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

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CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Part 1101 [CPSC Docket No. CPSC-2014-0005] Information Disclosure Under Section 6(b) of the Consumer Product Safety Act AGENCY:

Consumer Product Safety Commission.

ACTION:

Supplemental notice of proposed rulemaking.

SUMMARY:

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

DATES:

Submit comments by April 3, 2023.

ADDRESSES:

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

Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at: www.regulations.gov. Follow the instructions for submitting comments. Do not submit through this website: confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public. CPSC typically does not accept comments submitted by electronic mail (email), except as described below.

Mail/hand delivery/courier: CPSC encourages you to submit electronic comments by using the Federal eRulemaking Portal

ough this website: confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public. CPSC typically does not accept comments submitted by electronic mail (email), except as described below.

Mail/hand delivery/courier: CPSC encourages you to submit electronic comments by using the Federal eRulemaking Portal. You may, however, submit comments by mail, hand delivery, or courier to: Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7479.

Instructions: All submissions must include the agency name and docket number. CPSC may post all comments without change, including any personal identifiers, contact information, or other personal information provided, to: www.regulations.gov. If you wish to submit confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public, you may submit such comments by mail, hand delivery, or courier, or you may email them to: cpsc-os@cpsc.gov.

Docket: For access to the docket to read background documents or comments received, go to: www.regulations.gov, and insert the docket number, CPSC-2014-0005, into the “Search” box, and follow the prompts.

FOR FURTHER INFORMATION CONTACT:

Amy S. Colvin, Attorney, Division of Federal Court Litigation, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone: 301-504-7639; email: acolvin@cpsc.gov.

SUPPLEMENTARY INFORMATION:

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

I. Background

A. Statutory Authority

Section 6(b) of the CPSA governs the Commission's disclosure of certain information to the public

7639; email: acolvin@cpsc.gov.

SUPPLEMENTARY INFORMATION:

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

I. Background

A. Statutory Authority

Section 6(b) of the CPSA governs the Commission's disclosure of certain information to the public. In general, section 6(b)(1) requires, “prior to its public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith,” that the Commission, “to the extent practicable,” provide manufacturers or private labelers with advance notice and opportunity to comment on the proposed disclosure, if the manner in which such consumer product is designated or described in such information “permit[s] the public to ascertain readily the identity of such manufacturer or private labeler.” 15 U.S.C. 2055(b)(1). The CPSA defines “manufacturer” to include an importer. 15 U.S.C. 2052(a)(11). Section 6(b)(1) also requires the Commission, prior to such public disclosure, to “take reasonable steps to assure” that the information CPSC intends to disclose “is accurate, and that such disclosure is fair in the circumstances and reasonably related to effectuating the purposes of this Act.” Id. In 1980, the U.S. Supreme Court ruled that CPSC's disclosures under the Freedom of Information Act (FOIA) are among the public releases covered by the section 6(b)(1) restrictions. CPSC v. GTE Sylvania, Inc., 447 U.S. 102 (1980).

c., 447 U.S. 102 (1980).

The Consumer Product Safety Improvement Act of 2008 (CPSIA), Public Law 110-314, 122 Stat. 3016, enacted on August 14, 2008, amended section 6 of the CPSA. The amendments shortened, from 30 days to 15 days, the period for manufacturers and private labelers to receive advance notice and have an opportunity to comment on information that the Commission proposes to disclose. In addition, the amendments eliminated the requirement that the Commission publish a Federal Register notice when the Commission makes a finding that the public health and safety necessitates public disclosure with less notice than the default period specified in section 6(b)(1). CPSIA also broadened the statutory exceptions to section 6(b). For example, the amendments excluded from the requirements of section 6(b)(1)-(3) a public disclosure of information about any consumer product which the Commission has reasonable cause to believe is in violation of any consumer product safety rule or provision of the CPSA, or similar rule or provision of any other act enforced by the Commission.

B. History of the 6(b) Regulation

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

asonable steps” the Commission will take pursuant to section 6(b) to assure, prior to public disclosure of covered information, that the information “is accurate, and that such disclosure is fair in the circumstances and reasonably related to effectuating the purposes of this Act.” In 2008, the Commission amended the 6(b) Regulation to reflect the CPSIA amendments. 73 FR 72334 (Nov. 28, 2008).

C. The 2014 NPR

On February 26, 2014, the Commission published the 2014 NPR. Information Disclosure Under Section 6(b) of the Consumer Product Safety Act, 79 FR 10712 (Feb. 26, 2014). The 2014 NPR was based on the following guiding principles:

1. Modernize the 6(b) Regulation to account for the significant advancements in information technology that have taken place since its initial adoption in 1983;

2. Streamline the 6(b) Regulation to be as closely aligned with 15 U.S.C. 2055(b) as possible, with the objectives of: (a) eliminating unnecessary administrative burdens to the agency; (b) removing extra-statutory requirements; (c) eliminating redundancies in providing notice; (d) minimizing FOIA backlogs; and (e) maximizing transparency and openness in the agency's disclosure of information;

3. Maintain CPSC's compliance with the statutory requirements of 15 U.S.C. 2055(b) ( i.e., requirements related to notice, opportunity to submit comments, and taking reasonable steps to assure accuracy, fairness in the circumstances, and reasonable relation to effectuating the purposes of the CPSA outlined in 15 U.S.C. 2051(b)); and

4. Maintain the protections of 15 U.S.C. 2055(b)(5) for information filed in accordance with the requirements of 15 U.S.C. 2064(b) ( i.e., Section 15(b) reports).

See Fiscal Year 2013 Midyear Review and Operating Plan Adjustments, available at https://www.cpsc.gov/s3fs-public/pdfs/foia_RCAFY13MidyearReviewandOperatingPlanAdjustments%2520050313.pdf.

The Commission received 24 comments on the 2014 NPR

ntain the protections of 15 U.S.C. 2055(b)(5) for information filed in accordance with the requirements of 15 U.S.C. 2064(b) ( i.e., Section 15(b) reports).

See Fiscal Year 2013 Midyear Review and Operating Plan Adjustments, available at https://www.cpsc.gov/s3fs-public/pdfs/foia_RCAFY13MidyearReviewandOperatingPlanAdjustments%2520050313.pdf.

The Commission received 24 comments on the 2014 NPR. As discussed in section III below, seven consumer groups supported the proposed revisions to modernize the regulation and make it more consistent with the statute and industry practice. However, these commenters were concerned that section 6(b)'s obstacles to transparency and the immediate release of crucial product safety information remain. The other commenters, comprising trade associations and one firm, objected to various proposals contained in the 2014 NPR. In general, these commenters asserted that the proposed revisions would result in the disclosure of inaccurate or misleading information. Moreover, according to these commenters, some of the proposed changes could chill cooperation between the Commission and industry.

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

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

A. Table of Contents

1. Proposed Changes to the Table of Contents

revised part 1101 of the Commission's rules.

A. Table of Contents

1. Proposed Changes to the Table of Contents

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

B. Subpart A—Background

1. Proposed Changes to § 1101.1 (General Background.)

To improve organization, the Supplemental NPR proposes to redesignate current § 1101.2 (Scope) as § 1101.1.

The 2014 NPR proposed technical changes to current § 1101.2 (which becomes § 1101.1). 79 FR 10713. The Supplemental NPR continues to propose only one of these technical changes: removing “1476” as a statutory section reference and, in its place, adding “1477.”

technical changes: removing “1476” as a statutory section reference and, in its place, adding “1477.”

Section 6(b)(1) of the CPSA applies to the Commission's “public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith.” 15 U.S.C. 2055(b)(1). Section 6(d)(1) of the CPSA defines “Act” as the CPSA, FFA, PPPA, and FHSA. 15 U.S.C. 2055(d)(1). Current § 1101.2, however, more broadly defines the legislative acts that are relevant to section 6(b) to include not only the laws specified in section 6(d)(1) of the CPSA, but also the Refrigerator Safety Act, the Virginia Graeme Baker Pool and Spa Safety Act, and the Children's Gasoline Burn Prevention Act. The Supplemental NPR proposes to revise this section to conform to the language in section 6(b)(1) and (d)(1) of the CPSA, by removing the additional laws. In connection with this revision, the Supplemental NPR proposes to refer collectively to the CPSA, FFA, PPPA, and FHSA as “the Acts” and to use this defined term throughout the 6(b) Regulation. The Supplemental NPR also proposes edits to the statutory citations. Thus, revised proposed § 1101.1 reads:

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

2. Proposed Changes to § 1101.2 (Scope.)

To improve organization, the Supplemental NPR proposes to redesignate current § 1101.1 (General background) as § 1101.2.

sed Changes to § 1101.2 (Scope.)

To improve organization, the Supplemental NPR proposes to redesignate current § 1101.1 (General background) as § 1101.2.

The 2014 NPR proposed revising current § 1101.1(b)(1) to reflect more clearly that there are exceptions to section 6(b)(5)'s limitations on the disclosure of information submitted to the Commission under section 15(b) of the CPSA. 79 FR 10713. The Supplemental NPR builds upon this approach and proposes additional changes throughout redesignated § 1101.2 to conform to the statute. For example, the Supplemental NPR proposes to revise the first sentence in renumbered § 1101.2(b)(1) to conform to the language in section 6(b)(1). This revised sentence now reads:

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

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

The 2014 NPR also proposed inserting in § 1101.1(b)(1) the word, “calendar,” between “15” and “days.” 79 FR 10713. For clarity and consistency, the Supplemental NPR continues to propose this change, without revision, in those sections of the 6(b) Regulation that discuss timing. The specification of calendar days reflects CPSC's practice since 2008, when the Commission published a final rule to revise the 6(b) Regulation in accordance with the 6(b) amendments under CPSIA. 73 FR 72334

5” and “days.” 79 FR 10713. For clarity and consistency, the Supplemental NPR continues to propose this change, without revision, in those sections of the 6(b) Regulation that discuss timing. The specification of calendar days reflects CPSC's practice since 2008, when the Commission published a final rule to revise the 6(b) Regulation in accordance with the 6(b) amendments under CPSIA. 73 FR 72334.

The 2014 NPR proposed revising the date of CPSC's internal Directive 1450.2 as listed in current § 1101.1(c). 79 FR 10713. The Supplemental NPR proposes to delete the reference to Directive 1450.2 entirely, to avoid obsolescence if the Commission chooses to update or revise that document. The Supplemental NPR also proposes removing from current § 1101.2(c) the words, “internal” and “internal clearance,” to conform to the language in section 6(b)(6) of the CPSA, which does not use these terms.

Finally, to provide clarity to covered firms, the Supplemental NPR proposes to add a sentence at the end of current § 1101.2(b)(1), explaining the requirements of section 15(b) of the CPSA. The Supplemental NPR, for clarity, also proposes minor grammatical edits throughout redesignated § 1101.2.

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

1. Proposed Changes to Subpart B Heading

The Supplemental NPR proposes to remove “Analysis” and, in its place, add “Comment” to conform to the language in section 6(b)(1) of the CPSA.

2. Proposed Changes to § 1101.11 (General Application of Provisions of Section 6(b)(1).)

a. Proposed Changes to § 1101.11(a)

In § 1101.11(a), the Supplemental NPR proposes to remove “analysis” and, in its place, add “comment” to conform to the statute.

upplemental NPR proposes to remove “Analysis” and, in its place, add “Comment” to conform to the language in section 6(b)(1) of the CPSA.

2. Proposed Changes to § 1101.11 (General Application of Provisions of Section 6(b)(1).)

a. Proposed Changes to § 1101.11(a)

In § 1101.11(a), the Supplemental NPR proposes to remove “analysis” and, in its place, add “comment” to conform to the statute.

i. Proposed Changes to § 1101.11(a)(1)

Current § 1101.11(a)(1) states: “The information must pertain to a specific product which is either designated or described in a manner which permits its identity to be ascertained readily by the public.” The 2014 NPR proposed deleting the phrase, “which is either designated or described in a manner which permits its identity to be ascertained readily by the public.” 79 FR 10713-14. The Supplemental NPR proposes to delete § 1101.11(a)(1) entirely because section 6(b)(1) of the CPSA does not require that the information proposed for disclosure pertain to a specific product. Instead, section 6(b)(1) requires the Commission to provide a manufacturer or private labeler with advance notice and an opportunity to comment on the information, “if the manner in which such consumer product is to be designated or described in such information will permit the public to ascertain readily the identity of such manufacturer or private labeler. ” 15 U.S.C. 2055(b)(1) (emphasis added). This statutory requirement that the public must be able to ascertain readily the identity of the manufacturer or private labeler of the consumer product is reflected in current § 1101.11(a)(4), which the Supplemental NPR proposes to redesignate as § 1101.11(a)(2).

mit the public to ascertain readily the identity of such manufacturer or private labeler. ” 15 U.S.C. 2055(b)(1) (emphasis added). This statutory requirement that the public must be able to ascertain readily the identity of the manufacturer or private labeler of the consumer product is reflected in current § 1101.11(a)(4), which the Supplemental NPR proposes to redesignate as § 1101.11(a)(2).

ii. Proposed Changes to § 1101.11(a)(2) and (3)

Current § 1101.11(a)(2) states: “The information must be obtained, generated or received by the Commission as an entity or by individual members, employees, agents, contractors or representatives of the Commission acting in their official capacities.” The 2014 NPR proposed to revise § 1101.11(a)(2) to state: “The information must be obtained under the acts the Commission administers, or be disclosed to the public in connection therewith.” 79 FR 10714. The Supplemental NPR proposes additional changes to § 1101.11(a)(2) to align with the statute. Revised § 1101.11(a)(2), which the Supplemental NPR proposes to redesignate as § 1101.11(a)(3), now reads: “The information must be obtained, generated or received under the Acts, or be disclosed to the public in connection therewith.”

The Toy Industry Association (TIA) suggested that the 2014 NPR's proposal to remove from § 1101.11(a)(2) the phrase, “individual members, employees, agents, contractors or representatives of the Commission acting in their official capacities,” could cause these individuals to believe that they are no longer subject to section 6(b). We disagree. Section 6(d)(2) of the CPSA states that the “provisions of [section 6] shall apply whenever information is to be disclosed by the Commission, any member of the Commission, or any employee, agent, or representative of the Commission in an official capacity.” This statutory provision is repeated in current § 1101.11(a)(3), which the Supplemental NPR proposes to redesignate as § 1101.11(a)(1) and to revise with minor edits to conform to the statute

isions of [section 6] shall apply whenever information is to be disclosed by the Commission, any member of the Commission, or any employee, agent, or representative of the Commission in an official capacity.” This statutory provision is repeated in current § 1101.11(a)(3), which the Supplemental NPR proposes to redesignate as § 1101.11(a)(1) and to revise with minor edits to conform to the statute. Revised § 1101.11(a)(1) now reads: “The Commission, any member of the Commission, or any employee, agent, or representative, including contractor, of the Commission in an official capacity must propose to disclose the information to the public (see § 1101.12).”

iii. Proposed Changes to § 1101.11(a)(4)

The Supplemental NPR proposes to redesignate § 1101.11(a)(4) as § 1101.11(a)(2) and to insert “consumer” between “the” and “product” to align with the statute. The Supplemental NPR also proposes minor grammatical edits to this section.

b. Proposed Changes to § 1101.11(b)

The 2014 NPR proposed revising § 1101.11(b)(1) to clarify that the requirements of section 6(b)(1) do not apply to the information described in the exceptions listed in section 6(b)(5) of the CPSA. These exceptions include the public disclosure of information with respect to a consumer product which is the subject of an action brought under section 12, or which the Commission has reasonable cause to believe is in violation of any consumer product safety rule or provision under the CPSA or similar rule or provision of any other act enforced by the Commission, or information in the course of or concerning a judicial proceeding. 15 U.S.C. 2055(b)(5). The Supplemental NPR continues to propose this change, incorporating a technical revision and minor grammatical edit

ission has reasonable cause to believe is in violation of any consumer product safety rule or provision under the CPSA or similar rule or provision of any other act enforced by the Commission, or information in the course of or concerning a judicial proceeding. 15 U.S.C. 2055(b)(5). The Supplemental NPR continues to propose this change, incorporating a technical revision and minor grammatical edit.

The 2014 NPR also proposed adding the following three categories to the list of information not subject to the requirements of section 6(b):

• A report of harm posted on the publicly available consumer product safety information database;

• Information that is publicly available; and

• Information that is substantially the same as information that the Commission previously disclosed in accordance with section 6(b)(1), except as specified in § 1101.31(d).

i. Reports of Harm

The 2014 NPR proposed including reports of harm posted on the publicly available consumer product safety information database (currently known as and accessible at SaferProducts.gov ) in the list of information not subject to section 6(b)(1), because section 6A(f)(1) of the CPSA specifically excludes such reports from the provisions of section

The Commission acknowledges commenters' concerns with the Commission disclosing, without following the section 6(b) requirements, reports of harm that are not published on SaferProducts.gov. Although section 6A(f)(1) of the CPSA specifically excludes from the requirements of section 6(b), reports of harm that are published on SaferProducts.gov, this provision does not address reports of harm that do not meet the criteria for publication. Id. Accordingly, the Commission will provide firms with any requisite 6(b) notice for reports of harm that are not published on SaferProducts.gov

ov. Although section 6A(f)(1) of the CPSA specifically excludes from the requirements of section 6(b), reports of harm that are published on SaferProducts.gov, this provision does not address reports of harm that do not meet the criteria for publication. Id. Accordingly, the Commission will provide firms with any requisite 6(b) notice for reports of harm that are not published on SaferProducts.gov.

The National Association of Manufacturers (NAM) asserted that the section 6(b) exclusion for reports of harm “applies strictly to the reports of harm on the database and does not apply to alternative disclosures of information contained in the report.” Without examples or explanation of the phrase “alternative disclosures,” we are unable to respond meaningfully to this comment. In general, however, the Commission may release or identify information contained in a report of harm that is posted to SaferProducts.gov, without notice under section 6(b)(1), if (1) the Commission does not characterize the information contained in the report, and (2) the Commission's use of SaferProducts.gov information is accurate and not misleading. For example, the Commission could state that SaferProducts.gov received 15 reports of harm involving Manufacturer ABC's lamp. In contrast, the Commission would have to provide 6(b) notice and opportunity to comment if that same release also warned consumers to stop using the lamps due to a hazard, or contained other information that is a public disclosure subject to the notice requirement of section 6(b)(1).

ii. Information That Is Publicly Available

The 2014 NPR proposed including in the list of information not subject to section 6(b)(1) the following: “Information that is publicly available or that has been disseminated in a manner intended to reach the public in general, such as news reports; articles in academic and scientific journals; press releases distributed through news or wire services; or information that is available on the Internet.” 79 FR 10714

posed including in the list of information not subject to section 6(b)(1) the following: “Information that is publicly available or that has been disseminated in a manner intended to reach the public in general, such as news reports; articles in academic and scientific journals; press releases distributed through news or wire services; or information that is available on the Internet.” 79 FR 10714. Commenters raised concerns regarding the scope of the 2014 NPR's proposed revision, noting that publicly available information may be inaccurate, biased, or misleading and the Commission's reference to such information implies that the information is verified, accurate, or reliable. The Commission recognizes that even though information appearing in a news article or in an organization's published report is available to the general public, the Commission's repetition of that information could be inconsistent with the intent of section 6.

Based upon the comments that we received, this Supplemental NPR proposes a different approach for information that is already available to the public. Specifically, the Commission proposes to specify that the requirements of section 6(b)(1) do not apply to: “Information that has already been made available to the public through sources other than the Commission, provided the Commission clearly indicates the source of the information and the Commission's use of the information is accurate and not misleading.”

Under the revised approach proposed here, the Commission may release or identify information that the Commission obtained from publicly available sources ( e.g., news clippings), without notice under section 6(b)(1), if (1) the Commission does not characterize the publicly available information or relay new information, and (2) the Commission's use of the information is accurate and not misleading. In determining whether the Commission's use of the information is accurate and not misleading, the integrity of the source may be relevant

lable sources ( e.g., news clippings), without notice under section 6(b)(1), if (1) the Commission does not characterize the publicly available information or relay new information, and (2) the Commission's use of the information is accurate and not misleading. In determining whether the Commission's use of the information is accurate and not misleading, the integrity of the source may be relevant. For example, the Commission could state that it is aware of an identified newspaper's article reporting 10 incidents involving Manufacturer ABC's stroller, provided it is reasonable to attribute integrity to the source of the information ( e.g., the newspaper follows journalistic standards) and the Commission's description of the newspaper's report is accurate and not misleading. However, the Commission would provide 6(b) notice and opportunity to comment before posting to a social media platform: “Check your ABC stroller for dangerous hinges—[Newspaper name] reports injuries to 10 kids.” In this example, the Commission's social media message implies that the Commission considers the information contained in the news article to be a basis for action, or even that the Commission has itself determined the stroller hinges pose a hazard.

iii. Information That Is Substantially the Same as Information That the Commission Previously Disclosed

The 2014 NPR proposed including the following to the list of information not subject to section 6(b)(1): “(8) Information that is substantially the same as information that the Commission previously disclosed in accordance with section 6(b)(1), except as specified in § 1101.31(d).” 79 FR 10715.

b)(1): “(8) Information that is substantially the same as information that the Commission previously disclosed in accordance with section 6(b)(1), except as specified in § 1101.31(d).” 79 FR 10715.

Based upon comments that the Commission received, which asserted that the 2014 NPR proposal is vague and difficult to apply, and upon further consideration, the Commission proposes a modified approach. Under this new approach, the requirements of section 6(b)(1) do not apply to: “Information, not previously disclosed, that in context does not disclose materially more or materially different information about the consumer product than what the Commission previously disclosed in accordance with the law.” For example, under this proposal, a Commissioner may relate in a speech the findings regarding Manufacturer A's blender that appeared in a published CPSC report on kitchen appliances, for which the Commission provided the requisite 6(b) notice. However, the Commissioner would not discuss other staff findings that do not appear in the published report, unless the Commission previously provided Manufacturer A with 6(b) notice regarding those additional findings.

iv. Press Releases Issued by Firms

The Supplemental NPR proposes to delete § 1101.11(b)(4), “Press releases issued by firms.” While we do not believe that section 6(b) requires the Commission to provide a manufacturer or private labeler with 6(b) notice and an opportunity to comment before the Commission provides the public with information that is available in the firm's own publicly available press release, we hold to the Supplemental NPR's position that it is unnecessary to state in the 6(b) Regulation this specific application of general principals.

c. Proposed Technical and Conforming Changes to § 1101.11

The 2014 NPR proposed three technical and conforming changes to § 1101.11. 79 FR 10715

ovides the public with information that is available in the firm's own publicly available press release, we hold to the Supplemental NPR's position that it is unnecessary to state in the 6(b) Regulation this specific application of general principals.

c. Proposed Technical and Conforming Changes to § 1101.11

The 2014 NPR proposed three technical and conforming changes to § 1101.11. 79 FR 10715. The Supplemental NPR continues to propose these revisions, except for the proposal to remove “16 CFR part 1017,” which is listed as “Reserved,” and, in its place, add “16 CFR part 1019,” which is titled “Export of Noncomplying, Misbranded, or Banned Products,” in § 1101.11(b)(2).

3. Proposed Changes to § 1101.12 (Commission Must Disclose Information to the Public)

The 2014 NPR proposed technical and conforming changes to § 1101.12, including revising the heading to state: “Definition of `public.' ” 79 FR 10715. The Supplemental NPR continues to propose these changes, without revision.

For the requirements of section 6(b) to apply, the Commission, any member of the Commission, or any employee, agent, or representative, including contractor, of the Commission in an official capacity, must propose to disclose the information to the public. See revised § 1101.11a(1). Current § 1101.12 includes in the list of persons who are not considered members of the “public”:

• “The persons or firms to whom the information to be disclosed pertains, or their legal representatives” (16 CFR 1101.12(d)); and

• “The persons or firms who provided the information to the Commission, or their legal representatives” (16 CFR 1101.12(e)).

For greater specificity, the Supplemental NPR proposes to remove the reference to “persons or firms” and, in its place, add “Persons, including but not limited to, consumers, manufacturers, private labelers, retailers, or distributors.”

The Commission may (and routinely does) contact consumers or firms to discuss information involving that particular consumer or firm

ives” (16 CFR 1101.12(e)).

The Commission may (and routinely does) contact consumers or firms to discuss information involving that particular consumer or firm. For example, when a manufacturer or private labeler provides the Commission with incident information that also identifies the consumers involved in those incidents, the Commission may use that information to contact the consumers to conduct in-depth investigations of the incidents. Similarly, when a manufacturer or private labeler provides the Commission with the names of firms that distributed or sold a violative or defective product, the Commission may contact the distributor or retailer to obtain additional information about the product. In these instances, neither the consumer, distributor, nor retailer constitutes the “public” under § 1101.12, because the information to be disclosed pertains to (1) the particular consumer who experienced an incident with the product, or (2) the particular distributor or retailer who distributed or sold the product.

The Supplemental NPR proposes additional technical and conforming changes, as well as minor grammatical edits, to § 1101.12 to provide clarity and to align with the statute. For example, the Supplemental NPR proposes to revise § 1101.12(a) and (b) to explain that section 6(b) applies to disclosures of information by state officials who are commissioned officers under section 29(a)(2) of the CPSA, and by any member of the Commission or any employee, agent, or representative, including contractor, of the Commission, in an official capacity. In § 1101.12(h), the Supplemental NPR proposes to remove the reference to “CPSIA” and, in its place, insert “CPSA,” which the CPSIA amended.

isclosures of information by state officials who are commissioned officers under section 29(a)(2) of the CPSA, and by any member of the Commission or any employee, agent, or representative, including contractor, of the Commission, in an official capacity. In § 1101.12(h), the Supplemental NPR proposes to remove the reference to “CPSIA” and, in its place, insert “CPSA,” which the CPSIA amended.

4. Proposed Changes to § 1101.13 (Public Ability To Ascertain Readily Identity of Manufacturer or Private Labeler)

The 2014 NPR proposed deleting from § 1101.13 the last sentence, which states, “The Commission will provide the advance notice and opportunity to comment if there is a question whether the public could readily ascertain the identity of a manufacturer or private labeler.” 79 FR 10715. The 2014 NPR explained that this sentence is vague and inconsistent with the reasonable person standard that the Commission adopted in the first sentence of this section. Id. Under that standard, if a reasonable person who lacks specialized expertise can readily ascertain the identity of the firm from the information proposed to be disclosed, the Commission will provide such information to the firm for section 6(b) comment. The Supplemental NPR continues to propose deleting the last sentence of § 1101.13, while retaining the reasonable person standard.

The Supplemental NPR proposes to insert two sentences in § 1101.13 to clarify that the following types of information are not within the scope of section 6(b)(1): (1) information about categories of consumer products, provided such information will not permit the public to ascertain readily the identity of the products' manufacturers or private labelers, and (2) information about manufacturers or private labelers, provided such information does not designate or describe a consumer product

ing types of information are not within the scope of section 6(b)(1): (1) information about categories of consumer products, provided such information will not permit the public to ascertain readily the identity of the products' manufacturers or private labelers, and (2) information about manufacturers or private labelers, provided such information does not designate or describe a consumer product. Consistent with section 6(b)(6) of the CPSA, the Commission will ensure, pursuant to its established procedures, that information the Commission intends to disclose that reflects on the safety of a class of consumer products or on a manufacturer or private labeler of consumer products, is accurate and not misleading.

The 2014 NPR also proposed a technical change to § 1101.13. 79 FR 10715. The Supplemental NPR continues to propose this change, without revision. In addition, the Supplemental NPR proposes conforming changes to § 1101.13 to align with the statute and minor grammatical edits for clarity.

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

1. Proposed Changes to § 1101.21 (Form of Notice and Opportunity To Comment)

To increase efficiency and reduce burdens on the Commission and private parties, the 2014 NPR proposed revising the 6(b) Regulation to authorize electronic 6(b) notices, direct Commission staff to transmit notices electronically when possible, and encourage electronic communication back to the Commission. 79 FR 10715. Commenters overwhelmingly supported this proposal. The Supplemental NPR builds upon the 2014 NPR's approach. The Supplemental NPR proposes a new paragraph at § 1101.21(b) that requires, to the extent practicable, electronic transmission to avoid delays inherent in methods such as mail delivery. In response to commenters' questions, the new paragraph also clarifies the procedure if electronic transmission is not practicable or the Commission cannot confirm electronic receipt of the notice

NPR's approach. The Supplemental NPR proposes a new paragraph at § 1101.21(b) that requires, to the extent practicable, electronic transmission to avoid delays inherent in methods such as mail delivery. In response to commenters' questions, the new paragraph also clarifies the procedure if electronic transmission is not practicable or the Commission cannot confirm electronic receipt of the notice. In such instances, the Commission will take appropriate steps to provide notice using other methods, including delivery via U.S. mail or other delivery service.

Section 6(b)(1) of the CPSA states: “In disclosing any information under [section 6(b)], the Commission may, and upon the request of the manufacturer or private labeler shall, include with the disclosure any comments or other information or a summary thereof submitted by such manufacturer or private labeler to the extent permitted by and subject to the requirements of [section 6].” 15 U.S.C. 2055(b)(1). Thus, unless a manufacturer or private labeler specifically requests that the Commission disclose the firm's “comments or other information or a summary thereof” that is submitted in

Current § 1101.21(b) specifies the information that will appear in a section 6(b) notice to a manufacturer or private labeler. This information includes, among other contents, “[a] statement that a request for comments be withheld from disclosure will be honored.” The 2014 NPR proposed revising § 1101.21(b)(5). 79 FR 10715-16. The Supplemental NPR instead proposes to delete § 1101.21(b)(5) entirely. A blanket policy of always allowing a manufacturer or private labeler to have its comments withheld, even when such comments are not confidential commercial or trade secret information, and disclosure of the comments is not otherwise prohibited by law, may conflict with the public interest in transparency

5). 79 FR 10715-16. The Supplemental NPR instead proposes to delete § 1101.21(b)(5) entirely. A blanket policy of always allowing a manufacturer or private labeler to have its comments withheld, even when such comments are not confidential commercial or trade secret information, and disclosure of the comments is not otherwise prohibited by law, may conflict with the public interest in transparency. Under the Commission's proposed revision at § 1101.24(c), a manufacturer or private labeler must explain its basis for requesting that the Commission exercise its discretion to not disclose the comments.

Current § 1101.21(b)(7) states that firms may request renotification, or the opportunity to comment on subsequent disclosures of “identical information” that is “in the same format.” The 2014 NPR proposed revisions to this section. 79 FR 10716. As discussed in section II.C.2.b.iii above, the Commission proposes a different approach for subsequent disclosures of information. In connection with this new approach, the Supplemental NPR proposes to revise § 1101.21(b)(7), now redesignated as § 1101.21(b)(6), to provide for delivery to the manufacturer or private labeler of: “A statement that no further request for comment will be sought by the Commission if the Commission intends to disclose information, not previously disclosed, that in context does not disclose materially more or materially different information about the consumer product than what the Commission previously disclosed in accordance with the law.” For example, the Commission would not have to provide another 6(b) notice before restating the contents of a CPSC news release that was issued after a notice and comment process under section 6(b).

Current § 1101.21(b)(2) calls for the inclusion in a section 6(b)(1) notice of:

A general description of the manner in which the Commission will disclose the information, including any other relevant information the Commission intends to include with the disclosure

notice before restating the contents of a CPSC news release that was issued after a notice and comment process under section 6(b).

Current § 1101.21(b)(2) calls for the inclusion in a section 6(b)(1) notice of:

A general description of the manner in which the Commission will disclose the information, including any other relevant information the Commission intends to include with the disclosure. If the Commission advises that the form of disclosure will be by press release, for example, the Commission need not provide further notice to disclose a summary of the press release.

The Supplemental NPR proposes to delete the last sentence of this provision because it concerns renotification, which is addressed in redesignated § 1101.21(b)(6), rather than initial notification. The Supplemental NPR includes this example in redesignated § 1101.21(b)(6).

The 2014 NPR proposed two technical and conforming changes to § 1101.21. 79 FR 10716. The Supplemental NPR continues to propose only the conforming change in § 1101.21(b), redesignated § 1101.21(c). In addition, the Supplemental NPR proposes a technical change in § 1101.21(a) to cross-reference revised § 1101.26, which identifies circumstances when notice and opportunity to comment are not practicable. Finally, the Supplemental NPR proposes changes to conform to the statute and minor grammatical edits throughout § 1101.21 for simplification and clarity. For example, in § 1101.21(b)(6), redesignated § 1101.21(c)(5), the Supplemental NPR proposes to remove “firm” and, in its place, add “manufacturer or private labeler.” The Supplemental NPR also proposes to redesignate certain paragraphs and sub-paragraphs.

2. Proposed Changes to § 1101.22 (Timing: Request for Time Extensions)

The 2014 NPR proposed inserting a sentence into § 1101.22(a)(1) regarding electronic transmission of the 6(b) notice. 79 FR 10716. The Supplemental NPR proposes to move discussion of electronic transmission to proposed § 1101.21(b)

er.” The Supplemental NPR also proposes to redesignate certain paragraphs and sub-paragraphs.

2. Proposed Changes to § 1101.22 (Timing: Request for Time Extensions)

Currently, the first sentence of § 1101.22(a)(2) states: “Upon his or her own initiative or upon request, the Freedom of Information Officer may provide a different amount of time for comment, particularly for firms that receive voluminous or complex material.” The 2014 NPR proposed deleting from § 1101.22(a)(2) the phrase, “Upon his or her own initiative or,” because, absent a request from a manufacturer or private labeler, the Freedom of Information Officer generally will not provide a firm with additional time to comment on information proposed for disclosure. 79 FR 10716. The Supplemental NPR proposes additional non-substantive edits to the first sentence of § 1101.22(a)(2). The proposed revised sentence reads: “The Commission may provide a longer amount of time for comment, particularly for manufacturers and private labelers that receive from the Commission voluminous or complex material to review.”

The 2014 NPR proposed revisions to § 1101.22(b)(2) to clarify when the Commission will disclose information in fewer than 15 calendar days. 79 FR 10716. The Supplemental NPR proposes to delete § 1101.22(b)(2) entirely because this section concerns timing, which is addressed in §§ 1101.22(a)(1) and 1101.23.

79 FR 10716. The Supplemental NPR proposes to delete § 1101.22(b)(2) entirely because this section concerns timing, which is addressed in §§ 1101.22(a)(1) and 1101.23.

Current § 1101.22(b)(1) states: “If the Commission has not received a response within the time specified and if it has received no request for extension of time, the Commission will analyze the information as provided in subpart D. If no comments are submitted the Commission will not give the further notice provided in section 6(b)(2).” The Supplemental NPR proposes minor grammatical and clarifying revisions to this section to reflect that an extension request is not a substantive response. Revised § 1101.21(b)(1), redesignated § 1101.21(b), now reads: “If the Commission has not received a response within the time specified (subject to any extension of time that has been granted under paragraph (c)), the Commission will analyze the information as provided in subpart D and will not give the further notice provided in section 6(b)(2).” The Commission expects manufacturers and private labelers to submit comments by the deadline indicated in the 6(b) notice or otherwise given. The Commission ordinarily will disregard comments that are not submitted by the stated deadline.

The Supplemental NPR also proposes edits to provide manufacturers and private labelers more specific instructions regarding the Commission's process for requesting an extension of time to comment on information that the Commission proposes to disclose. The Supplemental NPR proposes requiring in § 1101.22(c) that such requests be in writing and submitted at least 48 hours before the deadline to

The Supplemental NPR proposes to move the sentence in § 1101.22(c)(2) to the end of § 1101.22(c)(1) and to redesignate “(3)” as “(2)”

ission's process for requesting an extension of time to comment on information that the Commission proposes to disclose. The Supplemental NPR proposes requiring in § 1101.22(c) that such requests be in writing and submitted at least 48 hours before the deadline to

The Supplemental NPR proposes to move the sentence in § 1101.22(c)(2) to the end of § 1101.22(c)(1) and to redesignate “(3)” as “(2)”. In addition, in redesignated § 1101.22(c)(2), the Supplemental NPR proposes to remove, “The Commission will promptly respond to requests for extension of time” and, in its place, add “It is the policy of the Commission to respond promptly to requests for extension of time.” This change reflects that the statute does not require the Commission to respond promptly to an extension request, although the Commission endeavors to do so.

The 2014 NPR proposed two technical changes to § 1101.22. 79 FR 10716. In § 1101.22(a)(2), the Supplemental NPR continues to propose removing “§ 1101.24” and, in its place, adding “§ 1101.23.” The 2014 NPR's proposed revision to § 1101.22(b)(1) is no longer necessary in light of other revisions to this sentence.

The Supplemental NPR proposes additional conforming changes to align with the statute and minor grammatical edits for clarity. For example, the Supplemental NPR proposes to remove “firm” and, in its place, add “manufacturer or private labeler” to conform to the statute and to provide clarity about the types of entities that are subject to section 6(b)(1) of the CPSA. The Supplemental NPR proposes this revision at appropriate places throughout the 6(b) Regulation. The Supplemental NPR also proposes to revise the heading of § 1101.22 so that it reads: “Time for comment and requests for extension of time”.

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

Current § 1101.23(c), titled “Notice of finding,” states that the Commission will provide the manufacturer or private labeler with notice of a public health and safety finding

lso proposes to revise the heading of § 1101.22 so that it reads: “Time for comment and requests for extension of time”.

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

Current § 1101.23(c), titled “Notice of finding,” states that the Commission will provide the manufacturer or private labeler with notice of a public health and safety finding. The 2014 NPR proposed revisions to § 1101.23(c) to direct the Commission to provide such notice electronically. 79 FR 10716. The Supplemental NPR proposes to delete § 1101.23(c) entirely, because section 6(b) does not require the Commission to provide the manufacturer or private labeler direct notice of the finding. Rather, when the Commission finds that the public health and safety requires a lesser period of notice, section 6(b)(1) requires the Commission to publish such finding. In addition, section 6(b)(2) requires the Commission to notify the manufacturer or private labeler of the date set for public disclosure.

The Supplemental NPR proposes to revise the heading in § 1101.23(a) to include instances where the firm notifies the Commission that the firm has no comment. This provision currently appears in the text of § 1101.23(a).

In addition, the Supplemental NPR proposes to insert the following sentence into § 1101.23(b): “The Commission will publish the finding in the disclosure itself or elsewhere.” The CPSIA amendments in 2008 removed the previous requirement in section 6(b)(1) of the CPSA that the Commission publish its health and safety finding in the Federal Register . The House Report accompanying the CPSIA bill explained this revision as follows:

health and safety finding in the Federal Register . The House Report accompanying the CPSIA bill explained this revision as follows:

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

H.R. Rep. No. 110-501, Consumer Product Safety Modernization Act (Dec. 19, 2007). Based upon this statutory revision and the accompanying legislative history, the Commission concludes that Congress intended the Commission to publish the finding quickly, such as in the press release or other public disclosure itself. This proposed revision, however, does not impact the requirement under section 6(b)(1) of the CPSA that the Commission, to the extent practicable, provide the manufacturer or private labeler with notice and an opportunity to comment on the information prior to disclosure.

The Supplemental NPR proposes additional conforming changes to align with the statute and minor grammatical edits for clarity throughout § 1101.23. For example, the Supplemental NPR proposes to replace “firm” with “manufacturer or private labeler”; insert “calendar” between “15” and “days”; and insert “consumer” between “the” and “product”.

4. Proposed Changes to § 1101.24 (Scope of Comments Commission Seeks)

on 6(b)(1) of the CPSA states: “In disclosing any information under [section 6(b)], the Commission may, and upon the request of the manufacturer or private labeler shall, include with the disclosure any comments or other information or a summary thereof submitted by such manufacturer or private labeler to the extent permitted by and subject to the requirements of [section 6].” 15 U.S.C. 2055(b)(1). The 2014 NPR proposed revising § 1101.24(c) to require that a manufacturer or private labeler provide a rationale to support withholding the firm's comments and an explanation of why disclosure of the comments is not necessary to assure that the disclosure of the information that is the subject of the comments is fair in the circumstances. 79 FR 10716-17. The Commission proposed this revision “[t]o obtain more substantive and useful information from firms who object to disclosure of comments.” 79 FR 10718. The 2014 NPR explained that “[c]onclusory assertions that comments be withheld without a rationale will not be sufficient to withhold comments” and that “a firm's comment that it has no objection to disclosure, without any additional comments, will not be sufficient to justify withholding.” Id.

The Supplemental NPR revises this approach and proposes that a manufacturer or private labeler must provide a basis if it requests that the comments not be disclosed. For example, if a firm submits comments on what it believes is inaccurate information in the Commission's planned disclosure, and the Commission agrees with the comments and revises the proposed statement, the firm might contend that releasing comments referencing the inaccurate information in the proposed disclosure would not be a reasonable step to assure accuracy or fairness under the 6(b) requirements.

erencing the inaccurate information in the proposed disclosure would not be a reasonable step to assure accuracy or fairness under the 6(b) requirements.

In addition, the Supplemental NPR proposes to revise the last sentence of § 1101.24(c) to clarify that if a manufacturer or private labeler objects to the disclosure of a portion of its comments, the firm must specifically identify that portion. Incorporating these revisions, along with conforming and grammatical edits, the revised proposed § 1101.24(c) now reads:

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

In response to the 2014 NPR, commenters expressed concern with the Commission's treatment of trade secret or privileged or confidential commercial or financial information that may appear in a firm's comments. The proposed revision in no way affects the Commission's treatment of such information. The Commission will maintain the protections on disclosure of trade secret or privileged or confidential commercial or financial information, as delineated in the CPSA, the FOIA, and our corresponding regulations, and in applicable case law. Firms should consult the Commission's FOIA regulation at 16 CFR 1015.18, which specifies the information a firm must provide with any request that the Commission withhold trade secret or privileged or confidential commercial or financial information.

The 2014 NPR proposed two technical changes to § 1101.24(b). 79 FR 10717. The Supplemental NPR no longer proposes the change to the first sentence of § 1101.24(b); instead, the Supplemental NPR proposes revisions to conform to the language in section 6(a)(2) of the CPSA. The Supplemental NPR continues to propose the change to the second sentence, along with other clarifying edits to the sentence. In addition, throughout § 1101.24, the Supplemental NPR proposes conforming changes to align with the statute and minor grammatical edits for simplification and clarity. For example, in § 1101.24(a), the Supplemental NPR proposes to delete “undocumented” and, in its place, add “non-specific”.

5. Proposed Changes to § 1101.25 (Notice of Intent To Disclose)

The 2014 NPR proposed adding the following sentence to the end of § 1101.25(c): “If written notice is provided, the Commission, whenever possible, will transmit such notice electronically.” 79 FR 10717. The Supplemental NPR continues to propose this revision, with minor grammatical edits.

In § 1101.25(a), the Supplemental NPR proposes non-substantive revisions to clarify the time at which the Commission may disclose the information. In addition, the Supplemental NPR proposes to remove the last sentence in § 1101.25(a), which states: “The notice of intent to disclose will include an explanation of the reason for the Commission's decision [and] copies of any additional materials, such as explanatory statements and letters to FOIA requesters, which were not previously sent to the firm.” Section 6(b)(2) of the CPSA only requires that the Commission “notify the manufacturer or private labeler that the Commission intends to disclose [the information] at a date not less than 5 days after the date of the receipt of notification.” For FOIA requests, however, it is the Commission's current practice to include, with the section 6(b)(2) notice, copies of the final package of materials that the Commission intends to disclose to the FOIA requester

ion “notify the manufacturer or private labeler that the Commission intends to disclose [the information] at a date not less than 5 days after the date of the receipt of notification.” For FOIA requests, however, it is the Commission's current practice to include, with the section 6(b)(2) notice, copies of the final package of materials that the Commission intends to disclose to the FOIA requester.

The Supplemental NPR proposes to delete § 1101.25(b) entirely, because the information in this paragraph appears in § 1101.23(b). In connection with this revision, the Supplemental NPR redesignates paragraph (c) as (b).

The 2014 NPR proposed technical changes to § 1101.25. 79 FR 10717. The Supplemental NPR continues to propose some of these changes. In addition, the Supplemental NPR proposes minor grammatical edits and conforming changes to align § 1101.23 with the statute. For example, in redesignated § 1101.25(b), the Supplemental NPR proposes to delete, “depending on the immediacy of the need for quick action,” because a health and safety finding itself constitutes a Commission determination regarding immediacy.

6. Proposed Changes to § 1101.26 (Circumstances When the Commission Does Not Provide Notice and Opportunity To Comment)

The 2014 NPR did not propose any changes to this section.

Section 6(b)(1) of the CPSA requires that, “to the extent practicable,” the Commission must provide manufacturers and private labelers notice and an opportunity to comment before disclosing information about a consumer product from which the public can ascertain readily the manufacturer's or private labeler's identity. Current § 1101.26(b) offers examples of circumstances in which notice and opportunity to comment is not practicable. The Supplemental NPR proposes to add to this list the following:

• When the Commission has been unable, after a diligent search, to obtain contact information for the manufacturer or private labeler of the consumer product to which the information pertains

vate labeler's identity. Current § 1101.26(b) offers examples of circumstances in which notice and opportunity to comment is not practicable. The Supplemental NPR proposes to add to this list the following:

• When the Commission has been unable, after a diligent search, to obtain contact information for the manufacturer or private labeler of the consumer product to which the information pertains.

• When an extraordinary circumstance necessitates the immediate disclosure of information to protect the public health and safety while the Commission simultaneously pursues notification of the manufacturer or private labeler.

Regarding the first example, Commission staff conducts thorough searches in internal databases and other sources to locate contact information for manufacturers and private labelers. There have been occasions when staff was unable to find contact information for a particular firm after a diligent search, and thus, the Commission could not provide the requisite notice.

Regarding the second example, there may be emergency situations where the Commission must warn the public immediately about a particular hazard or risk while simultaneously pursuing notification to the manufacturer or private labeler. For example, on a holiday weekend the Commission might become aware of a serious hazard involving a new consumer product associated with the holiday, but the Commission's attempts to contact the manufacturer go unanswered. In that situation, the Commission might immediately notify the public of the hazard while awaiting a response from the firm. Importantly, consistent with the requirements in section 6(b)(1) of the CPSA, the Commission would take reasonable steps to assure that the information is accurate and that disclosure is fair in the circumstances and reasonably related to effectuating the purposes of the Acts.

The Supplemental NPR also proposes conforming changes to align with the statute and minor grammatical edits for clarity and simplification throughout § 1101.26

ements in section 6(b)(1) of the CPSA, the Commission would take reasonable steps to assure that the information is accurate and that disclosure is fair in the circumstances and reasonably related to effectuating the purposes of the Acts.

The Supplemental NPR also proposes conforming changes to align with the statute and minor grammatical edits for clarity and simplification throughout § 1101.26. For example, the Supplemental NPR proposes to revise the sentence in § 1101.26(b) to state: “Circumstances when notice and opportunity to comment is not practicable include, but are not necessarily limited to, the following . . .” In § 1101.26(b)(1), the Supplemental NPR proposes to remove “company” and, in its place, add “manufacturer or private labeler of any consumer product”.

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

1. Proposed Changes to Subpart D Heading

The Supplemental NPR proposes minor edits to the heading of Subpart D for clarity and consistency. For example, the Supplemental NPR proposes to remove “Assure Information It Discloses Is Accurate” and, in its

2. Proposed Changes to § 1101.31 (General Requirements)

Current § 1101.31(b) states:

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

The 2014 NPR proposed revisions to this section. 79 FR 10717

s section 6(b) comments specifically requests the Commission not to include the comments or to include only a designated portion of the comments and disclosure of the comments on such a designated portion is not necessary to assure that the disclosure of the information which is the subject of the comments is fair in the circumstances.

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

Current § 1101.31(d) states:

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

The 2014 NPR proposed deleting substantially all of § 1101.31(d). 79 FR 10718

section 6(b) comment again. Before disclosing the information, the Commission will again review the information to see if accuracy is called into question and will further look to whether disclosure is fair in the circumstances and reasonably related to effectuating the purposes of the Acts the Commission administers.

The 2014 NPR proposed deleting substantially all of § 1101.31(d). 79 FR 10718.

Upon further consideration, the Commission now proposes a more straightforward approach for releasing information that does not disclose materially more or materially different information than what was previously disclosed. Proposed § 1101.31(d), redesignated § 1101.31(c), now reads: “ Disclosing materially more or materially different information. If the Commission intends to disclose information, not previously disclosed, that in context does not disclose materially more or materially different information about the consumer product than what the Commission previously disclosed in accordance with the law, the Commission is not obligated to take any additional steps to assure accuracy unless the Commission has reason to question the accuracy of the information.” This provision reflects that, in the situation described, the notice and comment process has already occurred for the substance of the proposed disclosure, and repeating that process would not advance the purposes of section 6(b).

The Supplemental NPR also proposes to delete § 1101.31(a), which states that the Commission will attempt to make its decision on disclosure “as soon as is reasonably possible after expiration of the statutory fifteen day moratorium on disclosure.” There is no statutory requirement that the Commission disclose information within a certain time after the 15-day period has expired, assuming that the surrounding circumstances have not significantly changed

), which states that the Commission will attempt to make its decision on disclosure “as soon as is reasonably possible after expiration of the statutory fifteen day moratorium on disclosure.” There is no statutory requirement that the Commission disclose information within a certain time after the 15-day period has expired, assuming that the surrounding circumstances have not significantly changed.

In § 1101.31(c), now redesignated § 1101.31(b), the Supplemental NPR proposes to delete the sentence: “Inclusion of an explanatory statement is in addition to, and not a substitute for, taking reasonable steps to assure the accuracy of information.” The Supplemental NPR proposes instead to include a reference to an explanatory statement as a new paragraph (b) in revised § 1101.32 (Reasonable steps to assure disclosure of information is accurate). The Supplemental NPR also proposes other revisions to conform to the statute and clarify that the Commission is not required under section 6(b)(1) of the CPSA to provide an explanatory statement with information that it discloses to the public. These revisions include: (1) removing “Where appropriate”; (2) removing “will” and, in its place, adding “may”; and (3) removing “To the extent practicable”. The Supplemental NPR also proposes to remove “released” and, in its place, add “disclosed” to conform to the statute.

The 2014 NPR proposed two technical and conforming changes to § 1101.31. 79 FR 10718-19. These changes have been superseded by the Supplemental NPR's proposed revisions.

3. Proposed Changes to § 1101.32 (Reasonable Steps To Assure Information Is Accurate)

The 2014 NPR proposed technical changes to § 1101.32. 79 FR 10719. The Supplemental NPR continues to propose these changes, without revision.

Section 6(b)(1) of the CPSA requires the Commission to take reasonable steps to assure, prior to disclosing information, that such information is accurate

revisions.

3. Proposed Changes to § 1101.32 (Reasonable Steps To Assure Information Is Accurate)

The 2014 NPR proposed technical changes to § 1101.32. 79 FR 10719. The Supplemental NPR continues to propose these changes, without revision.

Section 6(b)(1) of the CPSA requires the Commission to take reasonable steps to assure, prior to disclosing information, that such information is accurate. Section 1101.32(a) of the 6(b) Regulation specifies the types of actions that the Commission considers to be reasonable steps to assure the accuracy of information that the Commission proposes to disclose to the public. The Supplemental NPR proposes to add the following as a reasonable step to assure the accuracy of the information: “(3) The Commission staff relies on a statement made under oath, or a similar statement enforceable under penalty of perjury ( e.g., 28 U.S.C. 1746), that yields or corroborates the information to be disclosed.” The making of a statement under penalty of perjury, such as in a sworn affidavit or declaration provided under 28 U.S.C. 1746, is generally accepted as sufficient indicia of reliability and appropriate for the Commission to similarly credit. In connection with this proposed addition, the Supplemental NPR proposes to redesignate current paragraph “(3)” as paragraph “(4)”.

Current § 1101.32(a)(1) provides another action that the Commission considers to be a reasonable step: “The Commission staff or a qualified person or entity outside the Commission . . . conducts an investigation or an inspection which yields or corroborates the product information to be disclosed.” The Supplemental NPR proposes to delete “or an inspection” from this sentence because “investigation” is a broad term under the Commission's regulations that encompasses “inspection.” See 16 CFR 1118.1(a)(4) (“The term investigation includes, but is not limited to, inspections . . .”)

conducts an investigation or an inspection which yields or corroborates the product information to be disclosed.” The Supplemental NPR proposes to delete “or an inspection” from this sentence because “investigation” is a broad term under the Commission's regulations that encompasses “inspection.” See 16 CFR 1118.1(a)(4) (“The term investigation includes, but is not limited to, inspections . . .”).

The Supplemental NPR proposes to add a new paragraph (b) explaining that in addition to the reasonable steps specified in § 1101.32(a), the Commission may include the explanatory statement referenced in proposed § 1101.31(b) to assure the accuracy of the information proposed for disclosure. In connection with this proposed revision, the Supplemental NPR proposes to redesignate current paragraph (b) as paragraph (c).

The Supplemental NPR also proposes conforming changes to align with the statute and other non-substantive

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

Current § 1101.33(a) specifies the types of actions that constitute reasonable steps to assure disclosure of information to the public is fair in the circumstances. The Supplemental NPR proposes several revisions to § 1101.33(a).

First, in § 1101.33(a)(1), the Supplemental NPR revises the approach proposed in the 2014 NPR regarding the disclosure of a firm's comments. The Supplemental NPR proposes that a manufacturer or private labeler must provide a basis, as opposed to a legal rationale, if the firm requests that its comments not be disclosed. The Supplemental NPR also proposes revisions that conform § 1101.33(a)(1) to the statute and require requests regarding the disclosure of a manufacturer's or private labeler's comments to be in writing

firm's comments. The Supplemental NPR proposes that a manufacturer or private labeler must provide a basis, as opposed to a legal rationale, if the firm requests that its comments not be disclosed. The Supplemental NPR also proposes revisions that conform § 1101.33(a)(1) to the statute and require requests regarding the disclosure of a manufacturer's or private labeler's comments to be in writing.

Second, in § 1101.33(a)(2), the Supplemental NPR proposes revisions to conform to the statute and to clarify that the Commission may, but is not required to, (1) accompany the disclosure with an explanatory statement that makes the nature of the information disclosed clear to the public and (2) assure disclosure is fair in the circumstances by disclosing other relevant information in the Commission's possession, subject to the requirements of section 6(b)(1) and other requirements of law.

Third, the Supplemental NPR proposes to delete § 1101.33(a)(3), which states: “The Commission will limit the form of disclosure to that which it considers appropriate in the circumstances. For example, the Commission may determine it is not appropriate to issue a nationwide press release in a particular situation and rather will issue a press release directed at certain localities, regions, or user populations.” The Commission believes that this section is obsolete given the general absence of geographic restrictions when information is posted on the internet.

Finally, the Supplemental NPR proposes to delete, as unnecessary, § 1101.33(a)(4), which states: “The Commission may delay disclosure of information in some circumstances. For example, the Commission may elect to postpone an information release until an investigation, analysis or test of a product is complete, rather than releasing information piecemeal.” There is no need for notice under section 6(b) of the CPSA if the Commission decides to delay disclosure of the information

, which states: “The Commission may delay disclosure of information in some circumstances. For example, the Commission may elect to postpone an information release until an investigation, analysis or test of a product is complete, rather than releasing information piecemeal.” There is no need for notice under section 6(b) of the CPSA if the Commission decides to delay disclosure of the information.

Current § 1101.33(b) provides examples of disclosures that generally would not be fair in the circumstances. The Supplemental NPR proposes two substantive revisions to § 1101.33(b).

First, consistent with the 2014 NPR, the Supplemental NPR continues to propose deleting § 1101.33(b)(3), which identifies as inappropriate:

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

As explained in the 2014 NPR, in general, we believe that firms waive these protections when they intentionally submit to CPSC information that is attorney work-product or subject to the attorney/client privilege. 79 FR 10719. The Commission does not expect, nor do we want, firms to provide legally privileged information to the Commission. However, if a firm inadvertently submits such information without intending a waiver, the Commission will treat the information in accordance with applicable authorities governing inadvertent disclosure. Moreover, if the submitted information contains trade secret or privileged or confidential commercial or financial information, the firm may request confidentiality of the information in accordance with the Commission's FOIA regulation at 16 CFR 1015.18

without intending a waiver, the Commission will treat the information in accordance with applicable authorities governing inadvertent disclosure. Moreover, if the submitted information contains trade secret or privileged or confidential commercial or financial information, the firm may request confidentiality of the information in accordance with the Commission's FOIA regulation at 16 CFR 1015.18.

Second, the Supplemental NPR proposes to revise § 1101.33(b)(4), which states: “Disclosure of a firm's comments (or a portion thereof) submitted under section 6(b)(1) over the firm's objection.” The 2014 NPR proposed revising § 1101.33(b)(4) to require a rationale for why the comments should not be disclosed. 79 FR 10719-20. Instead of requiring a legal rationale such as a statute or regulation, the Supplemental NPR recognizes that the Commission generally has broad discretion whether to grant a request for non-disclosure of such comments, and accordingly proposes that the manufacturer or private labeler must simply provide some basis for why it believes the Commission should decide against disclosing the comments. The Supplemental NPR also proposes revisions to conform to the statute and minor edits for clarity.

The Supplemental NPR proposes conforming changes to align with the statute and minor grammatical edits throughout § 1101.33. In addition, the Supplemental NPR proposes to redesignate § 1101.33(b)(4) as (b)(3) to reflect the proposed deletion of § 1101.33(b)(3).

5. Proposed Changes to § 1101.34 (Reasonable Steps To Assure Information Release Is “Reasonably Related To Effectuating the Purposes of the Acts” the Commission Administers)

The 2014 NPR proposed technical changes to § 1101.34(a)(2). 79 FR 10720. The Supplemental NPR no longer proposes these changes.

ts” the Commission Administers)

The 2014 NPR proposed technical changes to § 1101.34(a)(2). 79 FR 10720. The Supplemental NPR no longer proposes these changes.

As discussed in section II.B.1 above, section 6(b)(1) of the CPSA applies to the Commission's “public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith.” 15 U.S.C. 2055(b)(1). Section 6(d)(1) of the CPSA defines “Act” as the CPSA, FFA, PPPA, and FHSA. 15 U.S.C. 2055(d)(1). The Supplemental NPR proposes conforming revisions to align § 1101.34(a) with section 6(b)(1) and (d)(1) of the CPSA by removing references to acts other than the CPSA, FHSA, FFA, and PPPA.

Section 6(b)(1) requires the Commission to take reasonable steps to assure that “disclosure is . . . reasonably related to effectuating the purposes of” the CPSA, FFA, PPPA, and FHSA. 15 U.S.C. 2055(b)(1). Current § 1101.34(a)(3), which addresses FOIA requests, requires the Commission to determine whether disclosure of information in response to a FOIA request is reasonably related to effectuating one or more of the purposes of the acts administered by the Commission and that, in the event of a close question on this issue, the Commission will defer to the purposes of the FOIA. The FOIA is not one of the enumerated acts in section 6(d)(1) of the CPSA, and thus, the Commission is not required to determine whether disclosure of the information would be CPSC v. GTE Sylvania, Inc., to comply with the requirements of section 6(b) of the CPSA before disclosing any information in response to a FOIA request. 447 U.S. 102 (1980).

The Supplemental NPR also proposes conforming changes and non-substantive revisions for simplification and clarity throughout § 1101.34. For example, in the heading for § 1101.34, the Supplemental NPR proposes to remove “release” and, in its place, add “disclosure”; and in § 1101.34(a)(2), the Supplemental NPR proposes to insert “consumer” between “concerning” and “products.”

.S. 102 (1980).

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

1. Proposed Changes to § 1101.41 (Generally)

The 2014 NPR proposed technical changes to § 1101.41. 79 FR 10720. The Supplemental NPR no longer proposes those revisions.

The Supplemental NPR instead proposes conforming revisions to align with the statute and non-substantive revisions for clarity and simplification throughout § 1101.41. For example, the Supplemental NPR proposes to insert “Acts” to clarify that these exceptions apply specifically to the CPSA, FHSA. FFA, and PPPA. The Supplemental NPR also proposes to delete § 1101.41(b), which states that the Commission will apply the section 6(b)(4) exceptions to “the transferred acts.” Section 1101.41(b) is duplicative and repeats the information already contained in revised § 1101.41, as well as in revised § 1101.1 (Scope). In addition, the Supplemental NPR proposes to reformat the information in paragraphs (a)(3) and (a)(4) as a combined list under paragraph (3). Proposed § 1101.41(3) now states that the statutory exceptions in section 6(b)(4) apply to (among other disclosures) “[i]nformation in the course of or concerning: (i) a rulemaking proceeding under the Acts; (ii) an adjudicatory proceeding under the Acts; or (iii) any other administrative or judicial proceeding under the Acts.” The Supplemental NPR also proposes to remove paragraph designation and subheading “(a) Scope” to reflect the proposed removal of paragraph (b).

2. Proposed Changes to § 1101.42 (Imminent Hazard Exception)

Current § 1101.42(b) states:

Scope of exception

ing under the Acts; (ii) an adjudicatory proceeding under the Acts; or (iii) any other administrative or judicial proceeding under the Acts.” The Supplemental NPR also proposes to remove paragraph designation and subheading “(a) Scope” to reflect the proposed removal of paragraph (b).

2. Proposed Changes to § 1101.42 (Imminent Hazard Exception)

Current § 1101.42(b) states:

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

The 2014 NPR proposed the following revisions to § 1101.42(b):

• In the second sentence, remove: “while the proceeding is pending.”

• Remove the third and fourth sentences.

79 FR 10720. The 2014 NPR explained the Commission's belief that, upon filing a section 12 action, information may be disclosed to the public during and after the proceeding, even if the information was not filed with the court or otherwise made public. Id. The Supplemental NPR continues to propose these revisions, without change.

In addition, the Supplemental NPR proposes conforming changes to align with the statute and minor grammatical edits.

3. Proposed Changes to § 1101.43 (Section 6(b)(4)(A) Exception)

The 2014 NPR did not propose any changes to § 1101.43.

The Supplemental NPR proposes to delete the first sentence in paragraph (b) because it repeats the information that appears in paragraph (a) and to combine paragraphs (a) and (b)

plemental NPR proposes conforming changes to align with the statute and minor grammatical edits.

3. Proposed Changes to § 1101.43 (Section 6(b)(4)(A) Exception)

The 2014 NPR did not propose any changes to § 1101.43.

The Supplemental NPR proposes to delete the first sentence in paragraph (b) because it repeats the information that appears in paragraph (a) and to combine paragraphs (a) and (b). In addition, the Supplemental NPR proposes conforming changes to align with the statute and minor grammatical edits.

“Reasonable cause to believe” is not a defined phrase in either section 6(b)(4)(A) of the CPSA or § 1101.43. The Commission believes that reasonable cause exists when the belief is supported by existing laws and regulations and is based on factual conclusions that have evidentiary support. Cf. Fed. R. Civ. Proc. 11 (providing standard for filing pleadings and motions with a Federal court). Thus, for example, the Commission would have “reasonable cause to believe” a consumer product is in violation if Commission testing indicates that a toy contains excessive levels of lead, Commission staff confirms that a toy lacks the requisite General Conformity Certification, or Commission staff determines that a manufacturer is distributing ATVs without the requisite ATV Action Plan. The Commission will notify a manufacturer or private labeler orally or in writing if the Commission has reasonable cause to believe a consumer product is in violation of a consumer product safety rule or provision of the CPSA or similar rule or provision of any other act enforced by the Commission.

4. Proposed Changes to § 1101.44 (Rulemaking Proceeding Exception)

The 2014 NPR did not propose any changes to § 1101.44.

Section 6(b)(4) of the CPSA states that the provisions of section 6(b)(1)-(3) do not apply to the Commission's “public disclosure of . . . (B) information in the course of or concerning a rulemaking proceeding.” 15 U.S.C. 2055(b)(4)(B)

ther act enforced by the Commission.

4. Proposed Changes to § 1101.44 (Rulemaking Proceeding Exception)

The 2014 NPR did not propose any changes to § 1101.44.

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

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

lating to; to be about; to bear on.' ”) (citing Merriam-Webster Online Dictionary, http://www.merriam-webster.com (last visited Aug. 13, 2007)). To reflect the common understanding of this term, the Supplemental NPR proposes to insert (1) “or addressing” after “information about” in the first sentence of § 1101.44(d), and (2) “or relates to” after “describes” in the second sentence of § 1101.44(d). Incorporating these revisions, as well as minor grammatical edits for simplification, revised § 1101.44(d) now reads:

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

The Supplemental NPR also proposes conforming changes to align with the statute and minor grammatical edits.

5. Proposed Changes to § 1101.45 (Adjudicatory Proceeding Exception)

The 2014 NPR proposed a technical correction to § 1101.45(b). 79 FR 10720. This change has been superseded by the Supplemental NPR's proposed revisions.

Section 6(b)(4)(B) of the CPSA states that the provisions of section 6(b)(1)-(3) do not apply to the Commission's “public disclosure of . . . (B) information in the course of or concerning . . . an adjudicatory proceeding (which shall commence upon the issuance of a complaint).” 15 U.S.C. 2055(b)(4)(B). Current § 1101.45(d) interprets the term “concerning” as follows:

The phrase “concerning” refers to information about the administrative adjudication itself, both once it begins and indefinitely thereafter

s “public disclosure of . . . (B) information in the course of or concerning . . . an adjudicatory proceeding (which shall commence upon the issuance of a complaint).” 15 U.S.C. 2055(b)(4)(B). Current § 1101.45(d) interprets the term “concerning” as follows:

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

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

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

The Supplemental NPR also proposes conforming changes to align § 1101.45 with the statute and minor grammatical edits for clarity

decision rendered by issuing written opinions and making public statements and (ii) the Commission may disclose information regarding the effectiveness of any corrective action, such as information on the number of products corrected as a result of a remedial action.

The Supplemental NPR also proposes conforming changes to align § 1101.45 with the statute and minor grammatical edits for clarity. For example, in § 1101.45(a), the Supplemental NPR proposes to insert “(which shall commence upon the issuance of a complaint)” after “adjudicatory proceeding” to conform to the language in the statute. In § 1101.45(b), the Supplemental NPR proposes non-substantive edits for simplification. These edits reflect that the exception applies once the Commission files a complaint under specific provisions of the CPSA, FHSA, FFA, or PPPA.

6. Proposed Changes to § 1101.46 (Other Administrative or Judicial Proceeding Exception)

The 2014 NPR proposed removing “Secretary” and, in its place, adding “Secretariat” in § 1101.46(b)(7). 79 FR 10720. The Supplemental NPR no longer proposes this revision, which would be inconsistent with the Commission's current organization.

The Supplemental NPR proposes to delete as unnecessary the last sentence in § 1101.46(b)(1), which states: “Information subject to the exception for petition proceedings is the petition itself and the supporting documentation, and information subsequently compiled by the staff and incorporated or referenced in the staff briefing papers for and recommendation to the Commission.” The other examples listed in § 1101.46(b) do not specify the types of information that are subject to this exception, and the language proposed for deletion could be excessively restrictive in actual practice.

§ 1101.46(b) do not specify the types of information that are subject to this exception, and the language proposed for deletion could be excessively restrictive in actual practice.

The Supplemental NPR proposes conforming changes to align § 1101.46 with the statute and non-substantive edits for clarity. For example, in § 1101.46(a), the Supplemental NPR proposes to insert “-(3)” after “6(b)(1)”. In § 1101.46(b), the Supplemental NPR proposes to insert “without limitation” after “Proceedings within this exception include,” to clarify that the list appearing at § 1101.46(b) is not exhaustive and could include other administrative or judicial proceedings as authorized under section 6(b)(4)(B) of the CPSA. In addition, the Supplemental NPR proposes to revise § 1101.46(c) to state: “The phrase `in the course of or concerning' shall be interpreted consistent with § 1101.44(c) and (d) or § 1101.45(c) and (d), as applicable.”

G. Subpart F—Retraction

1. Proposed Changes to § 1101.51 (Commission Interpretation)

The 2014 NPR proposed technical corrections to § 1101.51(b). 79 FR 10720. These changes have been superseded by the Supplemental NPR's proposal to delete the first two sentences of § 1101.51(b) because these sentences repeat the information contained in § 1101.51(a). The Supplemental NPR also proposes changes to § 1101.51(b) to conform to the language in section 6(b) of the CPSA and minor grammatical edits for clarity.

rson.” Relatedly, in § 1101.52(c), which lists the information that must appear in a request for retraction, the Supplemental NPR proposes to add as paragraph (1): “The identity and relationship ( i.e., manufacturer, private labeler, distributor, or retailer) of the requester.” In connection with this proposed revision, the Supplemental NPR proposes paragraph redesignations throughout § 1101.52(c).

In § 1101.52(d), the Supplemental NPR proposes to remove the language: “If the Commission finds that fuller disclosure is necessary, it will publish a retraction in the manner it determines appropriate under the circumstances” and, in its place, add:

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

This proposed revision makes the rule flexible enough to address situations such as, for example, a public disclosure of inaccurate information by Commission staff during a phone conversation or in an email, where publication of the correction would result in further disclosure of the inaccurate or misleading information. In these instances, the Commission will take other action that the Commission deems appropriate under the circumstances to correct the prior release.

The 2014 NPR proposed technical and conforming changes to § 1101.52. 79 FR 10720. The Supplemental NPR continues to propose some of these changes, along with additional conforming changes to align with the statute, particularly section 6(b)(7) of the CPSA, and minor grammatical edits for clarity. For example, the Supplemental NPR proposes to revise the paragraph heading for § 1101.52(a) to reflect that retraction can occur upon the Commission's own initiative or upon request. In § 1101.52(b), the Supplemental NPR proposes revisions to the contact information where a request for retraction should be sent

ute, particularly section 6(b)(7) of the CPSA, and minor grammatical edits for clarity. For example, the Supplemental NPR proposes to revise the paragraph heading for § 1101.52(a) to reflect that retraction can occur upon the Commission's own initiative or upon request. In § 1101.52(b), the Supplemental NPR proposes revisions to the contact information where a request for retraction should be sent. In addition, in redesignated § 1101.52(c)(1), which discusses the information that a requester must submit in connection with a retraction request, the Supplemental NPR proposes to update the rule by replacing the language: “A photocopy of the disclosure should accompany the request,” with “A reproduction of the disclosure ( e.g., image, audio or video file, copy of document) should accompany the request, if practicable,” to reflect advancements in technology that have occurred since 1983.

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

1. Proposed Changes to § 1101.61 (Generally)

The 2014 NPR proposed a technical correction to § 1101.61(b)(3). 79 FR 10721. These changes have been superseded by the Supplemental NPR's proposed revisions.

Section 6(b)(5) of the CPSA prohibits the Commission from “disclos[ing] to the public information submitted pursuant to section 15(b) respecting a consumer product” unless certain conditions apply. 15 U.S.C. 2055(b)(5). Current § 1101.61(b) states:

Criteria for disclosure. Under section 6(b)(5) the Commission shall not disclose to the public information which is identified as 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 . .

section 15(b) or which is treated by the Commission staff as being submitted pursuant to section 15(b). Section 6(b)(5) also applies to information voluntarily submitted after a firm's initial report to assist the Commission in its evaluation of the section 15 report. However, the Commission may disclose information submitted pursuant to section 15(b) in accordance with section 6(b)(1)-(3) if . . .

The Supplemental NPR proposes several revisions to § 1101.61(b). First, the Supplemental NPR proposes to delete the phrase, “or which is treated by the Commission staff as being submitted pursuant to section 15(b).” As explained in the 1983 final rule, the Commission inserted this phrase in response to comments that Commission staff sometimes treated reports as being filed under section 15(b), even when the submitting firm disclaimed any legal obligation to report. 48 FR 57428. The Commission will continue to apply section 6(b)(5)'s additional information disclosure limitations when a firm indicates that it is making a submission pursuant to section 15(b) and 16 CFR 1115.13, even if, as authorized under 16 CFR 1115.12(a), the submitting firm refuses to admit, or specifically denies, in its report to the Commission that the information reasonably supports the conclusion that the submitting firm's consumer product is noncomplying, contains a defect which could create a substantial product hazard, or creates an unreasonable risk of serious injury or death. Absent exceptional circumstances where a filing clearly does not come within the requirements of section 15(b), however, the Commission will rely, for purposes of applying section 6(b)(5), upon the filer's own characterization of its filing as being submitted pursuant to section 15(b) and 16 CFR 1115.13.

Second, the Supplemental NPR proposes to require that a submitting firm identify the information as submitted pursuant to both section 15(b) of the CPSA and 16 CFR 1115.13

e requirements of section 15(b), however, the Commission will rely, for purposes of applying section 6(b)(5), upon the filer's own characterization of its filing as being submitted pursuant to section 15(b) and 16 CFR 1115.13.

Second, the Supplemental NPR proposes to require that a submitting firm identify the information as submitted pursuant to both section 15(b) of the CPSA and 16 CFR 1115.13. The regulation at 16 CFR 1115.13 specifies the information a submitting firm must include in an initial report and a full report under section 15(b) of the CPSA. The revised sentence now reads: “Under section 6(b)(5), the Commission shall not disclose to the public information that has been identified as submitted pursuant to section 15(b) and 16 CFR 1115.13.”

Finally, the Supplemental NPR proposes to delete the second sentence in § 1101.61(b), which states: “Section 6(b)(5) also applies to information voluntarily submitted after a firm's initial report to assist the Commission in its evaluation of the section 15 report.” The proposed revisions to the first sentence in § 1101.61(b), discussed above, conform better to the language in section 6(b)(5) of the CPSA and 16 CFR 1115.13.

Section 6(b)(5) of the CPSA lists four instances in which its additional information disclosure limitations do not apply. The Supplemental NPR proposes revisions to the instances described in § 1101.61(b)(2) and (3). First, in § 1101.61(b)(2), the Supplemental NPR proposes to insert a corrective action plan and a consent order as examples of remedial settlement agreements where section 6(b)(5)'s additional disclosure limitations do not apply. The legislative history demonstrates that Congress envisioned formal documents, such as consent orders, as well as informal agreements, like corrective action plans, would constitute “remedial settlement agreements” under section 6(b)(5) of the CPSA. See H.R. Rep. No

consent order as examples of remedial settlement agreements where section 6(b)(5)'s additional disclosure limitations do not apply. The legislative history demonstrates that Congress envisioned formal documents, such as consent orders, as well as informal agreements, like corrective action plans, would constitute “remedial settlement agreements” under section 6(b)(5) of the CPSA. See H.R. Rep. No. 97-208, Consumer Product Safety Amendments of 1981, at 1242 (1981) (“The conferees do not intend that a settlement agreement must be made by a formal written agreement, but rather, for example, may be made by an exchange of letters.”). For nearly 40 years, the Commission has interpreted remedial settlement agreements to include letters that embody corrective action plans.

Second, the Supplemental NPR proposes to redesignate paragraph (3), “The person who submitted the information under section 15(b) agrees to its public disclosure,” as a new paragraph (c), with minor clarifying edits. The proposed paragraph reads: “ Disclosure upon consent. The Commission may disclose information submitted pursuant to section 15(b) without following the requirements of section 6(a) or 6(b) if the person who submitted the information under section 15(b) agrees to its public disclosure.” This proposal reflects instances in which Commission staff and a manufacturer or private labeler have negotiated and agreed upon language, for example in a news release such as a recall alert. Section 6 notice is not required for such consensual releases.

Paragraph (4) currently applies the exception in section 6(b)(5)(D) where “[t]he Commission publishes a finding that the public health and safety requires public disclosure with a lesser period of notice than is required by section 6(b)(1).” The legislative history of section 6(b)(5)(D) suggests that public health and safety findings trigger an exception to section 6(b)(3) and, relatedly, section 6(b)(2), which requires the Commission to notify the manufacturer or private labeler if it See H.R

hes a finding that the public health and safety requires public disclosure with a lesser period of notice than is required by section 6(b)(1).” The legislative history of section 6(b)(5)(D) suggests that public health and safety findings trigger an exception to section 6(b)(3) and, relatedly, section 6(b)(2), which requires the Commission to notify the manufacturer or private labeler if it See H.R. Rep. No. 110-501, Consumer Product Safety Modernization Act (Dec. 19, 2007) (“It is important to note that section 6(b)(3) of CPSA, which allows the affected company to seek an injunction against the release of information in Federal court, does not apply to section 6(b)(5) and the new health and safety exception.”). Congress, however, did not clearly incorporate these exclusions into the text of section 6(b)(5). Accordingly, the Commission seeks comment on whether sections 6(b)(2) and (b)(3) apply where there has been a public health and safety finding under section 6(b)(5)(D) of the CPSA.

The Supplemental NPR proposes one conforming change in § 1101.61(b), to align with the statute and non-substantive edits for clarity. The Supplemental NPR proposes to remove “section 6(b)(1)-(3)” and, in its place, add “sections 6(a) and 6(b)(1)-(3)” to reflect that the Commission may disclose, in certain instances, information submitted pursuant to 15(b) of the CPSA only after complying with the requirements of sections 6(a) and 6(b)(1)-(3) of the CPSA. The Supplemental NPR also proposes to redesignate paragraphs in § 1101.61(b) and to insert minor grammatical edits throughout § 1101.61 for clarity.

2. Proposed Changes to § 1101.62 (Statutory Exceptions to Section 6(b)(5) Requirements)

The 2014 NPR did not propose any changes to § 1101.62.

The Supplemental NPR proposes conforming changes to align with the statute and minor grammatical edits. For example, in § 1101.62(a)(2), the Supplemental NPR proposes to remove “under the Consumer Product Safety Act (Pub. L. 92-573, 86 Stat. 1207, as amended (15 U.S.C. 2051, et seq

.62 (Statutory Exceptions to Section 6(b)(5) Requirements)

The 2014 NPR did not propose any changes to § 1101.62.

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

Current § 1101.63(c) reads: “Section 6(b)(5) does not apply to information independently obtained or prepared by the Commission staff.” The 2014 NPR proposed revising this section to state:

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

79 FR 10721. The Supplemental NPR continues to propose, with minor revisions, that section 6(b)(5) does not apply to information that is already available to the public. The Commission disagrees with commenters who asserted that the Commission must withhold from disclosure information that is already available to the public, just because it also appears in a report filed with the Commission pursuant to section 15(b) of the CPSA

PR continues to propose, with minor revisions, that section 6(b)(5) does not apply to information that is already available to the public. The Commission disagrees with commenters who asserted that the Commission must withhold from disclosure information that is already available to the public, just because it also appears in a report filed with the Commission pursuant to section 15(b) of the CPSA. The legislative history of section 6 of the CPSA indicates that Congress intended the Commission to have access to information that would not be available to the public and to protect such non-public information from disclosure. H.R. Rep. No. 92-1153, at 31 (1972). But there is no indication that Congress intended for section 6(b)(5) to apply to materials such as a firm's press release or product user manual that a firm already has disclosed to the public, or to retail locations or sale prices that can be identified by running a search on the internet or visiting a retail store, even if this same information appears in a section 15(b) report. The Supplemental NPR thus proposes to revise section 1101.63(c)(2), redesignated as § 1101.63(b)(2), to exclude: “Information that is already available to the public, including but not limited to, information appearing in a company's press statements, websites, Frequently Asked Questions, product user manuals, sales materials, Securities and Exchange Commission filings, or other public statements or documents published or publicly disseminated by a manufacturer, distributor, or retailer.”

The Supplemental NPR also proposes clarifying revisions to the phrase, “information independently obtained or prepared by the Commission staff,” which the 2014 NPR proposed to redesignate as § 1101.63(c)(1). A firm submitting a section 15(b) report must provide copies or a summary of any complaints related to the safety of the product, or any allegations or reports of injuries associated with the product. 16 CFR 1115.13(d)(6)

poses clarifying revisions to the phrase, “information independently obtained or prepared by the Commission staff,” which the 2014 NPR proposed to redesignate as § 1101.63(c)(1). A firm submitting a section 15(b) report must provide copies or a summary of any complaints related to the safety of the product, or any allegations or reports of injuries associated with the product. 16 CFR 1115.13(d)(6). In addition, upon request, the submitting firm must provide the names and addresses of all distributors, retailers, and purchasers, including consumers, of the product. 16 CFR 1115.13(d)(14). We do not believe that Congress intended section 6(b)(5) to preclude the Commission from contacting a consumer to obtain additional information about an incident referenced in a section 15(b) report. Likewise, there is no indication that Congress intended to restrict the Commission from contacting other purchasers, such as retailers and distributors, to acquire additional information about a product at issue in a section 15(b) report, even if purchaser information appears in a section 15(b) report. If the Commission could not investigate information contained in a section 15(b) report, the benefit of those reports would be largely lost. Furthermore, the Commission would not be able to “protect the public against unreasonable risks of injury associated with consumer products” or “promote . . . investigation into the causes and prevention of product-related deaths, illnesses, and injuries,” as Congress mandated. 15 U.S.C. 2051(b)(1), (4)

mation contained in a section 15(b) report, the benefit of those reports would be largely lost. Furthermore, the Commission would not be able to “protect the public against unreasonable risks of injury associated with consumer products” or “promote . . . investigation into the causes and prevention of product-related deaths, illnesses, and injuries,” as Congress mandated. 15 U.S.C. 2051(b)(1), (4). Accordingly, the Supplemental NPR proposes to revise § 1101.63(c), redesignated § 1101.63(b)(1), to state that section 6(b)(5) does not apply to: “Information independently obtained or prepared, or developed through subsequent investigation and verification, by the Commission, any member of the Commission, or any employee, agent, or representative, including contractor, of the Commission in an official capacity.”

In § 1101.63(a), redesignated § 1101.63(a)(1), the Supplemental NPR proposes revisions to align with revised § 1101.61(b). The Supplemental NPR also proposes to insert at the end of redesignated § 1101.63(a)(1) the citation to 16 CFR 1115.13.

In addition, the Supplemental NPR proposes throughout § 1101.63 conforming changes to align with the statute, organizational edits to make this section easier to read, and minor grammatical edits for clarity. For example, the Supplemental NPR proposes to combine the information contained in paragraphs (a) and (b) as § 1101.63(a), which now specifies all of the information to which section 6(b)(5) applies. The Supplemental NPR also proposes to state explicitly that section 6(b)(5)'s additional disclosure limitations apply not just to documents generated by staff, but also to documents generated by the Commission, any member of the Commission, or any employee, agent, or representative, including contractor, of the Commission in an official capacity, and to any oral communications made by these individuals or the Commission.

I. Subpart H—Delegation of Authority to Information Group

disclosure limitations apply not just to documents generated by staff, but also to documents generated by the Commission, any member of the Commission, or any employee, agent, or representative, including contractor, of the Commission in an official capacity, and to any oral communications made by these individuals or the Commission.

I. Subpart H—Delegation of Authority to Information Group

1. Proposed Changes to § 1101.71 (Delegation of Authority)

The 2014 NPR proposed technical changes to § 1101.71. 79 FR 10721. The Supplemental NPR continues to propose most of these changes.

The Supplemental NPR proposes to remove from § 1101.71 all references to Commission delegation of authority to the Secretary and/or his or her designees. These proposed revisions reflect the current organizational structure of the Commission, in which the Secretary reports directly to the General Counsel. The Supplemental NPR also proposes to remove all references to the General Counsel's senior staff designees and the establishment of an Information Group. When making decisions under this section, the General Counsel routinely consults with staff across the Office of the General Counsel, including the Secretary of the Commission.

In addition, the Supplemental NPR proposes conforming changes to align with the statute, paragraph designations in § 1101.71(a), and minor grammatical edits for clarity. For example, in § 1101.71(a), the Supplemental NPR proposes to (1) remove “release” and, in its place, add “disclosure” and, (2) remove “firms” and, in its place, add “the manufacturer or private labeler.”

III. Public Comment on the 2014 NPR

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

ts place, add “the manufacturer or private labeler.”

III. Public Comment on the 2014 NPR

A. General Comment

Comment 1 —The Consumer Federation of America (CFA), Consumers Union, Kids in Danger, National Consumers League, Public Citizen, The Safety Institute, and the U.S. Public Interest Research Group (U.S. PIRG) stated that the 2014 NPR proposes moderate revisions to modernize the regulation and to make it more consistent with the statute and industry practice. Although these commenters agreed with the 2014 NPR's provisions, they asserted that the modest changes do not do enough to ameliorate the inherent problem of section 6(b), namely, its obstacles to transparency and the immediate release of crucial product safety information.

Response 1 —Section 6(b) imposes unique requirements on the Commission's public disclosure of information, that do not limit other Federal safety agencies. In revising the 6(b) Regulation, the 2014 NPR sought to improve transparency and openness in the Commission's disclosure of information while maintaining compliance with the stringent statutory requirements. The Supplemental NPR proposes additional revisions to increase transparency and prevent unnecessary delays in disclosing critical health and safety information.

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

i. Insertion of the Word “Calendar” Before “Days” (§§ 1101.1 (Redesignated § 1101.2) and 1101.22, 1101.23, 1101.25, and 1101.71)

Comment 2 —The Outdoor Power Equipment Institute (OPEI) objected to the proposal in the 2014 NPR to insert throughout the 6(b) Regulation the word, “calendar”, between “15” and “days”

fety information.

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

i. Insertion of the Word “Calendar” Before “Days” (§§ 1101.1 (Redesignated § 1101.2) and 1101.22, 1101.23, 1101.25, and 1101.71)

Comment 2 —The Outdoor Power Equipment Institute (OPEI) objected to the proposal in the 2014 NPR to insert throughout the 6(b) Regulation the word, “calendar”, between “15” and “days”. This commenter stated that shortening a manufacturer or private labeler's response period from 15 business days to 15 calendar days would place an additional burden on firms to provide meaningful comments within an already short period.

Response 2 —Rather than shorten the time to respond to section 6 notices, this proposed revision reflects CPSC's practice since November 2008, when the Commission published a final rule to revise CFR part 1101 in accordance with CPSIA's 6(b) amendments. 73 FR 72334. As part of these revisions, the Commission amended § 1101.25 and replaced the words, “10 working,” with “5”. 73 FR 72335. Since then, the Commission has calculated the time for providing notice and for receiving comments under section 6(b) as calendar days.

Currently, however, only 16 CFR 1101.22(a)(1) specifies “calendar” days, while the remaining sections in part 1101 that discuss notice and comment timing simply state “days.” To remove potential ambiguity, the Supplemental NPR continues to propose inserting “calendar” before “days” in sections that discuss timing and that do not already refer to “calendar days.”

ction 6(b) as calendar days.

ii. The Information Must Pertain to a Specific Product (§ 1101.11(a)(1))

Comment 3 —NAM, the Outdoor Industry Association (OIA), and the Upholstered Furniture Action Council (UFAC) objected to the 2014 NPR proposal to delete from § 1101.11(a)(1) the phrase, “which is either designated or described in a manner which permits its identity to be ascertained readily by the public.” NAM stated that deleting this phrase would narrow the type of information subject to section 6(b), and OIA maintained that because “descriptive, contextual or use statements” will no longer be subject to section 6(b), the Commission may reveal the identity of a product under a trade or brand name without providing a firm with the requisite notice and opportunity to comment. UFAC stated that the Commission should reconsider its proposal in the context of rulemaking. According to UFAC, some stakeholders provide information during a rulemaking with the intent of impacting negatively entire product categories.

Response 3 —The commenters' belief that the 2014 NPR proposal would narrow the type of information that triggers section 6(b)'s requirements, is mistaken. Section 6(b)(1) requires the Commission to provide a manufacturer or private labeler with advance notice and opportunity to comment on the information, “if the manner in which such consumer product is designated or described in such information will permit the public to ascertain readily the identity of such manufacturer or private labeler.” 15 U.S.C. 2055(b)(2) (emphasis added)

ents, is mistaken. Section 6(b)(1) requires the Commission to provide a manufacturer or private labeler with advance notice and opportunity to comment on the information, “if the manner in which such consumer product is designated or described in such information will permit the public to ascertain readily the identity of such manufacturer or private labeler.” 15 U.S.C. 2055(b)(2) (emphasis added). This statutory provision is currently reflected in § 1101.11(a)(4), which the Supplemental NPR proposes to redesignate as § 1101.11(a)(2) and to revise with minor edits. Proposed § 1101.11(a)(2) now reads: “The manner in which the consumer product is designated or described in the information must permit the public to ascertain readily the identity of the manufacturer or private labeler (see § 1101.13).” In addition, § 1101.11(a)(1) of the current 6(b) Regulation contains the following additional requirement that serves to limit the types of intended disclosures that obligate the Commission to satisfy the requirements of section 6(b)(1): “The information must pertain to a specific product which is either designated or described in a manner which permits its identity to be ascertained readily by the public.” Thus, under the current regulation, pursuant to § 1101.11(a)(1) and (4), section 6(b)(1) notice and opportunity to comment apply only if the public could ascertain readily both the identity of the manufacturer or private labeler and the identity of the product from the face of the information proposed to be disclosed. The requirement in § 1101.11(a)(1) could result in instances where the Commission does not provide 6(b)

Despite the 6(b) Regulation, the Commission does not believe the statutory language supports this approach. Accordingly, the Supplemental NPR proposes to delete § 1101.11(a)(1) to adhere more closely to the statutory language and provide for greater use of the section 6(b) procedures

isclosed. The requirement in § 1101.11(a)(1) could result in instances where the Commission does not provide 6(b)

Regarding rulemakings, the Commission recognizes that stakeholders may have differing views on a proposed consumer product safety regulation. However, the Commission will not apply the requirements of section 6(b)(1)-(3) of the CPSA to a rulemaking proceeding because such proceedings are specifically exempt. Section 6(b)(4)(B) of the CPSA states that the requirements of section 6(b)(1)-(3) shall not apply to the public disclosure of “information in the course of or concerning a rulemaking proceeding (which shall commence upon the publication of an advance notice of proposed rulemaking or a notice of proposed rulemaking).” 15 U.S.C. 2055(b)(4)(B).

iii. Removal of the Phrase, “Individual Members, Employees, Agents, Contractors or Representatives of the Commission Acting in Their Official Capacities” (§ 1101.11(a)(2))

Comment 4 —TIA observed that the 2014 NPR's proposal to remove from § 1101.11(a)(2) the phrase, “individual members, employees, agents, contractors or representatives of the Commission acting in their official capacities,” could cause these individuals to believe that they are no longer subject to section 6(b).

cial capacities,” could cause these individuals to believe that they are no longer subject to section 6(b).

Response 4 —Section 6(d)(2) of the CPSA states that the “provisions of [section 6] shall apply whenever information is to be disclosed by the Commission, any member of the Commission, or any employee, agent, or representative of the Commission in an official capacity.” 15 U.S.C. 2055(d)(2). This statutory restriction on the Commission and specified individuals appears in § 1101.11(a)(3), which the Supplemental NPR proposes to redesignate as § 1101.11(a)(1) and to revise with minor edits to conform to the statute. Addressing the commenter's concern, revised § 1101.11(a)(1) would read: “The Commission, any member of the Commission, or any employee, agent, or representative, including contractor, of the Commission in an official capacity must propose to disclose the information to the public (see § 1101.12).”

iv. Inclusion of Reports of Harm in the List of Information Not Subject to Section 6(b)'s Notice and Comment Requirements (§ 1101.11(b)(6) (Redesignated § 1101.11(b)(5))

Comment 5 —CFA, Consumers Union, Kids in Danger, National Consumers League, Public Citizen, The Safety Institute, and U.S. PIRG supported the 2014 NPR's proposal to add reports of harm posted on SaferProducts.gov to the list of information not subject to section 6(b)(1). These commenters state that reports of harm posted to SaferProducts.gov specifically fall outside the statutory requirements of section 6(b). Several of these commenters also noted that the Commission should not have to “spend resources hiding information that either has already been disclosed by the agency or available elsewhere.”

he Commission should not have to “spend resources hiding information that either has already been disclosed by the agency or available elsewhere.”

On the other hand, the Juvenile Products Manufacturer's Association (JPMA), NAM, and TIA objected to the 2014 NPR's proposal to add reports of harm posted on SaferProducts.gov to the 6(b) Regulation's list of information not subject to section 6(b)(1). TIA asserted that the exclusion from section 6(b) for reports of harm applies “only within the confines” of SaferProducts.gov and “subject to the express disclaimers provided therein.” Letter from Toy Industry Association, Inc. (Apr. 28, 2014); see also Letter from National Association of Manufacturers (Apr. 28, 2014) (asserting that 6(b) exclusion does not apply to “alternative disclosures of information contained in the report”). According to these associations, the Commission's proposal to categorically exclude reports of harm from section 6(b) procedures creates fairness issues. JPMA further stated that excluding from the section 6(b) requirements disclosure of a report of harm that is responsive to a FOIA request deprives a firm of the right to challenge the accuracy, fairness, or responsiveness of the document.

Response 5 —This Supplemental NPR adopts the 2014 NPR's proposed revision. Reports of harm posted on SaferProducts.gov are explicitly excluded from the scope of the statutory 6(b) requirements by statute and the Commission's current regulations. See 15 U.S.C. 2055a(f)(1) (excluding from section 6(b) reports of harm published to SaferProducts.gov ); 16 CFR 1102.44(a) (“Sections 6(a) and 6(b) of the CPSA shall not apply to the submission, disclosure, and publication of information provided in a report of harm that meets the minimum requirements for publication in § 1102.10(d) in the Database” (emphasis added)).

Once posted to SaferProducts.gov , reports of harm are readily available to the general public

arm published to SaferProducts.gov ); 16 CFR 1102.44(a) (“Sections 6(a) and 6(b) of the CPSA shall not apply to the submission, disclosure, and publication of information provided in a report of harm that meets the minimum requirements for publication in § 1102.10(d) in the Database” (emphasis added)).

Once posted to SaferProducts.gov , reports of harm are readily available to the general public. Consequently, the Commission will treat such reports in accordance with the Commission's proposed approach for publicly available information. As discussed in section II.C.2.b.ii above, under this approach, the Commission could release reports of harm or information contained in such reports, without notice under section 6(b)(1), if the Commission does not characterize the information contained in the report or also release other information that is subject to section 6(b)(1), and the Commission's use of the SaferProducts.gov information is accurate and not misleading.

JPMA's argument that excluding a report of harm deemed responsive to a FOIA request from the section 6(b) process deprives a firm of the right to challenge the accuracy of the document is without merit. Pursuant to section 6A(c) of the CPSA, the Commission must transmit a report a harm to a manufacturer or private labeler identified in a report and provide such firm with an opportunity to submit comments on the information contained in the report, including claims regarding accuracy. 15 U.S.C. 2055a(c)(1), (2), (4); 16 CFR 1102.12, 1102.20(a), 1102.26. If the Commission determines that the information is materially inaccurate, the Commission must: (1) decline to add the materially inaccurate information to SaferProducts.gov; (2) correct the materially inaccurate information in the report and add the report to SaferProducts.gov; or (3) add information to correct inaccurate information in SaferProducts.gov. 15 U.S.C. 2055a(c)(4)(A); see also 16 CFR 1102.26 (interpreting statutory requirement)

ion is materially inaccurate, the Commission must: (1) decline to add the materially inaccurate information to SaferProducts.gov; (2) correct the materially inaccurate information in the report and add the report to SaferProducts.gov; or (3) add information to correct inaccurate information in SaferProducts.gov. 15 U.S.C. 2055a(c)(4)(A); see also 16 CFR 1102.26 (interpreting statutory requirement).

Although section 6A(f)(1) of the CPSA specifically excludes from the 6(b) notice and comment requirements reports of harm that are published on SaferProducts.gov , this provision is silent regarding reports of harm that do not meet the criteria for publication. 15 U.S.C. 2055a(f)(1). For reports of harm that the Commission has not published on SaferProducts.gov , the Commission will provide firms with the requisite 6(b) notice.

Comment 6 —JPMA noted that the Commission should not expend resources to gather and produce information, such as reports of harm published on SaferProducts.gov , if such

Response 6 —We agree with this comment. One of the purposes of the CPSA is to “assist consumers in evaluating the comparative safety of consumer products.” 15 U.S.C. 2051(b)(2). If the Commission receives a FOIA request specifically seeking reports of harm, we will continue our current practice of referring the requester to SaferProducts.gov to conduct their own search for this publicly available information.

v. Inclusion of Information That Is Already Available to the Public in the List of Information Not Subject to Section 6(b)'s Notice and Comment Requirements (§ 1101.11(b)(7) (Redesignated § 1101.11(b)(6))

Comment 7 —Seven commenters comprising consumer groups, including CFA, Kids in Danger, and U.S

uester to SaferProducts.gov to conduct their own search for this publicly available information.

Comment 7 —Seven commenters comprising consumer groups, including CFA, Kids in Danger, and U.S. PIRG, supported the 2014 NPR's proposal to include in the list of information not subject to section 6(b)(1) the following: “Information that is publicly available or that has been disseminated in a manner intended to reach the public in general, such as news reports; articles in academic and scientific journals; press releases distributed through news or wire services; or information that is available on the internet.”

In contrast, 14 commenters, including the Consumer Specialty Products Association (CSPA), Footwear Distributors and Retailers of America (FDRA), and NAM, among others, objected to the 2014 NPR's proposal to include publicly available information in the list of information not subject to section 6(b)(1). In general, these commenters asserted that the Commission's proposal to exclude publicly available information from the notice and comment requirements violates the CPSA. The commenters stated that the 6(b) requirements apply to any information the Commission releases to the public, regardless of the public's pre-existing access to the information.

Response 7 —The Commission disagrees with the assertion that section 6(b) applies to information that is already available to the public. Section 6(b)(1) of the CPSA requires the Commission to provide advance notice and an opportunity to comment “prior to [the Commission's] public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith.” 15 U.S.C. 2055(b)(1). Black's Law Dictionary defines “disclosure” as “[t]he act or process of making known something that was previously unknown.” U.S. v

)(1) of the CPSA requires the Commission to provide advance notice and an opportunity to comment “prior to [the Commission's] public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith.” 15 U.S.C. 2055(b)(1). Black's Law Dictionary defines “disclosure” as “[t]he act or process of making known something that was previously unknown.” U.S. v. Fei Ye, 436 F.3d 1117, 1120 (9th Cir. 2006) (citing Black's Law Dictionary 477 (7th ed. 1999)). The Commission's use of publicly available information, such as information in a news article or an academic or scientific journal, does not constitute a “public disclosure” under section 6(b) for which notice and opportunity to comment are required, because such information has already been put in the public domain by the Commission or by others.

However, commenters correctly noted that publicly available information, including but not limited to, information that appears on the internet, can be misleading or inaccurate—even intentionally so. Commenters also expressed concern that the Commission's public use of such information may imply that the information is verified, accurate, or reliable.

Taking account of the comments received, the Supplemental NPR proposes a revised approach for information already available to the public. As discussed in section II.C.2.b.ii above, under the revised approach, the Commission will release or identify information that the Commission obtained from publicly available sources only if (1) the Commission does not characterize the publicly available information or relay new information, and (2) the Commission's use of the information is accurate and not misleading. This revised approach provides additional protection against inaccurate or misleading communications from the Commission.

r identify information that the Commission obtained from publicly available sources only if (1) the Commission does not characterize the publicly available information or relay new information, and (2) the Commission's use of the information is accurate and not misleading. This revised approach provides additional protection against inaccurate or misleading communications from the Commission.

vi. Information Previously Disclosed (Proposed § 1101.11(b)(7)) and §§ 1101.21(b)(7) (Redesignated § 1101.21(b)(6)), and 1101.31(d) (Redesignated § 1101.31(c))

Comment 8 —Seven consumer groups supported the 2014 NPR proposal to include the following in the list of information not subject to section 6(b)(1): “(8) Information that is substantially the same as information that the Commission previously disclosed in accordance with section 6(b)(1), except as specified in § 1101.31(d).” In general, these commenters noted that the proposal would save the Commission time and resources.

In contrast, 16 commenters comprising one firm and trade associations, including the Association of Home Appliance Manufacturers (AHAM), JPMA, and the National Retail Federation (NRF), objected to the 2014 NPR proposal. In particular, 12 commenters asserted that the phrase, “substantially the same,” is vague and undefined.

Response 8 —Section 6(b) does not require a new notice and comment process when the Commission discloses for an additional time, information as to which appropriate notice already has been conveyed and applicable procedures followed. Section 6(b)(1) of the CPSA requires the Commission to provide a manufacturer or private labeler with notice and “ a reasonable opportunity to submit comments to the Commission” on information proposed for release. 15 U.S.C. 2055(b)(1) (emphasis added)

mmission discloses for an additional time, information as to which appropriate notice already has been conveyed and applicable procedures followed. Section 6(b)(1) of the CPSA requires the Commission to provide a manufacturer or private labeler with notice and “ a reasonable opportunity to submit comments to the Commission” on information proposed for release. 15 U.S.C. 2055(b)(1) (emphasis added). Likewise, section 6(b)(6) of the CPSA, which requires the Commission to establish procedures to ensure that information disclosed is accurate and not misleading, applies “[w]here the Commission initiates the public disclosure of information.” 15 U.S.C. 2055(b)(6). The phrase, “initiates the public disclosure,” implies that disclosure constitutes a single event. Moreover, attempting to restrict Commission communications by requiring 6(b) notice and opportunity to comment for each subsequent disclosure would be futile, because the Commission has already disclosed the information to the public in accordance with the section 6(b) requirements, and the Commission does not control who views the previously disclosed information, or how it is further disseminated.

ts, and the Commission does not control who views the previously disclosed information, or how it is further disseminated.

Nevertheless, the Commission agrees with commenters that the proposal announced in the 2014 NPR could be confusing. Upon further consideration, the Commission proposes a different approach for subsequent disclosures of information that should be more straightforward to apply. Under this new approach, the 6(b) Regulation will specify that the requirements of section 6(b)(1) do not apply to: “Information, not previously disclosed, that in context does not disclose materially more or materially different information about the consumer product than what the Commission previously disclosed in accordance with the law.”

Comment 9 —Thirteen commenters comprising one firm and trade associations, including the Fashion Jewelry & Accessories Trade Association (FJATA) and Philips Electronics North America, maintained that renotification for previously disclosed information is critical because: (1) it allows firms to provide new comments on information that the Commission proposes to release again, and (2) a release may be accurate and/or fair at its initial disclosure, but may be inaccurate and/or unfair at a later time, because the firm or the Commission receives or develops new

Response 9 —Renotification is not necessary for manufacturers and private labelers to provide the Commission, in the course of its proceedings, with new data or arguments regarding information that CPSC disclosed previously. Regarding commenters' concerns that a subsequent release of information may be inaccurate or unfair, the Commission has an ongoing duty under section 6(b)(7) of the CPSA to ensure that any information it discloses is accurate and not misleading.

Comment 10 —The Motorcycle Industry Counsel (MIC) argued that without renotification, firms will not be able to identify staff errors in connection with FOIA requests

enters' concerns that a subsequent release of information may be inaccurate or unfair, the Commission has an ongoing duty under section 6(b)(7) of the CPSA to ensure that any information it discloses is accurate and not misleading.

Comment 10 —The Motorcycle Industry Counsel (MIC) argued that without renotification, firms will not be able to identify staff errors in connection with FOIA requests.

Response 10 —The Commission provides firms with two opportunities to review the materials that CPSC intends to disclose in response to a FOIA request. The 6(b)(1) notice includes a copy of the materials that the Commission proposes to disclose to the FOIA requester. This material contains any staff redactions to Personally Identifiable Information (PII) and information subject to Exemption 5 of the FOIA, 5 U.S.C. 552(b)(5), which protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” The 6(b)(2) notice, which informs the manufacturer or private labeler that the Commission disagrees with the firm's inaccuracy objections and will release the documents, includes copies of the final package of materials CPSC intends to disclose to the FOIA requester. These materials incorporate any comments from the manufacturer or private labeler with which Commission staff agrees, and all redactions to the materials, including information considered confidential under section 6(a)(2) of the CPSA. Commission staff also includes with the 6(b)(2) notice a copy of the cover letter to the FOIA requester, explaining the information that the Commission could not disclose. Therefore, firms have several opportunities before the Commission discloses materials to identify staff errors in connection with FOIA requests

ls, including information considered confidential under section 6(a)(2) of the CPSA. Commission staff also includes with the 6(b)(2) notice a copy of the cover letter to the FOIA requester, explaining the information that the Commission could not disclose. Therefore, firms have several opportunities before the Commission discloses materials to identify staff errors in connection with FOIA requests.

Finally, as already noted, the Commission cannot control further distribution of information it makes public through the section 6(b) process, and thus attempts by manufacturers or private labelers to limit subsequent releases of previously disclosed information could be futile even if they were allowed under the 6(b) Regulation.

Comment 11 —FJATA, MIC, and TIA stated that renotification is critical because it allows manufacturers and private labelers to know who requested their information.

Response 11 —Renotification is not necessary for a firm to know who submitted a FOIA request for its information. The Commission posts on its FOIA web page FOIA Request Logs, which describe each FOIA request that the Commission receives and identify the FOIA requester (available at https://www.cpsc.gov/Newsroom/FOIA/FOIA-Request-Logs ).

vii. The Commission Will Provide Advance Notice and Opportunity To Comment if There Is a Question Whether the Public Could Readily Ascertain the Identity of a Manufacturer or Private Labeler (§ 1101.13)

13)

Comment 12 —The 2014 NPR proposed deleting from § 1101.13 the last sentence, which states, “The Commission will provide the advance notice and opportunity to comment if there is a question whether the public could readily ascertain the identity of a manufacturer or private labeler.” 79 FR 10715. The Coalition for Sound Safety Solutions (CS3), JPMA, MIC, NAM, and NRF objected to this proposal. In general, these commenters stated that the Commission's proposal to remove this sentence implies that the Commission will not provide notice, even when there is ambiguity regarding whether the public could ascertain the identity of the firm. Two of these commenters asserted that the proposed revision conflicts with the statutory language, legislative history, and purpose of section 6(b).

Response 12 —We disagree with these comments. The sentence proposed for deletion establishes a subjective standard for section 6(b) notification that would be difficult to apply consistently. It is, moreover, inconsistent with the objective “reasonable person” standard the Commission adopted in the first sentence of this section. Under the objective standard, if a reasonable person who lacks specialized expertise can ascertain readily the identity of the manufacturer or private labeler from the information proposed to be disclosed, the Commission will provide such information to the firm for section 6(b) comment. The proposed deletion removes a potential source of confusion around the more easily applied, objective standard.

viii. Electronic Notice and Communication (§§ 1101.21, 1101.22(a) (Removed), 1101.23(c) (Removed), and 1101.25(c) (Redesignated § 1101.25(b))

emoved), 1101.23(c) (Removed), and 1101.25(c) (Redesignated § 1101.25(b))

Comment 13 —Commenters on §§ 1101.21, 1101.22(a), 1101.23(c), and 1101.25(c) overwhelmingly supported the 2014 NPR's proposal to authorize electronic 6(b) notices, direct Commission staff to transmit requisite notices through an electronic medium whenever possible, and encourage electronic communication with the Commission. Some commenters sought clarification of the Commission's process for sending the initial 6(b) notice, including whether the Commission will use the business portal (available through https://www.saferproducts.gov/Business ) for providing notice and receiving comments and whether firms may continue to submit and receive 6(b) communications via U.S. mail and other methods.

Response 13 —Currently, when the FOIA Office receives a request for records pertaining to a manufacturer or private labeler, the Commission sends the section 6(b)(1) notice to the firm via secure collaboration software. This notice includes a copy of the FOIA request, with redactions of any PII, and a copy of the records requested, with redactions of PII and any information that falls under FOIA Exemption 5, 5 U.S.C. 552(b)(5). The FOIA Office also uses secure collaboration software to send to the manufacturer or private labeler the section 6(b)(2) notice, a copy of the redacted records, and a copy of the Commission's final letter to the requester. To use the software, the FOIA Office must have the current email address of the firm's representative. If an email address cannot be found, the FOIA Office sends the notice via certified mail.

ss of the firm's representative. If an email address cannot be found, the FOIA Office sends the notice via certified mail.

For other proposed disclosures, such as a “unilateral” news release in which the Commission warns consumers about a potential defect or risk without the relevant firm's cooperation, the Commission's current practice is to provide the section 6(b)(1) and (2) notices via email. Where the Commission does not have an email address or the Commission cannot confirm electronic receipt of the notice, Commission staff will provide notice using other methods, including delivery via U.S. mail or other delivery service. See proposed § 1101.21(b).

ix. Deletion of the Phrase, “Upon His or Her Own Initiative Or” (§ 1101.22(a)(2))

Comment 14 —CFA, Consumers Union, Public Citizen, The Safety

Response 14 —The Commission agrees with these comments. Absent a specific request from a manufacturer or private labeler, the Freedom of Information Officer typically has not provided a longer amount of time for a firm to comment. In general, firms are in the best position to initiate a suggestion that additional time may be necessary to provide substantive comments on information that the Commission proposes to disclose.

x. Disclosure of a Firm's Comments (§§ 1101.21(b)(5) (Redesignated 1101.21(b)(4)), 1101.24(c), 1101.31(b) (Redesignated 1101.31(a)), 1101.33(a)(1), and 1101.33(b)(3) (Redesignated 1101.21(b)(4))

Comment 15 —CFA, Consumers Union, Kids in Danger, National Consumers League, Public Citizen, The Safety Institute, and U.S. PIRG supported the 2014 NPR's proposal to require manufacturers and private labelers to provide a rationale, such as an applicable statutory or regulatory basis or provision, to support withholding their comments and an explanation why disclosure of the firm's comments is not necessary to ensure that the disclosure of the information that is the subject of the comments is fair in the circumstances

PIRG supported the 2014 NPR's proposal to require manufacturers and private labelers to provide a rationale, such as an applicable statutory or regulatory basis or provision, to support withholding their comments and an explanation why disclosure of the firm's comments is not necessary to ensure that the disclosure of the information that is the subject of the comments is fair in the circumstances. These commenters noted that this proposal will increase transparency unless there is a valid reason for the information to be withheld.

In contrast, 13 trade associations, including the Art & Creative Materials Institute, Inc., FDRA and the Retail Industry Leaders Association (RILA), objected to the 2014 NPR's proposal. These commenters stated that the Commission's proposal would chill cooperation between firms and the Commission, causing manufacturers and private labelers to provide limited comments and data regarding the information proposed for disclosure.

Response 15 —When the Commission adopted the 6(b) Regulation in 1983, we stated that a firm's comments may “clarify questions of accuracy, especially those concerning the factual basis for specific statements a

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