[Federal Register Volume 79, Number 38 (Wednesday, February 26, 2014)]
[Proposed Rules]
[Pages 10712-10730]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03600]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1101

[CPSC Docket No. CPSC-2014-0005]


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

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Consumer Product Safety Commission (Commission, CPSC, or 
we) is issuing this notice of proposed rulemaking (NPR) to update the 
regulation that interprets section 6(b) of the Consumer Product Safety 
Act (CPSA). In 1983, the Commission issued a regulation interpreting 
the provisions of section 6(b) of the CPSA, and we are proposing to 
modernize that regulation to account for the significant improvements 
in information technology that have occurred since the regulation's 
adoption. We are also proposing to streamline the regulation to be as 
closely aligned with section 6(b) as possible, while maintaining our 
compliance with the statutory requirements and the protections of 
section 6(b)(5) for information filed in accordance with the 
requirements of section 15(b) of the CPSA. This NPR seeks comments on 
the proposed changes to the regulation.

DATES: Written comments must be received by April 28, 2014.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2014-
0005, by any of the following methods:

Electronic Submissions

    Submit electronic comments in the following way:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    The Commission is no longer accepting comments submitted by 
electronic mail (email), except through: http://www.regulations.gov.

Written Submissions

    Submit written submissions in the following way:
    Mail/Hand delivery/Courier (for paper, disk, or CD-ROM 
submissions), preferably in five copies, to: Office of the Secretary, 
U.S. Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, MD 20814-4408; telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name 
and docket number for this proposed rule. All comments received may be 
posted without change, including any personal identifiers, contact 
information, or other personal information provided to: http://www.regulations.gov. Do not submit confidential business information, 
trade secret information, or other sensitive or protected information 
electronically. Such information should be submitted in writing, with 
the sensitive portions clearly identified.
    Docket: For access to the docket to read background documents or 
comments received, go to: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Todd A. Stevenson, Secretariat, Office 
of the Secretary, U.S. Consumer Product Safety Commission, 4330 East 
West Highway, Bethesda, MD 20814-4408; telephone (301) 504-6836; 
tstevenson@cpsc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 6(b) of the CPSA governs information disclosure by the 
Commission to the public. When disclosing information, the Commission, 
to the extent practicable, shall notify each manufacturer or private 
labeler of information to be disclosed that ``pertains'' to a consumer 
product, if the information ``will permit the public to ascertain 
readily the identity of [the] manufacturer or private labeler'' of the 
product. 15 U.S.C. 2055(b). Section 6(b)(1) also requires the 
Commission to ``take reasonable steps to assure'' that the information 
to be disclosed ``is accurate, and that [its] disclosure is fair in the 
circumstances and reasonably related to effectuating the purposes of 
[the CPSA].'' Id. In 1980, the U.S. Supreme Court ruled that 
disclosures under the Freedom of Information Act (FOIA) are covered by 
the section 6(b)(1) restrictions. Consumer Product Safety Commission v. 
GTE Sylvania, Inc., 447 U.S. 102 (1980).
    On December 29, 1983, we published a final rule interpreting 
section 6(b) of the CPSA. 48 FR 57430. The rule, 16 CFR part 1101, 
describes our procedures for providing manufacturers and private 
labelers with advance notice and ``a reasonable opportunity to submit 
comments'' to the Commission on proposed disclosures of product-
specific information. The rule also explains the ``reasonable steps'' 
we will take pursuant to section 6(b) to assure, prior to public 
disclosure of product-specific information, that (1) the information is 
accurate; (2) disclosure of the information is fair in the 
circumstances; and (3) disclosure of the information is reasonably 
related to effectuating the purposes of the statutes the Commission 
administers.
    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 the time periods from 
30 to 15 days for manufacturers and private labelers to receive advance 
notice and have an opportunity to comment on any disclosure to the 
public of product-specific information. 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

[[Page 10713]]

public disclosure within a lesser period of notice than required by 
section 6(b)(1). The amendments also broadened the statutory exceptions 
to section 6(b). For example, the amendments excluded from section 6(b) 
the public disclosure of 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 CPSA or similar 
rule or provision of any other Act enforced by the Commission. On 
November 28, 2008, we published a final rule to reflect these statutory 
amendments. 73 FR 72335.
    On May 3, 2013, the Commission voted (2-1) to approve, with 
changes, the Fiscal Year 2013 Midyear Review and Operating Plan 
Adjustments (FY 2013 Midyear Adjustments), which directed staff to 
present for Commission consideration, an NPR updating the rule in 
accordance with the following guiding principles:
    1. Modernize the rule to account for the significant advancements 
in information technology that have taken place since its initial 
adoption in 1983;
    2. streamline the rule 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 Freedom of Information Act (FOIA) backlogs, and (e) 
maximizing transparency and openness in our 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) (e.g., 
Section 15(b) reports).

See http://www.cpsc.gov//Global/Newsroom/FOIA/Records-of-Commission-Action-and-Meeting-Minutes/RCAFY13MidyearReviewandOperatingPlanAdjustments%20050313.pdf. The 
Commission is proposing this amendment to update the rule in accordance 
with the principles specified in the FY 2013 Midyear Adjustments. This 
proposed amendment also contains technical revisions, including 
typographical and citation corrections, and changes to conform the rule 
to the statute.\1\
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    \1\ The Commission voted 2-1 to approve the Proposed Rule as 
amended.
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II. Description of the Proposed Rule

    The proposal would amend Title 16 of the Code of Federal 
Regulations: Part 1101, titled ``Information Disclosure Under Section 
6(b) of the Consumer Product Safety Act.'' We describe each proposed 
amendment in detail immediately below.

1. Proposed Changes to the Table of Contents

    In Sec.  1101.12, remove: ``Commission must disclose information to 
the public'' and in its place, add: ``Definition of ``public''.''

2. Proposed Changes to Sec.  1101.1 (General background.)

    Section 1101.1(b) sets forth the statutory requirements on which 
the regulation is based. Currently, the last sentence of Sec.  
1101.1(b)(1) states: ``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).'' Pursuant to section 6(b)(5), the 
Commission shall not disclose to the public information submitted to 
the Commission under section 15(b) of the CPSA. The section 6(b)(5) 
limitations, however, 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;
    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 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.

Accordingly, we propose clarifying the last sentence of Sec.  
1101.1(b)(1) to state: ``Section 6(b)(5) creates additional 
limitations, as well as exceptions to these limitations, on the 
disclosure of information reported to the Commission under section 
15(b) of the CPSA.''
    In addition, we propose the following technical changes to Sec.  
1101.1:
    A. In Sec.  1101.1(b)(1), insert: ``calendar'' between ``15'' and 
``days''.
    B. In Sec.  1101.1(b)(1), remove: ``Exceptions to these 
requirements are established in section 6(b)(4)'' and in its place, 
add: ``Section 6(b)(4) establishes exceptions to these requirements''.
    C. In the last sentence of Sec.  1101.1(c), remove: ``April 27, 
1983'' and in its place, add: ``January 16, 2003.)''.

3. Proposed Changes to Sec.  1101.2 (Scope.)

    We propose the following technical changes to Sec.  1101.2:
    A. Remove the statutory citation: ``2085'' and in its place, add: 
``2089''.
    B. Remove the statutory citation: ``1476'' and in its place, add: 
``1477''.
    C. Remove the statutory citation: ``1276'' and in its place, add: 
``1278a''.
    D. Remove: ``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 Sec.  2(a), Public Law 110-278, 
122 Stat. 2602 (July 17, 2008)'' and in its place, add: ``These 
provisions also apply to the Child Safety Protection Act 101 and 102, 
Public Law 103-267, 108 Stat. 722 (June 16, 1994) (CSPA); the Virginia 
Graeme Baker Pool and Spa Safety Act, 15 U.S.C. 8003(a) (VGBA); and the 
Children's Gasoline Burn Prevention Act 2(a), Public Law 110-278, 122 
Stat. 2602 (July 17, 2008) (CGBPA)''.

4. Proposed Changes to Sec.  1101.11 (General Application of Provisions 
of Section 6(b)(1).)

    Section 1101.11(a) sets forth information subject to section 
6(b)(1) of the CPSA. Section 6(b)(1) requires the Commission to provide 
notice and an opportunity to comment to each manufacturer or private 
labeler if the manner in which a consumer product is designated or 
described in the information proposed for disclosure ``will permit the 
public to ascertain readily the identity of such manufacturer or 
private labeler'' (emphasis added). Currently, Sec.  1101.11(a)(1) 
deviates from the statutory language, stating: ``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.'' We propose revising this provision to conform to the language 
contained in section 6(b)(1). Specifically, section 6(b)(1) requires 
notice and an opportunity to comment only if the identity of the 
manufacturer or private labeler can be ascertained readily by the 
public. Section 6(b)(1) does not require that the identity of the 
product be ascertained readily by the public. Therefore, to be as 
closely aligned with the statutory language as possible, we propose 
removing from Sec.  1101.11(a)(1) the phrase: ``which is either 
designated or described in a manner which permits its identity to be

[[Page 10714]]

ascertained readily by the public''. Proposed Sec.  1101.11(a) would 
state: ``(1) The information must pertain to a specific product.''
    Currently, 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.'' This statement 
differs from the language in section 6(b). Section 6(b) applies to the 
``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). We propose revising 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.'' Although the 
Commission would be conforming our regulation to relevant statutory 
language with this change, there is no expectation that it would reduce 
the scope of information subject to 6(b) requirements.
    Section 1101.11(b) sets forth information not subject to the 
requirements of section 6(b)(1). Currently, Sec.  1101.11(b)(1) states: 
``Information described in the exclusions contained in section 6(b)(4) 
of the CPSA (see subpart E of this rule).'' As discussed above, in 
Sec.  1101.1, section 6(b)(5)'s limitations on the disclosure of 
information reported to the Commission under section 15(b) of the CPSA 
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;
    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 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.

We propose revising Sec.  1101.11(b)(1) to clarify that the 
requirements of section 6(b)(1) do not apply to these exceptions. 
Proposed Sec.  1101.11(b)(1) would state: ``Information described in 
the exclusions contained in section 6(b)(4) or (b)(5) of the CPSA (see 
subpart E and G of this rule).''
    In addition to specifying these exceptions in the rule, we are 
proposing to include three other categories of information not subject 
to the requirements of section 6(b). Not only will these additions 
conform to new statutory requirements established by the CPSIA, but the 
additions also will maximize transparency and openness in our 
disclosure of information. Therefore, we propose adding the following 
three categories to the list of information not subject to the notice 
and comment requirements of section 6(b)(1):
    1. A report of harm posted on the publicly available consumer 
product safety information database.
    2. information that is publicly available.
    3. 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).
    Section 6A(f)(1) of the CPSA specifically excludes reports of harm 
posted on the publicly available consumer product safety information 
database from the provisions of section 6(b). To reflect this statutory 
exclusion, we propose revising Sec.  1101.11(b) to include the 
following category: ``(6) 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.''
    Section 6(b) is intended to provide firms with a review process 
before the Commission discloses to the public information obtained by 
the Commission under the CPSA. Information already in the public domain 
has not been obtained by the Commission under the CPSA, nor would the 
section 6(b) process serve any purpose with respect to information 
already disclosed other than by the Commission. Neither the statute nor 
the legislative history suggests that information that is readily 
available to the public is, or should be, subject to section 6(b)(1). 
To increase transparency, we propose revising Sec.  1101.11(b) to 
include the following category: ``(7) 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.''
    This revision in the proposed rule, however, does not change the 
Commission's obligations under both existing CPSC policy and federal 
law to assure that information disclosed by the CPSC to the public is 
accurate (CPSC Order 1450.2, Jan. 16 2003) and presented in an 
accurate, clear, complete, and unbiased manner. (Information Quality 
Act, Treasury and General Government Appropriations Act for Fiscal Year 
2001 sec. 515, Pub. L. 106-554, 144 Stat. 2763 (2001) and OMB 
Guidelines 67 FR 8452 (Feb. 22, 2002)). The Commission also notes that 
other federal health and safety agencies that do not operate under 
section 6(b)'s legal restrictions still generally coordinate the 
release of information identifying specific manufacturers with those 
manufacturers. These agencies do this in the name of assuring accuracy 
and fairness--concepts that the Commission endorses even absent the 
restrictions contained in section 6(b).
    We also propose adding to the list of information that is not 
subject to section 6(b)(1) information that is substantially the same 
as information that the Commission previously disclosed in accordance 
with section 6(b)(1). Section 6(b) does not require a new notice and 
comment process when the agency re-discloses information as to which 
appropriate notice already has been conveyed and applicable procedures 
followed.
    Although renotification is not statutorily required, firms 
currently may request renotification, or the opportunity to comment on 
subsequent disclosures of identical information. See 16 CFR 
1101.21(b)(7), 1101.31(d). The purpose of renotification was to provide 
firms with another occasion to submit substantive comments on 
information that the Commission previously released in accordance with 
the requirements of section 6(b).
    Our review of the 6(b) process and firms' comments, however, 
reveals that few firms request renotification or provide substantive 
claims concerning accuracy, fairness, or reasonable relation to 
effectuating the purposes of the statutes the Commission administers 
for the staff to evaluate prior to releasing the information. For 
example, in calendar year 2012, approximately 25 percent of firms that 
received an initial notice requested renotification. During the same 
period, the Commission renotified firms on 40 separate occasions. In 
the majority of these cases, the firms never responded, responded but 
did not provide any comments on the information, or simply repeated the 
same claims that they submitted in response to the initial notice 
without providing any additional information for the staff to evaluate. 
Renotification thus generally has not resulted in new substantive input 
to staff [nor has the renotification process yielded re-disclosures 
that are handled differently from initial disclosures]. In short, 
renotification in practice duplicates the initial notification process 
and result. As a result, and in light of the absence of any statutory 
requirement for

[[Page 10715]]

renotification, we propose removing this provision from the regulation.
    Of course, if a firm subsequently discovers new information that is 
relevant to information the Commission previously released, such as a 
reported incident, the firm may supplement its initial comments to the 
Commission. In addition, the requirements of section 6(b)(1) will apply 
if the Commission has reason to question the accuracy of the 
information proposed for a subsequent release, as specified in the 
proposed revision to Sec.  1101.31(d). Therefore, we propose revising 
Sec.  1101.11(b) to include the following category: ``(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 addition, we propose the following technical and conforming 
changes to Sec.  1101.11:
    A. In Sec.  1101.11(a)(3), remove: ``The Commission or its members, 
employees, agents or representatives must propose to disclose the 
information to the public (see Sec.  1101.12)'' and in its place, add: 
``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)''.
    B. In Sec.  1101.11(b)(2), remove the statutory citation: 
``2068(b)'' and in its place, add: ``2067(b)''.
    C. In Sec.  1101.11(b)(2), remove the regulatory citation: ``16 CFR 
part 1017'' and in its place, add: ``16 CFR part 1019''.

5. Proposed Changes to Sec.  1101.12 (Commission Must Disclose 
Information to the Public)

    We propose the following technical and conforming changes to Sec.  
1101.12:
    A. Remove the heading: ``Commission must disclose information to 
the public'' and in its place, add: ``Definition of ``public''.''
    B. In Sec.  1101.12(a), remove: ``Members, employees, agents, 
representatives and contractors of the Commission, in their official 
capacity'' and in its place, add: ``Any member of the Commission or any 
employee, agent, or representative, including contractor, of the 
Commission in an official capacity''.
    C. In Sec.  1101.12(d), remove: ``whom'' and in its place, add: 
``which''.
    D. In Sec.  1101.12(f), remove: ``Federal'' and in its place, add: 
``federal'' wherever ``Federal'' appears.
    E. In Sec.  1101.12(f), remove: ``whom'' and in its place, add: 
``which''.

6. Proposed Changes to Sec.  1101.13 (Public Ability to Ascertain 
Readily Identity of Manufacturer or Private Labeler)

    Currently, Sec.  1101.13 states: ``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.''
    We propose deleting from Sec.  1101.13 the following sentence: 
``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.'' The 
Commission adopted a ``reasonable person'' standard in Sec.  1101.13 
for determining whether the advance notice and analysis provisions of 
section 6(b)(1) would apply to information proposed for disclosure. 
Under this 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 information will be forwarded 
to the firm for section 6(b) comment. The Commission included the 
sentence proposed for deletion when we adopted the final rule in 1983 
in response to comments that we received. 48 FR 57409. Because we 
believe this sentence is vague and inconsistent with the reasonable 
person standard that the Commission adopted, we propose deleting the 
sentence from Sec.  1101.13. The Commission believes that in practice 
the reasonable person standard as implemented in the context of 
interpreting proposed section 1101.13 errs in favor of providing notice 
to manufacturers and private labelers.
    In addition, we propose the following technical change to Sec.  
1101.13:
    A. Remove: ``it'' and in its place, add: ``the information''.

7. Proposed Changes to Sec.  1101.21 (Form of Notice and Opportunity to 
Comment.)

    Section 6(b) requires the Commission to ``notify'' manufacturers or 
private labelers of consumer products before public disclosure of 
product-related information covered by the statute. Section 6(b) does 
not prescribe the medium to be used for providing the notice. 
Similarly, Sec.  1101.21 prescribes oral or written notice, but does 
not specify the medium to be used for written notice.
    There have been significant advancements in information technology 
and communication since we adopted the rule in 1983. As a result, use 
of electronic means to provide notice is widely accepted by other 
federal departments and agencies and courts, among others.
    Despite these advancements, the Commission continues to provide 
6(b) notice to firms via U.S. mail, a more time-consuming practice that 
incurs unnecessary costs, particularly from printing and mailing the 
relevant documents. In addition, staff resources are dedicated to 
preparing these paper mailings.
    To increase efficiency and limit unnecessary expenditures of staff 
resources, we propose revising the rule to permit electronic 6(b) 
notices, to direct the Commission to transmit requisite notices through 
an electronic medium whenever possible, and to encourage electronic 
communication with the Commission. To this end, the Commission proposes 
the following changes to Sec.  1101.21:
    A. Insert ``(1)'' before the sentence, ``The Commission will 
generally provide manufacturers or private labelers written notice and 
opportunity to comment on information subject to section 6(b)(1).''
    B. Insert the following statements after the last sentence in Sec.  
1101.21(a): ``(2) Any notice required to be given under the provisions 
of this Part 1101 may be transmitted using electronic means of 
communication. Whenever possible, the Commission will transmit such 
notice electronically.''
    C. In Sec.  1101.21(b)(8), insert: ``applicable contact information 
for electronic communication,'' between ``address,'' and ``and 
telephone number''.
    Section 1101.21(b) specifies the information that will appear in a 
section 6(b) notice. Currently, Sec.  1101.21(b)(5) states: ``A 
statement that a request that comments be withheld from disclosure will 
be honored.'' As described below, in Sec.  1101.31, we propose 
requiring a rationale, that seeks to achieve a reasonable balance 
between the public interest in transparency and the rights of 
identified firms to be assured that disclosure is fair under the 
circumstances. A firm's rationale may take various forms, such as a 
specific statutory or regulatory basis or provision or a description of 
why disclosure of the comment would be unfair in the totality of the 
circumstances.

[[Page 10716]]

    Adopting these revisions, proposed Sec.  1101.21(b)(5) would state: 
``A statement that if the manufacturer or private labeler objects to 
disclosure of its comments or a portion thereof, the manufacturer or 
private labeler must notify the Commission of such objection at the 
time the manufacturer or private labeler submits its comments, provide 
a rationale, such as an applicable statutory or regulatory basis or 
provision, for why the comments should not be disclosed, and explain 
why disclosure of the comments is not fair in the circumstances or is 
not reasonably related to effectuating the purposes of the CPSA.''
    Currently, Sec.  1101.21(b)(7) states: ``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.'' In Sec.  1101.31, the phrase, 
``identical information in the same format,'' requires the Commission 
to provide 6(b) notice for subsequent disclosures of information that 
may differ only slightly, without any impact on accuracy, from the 
information the Commission initially released in accordance with 
section 6(b). The statute by its terms does not require 6(b) notice for 
changes in the appearance of the information or for minor editorial 
changes. Therefore, we propose revising the phrase to state: 
``information that is substantially the same''. In addition, as 
discussed above, in Sec.  1101.11, we propose removing renotification 
from the rule. The renotification process, which is not required under 
the statute, has not resulted in new substantive input to staff. For 
these reasons, the Commission proposes revising Sec.  1101.21(b)(7) to 
state: ``A statement that no further request for comment will be sought 
by the Commission if the Commission intends to disclose information 
that is substantially the same as the information that the Commission 
previously disclosed.''
    In addition, we propose the following technical and conforming 
changes to Sec.  1101.21:
    A. In Sec.  1101.21(a)(1), remove: ``the Commission may determine 
that it is necessary to provide the notice and opportunity to comment 
orally, either in person or by telephone'' and in its place, add: ``the 
Commission may determine that notice and opportunity to comment orally 
is necessary''.
    B. In Sec.  1101.21(b), remove: ``The Commission will provide the 
manufacturer or private labeler with'' and in its place, add: ``The 
Commission shall, to the extent practicable, provide the manufacturer 
or private labeler with''.

8. Proposed Changes to Sec.  1101.22 (Timing: Request for Time 
Extensions.)

    Section 1101.22(a) explains the time for comment. Currently, Sec.  
1101.22(a)(1) states: ``Generally firms will receive ten (10) calendar 
days from the date of the letter in which the Commission transmits the 
notice to furnish comments to the Commission. Firms that receive 
requests for comments by mail will receive an additional three (3) days 
to comment to account for time in the mail.'' As discussed above, in 
Sec.  1101.21, to increase efficiency and limit unnecessary 
expenditures of staff resources, we propose revising the rule to 
encourage electronic communication with the Commission whenever 
possible. Proposed Sec.  1101.22(a)(1) would state: ``In the interest 
of promoting timely notification, the Commission, whenever possible, 
will transmit electronically to the manufacturer or private labeler the 
notice to furnish comments to the Commission. Generally firms will 
receive ten (10) calendar days from the date of such notice. Firms that 
receive notice by mail will receive an additional three (3) calendar 
days to comment to account for time in the mail.''
    Currently, the first sentence of Sec.  1101.22(a)(2) reads: ``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.'' 
We propose deleting from this sentence the phrase: ``Upon his or her 
own initiative or''. As a matter of practice since the rule was 
enacted, the Freedom of Information Officer generally has not 
determined on his own initiative whether a firm would require 
additional time to comment on information proposed for disclosure. If a 
firm requires such additional time, the firm may submit an extension 
request to the Freedom of Information Officer for consideration. To 
account for actual practice, we propose revising the first sentence of 
Sec.  1101.22(a)(2) to read: ``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.''
    Section 1101.11(b) explains the Commission's process if a firm does 
not respond to the Commission's 6(b) notice. Currently, Sec.  
1101.22(b)(2) reads: ``Unless the Commission publishes a finding that 
the public health and safety requires a lesser period of notice (see 
Sec.  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.'' As indicated in Sec.  1101.23, in 
addition to publishing a finding that the public health and safety 
requires a lesser period of notice, the Commission may disclose 
information to the public in fewer than 15 days, if the firm agrees to 
a lesser period of notice, or does not object to the proposed 
disclosure. We propose revising Sec.  1101.22(b)(2) to incorporate this 
provision. Proposed Sec.  1101.22(b)(2) would state: ``The Commission 
will not disclose the information in fewer than 15 calendar days after 
providing a manufacturer or private labeler with notice and an 
opportunity to comment, unless (i) the firm agrees to a lesser period 
or does not object to disclosure, or (ii) the Commission publishes a 
finding that the public health and safety requires a lesser period of 
notice (see Sec.  1101.23).''
    In addition, we propose the following technical changes to Sec.  
1101.22:
    A. In Sec.  1101.22(a)(2), remove: ``Sec.  1101.24'' and in its 
place, add: ``Sec.  1101.23''.
    B. In Sec.  1101.22(b)(1), remove ``if it'' and insert a comma 
between ``submitted'' and ``the Commission.''

9. Proposed Changes to Sec.  1101.23 (Providing Less Than 15 Days 
Notice Before Disclosing Information.)

    As discussed above, in Sec.  1101.21, the Commission, whenever 
possible, intends to communicate electronically with firms. Therefore, 
the Commission proposes inserting the following statement after the 
first sentence in Sec.  1101.23(c): ``If written notice is provided, 
the Commission, whenever possible, will transmit such notice 
electronically.''
    In addition, we propose the following technical and conforming 
changes to Sec.  1101.23:
    A. In Sec.  1101.23, insert: ``calendar'' between ``15'' and 
``days'' wherever ``15'' and ``days'' appear.
    B. In Sec.  1101.23(a), remove: ``it'' and in its place, add: ``the 
firm'' wherever ``it'' appears.
    C. In the last sentence of Sec.  1101.23(c), remove: ``Where 
applicable, before releasing information'' and in its place, add: 
``Before releasing information''.

10. Proposed Changes to Sec.  1101.24 (Scope of Comments Commission 
Seeks.)

    Currently, Sec.  1101.24(c) states: ``Requests for nondisclosure of 
comments. If a firm objects to disclosure of its comments or a portion 
thereof, it

[[Page 10717]]

must notify the Commission at the time it submits its comments. If the 
firm objects to the disclosure of a portion of its comments, it must 
identify those portions which should be withheld.'' As described more 
specifically below, in Sec.  1101.31, we propose revising Sec.  
1101.24(c) to require a rationale to support withholding a 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. A statement 
requesting that comments be withheld without the firm providing a 
rationale will not be sufficient to withhold comments. Therefore, we 
propose revising Sec.  1101.24(c) to state: ``If a firm objects to 
disclosure of its comments or a portion thereof, the firm must notify 
the Commission of such objection at the time the firm submits its 
comments, provide a rationale, such as a statutory or regulatory basis 
or provision, for why the comments should not be disclosed, and explain 
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. If the firm objects to the disclosure of a 
portion of its comments, the firm must specifically identify those 
portions that should be withheld. Conclusory statements that comments 
must be withheld with no supporting basis are not sufficient to justify 
a request for nondisclosure.''
    In addition, we propose the following technical changes to Sec.  
1101.24(b):
    A. In the first sentence, remove: ``which pertains to trade secret 
or other confidential material'' and in its place, add: ``which refers 
to trade secret or other confidential material and information subject 
to 5 U.S.C. 552(b)(4)''.
    B. In the second sentence, remove: ``believes to be confidential or 
trade secret material and must state with specificity the grounds on 
which the firm bases it claims'' and in its place, add: ``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''.

11. Proposed Changes to Sec.  1101.25 (Notice of Intent To Disclose.)

    As discussed above, with respect to Sec.  1101.21, the Commission 
is revising the rule in part to reflect the significant improvements in 
information technology since 1983. Therefore, we propose 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.''
    In addition, we propose the following technical changes to Sec.  
1101.25:
    A. In Sec.  1101.25, remove ``5 days'' and in its place, add: 
``five (5) calendar days'' wherever ``5 days'' appears.
    B. In the first sentence of Sec.  1101.25(a), remove: ``that it 
intends'' and in its place, add: ``that the Commission intends''.
    C. In the second sentence of Sec.  1101.25(a), remove the comma 
between ``decision'' and ``copies'' and in its place, add: ``and''.
    D. In the first sentence of Sec.  1101.25(b), remove: ``its'' and 
in its place, add: ``the Commission's''.
    E. In Sec.  1101.25(b), remove the sentence: ``For example, the 
Commission may determine it is necessary to warn the public quickly 
because individuals may be in danger from a product hazard or a 
potential hazard, or to correct product safety information released by 
third persons, which mischaracterized statements made by the Commission 
about the product or which attributes to the Commission statements 
about the product which the Commission did not make'' and in its place, 
add: ``For example, the Commission may determine that the public must 
be warned more quickly than five (5) calendar days because 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 product or which 
inaccurately attributes to the Commission statements about the 
product''.
    F. In the first sentence of Sec.  1101.25(c), remove ``which'' and 
in its place, add: ``that''.

12. Proposed Changes to Sec.  1101.31 (General Requirements.)

    Currently, Sec.  1101.31(b), which addresses the inclusion of a 
firm's comments, reads: ``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.'' We propose 
revising this sentence.
    As an initial matter, the Commission must include with the 
disclosure, a firm's comments if the manufacturer or private labeler 
requests inclusion, and inclusion is permitted by and subject to the 
requirements of section 6(b)(1). 15 U.S.C. 2055(b)(1). In instances 
where the firm does not request disclosure, section 6(b)(1) grants the 
Commission discretion in releasing a firm's comments, stating 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'' (emphasis added). Id.
    When the Commission adopted the final rule in 1983 interpreting 
section 6(b)(1), we stated that we ``intend[] to follow the general 
policy of disclosing comments unless the manufacturer specifically 
requests they be withheld.'' 48 FR 57422. We recognized that a blanket 
policy always allowing a firm's comments to be withheld, even though 
the comments contained no confidential commercial or trade secret 
information, would not be a desirable outcome. 48 FR 57423. The 
Commission was concerned that such a policy ``would unnecessarily block 
the release of information, even though the Commission has taken the 
requisite reasonable steps to assure that the information is accurate 
and disclosure would be reasonably related to effectuating one or more 
purposes of the statutes the Commission administers.'' Id. We stated 
our belief that section 6(b) ``should not be construed to permit a firm 
to frustrate the disclosure of information simply by making a blanket 
claim of confidentiality for the information contained in its 
comments.'' Id. For firms that made blanket claims, the Commission 
stated in the preamble that we would notify the firm that disclosure of 
the firm's comments is necessary to assure that disclosure of the 
information was fair in the circumstances. In these instances, we 
would: (1) Ask a firm to summarize the firm's comments, or provide an 
edited version for public disclosure; (2) ask a firm to consent to the 
disclosure of information without the firm's comments; or (3) disclose 
the information ``with an explanatory statement that the manufacturer 
furnished data necessary to place the information in context but did 
not consent to its disclosure.'' Id.
    Our review of how firms typically submit comments under section 
6(b) and staff's subsequent processing of such comments, however, 
indicates that most comments are withheld. Most firms request that 
their comments be

[[Page 10718]]

maintained in confidence, even where the firms do not provide any 
specific comments on the disclosure, or do not object at all to 
disclosure of the information. For example, even when a firm's only 
comment is that the firm does not object to disclosure, the firm may 
request that this comment--that it has ``no objection to disclosure''--
be withheld in confidence. Staff has withheld comments in this 
circumstance even though the comments state only that the firm has no 
objection to disclosure of the information. In effect, staff adopted a 
blanket policy of withholding where such a policy was never intended.
    To obtain more substantive and useful information from firms who 
object to disclosure of comments, we are proposing to revise the 
regulation to require firms to provide a rationale for why comments 
should not be disclosed and an explanation of why disclosure of the 
comments is not necessary to assure that the disclosure of the 
information is fair in the circumstances. Conclusory assertions that 
comments be withheld without a rationale will not be sufficient to 
withhold comments. In addition, a firm's comment that it has no 
objection to disclosure, without any additional comments, will not be 
sufficient to justify withholding. Proposed Sec.  1101.31(b) would 
state: ``In disclosing any information under this section, the 
Commission may, and upon the 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(b). If the 
manufacturer or private labeler, at the time it submits its section 
6(b) comments, specifically requests that the Commission not include 
the comments, or include only a designated portion of the comments, the 
manufacturer or private labeler must provide for evaluation by the 
Commission, a rationale, such as an applicable statutory or regulatory 
basis or provision, supporting such withholding 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.''
    Currently, Sec.  1101.31(d), which pertains to information the 
Commission previously disclosed, reads: ``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.''
    We propose two revisions to this provision. First, we propose 
removing: ``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'' and in its place, adding: ``If the Commission 
intends to disclose information that is substantially the same as 
information that the Commission previously disclosed in accordance with 
section 6(b)(1), 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''. In its current form, the phrase, 
``identical information it intends to disclose again in the same 
format,'' requires the Commission to provide 6(b) notice for subsequent 
disclosures of information that may differ only slightly, without any 
impact on accuracy, from the information the Commission initially 
released in accordance with section 6(b). When we adopted the final 
rule in 1983, the Commission specifically included ``same format'' in 
response to a comment that requested this addition. 48 FR 57414. The 
Commission agreed with the request, stating: ``the format of the 
disclosure (other than summaries of information previously released) or 
the intended audience may be of significant interest to the firm and 
may warrant comment.'' Id. Under a strict reading of the current 
provision, however, changes in the appearance of the information, such 
as the use of different fonts or layouts, and minor editorial changes, 
such as the insertion of a comma to the text, without any impact on the 
accuracy of the information, would require the Commission to provide 
subsequent 6(b) notice. We do not believe the statute requires 
subsequent 6(b) notice in these circumstances. In addition, we propose 
deleting the word, ``some,'' from the phrase, ``some reason.'' 
``Reason'' provides the staff with a more definitive standard for when 
staff will take additional steps to assure accuracy.
    Second, we propose deleting from Sec.  1101.31(d) the following: 
``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.''
    Regarding the first sentence on renotification, as discussed above, 
in Sec.  1101.11, the majority of firms that receive renotification 
fail to respond, respond but do not provide any comments on the 
information, or simply repeat the same claims that they submitted in 
response to the initial notice, without providing any additional 
information for the staff to evaluate. The Commission proposes deleting 
renotification from Sec.  1101.31(d). Regarding the second sentence, 
the statute does not require the Commission to conduct another 6(b) 
review for information that the Commission already has released to the 
public. For these reasons, we propose deleting these sentences from the 
regulation.
    Incorporating the changes discussed above, proposed Sec.  
1101.31(d) would state: ``Information previously disclosed. If the 
Commission intends to disclose information that is substantially the 
same as information that the Commission previously disclosed in 
accordance with section 6(b)(1), 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.''
    We also propose the following technical and conforming changes to 
Sec.  1101.31:
    A. In Sec.  1101.31(a), remove: ``The Commission will attempt to 
make its decision on disclosure so that it can disclose information in 
accordance with section 6(b) as soon as is reasonably possible after 
expiration of the statutory fifteen day moratorium on disclosure'' and 
in its place, add: ``The Commission will attempt to make its decision 
on disclosure so that the Commission can

[[Page 10719]]

disclose information in accordance with section 6(b) after expiration 
of the statutory 15-day prohibition on disclosure''.
    B. In Sec.  1101.31(c), remove: ``To the extent it is practical the 
Commission will also accompany the disclosure with any other relevant 
information in its possession that places the released information in 
context'' and in its place, add: ``The Commission also will accompany 
the disclosure, to the extent practicable, with any other relevant 
information in the Commission's possession that places the released 
information in context''.

13. Proposed Changes to Sec.  1101.32 (Reasonable Steps To Assure 
Information Is Accurate.)

    We propose the following technical changes to Sec.  1101.32:
    A. In Sec.  1101.32(a), remove: ``it'' and in its place, add: 
``that the Commission''.
    B. In Sec.  1101.32(a)(3), remove: ``it'' and in its place, add: 
``the information''.
    C. In Sec.  1101.32(b), remove: ``it'' and in its place, add: ``the 
Commission''.
    D. In Sec.  1101.32(b)(3), remove: ``investigating its accuracy'' 
and in its place, add: ``investigating the accuracy of the 
information''.
    E. In Sec.  1101.32(b)(4), insert: ``that'' between ``accuracy of 
the information'' and ``the Commission proposes to disclose''.

14. Proposed Changes to Sec.  1101.33 (Reasonable Steps To Assure 
Information Release Is Fair in the Circumstances.)

    Currently, Sec.  1101.33(a)(1), which provides an example of the 
reasonable steps the Commission will take to assure disclosure of 
information to the public is fair in the circumstances, states: ``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.''
    We propose revising the first part of this section to conform to 15 
U.S.C. 2055(b). As discussed above, in Sec.  1101.31, the Commission 
must include with the disclosure a firm's comments if the manufacturer 
or private labeler requests inclusion and inclusion is permitted by and 
subject to the requirements of section 6(b)(1). 15 U.S.C. 2055(b)(1). 
In instances where the firm does not request disclosure, the Commission 
has discretion in releasing a firm's comments. Id. To reflect the 
statutory language, we propose revising the first part of Sec.  
1101.33(a)(1) to state: ``To the extent permitted by and subject to the 
requirements of section 6(b), the Commission may accompany information 
disclosed to the public with the manufacturer's or private labeler's 
comments or other information or a summary thereof.''
    In addition, we propose revising Sec.  1101.33(a)(1) to require 
firms to provide a rationale for why the comments should not be 
disclosed and an explanation of why disclosure of the comments is not 
necessary to assure that the disclosure of the information is fair in 
the circumstances. To encourage firms to provide useful information and 
clarifying comments, as discussed above, in Sec.  1101.31, we propose 
revising the regulation to require specific information for the 
Commission to consider. The second part of Sec.  1101.33(a)(1) would 
state: ``unless the manufacturer or private labeler asks in the firm's 
section 6(b) comments that the comments or a designated portion thereof 
not accompany the information, provides a rationale, such as an 
applicable statutory or regulatory basis or provision, for why the 
comments should not be disclosed, and explains 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. If the firm objects to the disclosure of a portion of 
the firm's comments, the firm must specifically identify those portions 
that should be withheld. Conclusory statements that comments must be 
withheld with no supporting basis are not sufficient to justify a 
request for nondisclosure.''
    Incorporating the changes outlined above, proposed Sec.  
1101.33(a)(1) would state: ``To the extent permitted by and subject to 
the requirements of section 6(b), the Commission may accompany 
information disclosed to the public with the manufacturer's or private 
labeler's comments or other information or a summary thereof unless the 
manufacturer or private labeler asks in the firm's section 6(b) 
comments that the comments or a designated portion thereof not 
accompany the information, provides a rationale, such as an applicable 
statutory or regulatory basis or provision, for why the comments should 
not be disclosed, and explains 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. If the firm 
objects to the disclosure of a portion of the firm's comments, the firm 
must specifically identify those portions that should be withheld. 
Conclusory statements that comments must be withheld with no supporting 
basis are not sufficient to justify a request for nondisclosure.''
    Currently, Sec.  1101.33(b)(3), which provides an example of 
information that would not be disclosed because the information 
generally would not be considered fair in the circumstances, reads: 
``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.''
    In general, we believe that firms waive these protections when they 
submit information to the Commission that is attorney work-product or 
subject to the attorney/client privilege. Moreover, firms rarely claim 
in their comments to the Commission that the information proposed for 
disclosure contains information subject to the attorney/client 
privilege or the work-product doctrine. For example, in FY 2012, our 
FOIA office processed approximately 459 notices under section 6(b). Of 
those 459 notices, firms claimed attorney/client privilege and/or the 
work-product doctrine in only approximately 12 instances. The majority 
of firms that asserted this claim did not identify the specific 
information to which the claim pertained, but included the claim in a 
broad list of claims that included confidential business information 
and general fairness objections. For these reasons, we propose removing 
Sec.  1101.33(b)(3) from the regulation.
    Currently, Sec.  1101.33(b)(4), which provides another example of 
information that would not be disclosed because the information 
generally would not be considered fair in the circumstances, reads: 
``Disclosure of a firm's comments (or a portion thereof) submitted 
under section 6(b)(1) over the firm's objection.'' As discussed above, 
in Sec.  1101.31, we propose revising the regulation to require that 
firms provide a rationale for why comments should not be disclosed and 
an explanation of why disclosure of the comments is not necessary to 
assure that the disclosure of the information is fair in the 
circumstances. In addition, because we propose removing Sec.  
1101.33(b)(3) from the regulation, we will renumber Sec.  1101.33(b)(4) 
as Sec.  1101.33(b)(3). Proposed Sec.  1101.33(b)(3) would state: 
``Disclosure of a firm's comments (or a portion thereof) submitted 
under section 6(b)(1) if the firm provides a rationale,

[[Page 10720]]

such as an applicable statutory or regulatory basis or provision, for 
why the comments should not be disclosed and explains 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.''
    In addition, we propose the following technical corrections to 
Sec.  1101.33:
    A. In the second sentence of Sec.  1101.33(a)(2), remove: 
``information it its possession'' and in its place, add: ``information 
in its possession''.
    B. In the first sentence of Sec.  1101.33(a)(3), remove: ``it'' and 
in its place, add: ``the Commission''.
    C. In Sec.  1101.33(a)(3), remove: ``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'' and in 
its place, add: ``For example, the Commission may determine that 
issuance of a nationwide press release in a particular situation is not 
appropriate and rather will issue a press release directed at certain 
localities, regions or user populations''.
    D. In the second sentence of Sec.  1101.33(a)(4) add after 
``information piecemeal'' the phrase: ``if such disclosure would be 
unfair''.
    E. In Sec.  1101.33(b)(1), remove: ``in concidence'' and in its 
place, add: ``in confidence''.
    F. In Sec.  1101.33(b)(2), insert: ``staff'' between ``Disclosure 
of'' and ``notes''.

15. 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.)

    We propose the following technical changes to Sec.  1101.34(a)(2):
    A. Remove: ``Purposes of the FHSA, FFA, PPPA and RSA'' and in its 
place, add: ``Purposes of the FHSA, FFA, PPPA, RSA, CSPA, VGBA, and 
CGBPA''.
    B. In the first sentence, insert: ``and other'' between 
``transferred'' and ``acts''.

16. Proposed Changes to Sec.  1101.41 (Generally.)

    We propose the following technical changes to Sec.  1101.41:
    A. In Sec.  1101.41(a)(4), capitalize ``information''.
    B. In Sec.  1101.41(b), remove: ``transferred act'' and in its 
place, add: ``transferred and other acts''.
    C. In Sec.  1101.41(b), remove: ``transferred acts'' and in its 
place, add: ``transferred and other acts''.

17. Proposed Changes to Sec.  1101.42 (Imminent Hazard Exception.)

    Currently, Sec.  1101.42(b), which discusses the scope of the 
imminent hazard exception, reads: ``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).''
    We propose the following revisions to Sec.  1101.42(b):
    1. In the second sentence, remove: ``while the proceeding is 
pending''.
    2. Remove the third and fourth sentences.
    We recognize that when the Commission adopted the final rule in 
1983, we decided, in response to a comment, that ``documents in the 
Commission's possession that concern a product for which it has filed 
an imminent hazard action and that it has not made publicly available'' 
are subject to the 6(b) requirements. 48 FR 57425. We stated that 
``these documents are more similar to documents prepared during the 
course of other Commission's activities which are routinely subject to 
section 6(b) and, therefore, will be treated accordingly.'' Id. We do 
not believe, however, that the statute imposes these restrictions on 
the Commission's release of information. Upon the Commission's filing 
of a section 12 action, we believe that 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. Therefore, we 
propose deleting, ``while the proceeding is pending'', from the second 
sentence and removing the third and fourth sentences from Sec.  
1101.42(b).

18. Proposed Changes to Sec.  1101.45 (Adjudicatory Proceeding 
Exception.)

    We propose the following technical correction to Sec.  1101.45(b):
    A. Remove: ``FAA'' and in its place, add: ``FFA''.

19. Proposed Changes to Sec.  1101.46 (Other Administrative or Judicial 
Proceeding Exception.)

    We propose the following technical correction to Sec.  
1101.46(b)(7):
    A. Remove: ``Secretary'' and in its place, add: ``Secretariat''.

20. Proposed Changes to Sec.  1101.51 (Commission Interpretation.)

    We propose the following technical corrections to Sec.  1101.51(b):
    A. In the first sentence, replace: ``it'' with ``the information'' 
wherever ``it'' appears.

21. Proposed Changes to Sec.  1101.52 (Procedure for Retraction.)

    We propose the following technical and conforming changes to Sec.  
1101.52:
    A. In Sec.  1101.52(a), remove the comma between ``distributor'' 
and ``or''.
    B. In Sec.  1101.52(b), remove: ``the Commission or an individual 
member, employee, agent, contractor or representative of the 
Commission'' and in its place, add: ``the Commission, any member of the 
Commission, or any employee, agent, or representative, including 
contractor, of the Commission in an official capacity''.
    C. In Sec.  1101.52(b), remove: ``The request must be in writing 
and addressed to the Secretary, CPSC. Washington, DC 20207'' and in its 
place, add: ``The request must be in writing and sent via either 
electronic mail to cpsc-os@cpsc.gov or first class mail to The 
Secretariat, Office of the Secretary, U.S. Consumer Product Safety 
Commission, 4330 East West Highway, Bethesda, MD, 20814-4408''.
    D. In Sec.  1101.52(c)(2), add: ``that'' between ``information'' 
and ``the firm''.
    E. In Sec.  1101.52(d), remove: ``the Commission or any individual 
member, employee, agent [sic] contractor or representative of the 
Commission'' and in its place, add: ``the Commission, any member of the 
Commission, or any employee, agent, or representative, including 
contractor, of the Commission in an official capacity''.
    F. In Sec.  1101.52(d), remove: ``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 the Commission finds that fuller disclosure is 
necessary, the Commission will publish a retraction in the manner that 
the Commission determines appropriate under the circumstances''.
    G. In Sec.  1101.52(e), replace: ``its'' with ``the Commission's''.

[[Page 10721]]

22. Proposed Changes to Sec.  1101.61 (Generally.)

    We propose the following technical correction to Sec.  
1101.61(b)(3):
    A. Remove the period and in its place, add: ``; or''.

23. Proposed Changes to Sec.  1101.63 (Information Submitted Pursuant 
to Section 15(b) of the CPSA.)

    Currently, Sec.  1101.63(c) reads: ``Section 6(b)(5) does not apply 
to information independently obtained or prepared by the Commission 
staff.'' The legislative history indicates that in granting the 
Commission broad information-gathering powers, the Commission was 
intended to have access to section 15 information, such as trade 
secrets and other sensitive cost and competitive information, which 
would not otherwise be available to the public or to government. H.R. 
Rep. No. 92-1153, at 31 (1972). The apparent intent was not to protect 
information that the staff could identify or prepare independently from 
material in the public realm, but only to limit disclosure of 
confidential trade secret and competitive information not otherwise 
publicly available. Id.
    Technological advances since enactment of the 1983 regulation merit 
further refinement of this exception. For example, Internet resources, 
which did not exist at the time of the enactment of the 1983 
regulation, have significantly expanded the public availability of 
information about products; this public information may also be a part 
of a firm's section 15 report. Searching the name of a product in any 
Internet search engine may yield significant information about a 
product, including product reviews and Internet sites or retail 
locations where the product can be purchased. The Commission does not 
believe that the restriction on the disclosure of information contained 
in reports submitted to the Commission pursuant to section 15(b) was 
intended to apply to such publicly-available information. Indeed, 
inclusion of such information would frustrate the transparent 
disclosure of information if readily available information from the 
public domain could not be disclosed simply because a firm included 
such information in a section 15(b) report to the Commission. 
Therefore, information that a firm submits to the Commission pursuant 
to section 15(b) that is readily available to the public because, for 
example, the information appears in newspaper articles, on retailer Web 
sites, in product reviews, in the consumer product safety information 
database, or in other sources, constitutes information that is 
independently obtained under this provision and thus not subject to the 
requirements of section 6(b)(5).
    Accordingly, we propose revising Sec.  1101.63(c) 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.''

24. Proposed Changes to Sec.  1101.71 (Delegation of Authority.)

    We propose the following technical changes to Sec.  1101.71:
    A. In Sec.  1101.71, remove: ``Secretary'' and in its place, add: 
``Secretariat'' wherever ``Secretary'' appears.
    B. In Sec.  1101.71(a), remove: ``section 27(b)(9) of the CPSA 15 
U.S.C. 2076(b)(9)'' and in its place, add: ``27(b)(10) of the CPSA, 15 
U.S.C. 2076(b)(10),''.
    C. In Sec.  1101.71(b), remove: ``Findings not deleted'' and in its 
place, add: ``Findings not delegated''.
    D. In Sec.  1101.71(b)(1), insert: ``calendar'' between ``15'' and 
``days''.
    E. In Sec.  1101.71(b)(2), insert: ``calendar'' between ``(5)'' and 
``days''.
    F. In Sec.  1101.71(b)(2), remove the semicolon and in its place, 
add a period.
    G. In Sec.  1101.71(b)(3), remove: ``it'' and in its place, add: 
``the Commission''.

III. 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. These regulations provide a 
categorical exclusion for certain CPSC actions that normally have 
``little or no potential for affecting the human environment.'' 16 CFR 
1021.5(c)(1). This proposed rule falls within the categorical 
exclusion.

IV. 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 (IFRA) 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 an 
interpretive rule. Therefore, no IRFA is required under the RFA. 
Moreover, the proposed rule would not establish any mandatory 
requirements and would not impose any obligations on small entities (or 
any other entity or party).

V. 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 proposed rule would 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 product-
specific information. The proposed rule would not impose any 
information collection requirements. The existing rule and the proposed 
amendment do not require or request information from firms, but rather, 
explain the Commission's procedures that provide an opportunity for 
firms to comment on product-specific information before disclosure. 
Thus, the PRA is not implicated in this proposed rulemaking.

VI. 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 proposed rule is not a consumer product safety standard, but 
rather, is an interpretive rule that would interpret section 6(b) of 
the CPSA. Therefore, section 26 of the CPSA would not apply to this 
rulemaking.

VII. 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, an earlier effective date is permitted for interpretive rules 
and statements of policy. Id. Thus, this proposed rule is excepted from 
the APA effective date requirement. Id. 553(d)(2).

[[Page 10722]]

    Because CPSC is giving notice and soliciting comment (even though 
notice and comment procedures are not required), the public and 
potentially affected firms will have significant advance notice of the 
agency's proposed rule. Moreover, implementation of the rule will not 
result in the imposition of new, mandatory requirements on firms. 
Therefore, the Commission proposes that the effective date be the date 
of publication of a final rule in the Federal Register.

VIII. Request for Comments

    The Commission requests comments on all aspects of the proposed 
rule. Comments should be submitted in accordance with the instructions 
in the ADDRESSES section at the beginning of this NPR. Written comments 
must be received by April 28, 2014.

List of Subjects in 16 CFR Part 1101

    Administrative practice and procedure; Consumer protection.

    Accordingly, 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 General background.
1101.2 Scope.
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).
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 of notice and opportunity to comment.
1101.22 Timing; request for time extensions.
1101.23 Providing less than 15 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 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.
1101.32 Reasonable steps to assure information is accurate.
1101.33 Reasonable steps to assure information release is fair in 
the circumstances.
1101.34 Reasonable steps to assure information release is 
``reasonably related to effectuating the purposes of the Acts'' the 
Commission administers.
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: Section 6(b) of Pub. L. 92-573, as amended by Section 
211 of Pub. L. 110-314, 122 Stat. 3016, 15 U.S.C. 2055(b), 5 U.S.C. 
553(b).

Subpart A--Background


Sec.  1101.1  General background.

    (a) Basic purpose. This part sets forth the Consumer Product Safety 
Commission's policy and procedure under sections 6(b)(1)-(5) of the 
Consumer Product Safety Act (CPSA) (15 U.S.C. 2055(b)(1)-(5)) which 
relate to public disclosure of information from which the identity of a 
manufacturer or private labeler of a product can be readily 
ascertained. In addition, these rules provide for retraction of 
inaccurate or misleading information the Commission has disclosed that 
reflects adversely on the safety of a consumer product or class of 
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 when it releases certain firm specific 
information to the public and when it retracts certain information it 
has released.
    (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 calendar 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. Section 6(b)(4) establishes 
exceptions to these requirements. Section 6(b)(5) creates additional 
limitations, as well as exceptions to these limitations, on the 
disclosure of information reported to the Commission under section 
15(b) of the CPSA.
    (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. Section 6(b)(6) requires the 
Commission to establish internal clearance procedures for Commission 
initiated disclosures of information that reflect on the safety of a 
consumer product or class of products, even if the information is not 
product specific. This rule does not address section 6(b)(6) because 
the Commission has internal clearance procedures in its directives 
system. (Directive 1450.2 ``Clearance Procedures for Commission Staff 
to Use in Providing Information to the Public.'' January 16, 2003.)


Sec.  1101.2  Scope.

    Section 6(b) and this part apply to information obtained under the 
CPSA or to be disclosed to the public concerning products subject to 
the CPSA (15 U.S.C. 2051-2089), 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. 1471-1477 (PPPA); the 
Federal Hazardous Substances Act, 15 U.S.C. 1261-1278a (FHSA); and the

[[Page 10723]]

Refrigerator Safety Act, 15 U.S.C. 1211-1214 (RSA). These provisions 
also apply to the Child Safety Protection Act 101 and 102, Public Law 
103-267, 108 Stat. 722 (June 16, 1994) (CSPA); the Virginia Graeme 
Baker Pool and Spa Safety Act, 15 U.S.C. 8003(a) (VGBA); and the 
Children's Gasoline Burn Prevention Act 2(a), Public Law 110-278, 122 
Stat. 2602 (July 17, 2008) (CGBPA).

Subpart B--Information Subject to Notice and Analysis 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 analysis provisions of section 6(b)(1), information must 
meet all the following criteria:
    (1) The information must pertain to a specific product.
    (2) The information must be obtained under the acts the Commission 
administers, or be disclosed to the public in connection therewith.
    (3) 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).
    (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 Sec.  1101.13.]
    (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 exclusions contained in section 
6(b)(4) or (b)(5) of the CPSA (see subpart E and G 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. 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 the Commission's Export Policy Statement, 
16 CFR part 1019.)
    (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.
    (6) 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.
    (7) 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.
    (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).


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.
    (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 which 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 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 Consumer 
Product Safety Improvement Act of 2008 (Pub. L. 110-314, 122 Stat. 3016 
(August 14, 2008)).


Sec.  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 the information 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.

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


Sec.  1101.21  Form of notice and opportunity to comment.

    (a) Notice may be oral or written. (1) The Commission will 
generally provide to manufacturers or private labelers written notice 
and opportunity to comment on information subject to section 6(b)(1). 
Whenever possible, the Commission will transmit such notice 
electronically. However, when the Commission publishes a finding that 
the public health and safety requires a lesser period of notice 
pursuant to section 6(b)(1) of the CPSA, the Commission may determine 
that notice and opportunity to comment orally is necessary.
    (2) Any notice required to be given under the provisions of this 
Part 1101 may be transmitted using electronic means of communication. 
Whenever possible, the Commission will transmit such notice 
electronically.
    (b) 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, 
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.

[[Page 10724]]

    (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 if the manufacturer or private labeler objects 
to disclosure of its comments or a portion thereof, the manufacturer or 
private labeler must notify the Commission of such objection at the 
time the manufacturer or private labeler submits its comments, provide 
a rationale, such as an applicable statutory or regulatory basis or 
provision, for why the comments should not be disclosed, and explain 
why disclosure of the comments is not fair in the circumstances or is 
not reasonably related to effectuating the purposes of the CPSA.
    (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 Sec.  1101.24(b)).
    (7) A statement that no further request for comment will be sought 
by the Commission if the Commission intends to disclose information 
that is substantially the same as the information that the Commission 
previously disclosed.
    (8) The name, address, applicable contact information for 
electronic communication, 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  Timing: request for time extensions.

    (a) Time for comment. (1) In the interest of promoting timely 
notification, the Commission, whenever possible, will transmit 
electronically to the manufacturer or private labeler the notice to 
furnish comments to the Commission. Generally firms will receive ten 
(10) calendar days from the date of such notice. Firms that receive 
notice by mail will receive an additional three (3) calendar days to 
comment to account for time in the mail.
    (2) 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 Sec.  1101.23).
    (b) No response submitted. (1) If the Commission has not received a 
response within the time specified and has received no request for 
extension of time, the Commission will analyze the information as 
provided in subpart D of this part. If no comments are submitted, the 
Commission will not give the further notice provided in section 
6(b)(2).
    (2) The Commission will not disclose the information in fewer than 
15 calendar days after providing a manufacturer or private labeler with 
notice and an opportunity to comment, unless (i) the firm agrees to a 
lesser period or does not object to disclosure, or (ii) the Commission 
publishes a finding that the public health and safety requires a lesser 
period of notice (see Sec.  1101.23).
    (c) Requests for time extension. (1) Requests for extension of time 
to comment on information to be disclosed must be made to the person 
who provided the Commission's notice and opportunity to comment. The 
request for time extension may be either oral or written. An oral 
request for a time extension must be promptly confirmed in writing.
    (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.


Sec.  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 calendar days after providing notice to the manufacturer or private 
labeler.
    (a) Firm agrees to lesser period 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 firm involved 
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 finding 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 the 15 
calendar days advance notice that section 6(b)(1) generally requires. 
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 because individuals may be in 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 product or which attributes to the Commission statements 
about the product which the Commission did not make.
    (c) Notice of finding. The Commission will inform a manufacturer or 
private labeler of a product which is the subject of a public health 
and safety finding that the public health and safety requires less than 
15 calendar days advance notice either orally or in writing, depending 
on the immediacy of the need for quick action. If written notice is 
provided, the Commission, whenever possible, will transmit such notice 
electronically. Before releasing information, the Commission will 
comply with the requirements of section 6(b)(1) and (2) by giving the 
firm the opportunity to comment on the information, either orally or in 
writing depending on the immediacy of the need for quick action, and by 
giving the firm advance notice before disclosing information claimed by 
a manufacturer or private labeler to be inaccurate (see Sec.  1101.25).


Sec.  1101.24  Scope of comments Commission seeks.

    (a) Comment in regard to the information. The section 6(b) 
opportunity to comment on information is intended to permit firms to 
furnish information and data to the Commission to assist the agency in 
its evaluation of the accuracy of the information. A firm'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 inaccuracy. The weight accorded a 
firm's comments on the accuracy of information and the degree of 
scrutiny which 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 which are accompanied by

[[Page 10725]]

documentation will be given more weight than those which are 
undocumented 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 
trade secret or other confidential material and information 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. Such 
claims must identify the specific information which the firm 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 firm objects to 
disclosure of its comments or a portion thereof, the firm must notify 
the Commission of such objection at the time the firm submits its 
comments, provide a rationale, such as an applicable statutory or 
regulatory basis or provision, for why the comments should not be 
disclosed, and explain 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. If the firm objects to the 
disclosure of a portion of its comments, the firm must specifically 
identify those portions that should be withheld. Conclusory statements 
that comments must be withheld with no supporting basis are not 
sufficient to justify a request for nondisclosure.


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 not less than five (5) 
calendar days after the date of the receipt of notification by the 
firm. 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 Freedom of 
Information Act requesters, which were not previously sent to the firm.
    (b) Commission finding a lesser period is required. The Commission 
may determine that the public health and safety requires less than five 
(5) calendar days advance notice of the Commission's intent to disclose 
information claimed to be inaccurate. For example, the Commission may 
determine that the public must be warned more quickly than five (5) 
calendar days because 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 product or which inaccurately attributes to the Commission 
statements about the product.
    (c) Notice of findings. 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 
five (5) calendar days advance notice either orally or in writing, 
depending on the immediacy of the need for quick action. If written 
notice is provided, the Commission, whenever possible, will transmit 
such notice electronically.


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. The Commission has determined that there are various 
circumstances when notice and opportunity to comment is not 
practicable. Examples include the following:
    (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


Sec.  1101.31  General requirements.

    (a) Timing of decisions. The Commission will attempt to make its 
decision on disclosure so that the Commission can disclose information 
in accordance with section 6(b) after expiration of the statutory 15-
day prohibition on disclosure.
    (b) Inclusion of comments. In disclosing any information under this 
section, the Commission may, and upon the 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(b). If the manufacturer or private labeler, at the time it submits 
its section 6(b) comments, specifically requests that the Commission 
not include the comments, or include only a designated portion of the 
comments, the manufacturer or private labeler must provide for 
evaluation by the Commission, a rationale, such as an applicable 
statutory or regulatory basis or provision, supporting such withholding 
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.
    (c) Explanatory statements. Where appropriate, the Commission will 
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. Inclusion of an explanatory statement is 
in addition to, and not a substitute for, taking reasonable steps to 
assure the accuracy of information. The Commission also will accompany 
the disclosure, to the extent practicable, with any other relevant 
information in the Commission's possession that places the released 
information in context.
    (d) Information previously disclosed. If the Commission intends to 
disclose information that is substantially the same as information that 
the Commission previously disclosed in accordance with section 6(b)(1), 
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.

[[Page 10726]]

Sec.  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 that the 
Commission 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 the information 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 the Commission 
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 
Sec.  1101.32(a).
    (2) As described in subpart C of this part, 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 paragraph (a) of this section and 
release 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 firm 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 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.


Sec.  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) To the extent permitted by and subject to the requirements of 
section 6(b), the Commission may accompany information disclosed to the 
public with the manufacturer's or private labeler's comments or other 
information or a summary thereof unless the manufacturer or private 
labeler asks in the firm's section 6(b) comments that the comments or a 
designated portion thereof not accompany the information, provides a 
rationale, such as an applicable statutory or regulatory basis or 
provision, for why the comments should not be disclosed, and explains 
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. If the firm objects to the disclosure of a 
portion of the firm's comments, the firm must specifically identify 
those portions that should be withheld. Conclusory statements that 
comments must be withheld with no supporting basis are not sufficient 
to justify a request for nondisclosure.
    (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 in its 
possession that will assure disclosure is fair in the circumstances.
    (3) The Commission will limit the form of disclosure to that which 
the Commission considers appropriate in the circumstances. For example, 
the Commission may determine that issuance of a nationwide press 
release in a particular situation is not appropriate 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 if 
such disclosure would be unfair.
    (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 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 firm has a reasonable 
expectation that such written materials will be maintained by the 
Commission in confidence.
    (3) Disclosure of a firm's comments (or a portion thereof) 
submitted under section 6(b)(1) if the firm provides a rationale, such 
as an applicable statutory or regulatory basis or provision, for why 
the comments should not be disclosed and explains 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.

[[Page 10727]]

Sec.  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. The Commission will review information to 
determine whether disclosure would be reasonably related to 
effectuating one or more of the specific purposes of the CPSA, as set 
forth in sections 2(b) and 5, 15 U.S.C. 2051(b) and 2054.
    (2) Purposes of the FHSA, FFA, PPPA, RSA, CSPA, VGBA, and CGBPA. 
The Commission will also review information concerning products subject 
to the transferred and other acts it administers and to the 
Commission's specific functions under those acts to determine whether 
disclosure of information would be reasonably related to effectuating 
the purposes of those acts.
    (3) Purposes of the FOIA. FOIA requests will be reviewed to 
determine whether disclosure of the information is reasonably related 
to effectuating one or more of the purposes of the acts administered by 
the Commission. In the event of a close question on this issue, the 
Commission will defer to the purposes of the FOIA. The FOIA establishes 
a general right of the public to have access to information in the 
Commission's possession, particularly information that reveals whether 
the Commission is meeting its statutory responsibilities or information 
upon which the Commission bases a decision that affects the public 
health and safety.
    (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)


Sec.  1101.41  Generally.

    (a) Scope. 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 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.) or similar rule or provision of any other act enforced by the 
Commission;
    (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 and other acts. The Commission will 
apply the exceptions contained in section 6(b)(4) to those provisions 
in the transferred and other acts, comparable to the specific 
provisions in the CPSA to which section 6(b)(4) applies.


Sec.  1101.42  Imminent hazard exception.

    (a) Statutory provision. Section 6(b)(4)(A) provides that the 
requirements of section 6(b)(1) do not apply to public disclosure of 
``information about any consumer 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) if the information concerns or relates to the product 
alleged to be imminently hazardous.


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

    (a) Statutory provision. Section (6)(b)(4)(A) provides that the 
requirements of section 6(b)(1) 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 under the Consumer Product Safety Act (15 
U.S.C. 2051 et seq.) or similar rule or provision of any other act 
enforced by the Commission.
    (b) Scope of exception. This exception applies once the Commission 
has ``reasonable cause to believe'' there has occurred a violation of 
any consumer product safety rule or provision under the Consumer 
Product Safety Act (15 U.S.C. 2051 et seq.) 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) if the 
information concerning the 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) 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 the Commission administers. Once the exception applies, the 
Commission may publicly disclose information in the course of the 
rulemaking proceeding which is presented during the proceeding or which 
is contained or referenced in the public record of the proceeding and 
or which concerns the proceeding without following the requirements of 
section 6(b)(1). Documentation supporting the public record is also 
excepted from section 6(b). A rulemaking proceeding includes a 
proceeding either to issue, to amend, or to revoke 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 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.


Sec.  1101.45  Adjudicatory proceeding exception.

    (a) Statutory provision. Section 6(b)(4)(B) provides that the 
requirements of section 6(b)(1) do not apply to public disclosure of

[[Page 10728]]

``information in the course of or concerning * * * [an] adjudicatory 
proceeding * * * under this Act.''
    (b) Scope of exception. This exception applies once the Commission 
begins an administrative adjudication under the CPSA. The Commission 
will also apply the exception to any administrative adjudicatory 
proceeding under FHSA, FFA, or PPPA. An adjudicatory proceeding begins 
with the filing of 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 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.


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) 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 CPSA, FHSA, FFA, or PPPA. 
Proceedings within this exception include:
    (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 Secretariat 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. The phrase ``in the course of 
or concerning'' shall have the same meaning as set forth in either 
Sec.  1101.44 (c) and (d) or Sec.  1101.45 (c) and (d), whichever is 
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 inaccurate or misleading 
information only if the information is adverse--i.e., if the 
information reflects adversely either on the safety of a consumer 
product or on the practices of a manufacturer, private labeler, 
distributor or retailer. In addition, the Commission will apply section 
6(b)(7) to information about products, and about manufacturers and 
private labelers of products, the Commission may regulate under any of 
the statutes it administers. Section 6(b)(7) applies to information 
already disclosed by the Commission, members of the Commission, or the 
Commission employees, agents, contractors or representatives in their 
official capacities.


Sec.  1101.52  Procedure for retraction.

    (a) Initiative. The Commission may retract information under 
section 6(b)(7) on the initiative of the Commission, upon the request 
of a manufacturer, private labeler, distributor or retailer of a 
consumer product, or upon the request of any other person in accordance 
with the procedures provided in this section.
    (b) Request for retraction. Any manufacturer, private labeler, 
distributor or retailer of a consumer product or any other person may 
request a retraction if he/she believes the Commission, any member of 
the Commission, or any employee, agent, or representative, including 
contractor, of the Commission in an official capacity has made public 
disclosure of inaccurate or misleading information, which reflects 
adversely either on the safety of a product with which the firm deals 
or on the practices of the firm. The request must be in writing and 
sent via either electronic mail to cpsc-os@cpsc.gov or first class mail 
to The Secretariat, Office of the Secretary, U.S. Consumer Product 
Safety Commission, 4330 East West Highway, Bethesda, MD, 20814-4408.
    (c) Content of request. A request for retraction must include the 
following information to the extent it is reasonably available:
    (1) The information disclosed for which retraction is requested, 
the date on which the information was disclosed, the manner in which it 
was

[[Page 10729]]

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 that 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. The Commission will act 
expeditiously on any request for 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 
made public disclosure of inaccurate or misleading information that 
reflects adversely either on the safety of the firm's product or the 
practices of the firm, the Commission will publish a retraction of 
information in a manner equivalent to that in which the disclosure was 
made. If the Commission finds that fuller disclosure is necessary, the 
Commission will publish a retraction in the manner that the Commission 
determines appropriate under the circumstances.
    (e) Notification to requester. The Commission will promptly notify 
the requester in writing of the Commission's decision on request for 
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 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:
    (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; or
    (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).


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 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.)) 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).
    (b) [Reserved]


Sec.  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 (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.

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 or 
his or her senior staff designees, the authority to render all 
decisions under this part concerning the release of information subject 
to section 6(b) when firms have furnished section 6(b) comment except 
as provided in paragraph (b). The Commission also delegates to the 
Secretariat of the Commission, or his or her senior staff designee, 
authority to make all decisions under this part concerning the release 
of information under section 6(b) when firms have failed to furnish 
section 6(b) comment or have consented to disclosure except as provided 
in paragraph (b) of this section. The General Counsel shall have 
authority to establish an Information Group composed of the General 
Counsel and the Secretariat of the Commission or their designees who 
shall be senior staff members.
    (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 five 
(5) calendar days advance notice of its intent to disclose information 
claimed to be inaccurate.
    (3) To decide whether the Commission should take reasonable steps 
to publish a retraction of

[[Page 10730]]

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 or the Secretariat or their designees shall be a final 
agency decision and shall not be appealable as of right to the 
Commission. However, the General Counsel or the Secretariat may in his 
or her discretion refer an issue to the Commission for decision.

    Dated: February 14, 2014.
Todd A. Stevenson,
Secretariat, Consumer Product Safety Commission.
[FR Doc. 2014-03600 Filed 2-25-14; 8:45 am]
BILLING CODE 6355-01-P