PART 1101—INFORMATION DISCLOSURE UNDER SECTION 6(b) OF THE CONSUMER PRODUCT SAFETY ACT Authority: Section 6(b) of Public Law 92-573, as amended by Section 211 of Public Law 110-314, 122 Stat. 3016, 15 U.S.C. 2055(b), 5 U.S.C. 553(b). Source: 48 FR 57430, Dec. 29, 1983, unless otherwise noted. Subpart A—Background § 1101.1 General background. (a) Basic purpose. (b) Statutory requirements. (1) Generally, section 6(b)(1) requires the Commission to provide manufacturers or private labelers with advance notice and opportunity to comment on information the Commission proposes to release, if the public can readily ascertain the identity of the firm from the information. Section 6(b)(1) also requires the Commission to 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 administered by the Commission. Disclosure of information may not occur in fewer than 15 days after notice to the manufacturer or private labeler unless the Commission publishes a finding that the public health and safety requires a lesser period of notice. Exceptions to these requirements are established in section 6(b)(4). Additional limitations on the disclosure of information reported to the Commission under section 15(b) of the CPSA are established in section 6(b)(5). (2) Section 6(b)(2) requires the Commission to provide further notice to manufacturers or private labelers where the Commission proposes to disclose product-specific information the firms have claimed to be inaccurate. (3) Section 6(b)(3) authorizes manufacturers and private labelers to bring lawsuits against the Commission to prevent disclosure of product-specific information after the firms have received the notice specified. (c) Internal clearance procedures. [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72334, Nov. 28, 2008] § 1101.2. Scope. Section 6(b) and these rules apply to information concerning products subject to the CPSA (15 U.S.C. 2051-2085), and to the four other acts the Commission administers (transferred acts). These transferred acts are the Flammable Fabrics Act, 15 U.S.C. 1191-1204 (FFA); the Poison Prevention Packaging Act of 1970, 15 U.S.C. 1471-1476 (PPPA); the Federal Hazardous Substances Act, 15 U.S.C. 1261-1276 (FHSA); and the Refrigerator Safety Act, 15 U.S.C. 1211-1214 (RSA). These provisions are now applicable to the Virginia Graeme Baker Pool and Spa Safety Act, 15 U.S.C. 8003(a); and the Children's Gasoline Burn Prevention Act § 2(a), Public Law 110-278, 122 Stat. 2602 (July 17, 2008). [73 FR 72334, Nov. 28, 2008] Subpart B—Information Subject to Notice and Analysis Provisions of Section 6(b)(1) § 1101.11 General application of provisions of section 6(b)(1). (a) Information subject to section 6(b)(1). (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. (2) 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. (3) The Commission or its members, employees, agents or representatives must propose to disclose the information to the public (see § 1101.12). (4) The manner in which the product is designated or described in the information must permit the public to ascertain readily the identity of the manufacturer or private labeler. [See § 1101.13.] (b) Information not subject to section 6(b)(1). (1) Information described in the exclusions contained in section 6(b)(4) of the CPSA (see subpart E of this rule). (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. 2068(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 the Commission's Export Policy Statement, 16 CFR part 1017.) (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) Press releases issued by firms. (5) 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. § 1101.12 Commission must disclose information to the public. Public. (a) Members, employees, agents, representatives and contractors of the Commission, in their official capacity. (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. Such officials may not release to the public copies of such information unless the Commission has complied with section 6(b) or the information falls within an exception 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) The persons or firms to whom the information to be disclosed pertains, or their legal representatives. (e) The persons or firms who provided the information to the Commission, or their legal representatives. (f) Other Federal agencies or state or local governments to whom 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 Consumer Product Safety Improvement Act of 2008 (Pub. L. 110-314, 122 Stat. 3016 (August 14, 2008)). [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72335, Nov. 28, 2008] § 1101.13 Public ability to ascertain readily identity of manufacturer or private labeler. The advance notice and analysis provisions of section 6(b)(1) apply only when a reasonable person receiving the information in the form in which it is to be disclosed and lacking specialized expertise can readily ascertain from the information itself the identity of the manufacturer or private labeler of a particular product. 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. Subpart C—Procedure for Providing Notice and Opportunity To Comment Under Section 6(b)(1) § 1101.21 Form of notice and opportunity to comment. (a) Notice may be oral or written. (b) Content of notice. (1) Either the actual text of the information to be disclosed or, if appropriate, 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. 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. (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, in the absence of a specific request by a firm that its comments be withheld from disclosure, the Commission will release to the public the firm's comments (or a summary thereof prepared by the firm or, if the firm declines to do so, by the Commission). (5) A statement that a request that comments be withheld from disclosure will be honored. (6) Notice that the firm may request confidential treatment for the information, in accordance with section 6(a)(3) of the Consumer Product Safety Act, 15 U.S.C. 2055(a)(3) ( see (7) A statement that no further request for comment will be sought by the Commission if it intends to disclose the identical information in the same format, unless the firm specifically requests the opportunity to comment on subsequent information disclosures. (8) The name, address, and telephone number of the person to whom comments should be sent and the time when any comments are due ( see [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72335, Nov. 28, 2008] § 1101.22 Timing: request for time extensions. (a) Time for comment. (2) 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. 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 (b) No response submitted. (2) Unless the Commission publishes a finding that the public health and safety requires a lesser period of notice (see § 1101.23), the Commission will not disclose the information in fewer than 15 days after providing a manufacturer or private labeler notice and opportunity to comment. (c) Requests for time extension. (2) Requests for extension of time must explain with specificity why the extension is needed and how much additional time is required. (3) The Commission will promptly respond to requests for extension of time. [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72335, Nov. 28, 2008] § 1101.23 Providing less than 15 days notice before disclosing information. There are two circumstances in which the Commission may disclose to the public information subject to section 6(b)(1) in a time less than 15 days after providing notice to the manufacturer or private labeler. (a) Firm agrees to lesser period or does not object to disclosure. (b) Commission finding a lesser period is required. (c) Notice of finding. [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72335, Nov. 28, 2008] § 1101.24 Scope of comments Commission seeks. (a) Comment in regard to the information. (b) Claims of confidentiality. (c) Requests for nondisclosure of comments. § 1101.25 Notice of intent to disclose. (a) Notice to manufacturer or private labeler. (b) Commission finding a lesser period is required. (c) Notice of findings. [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72335, Nov. 28, 2008] § 1101.26 Circumstances when the Commission does not provide notice and opportunity to comment. (a) Notice to the extent practicable. (b) Circumstances when notice and opportunity to comment is not practicable. not (1) When the Commission has taken reasonable steps to assure that the company 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. 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 § 1101.31 General requirements. (a) Timing of decisions. (b) Inclusion of comments. (c) Explanatory statements. (d) Information previously disclosed. [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72335, Nov. 28, 2008] § 1101.32 Reasonable steps to assure information is accurate. (a) The Commission considers that the following types of actions are reasonable steps to assure the accuracy of information it proposes to release 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 or an inspection which yields or corroborates the product information to be disclosed; or (2) The Commission staff conducts a technical, scientific, or other evaluation which yields or corroborates the product information to be disclosed or the staff obtains a copy of such an evaluation conducted by a qualified person or entity; or (3) The Commission staff provides the information to be disclosed to the person who submitted it to the Commission for review and, if necessary, correction, and the submitter 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; or (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; or (iii) The confirmation is made by an eyewitness to an injury or safety-related incident involving such a product; or (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) The steps set forth below are the steps the Commission will take to analyze the accuracy of information which it proposes to release 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 § 1101.32(a). (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, undocumented comments claiming inaccuracy, the Commission will review the information in accordance with § 1101.32(a) and release it, generally without further investigating its accuracy if there is nothing on the face of the information that calls its accuracy into question. (4) If a firm comments on the accuracy of the information 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 firm's comments will be directly related to the specificity and completeness of the firm's comments on accuracy and the accompanying documentation. Documented comments will be given more weight than undocumented comments. Specific comments will be given more weight than general comments. Further steps may be taken to determine the accuracy of the information if the Commission determines such action appropriate. § 1101.33 Reasonable steps to assure information release is fair in the circumstances. (a) The steps set forth below are the steps the Commission has determined are reasonable to take to assure disclosure of information to the public is fair in the circumstances: (1) The Commission will accompany information disclosed to the public with the manufacturer's or private labeler's comments unless the manufacturer or private labeler asks in its section 6(b) comments that its comments or a designated portion thereof not accompany the information. (2) The Commission generally will accompany the disclosure of information with an explanatory statement that makes the nature of the information disclosed clear to the public. The Commission will also take reasonable steps to disclose any other relevant information it its possession that will assure disclosure is fair in the circumstances. (3) 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. (4) 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. (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 which generally would not be fair in the circumstances. (1) Disclosure of information furnished by a firm 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 concidence. (2) Disclosure of notes or minutes of meetings to discuss or negotiate settlement agreements and of drafts of documents prepared during settlement negotiations, where the firm has a reasonable expectation that such written materials will be maintained by the Commission in confidence. (3) 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. (4) Disclosure of a firm's comments (or a portion thereof) submitted under section 6(b)(1) over the firm's objection. § 1101.34 Reasonable steps to assure information release is “reasonably related to effectuating the purposes of the Acts” the Commission administers. (a) The steps set forth below are the steps the Commission has determined are reasonable to take to assure that the disclosure of information to the public effectuates the purposes of the Acts it administers. (1) Purposes of the CPSA. (2) Purposes of the FHSA, FFA, PPPA and RSA. (3) Purposes of the FOIA. (b) In reviewing proposed information disclosures, the Commission will consider disclosing the material on the basis of whether release of the information, when taken as a whole, was prepared or is maintained in the course of or to support an activity of the Commission designed to accomplish one or more of the statutory purposes. Subpart E—Statutory Exceptions of Section 6(b)(4) § 1101.41 Generally. (a) Scope. (1) Information about a product reasonably related to the subject matter of an imminent hazard action in federal court; (2) Information about a product which the Commission has reasonable cause to believe is in violation of any consumer product safety rule or provision under the Consumer Product Safety Act (15 U.S.C. 2051, et seq. (3) Information in the course of or concerning a rulemaking proceeding; or (4) information in the course of or concerning an adjudicatory, administrative or judicial proceeding. (b) Application to transferred act. [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72335, Nov. 28, 2008] § 1101.42 Imminent hazard exception. (a) Statutory provision. (b) Scope of exception. § 1101.43 Section 6(b)(4)(A) exception. (a) Statutory provision. et seq. (b) Scope of exception. et seq. [73 FR 72335, Nov. 28, 2008] § 1101.44 Rulemaking proceeding exception. (a) Statutory provision. (b) Scope of exception. Federal Register Federal Register (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 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. § 1101.45 Adjudicatory proceeding exception. (a) Statutory provision. (b) Scope of exception. (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 information generated before the adjudication began. (d) 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. [48 FR 57430, Dec. 29, 1983, as amended at 49 FR 8428, Mar. 7, 1984] § 1101.46 Other administrative or judicial proceeding exception. (a) Statutory provision. (b) Scope of exception. (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. 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. (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 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 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) In the course of or concerning. Subpart F—Retraction § 1101.51 Commission interpretation. (a) Statutory provisions. (b) Scope. adverse—i.e., § 1101.52 Procedure for retraction. (a) Initiative. (b) Request for retraction. (c) Content of request. (1) 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 firm has to assist the Commission in identifying the information. A photocopy of the disclosure should accompany the request. (2) A statement of the specific aspects of the information the firm believes are inaccurate or misleading and reflect adversely either on the safety of a consumer product with which the firm deals or on the firm's practices. (3) A statement of the reasons the firm believes the information is inaccurate or misleading and reflects adversely either on the safety of a consumer product with which the firm deals or on the firm's practices. (4) A statement of the action the firm requests the Commission to take in publishing a retraction in a manner equivalent to that in which disclosure was made. (5) Any additional data or information the firm believes is relevant. (d) Commission action on request. (e) Notification to requester. Subpart G—Information Submitted Pursuant to Section 15(b) of the CPSA § 1101.61 Generally. (a) Generally. (b) Criteria for disclosure. (1) The Commission has issued a complaint under section 15 (c) or (d) of the CPSA alleging that such product presents a substantial product hazard; or (2) 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; or (3) The person who submitted the information under section 15(b) agrees to its public disclosure. (4) 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). [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72335, Nov. 28, 2008] § 1101.62 Statutory exceptions to section 6(b)(5) requirements. (a) Scope. (1) Information with respect to a consumer product which is the subject of an action brought under section 12 ( see (2) Information with respect to a consumer product which the Commission has reasonable cause to believe is in violation of any consumer product safety rule or provision under the Consumer Product Safety Act (Pub. L. 92-573, 86 Stat. 1207, as amended (15 U.S.C. 2051, et seq. (3) Information in the course of or concerning a judicial proceeding ( see [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72335, Nov. 28, 2008] § 1101.63 Information submitted pursuant to section 15(b) of the CPSA. (a) Section 6(b)(5) applies only to information provided to the Commission by a manufacturer, distributor, or retailer which is identified by the manufacturer, distributor or retailer, or treated by the Commission staff as being submitted pursuant to section 15(b). (b) Section 6(b)(5)'s limitation also applies to the portions of staff generated documents that contain, summarize or analyze such information submitted pursuant to section 15(b). (c) Section 6(b)(5) does not apply to information independently obtained or prepared by the Commission staff. Subpart H—Delegation of Authority to Information Group § 1101.71 Delegation of authority. (a) Delegation. (b) Findings not deleted. (1) To find, pursuant to section 6(b)(1) and § 1101.23(b) of this part, that the public health and safety requires less than 15 days advance notice of proposed disclosures of information. (2) To find, pursuant to section 6(b)(2) and § 1101.25(b) of this part, that the public health and safety requires less than five (5) days advance notice of its intent to disclose information claimed to be inaccurate; (3) To decide whether it should take reasonable steps to publish a retraction of information in accordance with section 6(b)(7) and § 1101.52 of this part. (c) Final agency action; Commission decision. [48 FR 57430, Dec. 29, 1983, as amended at 73 FR 72335, Nov. 28, 2008]