause to believe a consumer product is in violation of a consumer 
product safety rule or provision of the CPSA or similar rule or 
provision of any other act enforced by the Commission.
4. Proposed Changes to Sec.  1101.44 (Rulemaking Proceeding Exception)
    The 2014 NPR did not propose any changes to Sec.  1101.44.
    Section 6(b)(4) of the CPSA states that the provisions of section 
6(b)(1)-(3) do not apply to the Commission's ``public disclosure of . . 
. (B) information in the course of or concerning a rulemaking 
proceeding.'' 15 U.S.C. 2055(b)(4)(B). Current Sec.  1101.44(d) 
interprets the term ``concerning'' as follows:

    The phrase ``concerning'' refers to information about the 
proceeding itself both after the proceeding has begun and 
indefinitely thereafter. Therefore, the Commission may publicly 
disclose information that describes the substance, process and 
outcome of the proceeding. By issuing opinions and public 
statements, the Commissioners, and the presiding official, who act 
as decisionmakers, may also publicly explain their individual votes 
and any decision rendered.

    The Commission believes that this explanation restricts the type of 
information that falls under the rulemaking proceeding exception, 
beyond what Congress intended. ``Concerning'' is a broad term that can 
be understood as synonymous with ``relating to.'' See United States v. 
Olea-Monarez, 908 F.3d 636, 640 (10th Cir. 2018) (`` `Concerning' is a 
neutral term meaning `relating to' '') (citing Black's Law Dictionary 
(5th ed. 1979)); Bloomberg L.P. v. U.S. Food & Drug Admin., 500 
F.Supp.2d 371, 377 (S.D.N.Y. 2007) (``Its definition is `relating to; 
to be about; to bear on.' '') (citing Merriam-Webster Online 
Dictionary, http://www.merriam-webster.com (last visited Aug. 13, 
2007)). To reflect the common understanding of this term, the 
Supplemental NPR proposes to insert (1) ``or addressing'' after 
``information about'' in the first sentence of Sec.  1101.44(d), and 
(2) ``or relates to'' after ``describes'' in the second sentence of 
Sec.  1101.44(d). Incorporating these revisions, as well as minor 
grammatical edits for simplification, revised Sec.  1101.44(d) now 
reads:


[[Page 10443]]


    The phrase ``concerning'' refers to information about or 
addressing the proceeding both after the proceeding has begun and 
indefinitely thereafter. Therefore, the Commission may at any time 
publicly disclose information that describes or relates to the 
substance, process, or outcome of the proceeding. For example, 
Commissioners may publicly explain their individual votes and any 
decision rendered by issuing written opinions and making public 
statements.

    The Supplemental NPR also proposes conforming changes to align with 
the statute and minor grammatical edits.
5. Proposed Changes to Sec.  1101.45 (Adjudicatory Proceeding 
Exception)
    The 2014 NPR proposed a technical correction to Sec.  1101.45(b). 
79 FR 10720. This change has been superseded by the Supplemental NPR's 
proposed revisions.
    Section 6(b)(4)(B) of the CPSA states that the provisions of 
section 6(b)(1)-(3) do not apply to the Commission's ``public 
disclosure of . . . (B) information in the course of or concerning . . 
. an adjudicatory proceeding (which shall commence upon the issuance of 
a complaint).'' 15 U.S.C. 2055(b)(4)(B). Current Sec.  1101.45(d) 
interprets the term ``concerning'' as follows:

    The phrase ``concerning'' refers to information about the 
administrative adjudication itself, both once it begins and 
indefinitely thereafter. Therefore, the Commission may publicly 
disclose information that describes the substance, process and 
outcome of the proceeding including, for example, the effectiveness 
of any corrective action such as information on the number of 
products corrected as a result of a remedial action. By issuing 
opinions and public statements, the Commissioners and the presiding 
official, who act as decisionmakers, may publicly explain their 
individual votes and any decision rendered.

    The Supplemental NPR proposes to revise the discussion of 
``concerning'' for the reasons stated in section II.F.4 above. 
Incorporating these revisions, as well as minor grammatical edits for 
simplification, revised Sec.  1101.45(d) now reads:

    The phrase ``concerning'' refers to information about or 
addressing the administrative adjudication, both once it begins and 
indefinitely thereafter. Therefore, the Commission may at any time 
publicly disclose information that describes or relates to the 
substance, process, or outcome of the proceeding. For example, (i) 
Commissioners may publicly explain their individual votes and any 
decision rendered by issuing written opinions and making public 
statements and (ii) the Commission may disclose information 
regarding the effectiveness of any corrective action, such as 
information on the number of products corrected as a result of a 
remedial action.

    The Supplemental NPR also proposes conforming changes to align 
Sec.  1101.45 with the statute and minor grammatical edits for clarity. 
For example, in Sec.  1101.45(a), the Supplemental NPR proposes to 
insert ``(which shall commence upon the issuance of a complaint)'' 
after ``adjudicatory proceeding'' to conform to the language in the 
statute. In Sec.  1101.45(b), the Supplemental NPR proposes non-
substantive edits for simplification. These edits reflect that the 
exception applies once the Commission files a complaint under specific 
provisions of the CPSA, FHSA, FFA, or PPPA.
6. Proposed Changes to Sec.  1101.46 (Other Administrative or Judicial 
Proceeding Exception)
    The 2014 NPR proposed removing ``Secretary'' and, in its place, 
adding ``Secretariat'' in Sec.  1101.46(b)(7). 79 FR 10720. The 
Supplemental NPR no longer proposes this revision, which would be 
inconsistent with the Commission's current organization.
    The Supplemental NPR proposes to delete as unnecessary the last 
sentence in Sec.  1101.46(b)(1), which states: ``Information subject to 
the exception for petition proceedings is the petition itself and the 
supporting documentation, and information subsequently compiled by the 
staff and incorporated or referenced in the staff briefing papers for 
and recommendation to the Commission.'' The other examples listed in 
Sec.  1101.46(b) do not specify the types of information that are 
subject to this exception, and the language proposed for deletion could 
be excessively restrictive in actual practice.
    The Supplemental NPR proposes conforming changes to align Sec.  
1101.46 with the statute and non-substantive edits for clarity. For 
example, in Sec.  1101.46(a), the Supplemental NPR proposes to insert 
``-(3)'' after ``6(b)(1)''. In Sec.  1101.46(b), the Supplemental NPR 
proposes to insert ``without limitation'' after ``Proceedings within 
this exception include,'' to clarify that the list appearing at Sec.  
1101.46(b) is not exhaustive and could include other administrative or 
judicial proceedings as authorized under section 6(b)(4)(B) of the 
CPSA. In addition, the Supplemental NPR proposes to revise Sec.  
1101.46(c) to state: ``The phrase `in the course of or concerning' 
shall be interpreted consistent with Sec.  1101.44(c) and (d) or Sec.  
1101.45(c) and (d), as applicable.''

G. Subpart F--Retraction

1. Proposed Changes to Sec.  1101.51 (Commission Interpretation)
    The 2014 NPR proposed technical corrections to Sec.  1101.51(b). 79 
FR 10720. These changes have been superseded by the Supplemental NPR's 
proposal to delete the first two sentences of Sec.  1101.51(b) because 
these sentences repeat the information contained in Sec.  1101.51(a). 
The Supplemental NPR also proposes changes to Sec.  1101.51(b) to 
conform to the language in section 6(b) of the CPSA and minor 
grammatical edits for clarity.
2. Proposed Changes to Sec.  1101.52 (Procedure for Retraction)
    Section 6(b)(7) of the CPSA states:

    If the Commission finds that, in the administration of this Act, 
it has made public disclosure of inaccurate or misleading 
information which reflects adversely upon the safety of any consumer 
product or class of consumer products, or the practices of any 
manufacturer, private labeler, distributor, or retailer of consumer 
products, it shall, in a manner equivalent to that in which such 
disclosure was made, take reasonable steps to publish a retraction 
of such inaccurate of misleading information.

15 U.S.C. 2055(b)(7). While section 6(b)(7) of the CPSA identifies four 
categories of requesters (i.e., manufacturers, private labelers, 
distributors, and retailers), current Sec.  1101.52 authorizes an ``any 
other person'' category as an additional group that can request 
retraction. The Supplemental NPR proposes to align the retraction 
procedure in Sec.  1101.52 with the interested classes referenced in 
the statute, and delete from this section all references to ``any other 
person.''
    Relatedly, in Sec.  1101.52(c), which lists the information that 
must appear in a request for retraction, the Supplemental NPR proposes 
to add as paragraph (1): ``The identity and relationship (i.e., 
manufacturer, private labeler, distributor, or retailer) of the 
requester.'' In connection with this proposed revision, the 
Supplemental NPR proposes paragraph redesignations throughout Sec.  
1101.52(c).
    In Sec.  1101.52(d), the Supplemental NPR proposes to remove the 
language: ``If the Commission finds that fuller disclosure is 
necessary, it will publish a retraction in the manner it determines 
appropriate under the circumstances'' and, in its place, add:

    If publication in a manner equivalent to that in which the 
disclosure was made is not practicable or could result in further 
disclosure of the information, the Commission will publish a 
retraction or take other action in a manner that the

[[Page 10444]]

Commission determines appropriate under the circumstances and 
consistent with the purposes of section 6(b)(7).

    This proposed revision makes the rule flexible enough to address 
situations such as, for example, a public disclosure of inaccurate 
information by Commission staff during a phone conversation or in an 
email, where publication of the correction would result in further 
disclosure of the inaccurate or misleading information. In these 
instances, the Commission will take other action that the Commission 
deems appropriate under the circumstances to correct the prior release.
    The 2014 NPR proposed technical and conforming changes to Sec.  
1101.52. 79 FR 10720. The Supplemental NPR continues to propose some of 
these changes, along with additional conforming changes to align with 
the statute, particularly section 6(b)(7) of the CPSA, and minor 
grammatical edits for clarity. For example, the Supplemental NPR 
proposes to revise the paragraph heading for Sec.  1101.52(a) to 
reflect that retraction can occur upon the Commission's own initiative 
or upon request. In Sec.  1101.52(b), the Supplemental NPR proposes 
revisions to the contact information where a request for retraction 
should be sent. In addition, in redesignated Sec.  1101.52(c)(1), which 
discusses the information that a requester must submit in connection 
with a retraction request, the Supplemental NPR proposes to update the 
rule by replacing the language: ``A photocopy of the disclosure should 
accompany the request,'' with ``A reproduction of the disclosure (e.g., 
image, audio or video file, copy of document) should accompany the 
request, if practicable,'' to reflect advancements in technology that 
have occurred since 1983.

H. Subpart G--Information Submitted Pursuant to Section 15(b) of the 
CPSA

1. Proposed Changes to Sec.  1101.61 (Generally)
    The 2014 NPR proposed a technical correction to Sec.  
1101.61(b)(3). 79 FR 10721. These changes have been superseded by the 
Supplemental NPR's proposed revisions.
    Section 6(b)(5) of the CPSA prohibits the Commission from 
``disclos[ing] to the public information submitted pursuant to section 
15(b) respecting a consumer product'' unless certain conditions apply. 
15 U.S.C. 2055(b)(5). Current Sec.  1101.61(b) states:

    Criteria for disclosure. Under section 6(b)(5) the Commission 
shall not disclose to the public information which is identified as 
being submitted pursuant to section 15(b) or which is treated by the 
Commission staff as being submitted pursuant to section 15(b). 
Section 6(b)(5) also applies to information voluntarily submitted 
after a firm's initial report to assist the Commission in its 
evaluation of the section 15 report. However, the Commission may 
disclose information submitted pursuant to section 15(b) in 
accordance with section 6(b)(1)-(3) if . . .

    The Supplemental NPR proposes several revisions to Sec.  
1101.61(b). First, the Supplemental NPR proposes to delete the phrase, 
``or which is treated by the Commission staff as being submitted 
pursuant to section 15(b).'' As explained in the 1983 final rule, the 
Commission inserted this phrase in response to comments that Commission 
staff sometimes treated reports as being filed under section 15(b), 
even when the submitting firm disclaimed any legal obligation to 
report. 48 FR 57428. The Commission will continue to apply section 
6(b)(5)'s additional information disclosure limitations when a firm 
indicates that it is making a submission pursuant to section 15(b) and 
16 CFR 1115.13, even if, as authorized under 16 CFR 1115.12(a), the 
submitting firm refuses to admit, or specifically denies, in its report 
to the Commission that the information reasonably supports the 
conclusion that the submitting firm's consumer product is noncomplying, 
contains a defect which could create a substantial product hazard, or 
creates an unreasonable risk of serious injury or death. Absent 
exceptional circumstances where a filing clearly does not come within 
the requirements of section 15(b), however, the Commission will rely, 
for purposes of applying section 6(b)(5), upon the filer's own 
characterization of its filing as being submitted pursuant to section 
15(b) and 16 CFR 1115.13.
    Second, the Supplemental NPR proposes to require that a submitting 
firm identify the information as submitted pursuant to both section 
15(b) of the CPSA and 16 CFR 1115.13. The regulation at 16 CFR 1115.13 
specifies the information a submitting firm must include in an initial 
report and a full report under section 15(b) of the CPSA. The revised 
sentence now reads: ``Under section 6(b)(5), the Commission shall not 
disclose to the public information that has been identified as 
submitted pursuant to section 15(b) and 16 CFR 1115.13.''
    Finally, the Supplemental NPR proposes to delete the second 
sentence in Sec.  1101.61(b), which states: ``Section 6(b)(5) also 
applies to information voluntarily submitted after a firm's initial 
report to assist the Commission in its evaluation of the section 15 
report.'' The proposed revisions to the first sentence in Sec.  
1101.61(b), discussed above, conform better to the language in section 
6(b)(5) of the CPSA and 16 CFR 1115.13.
    Section 6(b)(5) of the CPSA lists four instances in which its 
additional information disclosure limitations do not apply. The 
Supplemental NPR proposes revisions to the instances described in Sec.  
1101.61(b)(2) and (3). First, in Sec.  1101.61(b)(2), the Supplemental 
NPR proposes to insert a corrective action plan and a consent order as 
examples of remedial settlement agreements where section 6(b)(5)'s 
additional disclosure limitations do not apply. The legislative history 
demonstrates that Congress envisioned formal documents, such as consent 
orders, as well as informal agreements, like corrective action plans, 
would constitute ``remedial settlement agreements'' under section 
6(b)(5) of the CPSA. See H.R. Rep. No. 97-208, Consumer Product Safety 
Amendments of 1981, at 1242 (1981) (``The conferees do not intend that 
a settlement agreement must be made by a formal written agreement, but 
rather, for example, may be made by an exchange of letters.''). For 
nearly 40 years, the Commission has interpreted remedial settlement 
agreements to include letters that embody corrective action plans.
    Second, the Supplemental NPR proposes to redesignate paragraph (3), 
``The person who submitted the information under section 15(b) agrees 
to its public disclosure,'' as a new paragraph (c), with minor 
clarifying edits. The proposed paragraph reads: ``Disclosure upon 
consent. The Commission may disclose information submitted pursuant to 
section 15(b) without following the requirements of section 6(a) or 
6(b) if the person who submitted the information under section 15(b) 
agrees to its public disclosure.'' This proposal reflects instances in 
which Commission staff and a manufacturer or private labeler have 
negotiated and agreed upon language, for example in a news release such 
as a recall alert. Section 6 notice is not required for such consensual 
releases.
    Paragraph (4) currently applies the exception in section 6(b)(5)(D) 
where ``[t]he Commission publishes a finding that the public health and 
safety requires public disclosure with a lesser period of notice than 
is required by section 6(b)(1).'' The legislative history of section 
6(b)(5)(D) suggests that public health and safety findings trigger an 
exception to section 6(b)(3) and, relatedly, section 6(b)(2), which 
requires the Commission to notify the manufacturer or private labeler 
if it

[[Page 10445]]

intends to disclose information that the firm claimed to be inaccurate. 
See H.R. Rep. No. 110-501, Consumer Product Safety Modernization Act 
(Dec. 19, 2007) (``It is important to note that section 6(b)(3) of 
CPSA, which allows the affected company to seek an injunction against 
the release of information in Federal court, does not apply to section 
6(b)(5) and the new health and safety exception.''). Congress, however, 
did not clearly incorporate these exclusions into the text of section 
6(b)(5). Accordingly, the Commission seeks comment on whether sections 
6(b)(2) and (b)(3) apply where there has been a public health and 
safety finding under section 6(b)(5)(D) of the CPSA.
    The Supplemental NPR proposes one conforming change in Sec.  
1101.61(b), to align with the statute and non-substantive edits for 
clarity. The Supplemental NPR proposes to remove ``section 6(b)(1)-
(3)'' and, in its place, add ``sections 6(a) and 6(b)(1)-(3)'' to 
reflect that the Commission may disclose, in certain instances, 
information submitted pursuant to 15(b) of the CPSA only after 
complying with the requirements of sections 6(a) and 6(b)(1)-(3) of the 
CPSA. The Supplemental NPR also proposes to redesignate paragraphs in 
Sec.  1101.61(b) and to insert minor grammatical edits throughout Sec.  
1101.61 for clarity.
2. Proposed Changes to Sec.  1101.62 (Statutory Exceptions to Section 
6(b)(5) Requirements)
    The 2014 NPR did not propose any changes to Sec.  1101.62.
    The Supplemental NPR proposes conforming changes to align with the 
statute and minor grammatical edits. For example, in Sec.  
1101.62(a)(2), the Supplemental NPR proposes to remove ``under the 
Consumer Product Safety Act (Pub. L. 92-573, 86 Stat. 1207, as amended 
(15 U.S.C. 2051, et seq.))'' and, in its place, add ``of the Acts''.
3. Proposed Changes to Sec.  1101.63 (Information Submitted Pursuant to 
Section 15(b) of the CPSA)
    Current Sec.  1101.63(c) reads: ``Section 6(b)(5) does not apply to 
information independently obtained or prepared by the Commission 
staff.'' The 2014 NPR proposed revising this section to state:

    Section 6(b)(5) does not apply to information (1) independently 
obtained or prepared by the Commission staff or (2) identified by 
the Commission staff through publicly available sources. For 
example, information that is publicly available or that has been 
disseminated in a manner intended to reach the public in general, 
such as news reports; articles in academic and scientific journals; 
press releases distributed through news or wire services; 
information that is available on the internet; or information 
appearing on the publicly available consumer product safety 
information database established pursuant to section 6A of the CPSA, 
15 U.S.C. 2055a, does not fall within section 6(b)(5)'s disclosure 
limits.

79 FR 10721.

    The Supplemental NPR continues to propose, with minor revisions, 
that section 6(b)(5) does not apply to information that is already 
available to the public. The Commission disagrees with commenters who 
asserted that the Commission must withhold from disclosure information 
that is already available to the public, just because it also appears 
in a report filed with the Commission pursuant to section 15(b) of the 
CPSA. The legislative history of section 6 of the CPSA indicates that 
Congress intended the Commission to have access to information that 
would not be available to the public and to protect such non-public 
information from disclosure. H.R. Rep. No. 92-1153, at 31 (1972). But 
there is no indication that Congress intended for section 6(b)(5) to 
apply to materials such as a firm's press release or product user 
manual that a firm already has disclosed to the public, or to retail 
locations or sale prices that can be identified by running a search on 
the internet or visiting a retail store, even if this same information 
appears in a section 15(b) report. The Supplemental NPR thus proposes 
to revise section 1101.63(c)(2), redesignated as Sec.  1101.63(b)(2), 
to exclude: ``Information that is already available to the public, 
including but not limited to, information appearing in a company's 
press statements, websites, Frequently Asked Questions, product user 
manuals, sales materials, Securities and Exchange Commission filings, 
or other public statements or documents published or publicly 
disseminated by a manufacturer, distributor, or retailer.''
    The Supplemental NPR also proposes clarifying revisions to the 
phrase, ``information independently obtained or prepared by the 
Commission staff,'' which the 2014 NPR proposed to redesignate as Sec.  
1101.63(c)(1). A firm submitting a section 15(b) report must provide 
copies or a summary of any complaints related to the safety of the 
product, or any allegations or reports of injuries associated with the 
product. 16 CFR 1115.13(d)(6). In addition, upon request, the 
submitting firm must provide the names and addresses of all 
distributors, retailers, and purchasers, including consumers, of the 
product. 16 CFR 1115.13(d)(14). We do not believe that Congress 
intended section 6(b)(5) to preclude the Commission from contacting a 
consumer to obtain additional information about an incident referenced 
in a section 15(b) report. Likewise, there is no indication that 
Congress intended to restrict the Commission from contacting other 
purchasers, such as retailers and distributors, to acquire additional 
information about a product at issue in a section 15(b) report, even if 
purchaser information appears in a section 15(b) report. If the 
Commission could not investigate information contained in a section 
15(b) report, the benefit of those reports would be largely lost. 
Furthermore, the Commission would not be able to ``protect the public 
against unreasonable risks of injury associated with consumer 
products'' or ``promote . . . investigation into the causes and 
prevention of product-related deaths, illnesses, and injuries,'' as 
Congress mandated. 15 U.S.C. 2051(b)(1), (4). Accordingly, the 
Supplemental NPR proposes to revise Sec.  1101.63(c), redesignated 
Sec.  1101.63(b)(1), to state that section 6(b)(5) does not apply to: 
``Information independently obtained or prepared, or developed through 
subsequent investigation and verification, by the Commission, any 
member of the Commission, or any employee, agent, or representative, 
including contractor, of the Commission in an official capacity.''
    In Sec.  1101.63(a), redesignated Sec.  1101.63(a)(1), the 
Supplemental NPR proposes revisions to align with revised Sec.  
1101.61(b). The Supplemental NPR also proposes to insert at the end of 
redesignated Sec.  1101.63(a)(1) the citation to 16 CFR 1115.13.
    In addition, the Supplemental NPR proposes throughout Sec.  1101.63 
conforming changes to align with the statute, organizational edits to 
make this section easier to read, and minor grammatical edits for 
clarity. For example, the Supplemental NPR proposes to combine the 
information contained in paragraphs (a) and (b) as Sec.  1101.63(a), 
which now specifies all of the information to which section 6(b)(5) 
applies. The Supplemental NPR also proposes to state explicitly that 
section 6(b)(5)'s additional disclosure limitations apply not just to 
documents generated by staff, but also to documents generated by the 
Commission, any member of the Commission, or any employee, agent, or 
representative, including contractor, of the Commission in an official 
capacity, and to any oral communications made by these individuals or 
the Commission.

[[Page 10446]]

I. Subpart H--Delegation of Authority to Information Group

1. Proposed Changes to Sec.  1101.71 (Delegation of Authority)
    The 2014 NPR proposed technical changes to Sec.  1101.71. 79 FR 
10721. The Supplemental NPR continues to propose most of these changes.
    The Supplemental NPR proposes to remove from Sec.  1101.71 all 
references to Commission delegation of authority to the Secretary and/
or his or her designees. These proposed revisions reflect the current 
organizational structure of the Commission, in which the Secretary 
reports directly to the General Counsel. The Supplemental NPR also 
proposes to remove all references to the General Counsel's senior staff 
designees and the establishment of an Information Group. When making 
decisions under this section, the General Counsel routinely consults 
with staff across the Office of the General Counsel, including the 
Secretary of the Commission.
    In addition, the Supplemental NPR proposes conforming changes to 
align with the statute, paragraph designations in Sec.  1101.71(a), and 
minor grammatical edits for clarity. For example, in Sec.  1101.71(a), 
the Supplemental NPR proposes to (1) remove ``release'' and, in its 
place, add ``disclosure'' and, (2) remove ``firms'' and, in its place, 
add ``the manufacturer or private labeler.''

III. Public Comment on the 2014 NPR

    In the 2014 NPR, the Commission invited comments on the proposed 
changes to 16 CFR part 1101. The Commission received 24 comments. The 
comments are available on www.regulations.gov by searching under docket 
number CPSC-2014-0005. This section III responds to significant issues 
raised by the commenters.

A. General Comment

    Comment 1--The Consumer Federation of America (CFA), Consumers 
Union, Kids in Danger, National Consumers League, Public Citizen, The 
Safety Institute, and the U.S. Public Interest Research Group (U.S. 
PIRG) stated that the 2014 NPR proposes moderate revisions to modernize 
the regulation and to make it more consistent with the statute and 
industry practice. Although these commenters agreed with the 2014 NPR's 
provisions, they asserted that the modest changes do not do enough to 
ameliorate the inherent problem of section 6(b), namely, its obstacles 
to transparency and the immediate release of crucial product safety 
information.
    Response 1--Section 6(b) imposes unique requirements on the 
Commission's public disclosure of information, that do not limit other 
Federal safety agencies. In revising the 6(b) Regulation, the 2014 NPR 
sought to improve transparency and openness in the Commission's 
disclosure of information while maintaining compliance with the 
stringent statutory requirements. The Supplemental NPR proposes 
additional revisions to increase transparency and prevent unnecessary 
delays in disclosing critical health and safety information.

B. Comments Addressing Specific Sections of the 6(b) Regulation

i. Insertion of the Word ``Calendar'' Before ``Days'' (Sec. Sec.  
1101.1 (Redesignated Sec.  1101.2) and 1101.22, 1101.23, 1101.25, and 
1101.71)
    Comment 2--The Outdoor Power Equipment Institute (OPEI) objected to 
the proposal in the 2014 NPR to insert throughout the 6(b) Regulation 
the word, ``calendar'', between ``15'' and ``days''. This commenter 
stated that shortening a manufacturer or private labeler's response 
period from 15 business days to 15 calendar days would place an 
additional burden on firms to provide meaningful comments within an 
already short period.
    Response 2--Rather than shorten the time to respond to section 6 
notices, this proposed revision reflects CPSC's practice since November 
2008, when the Commission published a final rule to revise CFR part 
1101 in accordance with CPSIA's 6(b) amendments. 73 FR 72334. As part 
of these revisions, the Commission amended Sec.  1101.25 and replaced 
the words, ``10 working,'' with ``5''. 73 FR 72335. Since then, the 
Commission has calculated the time for providing notice and for 
receiving comments under section 6(b) as calendar days.
    Currently, however, only 16 CFR 1101.22(a)(1) specifies 
``calendar'' days, while the remaining sections in part 1101 that 
discuss notice and comment timing simply state ``days.'' To remove 
potential ambiguity, the Supplemental NPR continues to propose 
inserting ``calendar'' before ``days'' in sections that discuss timing 
and that do not already refer to ``calendar days.''
ii. The Information Must Pertain to a Specific Product (Sec.  
1101.11(a)(1))
    Comment 3--NAM, the Outdoor Industry Association (OIA), and the 
Upholstered Furniture Action Council (UFAC) objected to the 2014 NPR 
proposal to delete from Sec.  1101.11(a)(1) the phrase, ``which is 
either designated or described in a manner which permits its identity 
to be ascertained readily by the public.'' NAM stated that deleting 
this phrase would narrow the type of information subject to section 
6(b), and OIA maintained that because ``descriptive, contextual or use 
statements'' will no longer be subject to section 6(b), the Commission 
may reveal the identity of a product under a trade or brand name 
without providing a firm with the requisite notice and opportunity to 
comment. UFAC stated that the Commission should reconsider its proposal 
in the context of rulemaking. According to UFAC, some stakeholders 
provide information during a rulemaking with the intent of impacting 
negatively entire product categories.
    Response 3--The commenters' belief that the 2014 NPR proposal would 
narrow the type of information that triggers section 6(b)'s 
requirements, is mistaken. Section 6(b)(1) requires the Commission to 
provide a manufacturer or private labeler with advance notice and 
opportunity to comment on the information, ``if the manner in which 
such consumer product is designated or described in such information 
will permit the public to ascertain readily the identity of such 
manufacturer or private labeler.'' 15 U.S.C. 2055(b)(2) (emphasis 
added). This statutory provision is currently reflected in Sec.  
1101.11(a)(4), which the Supplemental NPR proposes to redesignate as 
Sec.  1101.11(a)(2) and to revise with minor edits. Proposed Sec.  
1101.11(a)(2) now reads: ``The manner in which the consumer product is 
designated or described in the information must permit the public to 
ascertain readily the identity of the manufacturer or private labeler 
(see Sec.  1101.13).'' In addition, Sec.  1101.11(a)(1) of the current 
6(b) Regulation contains the following additional requirement that 
serves to limit the types of intended disclosures that obligate the 
Commission to satisfy the requirements of section 6(b)(1): ``The 
information must pertain to a specific product which is either 
designated or described in a manner which permits its identity to be 
ascertained readily by the public.'' Thus, under the current 
regulation, pursuant to Sec.  1101.11(a)(1) and (4), section 6(b)(1) 
notice and opportunity to comment apply only if the public could 
ascertain readily both the identity of the manufacturer or private 
labeler and the identity of the product from the face of the 
information proposed to be disclosed. The requirement in Sec.  
1101.11(a)(1) could result in instances where the Commission does not 
provide 6(b)

[[Page 10447]]

notice and opportunity to comment because the public could ascertain 
readily, from the information proposed for disclosure, only the 
identity of the product's manufacturer or private labeler, but not the 
identity of the product itself.
    Despite the 6(b) Regulation, the Commission does not believe the 
statutory language supports this approach. Accordingly, the 
Supplemental NPR proposes to delete Sec.  1101.11(a)(1) to adhere more 
closely to the statutory language and provide for greater use of the 
section 6(b) procedures.
    Regarding rulemakings, the Commission recognizes that stakeholders 
may have differing views on a proposed consumer product safety 
regulation. However, the Commission will not apply the requirements of 
section 6(b)(1)-(3) of the CPSA to a rulemaking proceeding because such 
proceedings are specifically exempt. Section 6(b)(4)(B) of the CPSA 
states that the requirements of section 6(b)(1)-(3) shall not apply to 
the public disclosure of ``information in the course of or concerning a 
rulemaking proceeding (which shall commence upon the publication of an 
advance notice of proposed rulemaking or a notice of proposed 
rulemaking).'' 15 U.S.C. 2055(b)(4)(B).
iii. Removal of the Phrase, ``Individual Members, Employees, Agents, 
Contractors or Representatives of the Commission Acting in Their 
Official Capacities'' (Sec.  1101.11(a)(2))
    Comment 4--TIA observed that the 2014 NPR's proposal to remove from 
Sec.  1101.11(a)(2) the phrase, ``individual members, employees, 
agents, contractors or representatives of the Commission acting in 
their official capacities,'' could cause these individuals to believe 
that they are no longer subject to section 6(b).
    Response 4--Section 6(d)(2) of the CPSA states that the 
``provisions of [section 6] shall apply whenever information is to be 
disclosed by the Commission, any member of the Commission, or any 
employee, agent, or representative of the Commission in an official 
capacity.'' 15 U.S.C. 2055(d)(2). This statutory restriction on the 
Commission and specified individuals appears in Sec.  1101.11(a)(3), 
which the Supplemental NPR proposes to redesignate as Sec.  
1101.11(a)(1) and to revise with minor edits to conform to the statute. 
Addressing the commenter's concern, revised Sec.  1101.11(a)(1) would 
read: ``The Commission, any member of the Commission, or any employee, 
agent, or representative, including contractor, of the Commission in an 
official capacity must propose to disclose the information to the 
public (see Sec.  1101.12).''
iv. Inclusion of Reports of Harm in the List of Information Not Subject 
to Section 6(b)'s Notice and Comment Requirements (Sec.  1101.11(b)(6) 
(Redesignated Sec.  1101.11(b)(5))
    Comment 5--CFA, Consumers Union, Kids in Danger, National Consumers 
League, Public Citizen, The Safety Institute, and U.S. PIRG supported 
the 2014 NPR's proposal to add reports of harm posted on 
SaferProducts.gov to the list of information not subject to section 
6(b)(1). These commenters state that reports of harm posted to 
SaferProducts.gov specifically fall outside the statutory requirements 
of section 6(b). Several of these commenters also noted that the 
Commission should not have to ``spend resources hiding information that 
either has already been disclosed by the agency or available 
elsewhere.''
    On the other hand, the Juvenile Products Manufacturer's Association 
(JPMA), NAM, and TIA objected to the 2014 NPR's proposal to add reports 
of harm posted on SaferProducts.gov to the 6(b) Regulation's list of 
information not subject to section 6(b)(1). TIA asserted that the 
exclusion from section 6(b) for reports of harm applies ``only within 
the confines'' of SaferProducts.gov and ``subject to the express 
disclaimers provided therein.'' Letter from Toy Industry Association, 
Inc. (Apr. 28, 2014); see also Letter from National Association of 
Manufacturers (Apr. 28, 2014) (asserting that 6(b) exclusion does not 
apply to ``alternative disclosures of information contained in the 
report''). According to these associations, the Commission's proposal 
to categorically exclude reports of harm from section 6(b) procedures 
creates fairness issues. JPMA further stated that excluding from the 
section 6(b) requirements disclosure of a report of harm that is 
responsive to a FOIA request deprives a firm of the right to challenge 
the accuracy, fairness, or responsiveness of the document.
    Response 5--This Supplemental NPR adopts the 2014 NPR's proposed 
revision. Reports of harm posted on SaferProducts.gov are explicitly 
excluded from the scope of the statutory 6(b) requirements by statute 
and the Commission's current regulations. See 15 U.S.C. 2055a(f)(1) 
(excluding from section 6(b) reports of harm published to 
SaferProducts.gov); 16 CFR 1102.44(a) (``Sections 6(a) and 6(b) of the 
CPSA shall not apply to the submission, disclosure, and publication of 
information provided in a report of harm that meets the minimum 
requirements for publication in Sec.  1102.10(d) in the Database'' 
(emphasis added)).
    Once posted to SaferProducts.gov, reports of harm are readily 
available to the general public. Consequently, the Commission will 
treat such reports in accordance with the Commission's proposed 
approach for publicly available information. As discussed in section 
II.C.2.b.ii above, under this approach, the Commission could release 
reports of harm or information contained in such reports, without 
notice under section 6(b)(1), if the Commission does not characterize 
the information contained in the report or also release other 
information that is subject to section 6(b)(1), and the Commission's 
use of the SaferProducts.gov information is accurate and not 
misleading.
    JPMA's argument that excluding a report of harm deemed responsive 
to a FOIA request from the section 6(b) process deprives a firm of the 
right to challenge the accuracy of the document is without merit. 
Pursuant to section 6A(c) of the CPSA, the Commission must transmit a 
report a harm to a manufacturer or private labeler identified in a 
report and provide such firm with an opportunity to submit comments on 
the information contained in the report, including claims regarding 
accuracy. 15 U.S.C. 2055a(c)(1), (2), (4); 16 CFR 1102.12, 1102.20(a), 
1102.26. If the Commission determines that the information is 
materially inaccurate, the Commission must: (1) decline to add the 
materially inaccurate information to SaferProducts.gov; (2) correct the 
materially inaccurate information in the report and add the report to 
SaferProducts.gov; or (3) add information to correct inaccurate 
information in SaferProducts.gov. 15 U.S.C. 2055a(c)(4)(A); see also 16 
CFR 1102.26 (interpreting statutory requirement).
    Although section 6A(f)(1) of the CPSA specifically excludes from 
the 6(b) notice and comment requirements reports of harm that are 
published on SaferProducts.gov, this provision is silent regarding 
reports of harm that do not meet the criteria for publication. 15 
U.S.C. 2055a(f)(1). For reports of harm that the Commission has not 
published on SaferProducts.gov, the Commission will provide firms with 
the requisite 6(b) notice.
    Comment 6--JPMA noted that the Commission should not expend 
resources to gather and produce information, such as reports of harm 
published on SaferProducts.gov, if such

[[Page 10448]]

information is independently available to the FOIA requester.
    Response 6--We agree with this comment. One of the purposes of the 
CPSA is to ``assist consumers in evaluating the comparative safety of 
consumer products.'' 15 U.S.C. 2051(b)(2). If the Commission receives a 
FOIA request specifically seeking reports of harm, we will continue our 
current practice of referring the requester to SaferProducts.gov to 
conduct their own search for this publicly available information.
v. Inclusion of Information That Is Already Available to the Public in 
the List of Information Not Subject to Section 6(b)'s Notice and 
Comment Requirements (Sec.  1101.11(b)(7) (Redesignated Sec.  
1101.11(b)(6))
    Comment 7--Seven commenters comprising consumer groups, including 
CFA, Kids in Danger, and U.S. PIRG, supported the 2014 NPR's proposal 
to include in the list of information not subject to section 6(b)(1) 
the following: ``Information that is publicly available or that has 
been disseminated in a manner intended to reach the public in general, 
such as news reports; articles in academic and scientific journals; 
press releases distributed through news or wire services; or 
information that is available on the internet.''
    In contrast, 14 commenters, including the Consumer Specialty 
Products Association (CSPA), Footwear Distributors and Retailers of 
America (FDRA), and NAM, among others, objected to the 2014 NPR's 
proposal to include publicly available information in the list of 
information not subject to section 6(b)(1). In general, these 
commenters asserted that the Commission's proposal to exclude publicly 
available information from the notice and comment requirements violates 
the CPSA. The commenters stated that the 6(b) requirements apply to any 
information the Commission releases to the public, regardless of the 
public's pre-existing access to the information.
    Response 7--The Commission disagrees with the assertion that 
section 6(b) applies to information that is already available to the 
public. Section 6(b)(1) of the CPSA requires the Commission to provide 
advance notice and an opportunity to comment ``prior to [the 
Commission's] public disclosure of any information obtained under this 
Act, or to be disclosed to the public in connection therewith.'' 15 
U.S.C. 2055(b)(1). Black's Law Dictionary defines ``disclosure'' as 
``[t]he act or process of making known something that was previously 
unknown.'' U.S. v. Fei Ye, 436 F.3d 1117, 1120 (9th Cir. 2006) (citing 
Black's Law Dictionary 477 (7th ed. 1999)). The Commission's use of 
publicly available information, such as information in a news article 
or an academic or scientific journal, does not constitute a ``public 
disclosure'' under section 6(b) for which notice and opportunity to 
comment are required, because such information has already been put in 
the public domain by the Commission or by others.
    However, commenters correctly noted that publicly available 
information, including but not limited to, information that appears on 
the internet, can be misleading or inaccurate--even intentionally so. 
Commenters also expressed concern that the Commission's public use of 
such information may imply that the information is verified, accurate, 
or reliable.
    Taking account of the comments received, the Supplemental NPR 
proposes a revised approach for information already available to the 
public. As discussed in section II.C.2.b.ii above, under the revised 
approach, the Commission will release or identify information that the 
Commission obtained from publicly available sources only if (1) the 
Commission does not characterize the publicly available information or 
relay new information, and (2) the Commission's use of the information 
is accurate and not misleading. This revised approach provides 
additional protection against inaccurate or misleading communications 
from the Commission.
vi. Information Previously Disclosed (Proposed Sec.  1101.11(b)(7)) and 
Sec. Sec.  1101.21(b)(7) (Redesignated Sec.  1101.21(b)(6)), and 
1101.31(d) (Redesignated Sec.  1101.31(c))
    Comment 8--Seven consumer groups supported the 2014 NPR proposal to 
include the following in the list of information not subject to section 
6(b)(1): ``(8) Information that is substantially the same as 
information that the Commission previously disclosed in accordance with 
section 6(b)(1), except as specified in Sec.  1101.31(d).'' In general, 
these commenters noted that the proposal would save the Commission time 
and resources.
    In contrast, 16 commenters comprising one firm and trade 
associations, including the Association of Home Appliance Manufacturers 
(AHAM), JPMA, and the National Retail Federation (NRF), objected to the 
2014 NPR proposal. In particular, 12 commenters asserted that the 
phrase, ``substantially the same,'' is vague and undefined.
    Response 8--Section 6(b) does not require a new notice and comment 
process when the Commission discloses for an additional time, 
information as to which appropriate notice already has been conveyed 
and applicable procedures followed. Section 6(b)(1) of the CPSA 
requires the Commission to provide a manufacturer or private labeler 
with notice and ``a reasonable opportunity to submit comments to the 
Commission'' on information proposed for release. 15 U.S.C. 2055(b)(1) 
(emphasis added). Likewise, section 6(b)(6) of the CPSA, which requires 
the Commission to establish procedures to ensure that information 
disclosed is accurate and not misleading, applies ``[w]here the 
Commission initiates the public disclosure of information.'' 15 U.S.C. 
2055(b)(6). The phrase, ``initiates the public disclosure,'' implies 
that disclosure constitutes a single event. Moreover, attempting to 
restrict Commission communications by requiring 6(b) notice and 
opportunity to comment for each subsequent disclosure would be futile, 
because the Commission has already disclosed the information to the 
public in accordance with the section 6(b) requirements, and the 
Commission does not control who views the previously disclosed 
information, or how it is further disseminated.
    Nevertheless, the Commission agrees with commenters that the 
proposal announced in the 2014 NPR could be confusing. Upon further 
consideration, the Commission proposes a different approach for 
subsequent disclosures of information that should be more 
straightforward to apply. Under this new approach, the 6(b) Regulation 
will specify that the requirements of section 6(b)(1) do not apply to: 
``Information, not previously disclosed, that in context does not 
disclose materially more or materially different information about the 
consumer product than what the Commission previously disclosed in 
accordance with the law.''
    Comment 9--Thirteen commenters comprising one firm and trade 
associations, including the Fashion Jewelry & Accessories Trade 
Association (FJATA) and Philips Electronics North America, maintained 
that renotification for previously disclosed information is critical 
because: (1) it allows firms to provide new comments on information 
that the Commission proposes to release again, and (2) a release may be 
accurate and/or fair at its initial disclosure, but may be inaccurate 
and/or unfair at a later time, because the firm or the Commission 
receives or develops new

[[Page 10449]]

or additional information, and/or the understanding of information 
previously disclosed may change.
    Response 9--Renotification is not necessary for manufacturers and 
private labelers to provide the Commission, in the course of its 
proceedings, with new data or arguments regarding information that CPSC 
disclosed previously. Regarding commenters' concerns that a subsequent 
release of information may be inaccurate or unfair, the Commission has 
an ongoing duty under section 6(b)(7) of the CPSA to ensure that any 
information it discloses is accurate and not misleading.
    Comment 10--The Motorcycle Industry Counsel (MIC) argued that 
without renotification, firms will not be able to identify staff errors 
in connection with FOIA requests.
    Response 10--The Commission provides firms with two opportunities 
to review the materials that CPSC intends to disclose in response to a 
FOIA request. The 6(b)(1) notice includes a copy of the materials that 
the Commission proposes to disclose to the FOIA requester. This 
material contains any staff redactions to Personally Identifiable 
Information (PII) and information subject to Exemption 5 of the FOIA, 5 
U.S.C. 552(b)(5), which protects ``inter-agency or intra-agency 
memorandums or letters that would not be available by law to a party 
other than an agency in litigation with the agency.'' The 6(b)(2) 
notice, which informs the manufacturer or private labeler that the 
Commission disagrees with the firm's inaccuracy objections and will 
release the documents, includes copies of the final package of 
materials CPSC intends to disclose to the FOIA requester. These 
materials incorporate any comments from the manufacturer or private 
labeler with which Commission staff agrees, and all redactions to the 
materials, including information considered confidential under section 
6(a)(2) of the CPSA. Commission staff also includes with the 6(b)(2) 
notice a copy of the cover letter to the FOIA requester, explaining the 
information that the Commission could not disclose. Therefore, firms 
have several opportunities before the Commission discloses materials to 
identify staff errors in connection with FOIA requests.
    Finally, as already noted, the Commission cannot control further 
distribution of information it makes public through the section 6(b) 
process, and thus attempts by manufacturers or private labelers to 
limit subsequent releases of previously disclosed information could be 
futile even if they were allowed under the 6(b) Regulation.
    Comment 11--FJATA, MIC, and TIA stated that renotification is 
critical because it allows manufacturers and private labelers to know 
who requested their information.
    Response 11--Renotification is not necessary for a firm to know who 
submitted a FOIA request for its information. The Commission posts on 
its FOIA web page FOIA Request Logs, which describe each FOIA request 
that the Commission receives and identify the FOIA requester (available 
at https://www.cpsc.gov/Newsroom/FOIA/FOIA-Request-Logs).
vii. The Commission Will Provide Advance Notice and Opportunity To 
Comment if There Is a Question Whether the Public Could Readily 
Ascertain the Identity of a Manufacturer or Private Labeler (Sec.  
1101.13)
    Comment 12--The 2014 NPR proposed deleting from Sec.  1101.13 the 
last sentence, which states, ``The Commission will provide the advance 
notice and opportunity to comment if there is a question whether the 
public could readily ascertain the identity of a manufacturer or 
private labeler.'' 79 FR 10715. The Coalition for Sound Safety 
Solutions (CS3), JPMA, MIC, NAM, and NRF objected to this proposal. In 
general, these commenters stated that the Commission's proposal to 
remove this sentence implies that the Commission will not provide 
notice, even when there is ambiguity regarding whether the public could 
ascertain the identity of the firm. Two of these commenters asserted 
that the proposed revision conflicts with the statutory language, 
legislative history, and purpose of section 6(b).
    Response 12--We disagree with these comments. The sentence proposed 
for deletion establishes a subjective standard for section 6(b) 
notification that would be difficult to apply consistently. It is, 
moreover, inconsistent with the objective ``reasonable person'' 
standard the Commission adopted in the first sentence of this section. 
Under the objective standard, if a reasonable person who lacks 
specialized expertise can ascertain readily the identity of the 
manufacturer or private labeler from the information proposed to be 
disclosed, the Commission will provide such information to the firm for 
section 6(b) comment. The proposed deletion removes a potential source 
of confusion around the more easily applied, objective standard.
viii. Electronic Notice and Communication (Sec. Sec.  1101.21, 
1101.22(a) (Removed), 1101.23(c) (Removed), and 1101.25(c) 
(Redesignated Sec.  1101.25(b))
    Comment 13--Commenters on Sec. Sec.  1101.21, 1101.22(a), 
1101.23(c), and 1101.25(c) overwhelmingly supported the 2014 NPR's 
proposal to authorize electronic 6(b) notices, direct Commission staff 
to transmit requisite notices through an electronic medium whenever 
possible, and encourage electronic communication with the Commission. 
Some commenters sought clarification of the Commission's process for 
sending the initial 6(b) notice, including whether the Commission will 
use the business portal (available through https://www.saferproducts.gov/Business) for providing notice and receiving 
comments and whether firms may continue to submit and receive 6(b) 
communications via U.S. mail and other methods.
    Response 13--Currently, when the FOIA Office receives a request for 
records pertaining to a manufacturer or private labeler, the Commission 
sends the section 6(b)(1) notice to the firm via secure collaboration 
software. This notice includes a copy of the FOIA request, with 
redactions of any PII, and a copy of the records requested, with 
redactions of PII and any information that falls under FOIA Exemption 
5, 5 U.S.C. 552(b)(5). The FOIA Office also uses secure collaboration 
software to send to the manufacturer or private labeler the section 
6(b)(2) notice, a copy of the redacted records, and a copy of the 
Commission's final letter to the requester. To use the software, the 
FOIA Office must have the current email address of the firm's 
representative. If an email address cannot be found, the FOIA Office 
sends the notice via certified mail.
    For other proposed disclosures, such as a ``unilateral'' news 
release in which the Commission warns consumers about a potential 
defect or risk without the relevant firm's cooperation, the 
Commission's current practice is to provide the section 6(b)(1) and (2) 
notices via email. Where the Commission does not have an email address 
or the Commission cannot confirm electronic receipt of the notice, 
Commission staff will provide notice using other methods, including 
delivery via U.S. mail or other delivery service. See proposed Sec.  
1101.21(b).
ix. Deletion of the Phrase, ``Upon His or Her Own Initiative Or'' 
(Sec.  1101.22(a)(2))
    Comment 14--CFA, Consumers Union, Public Citizen, The Safety

[[Page 10450]]

Institute, and U.S. PIRG supported the 2014 NPR's proposal to delete 
the phrase, ``Upon his or her own initiative or,'' from the first 
sentence of Sec.  1101.22(a)(2), which states: ``Upon his or her own 
initiative or upon request, the Freedom of Information Officer may 
provide a different amount of time for comment, particularly for firms 
that receive voluminous or complex material.'' The commenters noted 
that this is a minor revision to reflect actual practice.
    Response 14--The Commission agrees with these comments. Absent a 
specific request from a manufacturer or private labeler, the Freedom of 
Information Officer typically has not provided a longer amount of time 
for a firm to comment. In general, firms are in the best position to 
initiate a suggestion that additional time may be necessary to provide 
substantive comments on information that the Commission proposes to 
disclose.
x. Disclosure of a Firm's Comments (Sec. Sec.  1101.21(b)(5) 
(Redesignated 1101.21(b)(4)), 1101.24(c), 1101.31(b) (Redesignated 
1101.31(a)), 1101.33(a)(1), and 1101.33(b)(3) (Redesignated 
1101.21(b)(4))
    Comment 15--CFA, Consumers Union, Kids in Danger, National 
Consumers League, Public Citizen, The Safety Institute, and U.S. PIRG 
supported the 2014 NPR's proposal to require manufacturers and private 
labelers to provide a rationale, such as an applicable statutory or 
regulatory basis or provision, to support withholding their comments 
and an explanation why disclosure of the firm's comments is not 
necessary to ensure that the disclosure of the information that is the 
subject of the comments is fair in the circumstances. These commenters 
noted that this proposal will increase transparency unless there is a 
valid reason for the information to be withheld.
    In contrast, 13 trade associations, including the Art & Creative 
Materials Institute, Inc., FDRA and the Retail Industry Leaders 
Association (RILA), objected to the 2014 NPR's proposal. These 
commenters stated that the Commission's proposal would chill 
cooperation between firms and the Commission, causing manufacturers and 
private labelers to provide limited comments and data regarding the 
information proposed for disclosure.
    Response 15--When the Commission adopted the 6(b) Regulation in 
1983, we stated that a firm's comments may ``clarify questions of 
accuracy, especially those concerning the factual basis for specific 
statements and the qualifications of individuals to make certain 
observations or to express opinions.'' 48 FR 57423. In addition, a 
firm's comments might ``correct minor inaccuracies although the overall 
substance of the information to be disclosed is accurate.'' Id. For 
these reasons, instead of requiring of a legal rationale such as a 
statute or regulation, the Supplemental NPR proposes to more broadly 
require that the manufacturer or private labeler provide the basis for 
why it suggests the comments should not be disclosed.
    We do not expect that adopting this proposal would reduce the 
usefulness of information firms provide to the Commission in response 
to section 6(b)(1) notices. We expect firms to submit detailed comments 
on the information proposed for disclosure, particularly to make their 
opposition to the proposal more forceful and credible. Indeed, as the 
regulation explains, a manufacturer or private labeler's submission 
``must be specific and should be accompanied by documentation, where 
available, if the comments are to assist the Commission in its 
evaluation of the information.'' 16 CFR 1101.24(a).
    Comment 16--FDRA, MIC, FJATA, OIA, CS3, and JPMA argued that the 
2014 NPR proposal requiring that manufacturers and private labelers 
provide a rationale to support withholding their comments violates the 
CPSA. JPMA stated that although the CPSA requires the Commission to 
disclose a manufacturer or private labeler's comments upon the firm's 
request, the CPSA does not similarly require the Commission to disclose 
a firm's objection when the manufacturer or private labeler objects to 
disclosure. FJATA stated that the Commission would violate the statute 
if the Commission released a manufacturer's or private labeler's 
comments without first assessing whether such release is fair and 
reasonably related to effectuating the purposes of the CPSA.
    Response 16--We do not agree with the comments that the 
Commission's proposal to release a firm's comments violates the CPSA. 
Section 6(b)(1) states that ``the Commission may . . . include with the 
disclosure any comments or other information or a summary thereof . . . 
to the extent permitted by and subject to the requirements of this 
section.'' 15 U.S.C. 2055(b)(1) (emphasis added). Thus, the Commission 
has discretion in deciding whether to release a firm's comments, to the 
extent permitted by and subject to the requirements of section 6. As 
the Commission explained in 1983, disclosure of a firm's comments may 
help to place the information that the Commission proposes to disclose 
in the proper context, particularly if releasing the comments helps to 
assure the accuracy of the underlying information disclosure. 48 FR 
57423.
    The Commission agrees with the comment that the Commission would 
violate the CPSA if the Commission discloses a manufacturer's or 
private labeler's comments without first assessing whether the 
information contained in the comments is accurate and that disclosure 
of the comments would be fair and reasonably related to the purposes of 
the CPSA. Thus, the Commission will not disclose comments that the 
Commission determines are inaccurate or misleading.
    Comment 17--ACMI and MIC argued that the Commission's proposal 
regarding publication of comments contradicts the legislative history 
of section 6(b). These commenters cited House Report 92-1153 as 
evidence that Congress did not intend the Commission to release a 
manufacturer's or private labeler's comments. House Report 92-1153 
states:

    There is no intention that the Commission be required to include 
a manufacturer's or private labeler's explanation in the materials 
which it determines to disseminate at the end of the 30-day period. 
This was suggested to the committee and rejected.

    Response 17--The proposal regarding release of a firm's comments is 
aligned with the cited legislative history. While section 6(b)(1) does 
not require the Commission to disclose a manufacturer's or private 
labeler's comments, unless that firm specifically requests disclosure, 
the Commission nevertheless has discretion in deciding whether to 
disclose a firm's comments absent a specific request from the firm. See 
15 U.S.C. 2055(b)(1) (``In disclosing any information under this 
subsection, the Commission may, . . . include with the disclosure any 
comments or other information or a summary thereof.'').
    Comment 18--FDRA asserted that section 6(a)(3)-(6) of the CPSA only 
requires firms to mark information as confidential and does not require 
that firms provide a statutory or regulatory basis for withholding. MIC 
maintained that neither Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), 
nor section 6(a)(2) of the CPSA, requires a firm to provide a rationale 
to support withholding of trade secret and confidential commercial 
information. This commenter also stated that without a guarantee that 
Exemption 4 of the FOIA will protect trade secrets and privileged or 
confidential commercial information, firms will not provide comments

[[Page 10451]]

containing this information, which could deprive the Commission of 
relevant information.
    Response 18--The proposed revisions to the 6(b) Regulation maintain 
the protections for trade secret or privileged or confidential 
commercial or financial information as delineated in the CPSA, the 
FOIA, and our corresponding regulations. See also revised 16 CFR 
1101.24(b) (claims of confidentiality). Contrary to the commenters' 
suggestion, merely marking information as confidential is not 
sufficient to support a claim of confidentiality. Firms should consult 
the Commission's FOIA regulation at 16 CFR 1015.18, which specifies the 
information that a firm must provide with any request for 
confidentiality, and 16 CFR 1015.19, for additional information on 
Commission determinations regarding confidentiality requests.
    Comment 19--ACMI, the American Apparel & Footwear Association, CS3, 
OIA, and OPEI stated that the Commission's proposed requirement that a 
manufacturer or private labeler provide a rationale to support 
withholding of its comments would create additional burdens for both 
the Commission and firms. OPEI further observed that the Commission's 
proposal will not create efficiencies because Commission staff will 
have to review two documents: (1) an argument against disclosure of the 
information that is the subject of the FOIA request, and (2) an 
argument against disclosure of the firm's comments.
    Response 19--The Commission believes that any additional burdens 
that the revised policy might create for firms and Commission staff are 
minimal and justified by legitimate administrative interests as well as 
the public benefit from greater transparency about consumer product 
safety.
xi. Disclosure of Information That Is Attorney Work-Product or Subject 
to an Attorney/Client Privilege (Sec.  1101.33(b)(3))
    Comment 20--Section 1101.33(b) provides examples of disclosures of 
information that generally would not be fair in the circumstances. Five 
commenters comprising consumer groups, including Consumer Union and 
Public Citizen, supported the 2014 NPR's proposal to delete Sec.  
1101.33(b)(3), which covers information that is work-product or subject 
to an attorney/client privilege. Public Citizen noted that ``[t]he 
Commission is a government agency, and not an arm, client or legal 
advisor of manufacturers or their law firms.''
    In contrast, eight commenters comprising a firm and trade 
associations, including OPEI and TIA, objected to the Commission's 
proposal to remove from Sec.  1101.33(b) information that is attorney 
work-product or subject to the attorney/client privilege. These 
commenters stated that this provision encourages firms' candor with the 
Commission and that removal could chill cooperation. OPEI observed that 
when the Commission adopted the regulation in 1983, the Commission 
agreed with a comment that disclosure of attorney work-product and 
information subject to the attorney/client privilege would be unfair. 
According to this commenter, ``[n]othing has changed that would now 
render the disclosure of such information fair.''
    Response 20--The Commission is concerned that the current 
regulation may cause a manufacturer or private labeler mistakenly to 
believe that information the firm intentionally submits to the 
Commission that is attorney work-product or subject to the attorney/
client privilege will remain privileged. To the contrary, if a 
manufacturer intentionally submits information that is subject to the 
attorney/client privilege and later becomes involved in litigation with 
a third party, including another government agency, a court could 
conclude that the manufacturer waived the privilege when it voluntarily 
provided the information to the Commission. Moreover, the Commission 
does not expect or encourage firms to submit information that is 
legitimately attorney work-product or subject to the attorney/client 
privilege.
    If a firm inadvertently submits information that is attorney work-
product or subject to the attorney/client privilege without intending a 
waiver, the Commission will treat the information in accordance with 
applicable authorities governing waiver and inadvertent disclosure. In 
addition, the firm may request confidential treatment of the 
information in accordance with the Commission's FOIA regulation at 16 
CFR 1015.18.
    Comment 21--AHAM maintained that even if the information is no 
longer privileged, the information could still be confidential, and its 
release would be unfair. Similarly, TIA argued that this provision is 
important for protecting from disclosure information that manufacturers 
or private labelers submit to the Commission in connection with section 
15(b) of the CPSA, which also may be referenced by staff in preliminary 
determinations.
    Response 21--The submitting manufacturer or private labeler may 
still assert that other provisions in the CPSA and corresponding 
regulations require the Commission to maintain the information as 
confidential. For example, a manufacturer or private labeler may claim 
that disclosure of the information under section 6(b)(1) would not be 
fair because the firm furnished the information to facilitate prompt 
remedial action or settlement of a case and the firm had a reasonable 
expectation that the information would be maintained in confidence. 16 
CFR 1101.33(b)(1). A manufacturer or private labeler also may assert 
that disclosure is prohibited under section 6(b)(5) of the CPSA because 
the firm had identified the information as submitted pursuant to 
section 15(b) and 16 CFR 1115.13, as explained in revised Sec.  
1101.61(b). In addition, a manufacturer or private labeler may contend 
that section 6(a)(2) of the CPSA prohibits disclosure because the 
information constitutes trade secret or privileged or confidential 
commercial or financial information under 5 U.S.C. 552(b)(4).
xii. Information Submitted Pursuant to Section 15(b) of the CPSA and 
Identified by the Commission Staff Through Publicly Available Sources 
(Sec.  1101.63(c))
    Comment 22--CFA, Consumers Union, and the Safety Institute 
supported the 2014 NPR's proposal to revise Sec.  1101.63(c) to state 
that section 6(b)(5) does not apply to information (1) independently 
obtained or prepared by the Commission staff or (2) identified by the 
Commission staff through publicly available sources. The commenters 
maintained that the Commission should not have to use resources to 
withhold information that is already available to the public.
    In contrast, CS3, JPMA, NAM, the Outdoor Industry Council, RILA, 
and TIA objected to this proposal. In general, these commenters stated 
that the Commission's proposal violates the CPSA, noting that section 
6(b)(5) does not include publicly available information as one of the 
limited exceptions to that paragraph's extra restriction. The 
commenters also maintained that the Commission's proposal violates the 
legislative history of the CPSA. According to TIA, Congress' intent in 
enacting section 6(b)(5) of the CPSA was to protect information, 
including publicly available information, that Commission staff did not 
independently identify or prepare. TIA noted that section 15 reports 
may reference publicly available

[[Page 10452]]

information that was not known previously to the Commission.
    Response 22--There is no indication that Congress intended the 
Commission to withhold from disclosure information that is already 
available to the public and that appears in a report filed with the 
Commission pursuant to section 15(b) of the CPSA. In CPSC v. GTE 
Sylvania, Inc., 447 U.S. 102 (1980), the Supreme Court examined the 
legislative history of the CPSA, including the House Report, and 
observed that ``[t]he CPSA gave the Commission broad powers to gather, 
analyze, and disseminate vast amounts of private information.'' Id. at 
111 (emphasis added). The House Report on the CPSA states:

    If the Commission is to act responsibly and with adequate basis, 
it must have complete and full access to information relevant to its 
statutory responsibilities. Accordingly, the committee has built 
into this bill broad information-gathering powers. It recognizes 
that in so doing it has recommended giving the Commission the means 
of gaining access to a great deal of information which would not 
otherwise be available to the public or to Government. Much of this 
relates to trade secrets or other sensitive cost and competitive 
information. Accordingly, the committee has written into section 6 
of the bill detailed requirements and limitations relating to the 
Commission's authority to disclose information which it acquires in 
the conduct of its responsibilities under this act.

Id. at 111-112 (citing H.R. Rep. No. 92-1153, p. 31 (1972)).
    In enacting the CPSA, in particular section 15(b) and other 
``information-gathering'' provisions, Congress authorized the 
Commission to (1) obtain information that would not be available to the 
public and (2) protect such information from disclosure. Therefore, 
information that a firm maintains as confidential and provides in a 
section 15(b) report, such as test results and the names of 
manufacturers or suppliers, may be subject to the additional disclosure 
limitations under section 6(b)(5) of the CPSA. However, information 
that a person can obtain through a simple internet search or even by 
entering a retail store that sells the product, such as sales price or 
product details, is not subject to section 6(b)(5)'s additional 
disclosure protections.
    Comment 23--JPMA and RILA insisted that the Commission should 
continue to protect from disclosure, under section 6(a)(2) and 6(b)(5) 
of the CPSA, confidential business information provided in section 
15(b) reports.
    Response 23--The Commission will withhold under section 6(a)(2) of 
the CPSA information that a firm considers to be trade secret or 
privileged or confidential commercial or financial information if the 
firm submitting the information requests withholding and specifically 
identifies those sections that must be withheld, and the information 
meets the statutory and regulatory requirements for withholding. In 
addition, as discussed in revised Sec.  1101.61(b), the Commission will 
not disclose information that a firm identifies as submitted pursuant 
to section 15(b) of the CPSA and 16 CFR 1115.13, unless one of the 
statutory exceptions applies. If a statutory exception applies, the 
Commission must still comply with the requirements of sections 6(a) and 
6(b)(1)-(3) before disclosing the information.
    Comment 24--OIA and NAM maintained that the Commission's disclosure 
of inaccurate, misleading, or unfair information contained in a section 
15(b) report could damage a firm's reputation.
    Response 24--The Commission believes that most firms are diligent 
and thorough in executing their CPSA reporting obligations to the 
Commission. To the extent that the commenters suggest that the 
Commission may have reason to believe that a releasable section 15(b) 
report contains inaccurate, misleading, or unfair information, the 
Commission will review its release of such submission in accordance 
with the provisions of section 6(b). See also 15 U.S.C. 2068(a)(13) 
(discussing misrepresentation).
xiii. Voluntary Corrective Action Plans and Remedial Settlement 
Agreements Under Section 6(b)(5) of the CPSA
    Comment 25--Section 6(b)(5) of the CPSA states that, in addition to 
the requirements of section 6(b)(1), ``the Commission shall not 
disclose to the public information submitted pursuant to section 15(b) 
respecting a consumer product unless . . . (B) in lieu of proceeding 
against such product under section 15(c) or (d), the Commission has 
accepted in writing a remedial settlement agreement dealing with such 
product.'' JPMA and TIA asserted that ``[n]either the CPSA nor the 
regulations equate a `remedial settlement agreement dealing with [a] 
product' accepted by the Commission `in lieu of proceeding against such 
product [under] 15(c) or (d)' . . . with a voluntary recall corrective 
action plan where no administrative action is pending or 
contemplated.'' In addition, NRF urged the Commission to maintain the 
``current and long-standing agency practice (if not formal interpretive 
position) that, in the absence of some other exception under 6(b), all 
information'' that a firm provides to the Commission under section 
15(b) will not be disclosed, regardless of whether the information 
results in a voluntary recall.
    Response 25--The legislative history of the CPSA indicates that 
Congress did not intend remedial settlement agreements necessarily to 
be formal written agreements. See H.R. Rep. No. 97-208, at 1242 (1981) 
(``The conferees do not intend that a settlement agreement must be made 
by a formal written agreement, but rather, for example, may be made by 
an exchange of letters.''). For nearly 40 years, the Commission has 
interpreted remedial settlement agreements to include voluntary 
corrective action plans:

    A voluntary corrective action plan in effect settles a potential 
administrative or judicial action. Such corrective action can range 
in scope from adding a label to a product or altering future 
production to a total recall and publication notification program. 
The nature and extent of such an undertaking however does not change 
the fact that it is a remedial settlement agreement. 48 FR 57428 
(emphasis added).

    While section 6(b)(5)'s additional layer of protection may no 
longer apply to information that a manufacturer or private labeler 
submits under section 15(b) of the CPSA because the firm and the 
Commission have agreed to a corrective action plan, the manufacturer or 
private labeler may still assert that the information must be withheld 
from disclosure under section 6(a) and 6(b)(1) of the CPSA and the 
corresponding regulatory provisions.
    Comment 26--NRF argued that if the Commission determines that 
corrective action plans are remedial settlement agreements under 
section 6(b)(5) of the CPSA, firms will provide the Commission with 
only ``bare bones'' information under section 15(b). According to this 
commenter, sharing such limited information with the Commission would 
``lead to more protracted and less informed product safety 
investigations,'' which would jeopardize consumer safety.
    Response 26--Tactical submission of only ``bare bones'' information 
to the Commission in connection with section 15(b), while withholding 
other information required to be submitted, is prohibited under the 
requirements of sections 15, 16, 19, and 27 of the CPSA and the 
corresponding regulations. In addition, we have no reason to believe 
that restating established policy--that remedial settlement agreements 
under section 6(b)(5) include corrective action plans--would impact the 
type and extent of information that firms provide to the Commission 
under section 15(b).

[[Page 10453]]

Section 6(b)(5) of the CPSA creates an additional layer of protection 
from the disclosure of information that a firm submits to the 
Commission pursuant to section 15(b) of the CPSA. 15 U.S.C. 2055(b)(5) 
(``In addition to the requirements of paragraph 1 . . .''). Therefore, 
even if information submitted in connection with section 15(b) is not 
protected from disclosure under section 6(b)(5) of the CPSA, the 
information nevertheless may be protected under other withholding 
provisions specified in the CPSA and the corresponding regulations.
xiv. Firms Can File a Lawsuit To Enjoin the Disclosure of Information
    Comment 27--CFA, Consumers Union, National Consumers League, The 
Safety Institute, and U.S. PIRG expressed disappointment that the 
proposed rule does not prevent a firm from filing a lawsuit to enjoin 
the Commission's release of information. These commenters stated that 
the threat of a lawsuit ``compels CPSC to maintain the secrecy or delay 
the disclosure of important product safety information.''
    Response 27--Congress specifically authorized (1) the manufacturer 
and private labeler to ``bring an action in the district court . . . to 
enjoin disclosure of the document'' at issue in a section 6(b)(1) 
notification, and (2) the district court to ``enjoin such disclosure if 
the Commission has failed to take the reasonable steps'' established in 
section 6(b)(1). 15 U.S.C. 2055(b)(3)(A). In any event, the commenters' 
belief that the Commission withholds releasable information when faced 
with the threat of a lawsuit is mistaken. The Commission routinely 
discloses to the public crucial product safety information, even when a 
manufacturer or private labeler does not agree to conduct a recall or 
implement another corrective action. In these instances, for example, 
the Commission may publish a ``unilateral'' press release after 
complying with the notice and comment requirements under section 6(b) 
of the CPSA.
xv. Retailers Should Continue To Be Included Among the Firms That Are 
Covered Under Section 6(b)
    Comment 28--RILA stated that the Commission should continue to 
withhold from disclosure information that retailers, who are not acting 
as manufacturers, private labelers, or importers of a subject product, 
provide to the Commission when the Commission contacts the retailer to 
obtain information regarding (1) an issue that another firm reported to 
the Commission under section 15(b) of the CPSA or (2) an incident 
reported to SaferProducts.gov. RILA also requested clarification that 
information a retailer provides in connection with the Retailer 
Reporting Program, including confidential customer, supplier, and sales 
data, will remain protected from disclosure under sections 6(a)(2) and 
6(b)(5) of the CPSA.
    Response 28--Retailers are listed among the entities that must 
report to the Commission under section 15(b) of the CPSA. 15 U.S.C. 
2064(b). Thus, under revised Sec.  1101.63(a), section 6(b)(5)'s 
additional disclosure limitations apply to information that a retailer 
identifies as submitted pursuant to section 15(b) of the CPSA and 16 
CFR 1115.13, unless one of the exceptions applies.
    Before the Commission determines whether particular information 
proposed for disclosure is confidential, the submitting firm must, 
among other requirements, specifically identify those portions that the 
firm claims are confidential and exempt from disclosure. 15 U.S.C. 
2055(a)(3); 16 CFR 1015.18, 1015.19(a), 1101.24(b). The Commission will 
review the information proposed for disclosure, the firm's claims, and 
applicable authorities, and determine whether the information can be 
disclosed. 16 CFR 1015.19(a).
xvi. The Commission Should Establish an Appeals Process for 6(b) 
Determinations
    Comment 29--TIA suggested that the Commission create a process 
within the Office of the General Counsel to enable firms that have 
received notice to appeal section 6(b) determinations.
    Response 29--Section 27(b)(10) of the CPSA, 15 U.S.C. 2076(b)(10), 
empowers the Commission ``to delegate any of its functions or powers, 
other than the power to issue subpoenas . . . to any officer or 
employee of the Commission.'' When the Commission adopted the 6(b) 
Regulation in 1983, the Commission delegated to the General Counsel 
``the authority to render all decisions . . . concerning the release of 
information subject to section 6(b) when firms have furnished section 
6(b) comment,'' except in certain situations. 16 CFR 1101.71(a). The 
Commission determined that a decision by the General Counsel is a final 
agency decision and is not appealable as of right to the Commission. 16 
CFR 1101.71(c). However, the General Counsel may refer an issue to the 
Commission for decision under 16 CFR 1101.71(c). Adding an additional 
appeals process on top of the current Commission process for processing 
proposed public disclosures would entail additional delay in providing 
information to the public, that is not justified by a countervailing 
benefit.

IV. Environmental Considerations

    The Commission's regulations address whether the Commission is 
required to prepare an environmental assessment or an environmental 
impact statement. 16 CFR part 1021. Those regulations provide a 
categorical exclusion for certain Commission actions that normally have 
``little or no potential for affecting the human environment.'' 16 CFR 
1021.5(c)(1). Like the 2014 NPR, see 79 FR 10721, this Supplemental NPR 
falls within the categorical exclusion.

V. Regulatory Flexibility Analysis

    Under section 603 of the Regulatory Flexibility Act (RFA), when the 
Administrative Procedure Act (APA) requires an agency to publish a 
general notice of proposed rulemaking, the agency must prepare an 
initial regulatory flexibility analysis (IRFA), assessing the economic 
impact of the proposed rule on small entities. 5 U.S.C. 603(a). As 
noted, the Commission is proposing to update the regulation that 
interprets section 6(b) of the CPSA. Although the Commission is 
choosing to issue the rule through notice and comment procedures, the 
APA does not require a proposed rule when an agency issues rules of 
agency procedure and practice. 5 U.S.C. 553(b). Therefore, the CPSC is 
not required to prepare an IRFA under the RFA. See 79 FR 10721 
(discussing IRFA requirement). Moreover, the Supplemental NPR does not 
propose to establish mandatory requirements for, and would not impose 
any significant obligations on, small entities (or any other entity or 
party).

VI. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) establishes certain requirements 
when an agency conducts or sponsors a ``collection of information.'' 44 
U.S.C. 3501-3520. The Supplemental NPR proposes to amend the 
Commission's rule that describes the agency's procedures for providing 
manufacturers and private labelers with advance notice and ``a 
reasonable opportunity to submit comments'' to the Commission on 
proposed disclosures of information. The Supplemental NPR does not 
propose to create information collection requirements. The PRA is not 
implicated in this proposed rulemaking because the existing rule and 
the Supplemental NPR do not require or request information from firms, 
but rather, explain the Commission's procedures for providing firms 
with an

[[Page 10454]]

opportunity to provide voluntary comment on certain information before 
disclosure. See 79 FR 10721.

VII. Executive Order 12988 (Preemption)

    According to Executive Order 12988 (February 5, 1996), agencies 
must state in clear language the preemptive effect, if any, of new 
regulations. Section 26 of the CPSA explains the preemptive effect of 
consumer product safety standards issued under the CPSA. 15 U.S.C. 
2075. The Supplemental NPR proposes updates to the regulation that 
interprets section 6(b) of the CPSA and does not seek to issue a 
consumer product safety standard. Accordingly, section 26 of the CPSA 
does not apply to this rulemaking. Furthermore, this Supplemental NPR 
implements a provision of the CPSA that is uniquely applicable to the 
Commission, and is not enforced by state or local governments. 
Preemption therefore is not relevant.

VIII. Proposed Effective Date

    The APA generally requires that the effective date of a rule be at 
least 30 days after publication of the final rule. 5 U.S.C. 553(d). 
However, the APA exempts interpretive rules and statements of policy 
from the general effective date requirement. 5 U.S.C. 553(d)(2). The 
Supplemental NPR accordingly proposes to make the final rule, if one is 
adopted, effective as of the date of its publication in the Federal 
Register.

IX. Request for Comments

    The Commission requests comments on all aspects of the Supplemental 
NPR. Comments must be submitted in accordance with the instructions in 
the ADDRESSES section of the preamble. Comments must be received no 
later than April 3, 2023.

List of Subjects in 16 CFR Part 1101

    Administrative practice and procedure; Consumer protection.

    For the reasons set forth in the preamble, the Commission proposes 
to revise 16 CFR part 1101 to read as follows:

PART 1101--INFORMATION DISCLOSURE UNDER SECTION 6(b) OF THE 
CONSUMER PRODUCT SAFETY ACT

Subpart A--Background
Sec.
1101.1 Scope.
1101.2 General background.
Subpart B--Information Subject to Notice and Comment Provisions of 
Section 6(b)(1)
1101.11 General application of provisions of section 6(b)(1).
1101.12 Definition of ``public''.
1101.13 Public ability to ascertain readily identity of manufacturer 
or private labeler.
Subpart C--Procedure for Providing Notice and Opportunity To Comment 
Under Section 6(b)(1)
1101.21 Form, transmission, and content of notice.
1101.22 Time for comment and requests for extension of time.
1101.23 Providing less than 15 calendar days' notice before 
disclosing information.
1101.24 Scope of comments Commission seeks.
1101.25 Notice of intent to disclose.
1101.26 Circumstances when the Commission does not provide notice 
and opportunity to comment.
Subpart D--Reasonable Steps Commission Will Take To Assure Public 
Disclosure of Information Is Accurate, and That Disclosure Is Fair in 
the Circumstances and Reasonably Related To Effectuating the Purposes 
of the Acts It Administers
1101.31 General requirements.
1101.32 Reasonable steps to assure disclosure of information is 
accurate.
1101.33 Reasonable steps to assure information disclosure is fair in 
the circumstances.
1101.34 Reasonable steps to assure information disclosure is 
``reasonably related to effectuating the purposes of'' the Acts.
Subpart E--Statutory Exceptions of Section 6(b)(4)
1101.41 Generally.
1101.42 Imminent hazard exception.
1101.43 Section 6(b)(4)(A) exception.
1101.44 Rulemaking proceeding exception.
1101.45. Adjudicatory proceeding exception.
1101.46 Other administrative or judicial proceeding exception.
Subpart F--Retraction
1101.51 Commission interpretation.
1101.52 Procedure for retraction.
Subpart G--Information Submitted Pursuant to Section 15(b) of the CPSA
1101.61 Generally.
1101.62 Statutory exceptions to section 6(b)(5) requirements.
1101.63 Information submitted pursuant to section 15(b) of the CPSA.
Subpart H--Delegation of Authority to Information Group
1101.71 Delegation of authority.

    Authority: 15 U.S.C. 2055(b).

Subpart A--Background


Sec.  1101.1   Scope.

    These rules apply to the public disclosure of any information 
obtained under the Consumer Product Safety Act, 15 U.S.C. 2051-2090 
(CPSA), the Flammable Fabrics Act, 15 U.S.C. 1191-1204 (FFA), the 
Poison Prevention Packaging Act of 1970, 15 U.S.C. 1471-1477 (PPPA), 
and the Federal Hazardous Substances Act, 15 U.S.C. 1261-1278a (FHSA) 
(collectively, ``the Acts''), or to be disclosed to the public in 
connection therewith.


Sec.  1101.2  General background.

    (a) Basic purpose. These rules set forth the Consumer Product 
Safety Commission's policy and procedure under sections 6(b)(1)-(5) of 
the CPSA, 15 U.S.C. 2055(b)(1)-(5), which relate to public disclosure 
of any information obtained under the Acts, or to be disclosed to the 
public in connection therewith, from which the identity of a 
manufacturer or private labeler of any consumer product can be 
ascertained readily. In addition, these rules provide for retraction of 
inaccurate or misleading information the Commission has disclosed that 
reflects adversely upon the safety of any consumer product, class of 
consumer products, or on the practices of any manufacturer, private 
labeler, distributor or retailer of consumer products as required by 
section 6(b)(7) of the CPSA, 15 U.S.C. 2055(b)(7).
    (b) Statutory requirements. Section 6(b) establishes procedures 
that the Commission must follow prior to its public disclosure of 
certain firm-specific information and to retract certain information 
the Commission has publicly disclosed.
    (1) Generally, section 6(b)(1) requires, prior to the Commission's 
public disclosure of any information obtained under the Acts, or to be 
disclosed to the public in connection therewith, that the Commission, 
to the extent practicable, provide manufacturers or private labelers 
with advance notice and opportunity to comment on the information, if 
the manner in which such consumer product is designated or described in 
the information permits the public to ascertain readily the identity of 
the manufacturer or private labeler. Section 6(b)(1) also requires, 
prior to such public disclosure, that the Commission take reasonable 
steps to assure that the information is accurate and that disclosure is 
fair in the circumstances and reasonably related to effectuating the 
purposes of the Acts. Disclosure of information may not occur in fewer 
than 15 calendar days after notice to the manufacturer or private 
labeler unless the manufacturer or private labeler consents or the 
Commission publishes a finding that the public health and safety 
requires a

[[Page 10455]]

lesser period of notice. Section 6(b)(4) establishes exceptions to 
these advance notice requirements. In addition to the requirements of 
Section 6(b)(1), Section 6(b)(5) creates additional limitations, as 
well as additional exceptions to these limitations, on the public 
disclosure of information submitted to the Commission under section 
15(b) of the CPSA. Section 15(b) of the CPSA, 15 U.S.C. 2064(b), 
requires every manufacturer, distributor, and retailer of a consumer 
product to immediately inform the Commission once the firm obtains 
information which reasonably supports the conclusion that the product 
(a) fails to comply with an applicable consumer product safety rule or 
with a voluntary consumer product safety standard upon which the 
Commission has relied under section 9 of the CPSA; (b) fails to comply 
with any other rule, regulation, standard, or ban under the CPSA or any 
other act enforced by the Commission; (c) contains a defect which could 
create a substantial product hazard; or (d) creates an unreasonable 
risk of serious injury or death (see 16 CFR part 1115).
    (2) Section 6(b)(2) requires the Commission to provide further 
notice to manufacturers or private labelers where the Commission 
proposes to disclose information the manufacturers or private labelers 
have claimed to be inaccurate.
    (3) Section 6(b)(3) authorizes manufacturers and private labelers 
to bring lawsuits against the Commission to prevent public disclosure 
of information after receipt of notice from the Commission designating 
the date set for release of the information.
    (c) Clearance procedures. Section 6(b)(6) requires the Commission 
to establish procedures to ensure that Commission-initiated disclosures 
of information that reflect on the safety of a consumer product or 
class of consumer products are accurate and not misleading, whether or 
not such information would enable the public to ascertain readily the 
identity of a manufacturer or private labeler.

Subpart B--Information Subject to Notice and Comment Provisions of 
Section 6(b)(1)


Sec.  1101.11  General application of provisions of section 6(b)(1).

    (a) Information subject to section 6(b)(1). To be subject to the 
notice and comment provisions of section 6(b)(1), information must meet 
all the following criteria:
    (1) The Commission, any member of the Commission, or any employee, 
agent, or representative, including contractor, of the Commission in an 
official capacity must propose to disclose the information to the 
public (see Sec.  1101.12).
    (2) The manner in which the consumer product is designated or 
described in the information must permit the public to ascertain 
readily the identity of the manufacturer or private labeler (see Sec.  
1101.13).
    (3) The information must be obtained, generated or received under 
the Acts, or be disclosed to the public in connection therewith.
    (b) Information not subject to section 6(b)(1). The requirements of 
section 6(b)(1) do not apply to:
    (1) Information described in the exceptions contained in section 
6(b)(4) or (b)(5) of the CPSA (see subparts E and G of this part).
    (2) Information the Commission is required by law to make publicly 
available. This information includes, for example, Commission 
notifications to foreign governments regarding certain products to be 
exported, as required by section 18(b) of the CPSA, 15 U.S.C. 2067(b); 
section 14(d) of the FHSA, 15 U.S.C. 1273(d); and section 15(c) of the 
FFA, 15 U.S.C. 1202(c) (see 16 CFR 1019.7).
    (3) Information required to be disclosed to the President and 
Congress pursuant to section 27(j) of the CPSA, 15 U.S.C. 2076(j).
    (4) Information filed or presented in administrative proceedings or 
litigation to which the Commission is a party and which is not 
expressly subject to the section 6(b)(4) exceptions (see subpart E of 
this rule).
    (5) A report of harm posted on the publicly available consumer 
product safety information database pursuant to section 6A of the CPSA, 
15 U.S.C. 2055a.
    (6) Information that has already been made available to the public 
through sources other than the Commission, provided the Commission 
clearly indicates the source of the information and the Commission's 
use of the information is accurate and not misleading.
    (7) Information, not previously disclosed, that in context does not 
disclose materially more or materially different information about the 
consumer product than what the Commission previously disclosed in 
accordance with the law.


Sec.  1101.12  Definition of ``public''.

    Public. For the purposes of section 6(b)(1), the public includes 
any person except:
    (a) Any member of the Commission or any employee, agent, or 
representative, including contractor, of the Commission in an official 
capacity. However, disclosures of information by such persons are 
subject to section 6(b).
    (b) State officials who are commissioned officers under section 
29(a)(2) of the CPSA, 15 U.S.C. 2078(a)(2), to the extent that the 
Commission furnishes them information necessary for them to perform 
their duties under that section. However, disclosures of information by 
such officials are subject to section 6(b).
    (c) Members of a Commission Chronic Hazard Advisory Panel 
established under section 28 of the CPSA, 15 U.S.C. 2077. However, 
disclosures of information by such a Panel are subject to section 6(b).
    (d) Persons, including but not limited to, consumers, 
manufacturers, private labelers, retailers, or distributors, to which 
the information to be disclosed pertains, or their legal 
representatives.
    (e) Persons, including but not limited to, consumers, 
manufacturers, private labelers, retailers, or distributors, which 
provided the information to the Commission, or their legal 
representatives.
    (f) Other Federal agencies or state or local governments to which 
accident and investigation reports are provided pursuant to section 
29(e) of the CPSA, 15 U.S.C. 2078(e). However, as required by that 
section, employees of Federal agencies or state or local governments 
may not release to the public copies of any accident or investigation 
report made under the CPSA by an officer, employee or agent of the 
Commission unless CPSC has complied with the applicable requirements of 
section 6(b).
    (g) The Chairman or ranking minority member of a committee or 
subcommittee of Congress acting pursuant to committee business and 
having jurisdiction over the matter which is the subject of the 
information requested.
    (h) Any Federal, state, local, or foreign government agency 
pursuant to, and in accordance with, section 29(f) of the CPSA.


Sec.  1101.13  Public ability to ascertain readily identity of 
manufacturer or private labeler.

    The advance notice and comment provisions of section 6(b)(1) apply 
only when a reasonable person receiving the information in the form in 
which the information is to be disclosed and lacking specialized 
expertise can ascertain readily from the information itself the 
identity of the manufacturer or private labeler of a consumer product 
at issue in the disclosure. Information about categories of consumer 
products is not within the scope of section

[[Page 10456]]

6(b)(1), provided such information will not permit the public to 
ascertain readily the identity of the products' manufacturers or 
private labelers. Information about manufacturers or private labelers 
is not within the scope of section 6(b)(1), provided such information 
does not designate or describe a consumer product.

Subpart C--Procedure for Providing Notice and Opportunity To 
Comment Under Section 6(b)(1)


Sec.  1101.21   Form, transmission, and content of notice.

    (a) Notice may be oral or written. The Commission will generally 
provide to manufacturers or private labelers written notice and 
opportunity to comment on information subject to section 6(b)(1), 
except as provided in Sec.  1101.26. However, if the Commission 
determines that written notice is impracticable, it will provide notice 
and opportunity to comment orally, if practicable.
    (b) Electronic transmission. In the interest of promoting timely 
notification, the Commission, to the extent practicable, will transmit 
any notice required under this part via email or other electronic 
means. If electronic transmission is not practicable or the Commission 
cannot confirm electronic receipt of the notice, the Commission will 
take appropriate steps to provide notice using other methods, including 
delivery via U.S. mail or other delivery service.
    (c) Content of notice. The Commission shall, to the extent 
practicable, provide the manufacturer or private labeler with:
    (1) Either the actual text of the information to be disclosed or a 
summary of the information.
    (2) A general description of the manner in which the Commission 
will disclose the information, including any other relevant information 
the Commission intends to include with the disclosure.
    (3) A request for comment with respect to the information, 
including a request for explanatory data or other relevant information 
for the Commission's consideration.
    (4) A statement that the Commission may, and upon the written 
request of the manufacturer or private labeler shall, include with the 
disclosure any comments or other information or a summary thereof 
submitted by such manufacturer or private labeler, to the extent 
permitted by and subject to the requirements of section 6 of the CPSA.
    (5) Notice that the manufacturer or private labeler may request 
confidential treatment for the information, in accordance with section 
6(a)(3) of the CPSA, 15 U.S.C. 2055(a)(3) (see Sec.  1101.24(b)).
    (6) A statement that no further request for comment will be sought 
by the Commission if the Commission intends to disclose information, 
not previously disclosed, that in context does not disclose materially 
more or materially different information about the consumer product 
than what the Commission previously disclosed in accordance with the 
law.
    (7) The name, contact information, and telephone number of the 
person to whom comments should be sent and the time when any comments 
are due (see Sec.  1101.22).


Sec.  1101.22   Time for comment and requests for extension of time.

    (a) Time for comment. (1) Generally, manufacturers and private 
labelers will receive 10 calendar days from the date on which the 
Commission transmits the notice to furnish comments. Manufacturers and 
private labelers that receive requests for comments by mail will 
receive an additional 3 calendar days to comment to account for time in 
the mail.
    (2) The Commission may provide a longer amount of time for comment, 
particularly for manufacturers and private labelers that receive from 
the Commission voluminous or complex material to review. In addition, 
the Commission may publish a finding that the public health and safety 
requires a lesser period of notice and may require a response in a 
shorter period of time (see Sec.  1101.23).
    (b) No response submitted. If the Commission has not received a 
response within the time specified (subject to any extension of time 
that has been granted under paragraph (c)), the Commission will analyze 
the information as provided in subpart D and will not give the further 
notice provided in section 6(b)(2).
    (c) Requests extension of time. (1) Requests for extension of time 
to comment on information to be disclosed must be in writing and 
submitted to the person who provided the Commission's notice and 
opportunity to comment at least 48 hours before the deadline to 
respond. If the time for response has been shortened due to a public 
health and safety finding, no extension will be granted except upon the 
Commission's own initiative. Requests for extension must explain with 
specificity why the extension is needed and how much additional time is 
required.
    (2) It is the policy of the Commission to respond promptly to 
requests for extension of time.


Sec.  1101.23  Providing less than 15 calendar days' notice before 
disclosing information.

    The Commission may disclose to the public information subject to 
section 6(b)(1) in a time less than 15 calendar days after providing 
notice to the manufacturer or private labeler in the following 
circumstances:
    (a) Manufacturer or private labeler agrees to lesser period or 
notifies the Commission that the firm has no comment or does not object 
to disclosure. The Commission may disclose to the public information 
subject to section 6(b)(1) before the 15-day period expires when, after 
receiving the Commission's notice and opportunity to comment, the 
manufacturer or private labeler agrees to the earlier disclosure; 
notifies the Commission that the firm has no comment; or notifies the 
Commission that the firm does not object to disclosure.
    (b) Commission finds a lesser period is required. Section 6(b)(1) 
provides that the Commission may publish a finding that the public 
health and safety requires a lesser period of notice than 15 calendar 
days. The Commission will publish the finding in the disclosure itself 
or elsewhere. The Commission may find that the public health and safety 
requires less than 15 calendar days' advance notice, for example, to 
warn the public quickly of danger from a product hazard or a potential 
hazard, or to correct product safety information released by third 
persons, which mischaracterizes statements made by the Commission about 
the consumer product or which attributes to the Commission statements 
about the consumer product that the Commission did not make.


Sec.  1101.24  Scope of comments Commission seeks.

    (a) Comment in regard to the information. The section 6(b) 
opportunity to comment on information permits manufacturers and private 
labelers to furnish information and data to the Commission that will 
assist the agency in its evaluation of the accuracy of the information. 
A manufacturer or private labeler's submission, therefore, must be 
specific and should be accompanied by documentation, where available, 
if the comments are to assist the Commission in its evaluation of the 
information. Comments of a general nature, such as general suggestions 
or allegations that a document is inaccurate or that the Commission has 
not taken reasonable steps to assure accuracy, are not sufficient to 
assist the Commission in its evaluation of the information or to 
justify a claim of

[[Page 10457]]

inaccuracy. The weight accorded a manufacturer's or private labeler's 
comments on the accuracy of information and the degree of scrutiny the 
Commission will exercise in evaluating the information will depend on 
the specificity and completeness of the firm's comments and of the 
accompanying documentation. In general, specific comments that are 
accompanied by documentation will be given more weight than those that 
are non-specific and general in nature.
    (b) Claims of confidentiality. If the manufacturer or private 
labeler believes the information involved cannot be disclosed because 
of section 6(a)(2) of the CPSA, 15 U.S.C. 2055(a)(2), which refers to 
information reported to or otherwise obtained by the Commission that 
contains or relates to a trade secret or other matter referred to in 
section 1905 of title 18 or subject to 5 U.S.C. 552(b)(4), the firm may 
make claims of confidentiality at the time it submits its comments to 
the Commission under this section 1101.24. Such claims must identify 
the specific information that the manufacturer or private labeler 
believes to be confidential or trade secret material or subject to 5 
U.S.C. 552(b)(4) and must state with specificity the grounds on which 
the firm bases its claims (see Commission's Freedom of Information Act 
regulation, 16 CFR part 1015, particularly 16 CFR 1015.18).
    (c) Requests for nondisclosure of comments. If a manufacturer or 
private labeler objects to the disclosure of its comments or a portion 
thereof, it must notify the Commission at the time the manufacturer or 
private labeler submits its comments and provide the basis for its 
request. If the manufacturer or private labeler objects to the 
disclosure of only a portion of its comments, the firm must identify 
with specificity those portions that it requests be withheld.


Sec.  1101.25  Notice of intent to disclose.

    (a) Notice to manufacturer or private labeler. In accordance with 
section 6(b)(2) of the CPSA, if the Commission, after following the 
notice provisions of section 6(b)(1), determines that information 
claimed to be inaccurate by a manufacturer or private labeler in 
comments submitted under section 6(b)(1) should be disclosed because 
the Commission believes it has complied with section 6(b)(1), the 
Commission shall notify the manufacturer or private labeler that the 
Commission intends to disclose the information and identify the 
earliest time at which it intends to do so.
    (b) The Commission will inform a manufacturer or private labeler of 
a product that is the subject of a public health and safety finding 
that the public health and safety requires less than 5 calendar days' 
advance notice either orally or in writing. If written notice is 
provided, the Commission, to the extent practicable, will transmit such 
notice via email or other electronic means.


Sec.  1101.26  Circumstances when the Commission does not provide 
notice and opportunity to comment.

    (a) Notice to the extent practicable. Section 6(b)(1) requires 
that, ``to the extent practicable,'' the Commission must provide 
manufacturers and private labelers notice and opportunity to comment 
before disclosing information from which the public can ascertain 
readily their identity.
    (b) Circumstances when notice and opportunity to comment is not 
practicable. Circumstances when notice and opportunity to comment is 
not practicable include, but are not necessarily limited to, the 
following:
    (1) When the Commission has taken reasonable steps to assure that 
the manufacturer or private labeler of any consumer product to which 
the information pertains is out of business and has no identifiable 
successor.
    (2) When the information is disclosed in testimony in response to 
an order of the court during litigation to which the Commission is not 
a party.
    (3) When the Commission has been unable, after a diligent search, 
to obtain contact information for the manufacturer or private labeler 
of the consumer product to which the information pertains.
    (4) When an extraordinary circumstance necessitates the immediate 
disclosure of information to protect the public health and safety while 
the Commission simultaneously pursues notification of the manufacturer 
or private labeler.

Subpart D--Reasonable Steps Commission Will Take To Assure Public 
Disclosure of Information Is Accurate, and That Disclosure Is Fair 
in the Circumstances and Reasonably Related To Effectuating the 
Purposes of the Acts It Administers


Sec.  1101.31  General requirements.

    (a) Inclusion of comments. In disclosing any information under this 
section, the Commission may, and upon the written request of the 
manufacturer or private labeler shall, include any comments or other 
information or a summary thereof submitted by the manufacturer or 
private labeler, to the extent permitted by and subject to the 
requirements of section 6 of the CPSA.
    (b) Explanatory statement. The Commission may accompany the 
disclosure of information subject to this subpart with an explanatory 
statement that makes the nature of the information disclosed clear to 
the public. The Commission also may accompany the disclosure with any 
other relevant information in the Commission's possession that places 
the disclosed information in context.
    (c) Disclosing materially more or materially different information. 
If the Commission intends to disclose information, not previously 
disclosed, that in context does not disclose materially more or 
materially different information about the consumer product than what 
the Commission previously disclosed in accordance with the law, the 
Commission is not obligated to take any additional steps to assure 
accuracy unless the Commission has reason to question the accuracy of 
the information.


Sec.  1101.32  Reasonable steps to assure disclosure of information is 
accurate.

    (a) The following types of actions are reasonable steps to assure 
the accuracy of information that the Commission proposes to disclose to 
the public:
    (1) The Commission staff or a qualified person or entity outside 
the Commission (e.g., someone with requisite training or experience, 
such as a fire marshal, a fire investigator, an electrical engineer, or 
an attending physician) conducts an investigation that yields or 
corroborates the information to be disclosed;
    (2) The Commission staff conducts a technical, scientific, or other 
evaluation that yields or corroborates the information to be disclosed 
or the staff obtains a copy of such an evaluation conducted by a 
qualified person or entity;
    (3) The Commission staff relies on a statement made under oath, or 
a similar statement enforceable under penalty of perjury (e.g., 28 
U.S.C. 1746), that yields or corroborates the information to be 
disclosed; or
    (4) The person who submitted the information to the Commission 
confirms the information as accurate to the best of the submitter's 
knowledge and belief, provided that:
    (i) The confirmation is made by the person injured or nearly 
injured in an incident involving the product;
    (ii) The confirmation is made by a person who, on the basis of his 
or her own observation or experience, identifies an alleged safety-
related defect in or problem with such a product even though no 
incident or injury associated with the defect or problem may have 
occurred;

[[Page 10458]]

    (iii) The confirmation is made by an eyewitness to an injury or 
safety-related incident involving such a product;
    (iv) The confirmation is made by an individual with requisite 
training or experience who has investigated and/or determined the cause 
of deaths, injuries or safety-related incidents involving such a 
product. Such persons would include, for example, a fire marshal, a 
fire investigator, an electrical engineer, an ambulance attendant, or 
an attending physician; or
    (v) The confirmation is made by a parent or guardian of a child 
involved in an incident involving such a product, or by a person to 
whom a child is entrusted on a temporary basis.
    (b) In addition to the reasonable steps specified in Sec.  
1101.32(a), the Commission may include the explanatory statement in 
Sec.  1101.31(b) to assure the accuracy of the information proposed for 
disclosure.
    (c) The steps set forth below are steps the Commission will take to 
analyze the accuracy of information that the Commission proposes to 
disclose to the public:
    (1) The Commission will review each proposed disclosure of 
information which is susceptible of factual verification to assure that 
reasonable steps have been taken to assure accuracy in accordance with 
paragraphs (a) and (b).
    (2) As described in subpart C, the Commission will provide a 
manufacturer or private labeler with a summary or text of the 
information the Commission proposes to disclose and will invite comment 
with respect to that information.
    (3) If the Commission receives no comments or only general, non-
specific comments claiming inaccuracy, the Commission will review the 
information in accordance with paragraph (a) and disclose it, generally 
without further investigating the accuracy of the information, if there 
is nothing on the face of the information that calls its accuracy into 
question.
    (4) If a manufacturer or private labeler provides specific comments 
on the accuracy of the information that the Commission proposes to 
disclose, the Commission will review the information in light of the 
comments. The degree of review by the Commission and the weight 
accorded a manufacturer's or private labeler's comments will be 
directly related to the specificity and completeness of the firm's 
comments. Specific comments supported by documentation will be given 
more weight than non-specific comments. Further steps may be taken to 
determine the accuracy of the information if the Commission determines 
such action appropriate.


Sec.  1101.33  Reasonable steps to assure information disclosure is 
fair in the circumstances.

    (a) The following types of actions are reasonable steps to assure 
disclosure of information to the public is fair in the circumstances:
    (1) To the extent permitted by and subject to the requirements of 
section 6 of the CPSA, the Commission may, and upon the written request 
of the manufacturer or private labeler shall, accompany information 
disclosed to the public with the manufacturer's or private labeler's 
comments or other information or a summary thereof. If the manufacturer 
or private labeler objects to the disclosure of its comments or a 
portion thereof, the manufacturer or private labeler must provide the 
basis for its request that the comments not be disclosed.
    (2) The Commission may accompany the disclosure of information with 
an explanatory statement that makes the nature of the information 
disclosed clear to the public. Subject to the requirements of section 
6(b)(1) and other requirements of law, the Commission also may disclose 
any other relevant information in its possession that will assure 
disclosure is fair in the circumstances.
    (b) The Commission will not disclose information when it determines 
that disclosure would not be fair in the circumstances. The following 
are examples of disclosures that generally would not be fair in the 
circumstances:
    (1) Disclosure of information furnished by a manufacturer or 
private labeler to facilitate prompt remedial action or settlement of a 
case when the firm has a reasonable expectation that the information 
will be maintained by the Commission in confidence.
    (2) Disclosure of staff notes or minutes of meetings to discuss or 
negotiate settlement agreements and of drafts of documents prepared 
during settlement negotiations, where the manufacturer or private 
labeler has a reasonable expectation that such written materials will 
be maintained by the Commission in confidence.
    (3) Disclosure of a manufacturer's or private labeler's comments or 
other information or a summary thereof submitted under section 6(b)(1), 
when the Commission deems the firm has provided a sufficient basis for 
why the comments should not be disclosed.


Sec.  1101.34  Reasonable steps to assure information disclosure is 
``reasonably related to effectuating the purposes of'' the Acts.

    (a) The following types of actions are reasonable steps to assure 
that the disclosure of information to the public effectuates the 
purposes of the Acts:
    (1) Purposes of the CPSA. The Commission will review information to 
determine whether disclosure is reasonably related to effectuating one 
or more of the specific purposes of the CPSA, including as set forth in 
sections 2(b) and 5, 15 U.S.C. 2051(b) and 2054.
    (2) Purposes of the FHSA, FFA, and PPPA. The Commission will also 
review information concerning consumer products subject to the FHSA, 
FFA, or PPPA and to the Commission's specific functions under those 
acts to determine whether disclosure of information is reasonably 
related to effectuating the purposes of those acts.
    (b) As part of its review of the information proposed for 
disclosure, the Commission will determine whether the information was 
prepared or maintained in the course of or to support an activity of 
the Commission designed to accomplish one or more of the statutory 
purposes.

Subpart E--Statutory Exceptions of Section 6(b)(4)


Sec.  1101.41  Generally.

    This subpart describes and interprets the exceptions to the 
requirements of section 6(b)(1)-(b)(3) that are set forth in section 
6(b)(4). These exceptions apply to:
    (1) Information about any consumer product with respect to which 
the Commission has filed an action under section 12 of the CPSA 
(relating to imminently hazardous products);
    (2) Information about any consumer product which the Commission has 
reasonable cause to believe is in violation of any consumer product 
safety rule or provision of the CPSA or similar rule or provision of 
any other act enforced by the Commission; or
    (3) Information in the course of or concerning:
    (i) a rulemaking proceeding under the Acts;
    (ii) an adjudicatory proceeding under the Acts; or
    (iii) any other administrative or judicial proceeding under the 
Acts.


Sec.  1101.42  Imminent hazard exception.

    (a) Statutory provision. Section 6(b)(4)(A) provides that the 
requirements of section 6(b)(1)-(3) do not apply to public disclosure 
of ``information about any consumer

[[Page 10459]]

product with respect to which product the Commission has filed an 
action under section 12 (relating to imminently hazardous products).''
    (b) Scope of exception. This exception applies once the Commission 
has filed an action under section 12 of the CPSA, 15 U.S.C. 2061, in a 
United States district court. Once the exception applies, information 
may be disclosed to the public without following the requirements of 
section 6(b)(1)-(3) if the information concerns or relates to the 
consumer product alleged to be imminently hazardous.


Sec.  1101.43  Section 6(b)(4)(A) exception.

    Section 6(b)(4)(A) provides that the requirements of section 
6(b)(1)-(3) do not apply to public disclosure of information about any 
consumer product which the Commission has reasonable cause to believe 
is in violation of any consumer product safety rule or provision of the 
CPSA or similar rule or provision of any other act enforced by the 
Commission. Once the exception applies, the Commission may disclose 
information to the public without following the requirements of section 
6(b)(1)-(3) if the information concerning the consumer product is 
reasonably related to the violation.


Sec.  1101.44  Rulemaking proceeding exception.

    (a) Statutory provision. Section 6(b)(4)(B) provides that the 
requirements of section 6(b)(1)-(3) do not apply to public disclosure 
of information ``in the course of or concerning a rulemaking proceeding 
(which shall commence upon the publication of an advance notice of 
proposed rulemaking or a notice of proposed rulemaking) * * * under 
this Act.''
    (b) Scope of exception. This exception applies upon publication in 
the Federal Register of an advance notice of proposed rulemaking or, if 
no advance notice of proposed rulemaking is issued, upon publication in 
the Federal Register of a notice of proposed rulemaking, under any of 
the Acts. Once the exception applies, the Commission may publicly 
disclose information in the course of the rulemaking proceeding, which 
is presented during the proceeding, which is contained or referenced in 
the public record of the proceeding, or which concerns the proceeding, 
without regard to the requirements of section 6(b)(1)-(3). 
Documentation supporting the public record is also excepted from 
section 6(b)(1)-(3). A rulemaking proceeding includes a proceeding to 
consider issuing, amending, or revoking a rule.
    (c) The phrase ``in the course of'' refers to information disclosed 
as part of the proceeding and may, therefore, include information 
generated before the proceeding began and later presented as part of 
the proceeding. A rulemaking proceeding ends once the Commission has 
published the final rule or a notice of termination of the rulemaking 
in the Federal Register.
    (d) The phrase ``concerning'' refers to information about or 
addressing the proceeding both after the proceeding has begun and 
indefinitely thereafter. Therefore, the Commission may at any time 
publicly disclose information that describes or relates to the 
substance, process, or outcome of the proceeding. For example, 
Commissioners may publicly explain their individual votes and any 
decision rendered by issuing written opinions and making public 
statements.


Sec.  1101.45  Adjudicatory proceeding exception.

    (a) Statutory provision. Section 6(b)(4)(B) provides that the 
requirements of section 6(b)(1)-(3) do not apply to public disclosure 
of ``information in the course of or concerning * * * [an] adjudicatory 
proceeding (which shall commence upon the issuance of a complaint) * * 
* under this Act.''
    (b) Scope of exception. This exception applies once the Commission 
files a complaint under section 15(c) or (d), 17(a)(1) or (3), or 20 of 
the CPSA, 15 U.S.C. 2064(c) or (d), 2066(a)(1), or (3), or 2069; 
section 15 of the FHSA, 15 U.S.C. 1274; section 5(b) of the FFA, 15 
U.S.C. 1194(b); or section 4(c) of the PPPA, 15 U.S.C. 1473(c). An 
adjudicatory proceeding ends when the Commission issues a final order, 
16 CFR 1025.51-1025.58.
    (c) The phrase ``in the course of'' refers to information disclosed 
as part of the adjudication, whether in documents filed or exchanged 
during discovery, or in testimony given in such proceedings, and may 
therefore, include disclosure during the adjudication of information 
generated before the adjudication began.
    (d) The phrase ``concerning'' refers to information about or 
addressing the administrative adjudication, both once it begins and 
indefinitely thereafter. Therefore, the Commission may at any time 
publicly disclose information that describes or relates to the 
substance, process, or outcome of the proceeding. For example, (i) 
Commissioners may publicly explain their individual votes and any 
decision rendered by issuing written opinions and making public 
statements and (ii) the Commission may disclose information regarding 
the effectiveness of any corrective action, such as information on the 
number of products corrected as a result of a remedial action.


Sec.  1101.46  Other administrative or judicial proceeding exception.

    (a) Statutory provision. Section 6(b)(4)(B) provides that the 
requirements of section 6(b)(1)-(3) do not apply to public disclosure 
of ``information in the course of or concerning any * * * other 
administrative or judicial proceeding under this Act.''
    (b) Scope of exception. This exception applies to an administrative 
or judicial proceeding, other than a rulemaking or administrative 
adjudicatory proceeding, under the Acts. Proceedings within this 
exception include without limitation:
    (1) A proceeding to act on a petition to start a rulemaking 
proceeding. This proceeding begins with the filing of a petition and 
ends when the petition is denied or, if granted, when the rulemaking 
proceeding begins.
    (2) A proceeding to act on a request for exemption from a rule or 
regulation. This proceeding begins with the filing of a request for 
exemption and ends when the request is denied or, if granted, when the 
Commission takes the first step to implement the exemption, e.g., when 
an amendment to the rule or regulation is proposed.
    (3) A proceeding to issue a subpoena or general or special order. 
This proceeding begins with a staff request to the Commission to issue 
a subpoena or general or special order and ends once the request is 
granted or denied.
    (4) A proceeding to act on a motion to quash or to limit a subpoena 
or general or special order. This proceeding begins with the filing 
with the Commission of a motion to quash or to limit and ends when the 
motion is granted or denied.
    (5) Any judicial proceeding to which the Commission is a party. 
This proceeding begins when a complaint or other pleading is filed and 
ends when a final decision (including appeal) is rendered with respect 
to the Commission.
    (6) Any administrative proceeding to which the Commission is a 
party, such as an administrative proceeding before the Merit Systems 
Protection Board or the Federal Labor Relations Authority. This 
proceeding begins and ends in accordance with the applicable 
regulations or procedures of the administrative body before which the 
proceeding is heard.
    (7) A proceeding to obtain a retraction from the Commission 
pursuant to subpart F of these rules. This

[[Page 10460]]

proceeding begins with the filing with the Secretary of the Commission 
of a request for retraction and ends when the request is denied or, if 
granted, when the information is retracted.
    (c) The phrase ``in the course of or concerning'' shall be 
interpreted consistent with Sec.  1101.44 (c) and (d) or Sec.  
1101.45(c) and (d), as applicable.

Subpart F--Retraction


Sec.  1101.51  Commission interpretation.

    (a) Statutory provisions. Section 6(b)(7) of the CPSA provides: 
``If the Commission finds that, in the administration of this Act, it 
has made public disclosure of inaccurate or misleading information 
which reflects adversely upon the safety of any consumer product or 
class of consumer products, or the practices of any manufacturer, 
private labeler, distributor, or retailer of consumer products, it 
shall, in a manner equivalent to that in which such disclosure was 
made, take reasonable steps to publish a retraction of such inaccurate 
or misleading information.''
    (b) Scope. Section 6(b)(7) applies to information disclosed by the 
Commission, any member of the Commission, or any employee, agent, or 
representative, including contractor, of the Commission in an official 
capacity, in the course of administration of the Acts.


Sec.  1101.52  Procedure for retraction.

    (a) Retraction Upon Commission's Own Initiative or Request. The 
Commission may publish a retraction of information under section 
6(b)(7) upon the initiative of the Commission or upon the request of a 
manufacturer, private labeler, distributor, or retailer of a consumer 
product, in accordance with the procedures provided in this section.
    (b) Request for retraction. Any manufacturer, private labeler, 
distributor, or retailer of a consumer product may request that the 
Commission publish a retraction if they believe the Commission, any 
member of the Commission, or any employee, agent, or representative, 
including contractor, of the Commission in an official capacity has, in 
the course of administration of the Acts, made public disclosure of 
inaccurate or misleading information, which reflects adversely upon the 
safety of any consumer product or class of consumer products, or the 
practices of a covered firm. The request must be in writing and sent 
via either electronic mail to [email protected] or first class mail 
addressed to the Office of the Secretary, U.S. Consumer Product Safety 
Commission, 4330 East West Highway, Bethesda, MD 20814-4408.
    (c) Content of request. A request that the Commission publish a 
retraction must include the following information to the extent it is 
reasonably available:
    (1) The identity and relationship (i.e., manufacturer, private 
labeler, distributor, or retailer) of the requester.
    (2) The information disclosed for which retraction is requested, 
the date on which the information was disclosed, the manner in which it 
was disclosed, who disclosed it, the type of document (e.g., letter, 
memorandum, news release) and any other relevant information the 
requester has to assist the Commission in identifying the information. 
A reproduction of the disclosure (e.g., image, audio or video file, 
copy of document) should accompany the request, if practicable.
    (3) A statement of the specific aspects of the information that the 
requester believes are inaccurate or misleading and reflect adversely 
upon the safety of a consumer product or class of consumer products, or 
the practices of a covered firm.
    (4) A statement of the reasons the requester believes the 
information is inaccurate or misleading and reflects adversely upon the 
safety of a consumer product or class of consumer products, or the 
practices of a covered firm.
    (5) A statement of the specific action the requester asks the 
Commission to take in publishing a retraction in a manner equivalent to 
that in which disclosure was made.
    (6) Any additional data or information the requester believes is 
relevant.
    (d) Commission action on request. The Commission will act 
expeditiously on any request that the Commission publish a retraction 
within 30 working days unless the Commission determines, for good 
cause, that a longer time period is appropriate. If the Commission 
finds that the Commission, any member of the Commission, or any 
employee, agent, or representative, including contractor, of the 
Commission in an official capacity has, in the course of administration 
of the Acts, made public disclosure of inaccurate or misleading 
information that reflects adversely upon the safety of a consumer 
product or class of consumer products, or the practices of a covered 
firm, the Commission will publish a retraction of information in a 
manner equivalent to that in which the disclosure was made. If 
publication in a manner equivalent to that in which the disclosure was 
made is not practicable or could result in further disclosure of the 
information, the Commission will publish a retraction or take other 
action in a manner that the Commission determines appropriate under the 
circumstances and consistent with the purposes of section 6(b)(7).
    (e) Notification to requester. The Commission will promptly notify 
the requester in writing of the Commission's decision on the request to 
publish a retraction. Notification shall set forth the reasons for the 
Commission's decision.

Subpart G--Information Submitted Pursuant to Section 15(b) of the 
CPSA


Sec.  1101.61  Generally.

    (a) Generally. In addition to the requirements of section 6(b)(1), 
section 6(b)(5) of the CPSA imposes further limitations on the 
disclosure of information submitted to the Commission pursuant to 
section 15(b) of the CPSA, 15 U.S.C. 2064(b).
    (b) Criteria for disclosure. Under section 6(b)(5), the Commission 
shall not disclose to the public information that has been identified 
as submitted pursuant to section 15(b) and 16 CFR 1115.13. The 
Commission may disclose information submitted pursuant to section 15(b) 
in accordance with sections 6(a) and 6(b)(1)-(3) if:
    (i) The Commission has issued a complaint under section 15(c) or 
(d) of the CPSA alleging that the product presents a substantial 
product hazard;
    (ii) In lieu of proceeding against such product under section 15(c) 
or (d), the Commission has accepted in writing a remedial settlement 
agreement, including but not limited to, a corrective action plan or 
consent order, dealing with such product; or
    (iii) The Commission publishes a finding that the public health and 
safety requires public disclosure with a lesser period of notice than 
is required by section 6(b)(1).
    (c) Disclosure upon consent. The Commission may disclose 
information submitted pursuant to section 15(b) without following the 
requirements of section 6(a) or 6(b) if the person who submitted the 
information under section 15(b) agrees to its public disclosure.


Sec.  1101.62  Statutory exceptions to section 6(b)(5) requirements.

    (a) Scope. The limitations established by section 6(b)(5) do not 
apply to the public disclosure of:
    (1) Information with respect to a consumer product which is the 
subject of an action brought under section 12 (see Sec.  1101.42);
    (2) Information with respect to a consumer product which the 
Commission has reasonable cause to believe is in violation of any 
consumer

[[Page 10461]]

product safety rule or provision under the CPSA or similar rule or 
provision of any other act enforced by the Commission; or
    (3) Information in the course of or concerning a judicial 
proceeding (see Sec.  1101.45).


Sec.  1101.63  Information submitted pursuant to section 15(b) of the 
CPSA.

    (a) Section 6(b)(5) applies to:
    (1) Information provided to the Commission by a manufacturer, 
distributor, or retailer that has been identified by the manufacturer, 
distributor or retailer as submitted pursuant to section 15(b) and 16 
CFR 1115.13;
    (2) Any portions of documents generated by the Commission, any 
member of the Commission, or any employee, agent, or representative, 
including contractor, of the Commission in an official capacity that 
contain, summarize or otherwise reveal such information identified as 
submitted pursuant to section 15(b) and 16 CFR 1115.13; and
    (3) Any oral communications made by the Commission, any member of 
the Commission, or any employee, agent, or representative, including 
contractor, of the Commission in an official capacity that reveal or 
refer to information identified as submitted pursuant to section 15(b) 
and 16 CFR 1115.13.
    (b) Section 6(b)(5) does not apply to:
    (1) Information independently obtained or prepared, or developed 
through subsequent investigation and verification, by the Commission, 
any member of the Commission, or any employee, agent, or 
representative, including contractor, of the Commission in an official 
capacity; or
    (2) Information that is already available to the public, including 
but not limited to, information appearing in a company's press 
statements, websites, Frequently Asked Questions, product user manuals, 
sales materials, Securities and Exchange Commission filings, or other 
public statements or documents published or publicly disseminated by a 
manufacturer, distributor, or retailer.

Subpart H--Delegation of Authority to Information Group


Sec.  1101.71  Delegation of authority.

    (a) Delegation. Pursuant to section 27(b)(10) of the CPSA, 15 
U.S.C. 2076(b)(10), the Commission delegates to the General Counsel:
    (1) The authority to render all decisions under this part 
concerning the disclosure of information subject to section 6(b) when 
the manufacturer or private labeler furnished section 6(b) comment, 
except as provided in paragraph (b); and
    (2) The authority to make all decisions under this part concerning 
the disclosure of information under section 6(b) when the manufacturer 
or private labeler failed to furnish section 6(b) comment or has 
consented to disclosure, except as provided in paragraph (b).
    (b) Findings not delegated. The Commission does not delegate its 
authority--
    (1) To find, pursuant to section 6(b)(1) and Sec.  1101.23(b) of 
this part, that the public health and safety requires less than 15 
calendar days' advance notice of proposed disclosures of information;
    (2) To find, pursuant to section 6(b)(2) and Sec.  1101.25(b) of 
this part, that the public health and safety requires less than 5 
calendar days' advance notice of its intent to disclose information 
claimed to be inaccurate; and
    (3) To decide whether the Commission should take reasonable steps 
to publish a retraction of information in accordance with section 
6(b)(7) and Sec.  1101.52 of this part.
    (c) Final agency action; Commission decision. A decision of the 
General Counsel on delegated authority under paragraph (a) shall not be 
appealable as of right to the Commission. However, the General Counsel 
may in his or her discretion refer an issue to the Commission for final 
decision.

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2023-03021 Filed 2-16-23; 8:45 am]
BILLING CODE 6355-01-P