Appendix C - The CPSC Regulations for Information Disclosure Under Section 6(b) of the CPSA, 16 C.F.R. Part 1101 -

[Code of Federal Regulations]

[Title 16, Volume 2, Parts 1000 to end]

[Revised as of January 1, 1997]

From the U.S. Government Printing Office via GPO Access

[CITE: 16CFR1101]

[Page 159-172]

TITLE 16--COMMERCIAL PRACTICES

CHAPTER II--CONSUMER PRODUCT SAFETY COMMISSION

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

Subpart A--Background

Sec.

1101.1 General background.

1101.2 Scope.

Subpart B--Information Subject to Notice and Analysis Provisions of

Section 6(b)(1)

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

1101.12 Commission must disclose information to the public.

1101.13 Public ability to ascertain readily identity of manufacturer or

private labeler.

Subpart C--Procedure for Providing Notice and Opportunity to Comment

Under Section 6(b)(1)

1101.21 Form of notice and opportunity to comment.

1101.22 Timing; request for time extensions.

1101.23 Providing less than 30 days notice before disclosing

information.

1101.24 Scope of comments Commission seeks.

1101.25 Notice of intent to disclose.

1101.26 Circumstances when the Commission does not provide notice and

opportunity to comment.

Subpart D--Reasonable Steps Commission Will Take To Assure Information

It Discloses Is Accurate, and That Disclosure Is Fair in the

Circumstances and Reasonably Related to Effectuating the Purposes of the

Acts it Administers

1101.31 General requirements.

1101.32 Reasonable steps to assure information is accurate.

1101.33 Reasonable steps to assure information release is fair in the

circumstances.

1101.34 Reasonable steps to assure information release is ``reasonably

related to effectuating the purposes of the Acts'' the

Commission administers.

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

1101.41 Generally.

1101.42 Imminent hazard exception.

1101.43 Prohibited acts exception.

1101.44 Rulemaking proceeding exception.

1101.45 Adjudicatory proceeding exception.

1101.46 Other administrative or judicial proceeding exception.

Subpart F--Retraction

1101.51 Commission interpretation.

1101.52 Procedure for retraction.

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

1101.61 Generally.

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

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

Subpart H--Delegation of Authority to Information Group

1101.71 Delegation of authority.

Authority: Sec. 6(b) of Pub. L. 92-573, 86 Stat. 1212, as amended by

Pub. L. No. 97-35, 95 Stat. 703-25 (15 U.S.C. 2055(b)); 5 U.S.C. 553.

Source: 48 FR 57430, Dec. 29, 1983, unless otherwise noted.

Subpart A--Background

Sec. 1101.1 General background.

(a) Basic purpose. This rule sets forth the Consumer Product Safety

Commission's policy and procedure under sections 6(b)(1)-(5) of the

Consumer Product Safety Act (CPSA) (15 U.S.C. 2055(b)(1)-(5)) which

relate to public disclosure of information from which the identity of a

manufacturer or private labeler of a product can be readily ascertained.

In addition, these rules provide for retraction of inaccurate or

misleading information the Commission has disclosed that reflects

adversely on the safety of a consumer product or class of products or on

the practices of any manufacturer, private labeler, distributor or

retailer of consumer products as required by section 6(b)(7) of the CPSA

(15 U.S.C. 2055(b)(7)).

(b) Statutory requirements. Section 6(b) establishes procedures that

the Commission must follow when it releases certain firm specific

information

[[Page 160]]

to the public and when it retracts certain information it has released.

(1) Generally, section 6(b)(1) requires the Commission to provide

manufacturers or private labelers with advance notice and opportunity to

comment on information the Commission proposes to release, if the public

can readily ascertain the identity of the firm from the information.

Section 6(b)(1) also requires the Commission to take reasonable steps to

assure that the information is accurate and that disclosure is fair in

the circumstances and reasonably related to effectuating the purposes of

the Acts administered by the Commission. Disclosure of information may

not occur in fewer than 30 days after notice to the manufacturer or

private labeler unless the Commission finds the public health and safety

requires a lesser period of notice. Exceptions to these requirements are

established in section 6(b)(4). Additional limitations on the disclosure

of information reported to the Commission under section 15(b) of the

CPSA are established in section 6(b)(5).

(2) Section 6(b)(2) requires the Commission to provide further

notice to manufacturers or private labelers where the Commission

proposes to disclose product-specific information the firms have claimed

to be inaccurate.

(3) Section 6(b)(3) authorizes manufacturers and private labelers to

bring lawsuits against the Commission to prevent disclosure of product-

specific information after the firms have received the notice specified.

(c) Internal clearance procedures. Section 6(b)(6) requires the

Commission to establish internal clearance procedures for Commission

initiated disclosures of information that reflect on the safety of a

consumer product or class of products, even if the information is not

product specific. This rule does not address section 6(b)(6) because the

Commission has internal clearance procedures in its directives system.

(Directive 1450.2 ``Clearance Procedures for Commission Staff to Use in

Providing Information to the Public.'' April 27, 1983.

Sec. 1101.2 Scope.

Section 6(b) and these rules apply to information concerning

products subject to the CPSA (15 U.S.C. 2051-2085), and to the four

other acts the Commission administers (transferred acts). These

transferred acts are the Flammable Fabrics Act, 15 U.S.C. 1191-1204

(FFA); the Poison Prevention Packaging Act of 1970, 15 U.S.C. 1471-1476

(PPPA); the Federal Hazardous Substances Act, 15 U.S.C. 1261-1276

(FHSA); and the Refrigerator Safety Act, 15 U.S.C. 1211-1214 (RSA). See

section 6(b)(1) of the CPSA, 15 U.S.C. 2055(d)(1).

Subpart B--Information Subject to Notice and Analysis Provisions of

Section 6(b)(1)

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

(a) Information subject to section 6(b)(1). To be subject to the

notice and analysis provisions of section 6(b)(1), information must meet

all the following criteria:

(1) The information must pertain to a specific product which is

either designated or described in a manner which permits its identity to

be ascertained readily by the public.

(2) The information must be obtained, generated or received by the

Commission as an entity or by individual members, employees, agents,

contractors or representatives of the Commission acting in their

official capacities.

(3) The Commission or its members, employees, agents or

representatives must propose to disclose the information to the public

(see Sec. 1101.12).

(4) The manner in which the product is designated or described in

the information must permit the public to ascertain readily the identity

of the manufacturer or private labeler. [See Sec. 1101.13.]

(b) Information not subject to section 6(b)(1). The requirements of

section 6(b)(1) do not apply to:

(1) Information described in the exclusions contained in section

6(b)(4) of the CPSA (see subpart E of this rule).

(2) Information the Commission is required by law to make publicly

available. This information includes, for example, Commission

notifications to foreign governments regarding certain products to be

exported, as required by section 18(b) of the CPSA, 15 U.S.C.

[[Page 161]]

2068(b); section 14(d) of the FHSA, 15 U.S.C. 1273(d); and section 15(c)

of the FFA, 15 U.S.C. 1202(c). (See the Commission's Export Policy

Statement, 16 CFR part 1017.)

(3) Information required to be disclosed to the President and

Congress pursuant to section 27(j) of the CPSA, 15 U.S.C. 2076(j).

(4) Press releases issued by firms.

(5) Information filed or presented in administrative proceedings or

litigation to which the Commission is a party and which is not expressly

subject to the section 6(b)(4) exceptions.

Sec. 1101.12 Commission must disclose information to the public.

Public. For the purposes of section 6(b)(1), the public includes any

person except:

(a) Members, employees, agents, representatives and contractors of

the Commission, in their official capacity.

(b) State officials who are commissioned officers under section

29(a)(2) of the CPSA, 15 U.S.C. 2078(a)(2), to the extent that the

Commission furnishes them information necessary for them to perform

their duties under that section. Such officials may not release to the

public copies of such information unless the Commission has complied

with section 6(b) or the information falls within an exception to

section 6(b).

(c) Members of a Commission Chronic Hazard Advisory Panel

established under section 28 of the CPSA (15 U.S.C. 2077). However,

disclosures of information by such a Panel are subject to section 6(b).

(d) The persons or firms to whom the information to be disclosed

pertains, or their legal representatives.

(e) The persons or firms who provided the information to the

Commission, or their legal representatives.

(f) Other Federal agencies or state or local governments to whom

accident and investigation reports are provided pursuant to section

29(e) of the CPSA (15 U.S.C. 2078(e)). However, as required by that

section, employees of Federal agencies or state or local governments may

not release to the public copies of any accident or investigation report

made under the CPSA by an officer, employee or agent of the Commission

unless CPSC has complied with the applicable requirements of section

6(b).

(g) The Chairman or ranking minority member of a committee or

subcommittee of Congress acting pursuant to committee business and

having jurisdiction over the matter which is the subject of the

information requested.

Sec. 1101.13 Public ability to ascertain readily identity of

manufacturer or private labeler.

The advance notice and analysis provisions of section 6(b)(1) apply

only when a reasonable person receiving the information in the form in

which it is to be disclosed and lacking specialized expertise can

readily ascertain from the information itself the identity of the

manufacturer or private labeler of a particular product. The Commission

will provide the advance notice and opportunity to comment if there is a

question whether the public could readily ascertain the identity of a

manufacturer or private labeler.

Subpart C--Procedure for Providing Notice and Opportunity To Comment

Under Section 6(b)(1)

Sec. 1101.21 Form of notice and opportunity to comment.

(a) Notice may be oral or written. The Commission will generally

provide to manufacturers or private labelers written notice and

opportunity to comment on information subject to section 6(b)(1).

However, when the Commission makes a public health and safety finding

pursuant to section 6(b)(1) of the CPSA, the Commission may determine

that it is necessary to provide the notice and opportunity to comment

orally, either in person or by telephone.

(b) Content of notice. The Commission will provide the manufacturer

or private labeler with:

(1) Either the actual text of the information to be disclosed or, if

appropriate, a summary of the information.

(2) A general description of the manner in which the Commission will

disclose the information, including any other relevant information the

Commission intends to include with the disclosure. If the Commission

advises that the form of disclosure will be by press

[[Page 162]]

release, for example, the Commission need not provide further notice to

disclose a summary of the press release.

(3) A request for comment with respect to the information, including

a request for explanatory data or other relevant information for the

Commission's consideration.

(4) A statement that, in the absence of a specific request by a firm

that its comments be withheld from disclosure, the Commission will

release to the public the firm's comments (or a summary thereof prepared

by the firm or, if the firm declines to do so, by the Commission).

(5) A statement that a request that comments be withheld from

disclosure will be honored.

(6) Notice that the firm may request confidential treatment for the

information, in accordance with section 6(a)(3) of the Consumer Product

Safety Act, 15 U.S.C. 2055(a)(3) (see Sec. 1101.24(b)).

(7) A statement that no further request for comment will be sought

by the Commission if it intends to disclose the identical information in

the same format, unless the firm specifically requests the opportunity

to comment on subsequent information disclosures.

(8) The name, address, and telephone number of the person to whom

comments should be sent and the time when any comments are due (see

Sec. 1101.22).

Sec. 1101.22 Timing: request for time extensions.

(a) Time for comment. (1) Generally firms will receive a minimum of

twenty (20) calendar days from the date of the letter in which the

Commission transmits the notice to furnish comments to the Commission.

Firms that receive requests for comments by mail will receive an

additional three (3) days to comment to account for time in the mail.

(2) Upon his or her own initiative or upon request, the Freedom of

Information Officer may provide a different amount of time for comment,

particularly for firms that receive voluminous or complex material. In

addition, the Commission may find that the public health and safety

requires a lesser period of notice and may require a response in a

shorter period of time (see Sec. 1101.24).

(b) No response submitted. (1) 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).

(2) Unless the Commission finds that the public health and safety

requires a lesser period of notice (see Sec. 1101.23), the Commission

will not disclose the information in fewer than 30 days after providing

a manufacturer or private labeler notice and opportunity to comment.

(c) Requests for time extension. (1) Requests for extension of time

to comment on information to be disclosed must be made to the person who

provided the Commission's notice and opportunity to comment. The request

for time extension may be either oral or written. An oral request for a

time extension must be promptly confirmed in writing.

(2) Requests for extension of time must explain with specificity why

the extension is needed and how much additional time is required.

(3) The Commission will promptly respond to requests for extension

of time.

Sec. 1101.23 Providing less than 30 days notice before disclosing

information.

There are two circumstances in which the Commission may disclose to

the public information subject to section 6(b)(1) in a time less than 30

days after providing notice to the manufacturer or private labeler.

(a) Firm agrees to lesser period or does not object to disclosure.

The Commission may disclose to the public information subject to section

6(b)(1) before the 30-day period expires when, after receiving the

Commission's notice and opportunity to comment, the firm involved agrees

to the earlier disclosure; notifies the Commission that it has no

comment; or notifies the Commission that it does not object to

disclosure.

(b) Commission finding a lesser period is required. Section 6(b)(1)

provides that

[[Page 163]]

the Commission may find that the public health and safety requires a

lesser period of notice than the 30 days advance notice that section

6(b)(1) generally requires. The Commission may determine that the public

health and safety requires less than 30 days advance notice, for

example, to warn the public quickly because individuals may be in danger

from a product hazard or a potential hazard, or to correct product

safety information released by third persons, which mischaracterizes

statements made by the Commission about the product or which attributes

to the Commission statements about the product which the Commission did

not make.

(c) Notice of finding. The Commission will inform a manufacturer or

private labeler of a product which is the subject of a public health and

safety finding that the public health and safety requires less than 30

days advance notice either orally or in writing, depending on the

immediacy of the need for quick action; and the Commission will publish

the finding in the Federal Register. Disclosure may be made concurrently

with the filing of the Federal Register notice and need not await its

publication. However, where applicable, before releasing information,

the Commission will comply with the requirements of section 6(b) (1) and

(2) by giving the firm the opportunity to comment on the information,

either orally or in writing depending on the immediacy of the need for

quick action, and by giving the firm advance notice before disclosing

information claimed by a manufacturer or private labeler to be

inaccurate (see Sec. 1101.25).

Sec. 1101.24 Scope of comments Commission seeks.

(a) Comment in regard to the information. The section 6(b)

opportunity to comment on information is intended to permit firms to

furnish information and data to the Commission to assist the agency in

its evaluation of the accuracy of the information. A firm's submission,

therefore, must be specific and should be accompanied by documentation,

where available, if the comments are to assist the Commission in its

evaluation of the information. Comments of a general nature, such as

general suggestions or allegations that a document is inaccurate or that

the Commission has not taken reasonable steps to assure accuracy, are

not sufficient to assist the Commission in its evaluation of the

information or to justify a claim of inaccuracy. The weight accorded a

firm's comments on the accuracy of information and the degree of

scrutiny which the Commission will exercise in evaluating the

information will depend on the specificity and completeness of the

firm's comments and of the accompanying documentation. In general,

specific comments which are accompanied by documentation will be given

more weight than those which are undocumented and general in nature.

(b) Claims of confidentiality. If the manufacturer or private

labeler believes the information involved cannot be disclosed because of

section 6(a)(2) of the CPSA (15 U.S.C. 2055(a)(2)), which pertains to

trade secret or other confidential material, the firm may make claims of

confidentiality at the time it submits its comments to the Commission

under this section. Such claims must identify the specific information

which the firm believes to be confidential or trade secret material and

must state with specificity the grounds on which the firm bases it

claims. (See Commission's Freedom of Information Act regulation, 16 CFR

part 1015, particularly 16 CFR 1015.18.)

(c) Requests for nondisclosure of comments. If a firm objects to

disclosure of its comments or a portion thereof, it must notify the

Commission at the time it submits its comments. If the firm objects to

the disclosure of a portion of its comments, it must identify those

portions which should be withheld.

Sec. 1101.25 Notice of intent to disclose.

(a) Notice to manufacturer or private labeler. In accordance with

section 6(b)(2) of the CPSA, if the Commission, after following the

notice provisions of section 6(b)(1), determines that information

claimed to be inaccurate by a manufacturer or private labeler in

comments submitted under section 6(b)(1) should be disclosed because the

Commission believes it has complied with section 6(b)(1), the Commission

[[Page 164]]

shall notify the manufacturer or private labeler that it intends to

disclose the information not less than 10 working days after the date of

the receipt of notification by the firm. The notice of intent to

disclose will include an explanation of the reason for the Commission's

decision, copies of any additional materials, such as explanatory

statements and letters to Freedom of Information Act requesters, which

were not previously sent to the firm.

(b) Commission finding a lesser period is required. The Commission

may determine that the public health and safety requires less than 10

working days advance notice of its intent to disclose information

claimed to be inaccurate. For example, the Commission may determine it

is necessary to warn the public quickly because individuals may be in

danger from a product hazard or a potential hazard, or to correct

product safety information released by third persons, which

mischaracterized statements made by the Commission about the product or

which attributes to the Commission statements about the product which

the Commission did not make.

(c) Notice of findings. The Commission will inform a manufacturer or

private labeler of a product which is the subject of a public health and

safety finding that the public health and safety requires less than 10

days advance notice either orally or in writing, depending on the

immediacy of the need for quick action; and the Commission will publish

the finding in the Federal Register. Firms will be notified in advance

of the date and time, if possible, at which the Commission intends to

disclose the information. Disclosure may be concurrently with the filing

of the Federal Register notice and need not await its publication. The

Federal Register notice prepared under section 6(b)(2) may be submitted

simultaneously with or after a Federal Register notice prepared under

section 6(b)(1) (see Sec. 1101.23(c)).

Sec. 1101.26 Circumstances when the Commission does not provide notice

and opportunity to comment.

(a) Notice to the extent practicable. Section 6(b)(1) requires that

``to the extent practicable'' the Commission must provide manufacturers

and private labelers notice and opportunity to comment before disclosing

information from which the public can ascertain readily their identity.

(b) Circumstances when notice and opportunity to comment is not

practicable. The Commission has determined that there are various

circumstances when notice and opportunity to comment is not practicable.

Examples include the following:

(1) When the Commission has taken reasonable steps to assure that

the company to which the information pertains is out of business and has

no identifiable successor.

(2) When the information is disclosed in testimony in response to an

order of the court during litigation to which the Commission is not a

party.

Subpart D--Reasonable Steps Commission Will Take To Assure Information

It Discloses Is Accurate, and That Disclosure Is Fair in the

Circumstances and Reasonably Related to Effectuating the Purposes of the

Acts it Administers

Sec. 1101.31 General requirements.

(a) Timing of decisions. The Commission will attempt to make its

decision on disclosure so that it can disclose information in accordance

with section 6(b) as soon as is reasonably possible after expiration of

the statutory thirty day moratorium on disclosure.

(b) 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.

[[Page 165]]

(c) Explanatory statements. Where appropriate, the Commission will

accompany the disclosure of information subject to this subpart with an

explanatory statement that makes the nature of the information disclosed

clear to the public. Inclusion of an explanatory statement is in

addition to, and not a substitute for, taking reasonable steps to assure

the accuracy of information. To the extent it is practical the

Commission will also accompany the disclosure with any other relevant

information in its possession that places the released information in

context.

(d) 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.

Sec. 1101.32 Reasonable steps to assure information is accurate.

(a) The Commission considers that the following types of actions are

reasonable steps to assure the accuracy of information it proposes to

release to the public:

(1) The Commission staff or a qualified person or entity outside the

Commission (e.g., someone with requisite training or experience, such as

a fire marshal, a fire investigator, an electrical engineer, or an

attending physician) conducts an investigation or an inspection which

yields or corroborates the product information to be disclosed; or

(2) The Commission staff conducts a technical, scientific, or other

evaluation which yields or corroborates the product information to be

disclosed or the staff obtains a copy of such an evaluation conducted by

a qualified person or entity; or

(3) The Commission staff provides the information to be disclosed to

the person who submitted it to the Commission for review and, if

necessary, correction, and the submitter confirms the information as

accurate to the best of the submitter's knowledge and belief, provided

that:

(i) The confirmation is made by the person injured or nearly injured

in an incident involving the product; or

(ii) The confirmation is made by a person who, on the basis of his

or her own observation or experience, identifies an alleged safety-

related defect in or problem with such a product even though no incident

or injury associated with the defect or problem may have occurred; or

(iii) The confirmation is made by an eyewitness to an injury or

safety-related incident involving such a product; or

(iv) The confirmation is made by an individual with requisite

training or experience who has investigated and/or determined the cause

of deaths, injuries or safety-related incidents involving such a

product. Such persons would include, for example, a fire marshal, a fire

investigator, an electrical engineer, an ambulance attendant, or an

attending physician; or

(v) The confirmation is made by a parent or guardian of a child

involved in an incident involving such a product, or by a person to whom

a child is entrusted on a temporary basis.

(b) The steps set forth below are the steps the Commission will take

to analyze the accuracy of information which it proposes to release to

the public.

(1) The Commission will review each proposed disclosure of

information which is susceptible of factual verification to assure that

reasonable steps have been taken to assure accuracy in accordance with

Sec. 1101.32(a).

(2) As described in subpart C, the Commission will provide a

manufacturer or private labeler with a summary or text of the

information the

[[Page 166]]

Commission proposes to disclose and will invite comment with respect to

that information.

(3) If the Commission receives no comments or only general,

undocumented comments claiming inaccuracy, the Commission will review

the information in accordance with Sec. 1101.32(a) and release it,

generally without further investigating its accuracy if there is nothing

on the face of the information that calls its accuracy into question.

(4) If a firm comments on the accuracy of the information the

Commission proposes to disclose, the Commission will review the

information in light of the comments. The degree of review by the

Commission and the weight accorded a firm's comments will be directly

related to the specificity and completeness of the firm's comments on

accuracy and the accompanying documentation. Documented comments will be

given more weight than undocumented comments. Specific comments will be

given more weight than general comments. Further steps may be taken to

determine the accuracy of the information if the Commission determines

such action appropriate.

Sec. 1101.33 Reasonable steps to assure information release is fair in

the ciricumstances.

(a) The steps set forth below are the steps the Commission has

determined are reasonable to take to assure disclosure of information to

the public is fair in the circumstances:

(1) The Commission will accompany information disclosed to the

public with the manufacturer's or private labeler's comments unless the

manufacturer or private labeler asks in its section 6(b) comments that

its comments or a designated portion thereof not accompany the

information.

(2) The Commission generally will accompany the disclosure of

information with an explanatory statement that makes the nature of the

information disclosed clear to the public. The Commission will also take

reasonable steps to disclose any other relevant information it its

possession that will assure disclosure is fair in the circumstances.

(3) The Commission will limit the form of disclosure to that which

it considers appropriate in the circumstances. For example, the

Commission may determine it is not appropriate to issue a nationwide

press release in a particular situation and rather will issue a press

release directed at certain localities, regions, or user populations.

(4) The Commission may delay disclosure of information in some

circumstances. For example, the Commission may elect to postpone an

information release until an investigation, analysis or test of a

product is complete, rather than releasing information piecemeal.

(b) The Commission will not disclose information when it determines

that disclosure would not be fair in the circumstances. The following

are examples of disclosures which generally would not be fair in the

circumstances.

(1) Disclosure of information furnished by a firm to facilitate

prompt remedial action or settlement of a case when the firm has a

reasonable expectation that the information will be maintained by the

Commission in concidence.

(2) Disclosure of notes or minutes of meetings to discuss or

negotiate settlement agreements and of drafts of documents prepared

during settlement negotiations, where the firm has a reasonable

expectation that such written materials will be maintained by the

Commission in confidence.

(3) Disclosure of the work-product of attorneys employed by a firm

and information subject to an attorney/client privilege, if the

Commission has obtained the information from the client or the attorney,

the attorney or client advises the Commission of the confidential nature

of the information at the time it is submitted to the Commission, and

the information has been maintained in confidence by the client and the

attorney.

(4) Disclosure of a firm's comments (or a portion thereof) submitted

under section 6(b)(1) over the firm's objection.

[[Page 167]]

Sec. 1101.34 Reasonable steps to assure information release is

``reasonably related to effectuating the purposes of the

Acts'' the Commission administers.

(a) The steps set forth below are the steps the Commission has

determined are reasonable to take to assure that the disclosure of

information to the public effectuates the purposes of the Acts it

administers.

(1) Purposes of the CPSA. The Commission will review information to

determine whether disclosure would be reasonably related to effectuating

one or more of the specific purposes of the CPSA, as set forth in

sections 2(b) and 5, 15 U.S.C. 2051(b) and 2054.

(2) Purposes of the FHSA, FFA, PPPA and RSA. The Commission will

also review information concerning products subject to the transferred

acts it administers and to the Commission's specific functions under

those acts to determine whether disclosure of information would be

reasonably related to effectuating the purposes of those acts.

(3) Purposes of the FOIA. FOIA requests will be reviewed to

determine whether disclosure of the information is reasonably related to

effectuating one or more of the purposes of the acts administered by the

Commission. In the event of a close question on this issue, the

Commission will defer to the purposes of the FOIA. The FOIA establishes

a general right of the public to have access to information in the

Commission's possession, particularly information that reveals whether

the Commission is meeting its statutory responsibilities or information

upon which the Commission bases a decision that affects the public

health and safety.

(b) In reviewing proposed information disclosures, the Commission

will consider disclosing the material on the basis of whether release of

the information, when taken as a whole, was prepared or is maintained in

the course of or to support an activity of the Commission designed to

accomplish one or more of the statutory purposes.

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

Sec. 1101.41 Generally.

(a) Scope. This subpart describes and interprets the exceptions to

the requirements of section 6 (b)(1)-(b)(3) that are set forth in

section 6(b)(4). These exceptions apply to (1) information about a

product reasonably related to the subject matter of an imminent hazard

action in federal court; (2) information about a product which the

Commission has reasonable cause to believe violates the prohibited act

section of one of the acts the Commission administers and the

information is reasonably related to the alleged violations; (3)information

in the course of or concerning a rulemaking proceeding; or

(4) information in the course of or concerning an adjudicatory,

administrative or judicial proceeding.

(b) Application to transferred act. The Commission will apply the

exceptions contained in section 6(b)(4) to those provisions in the

transferred acts, comparable to the specific provisions in the CPSA to

which section 6(b)(4) applies.

Sec. 1101.42 Imminent hazard exception.

(a) Statutory provision. Section 6(b)(4)(A) provides that the

requirements of section 6(b)(1) do not apply to public disclosure of

``information about any consumer product with respect to which product

the Commission has filed an action under section 12 (relating to

imminently hazardous products).''

(b) Scope of exception. This exception applies once the Commission

has filed an action under section 12 of the CPSA (15 U.S.C. 2061), in a

United States district court. Once the exception applies, information

may be disclosed to the public 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

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possession which has not been made public is subject to section 6(b).

Sec. 1101.43 Prohibited acts exception.

(a) Statutory provision. Section (6)(b)(4)(A) provides that the

requirements of section 6(b)(1) do not apply to public disclosure of

information about any consumer product which the Commission has

reasonable cause to believe is in violation of a ``prohibited act''

section under any of the statutes administered by the Commission.

(b) Scope of exception. This exception applies once the Commission

has ``reason to believe'' there has occurred a violation of sections

19(a) (1), (2), and (5) or (10) of the CPSA which pertains to a consumer

product. This exception also applies once the Commission has

``reasonable cause to believe'' there has occurred a ``prohibited act''

pertaining to a product regulated under the transferred acts. Once the

exception applies, the Commission may disclose information to the public

without following the requirements of section 6(b)(1) if the information

concerning the product is reasonably related to the violative practice

or condition.

Sec. 1101.44 Rulemaking proceeding exception.

(a) Statutory provision. Section 6(b)(4)(B) provides that the

requirements of section 6(b)(1) do not apply to public disclosure of

information ``in the course of or concerning a rulemaking proceeding

(which shall commence upon the publication of an advance notice of

proposed rulemaking or a notice of proposed rulemaking) * * * under this

Act.''

(b) Scope of exception. This exception applies upon publication in

the Federal Register of an advance notice of proposed rulemaking or, if

no advance notice of proposed rulemaking is issued, upon publication in

the Federal Register of a notice of proposed rulemaking, under any of

the acts the Commission administers. Once the exception applies, the

Commission may publicly disclose information in the course of the

rulemaking proceeding which is presented during the proceeding or which

is contained or referenced in the public record of the proceeding and or

which concerns the proceeding without following the requirements of

section 6(b)(1). Documentation supporting the public record is also

excepted from section 6(b). A rulemaking proceeding includes a

proceeding either to issue, to amend, or to revoke a rule.

(c) The phrase ``in the course of'' refers to information disclosed

as part of the proceeding and may, therefore, include information

generated before the proceeding began and later presented as part of the

proceeding. A rulemaking proceeding ends once the Commission has

published the final rule or a notice of termination of the rulemaking in

the Federal Register.

(d) The phrase ``concerning'' refers to information about the

proceeding itself both after the proceeding has begun and indefinitely

thereafter. Therefore, the Commission may publicly disclose information

that describes the substance, process and outcome of the proceeding. By

issuing opinions and public statements, the Commissioners, and the

presiding official, who act as decisionmakers, may also publicly explain

their individual votes and any decision rendered.

Sec. 1101.45 Adjudicatory proceeding exception.

(a) Statutory provision. Section 6(b)(4)(B) provides that the

requirements of section 6(b)(1) do not apply to public disclosure of

``information in the course of or concerning * * * [an] adjudicatory

proceeding * * * under this Act.''

(b) Scope of exception. This exception applies once the Commission

begins an administrative adjudication under the CPSA. The Commission

will also apply the exception to any administrative adjudicatory

proceeding under FHSA, FAA, or PPPA. An adjudicatory proceeding begins

with the filing of a complaint under section 15(c) or (d), 17(a)(1) or

(3), or 20 of the CPSA (15 U.S.C. 2064(c) or (d), 2066(a)(1), or (3), or

2069); section 15 of the FHSA (15 U.S.C. 1274); section 5(b) of the FFA,

(15 U.S.C. 1194(b)); or section 4(c) of the PPPA (15 U.S.C. 1473(c)). An

adjudicatory proceeding ends when the Commission issues a final order,

16 CFR 1025.51-1025.58.

(c) The phrase ``in the course of'' refers to information disclosed

as part of

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the adjudication, whether in documents filed or exchanged during

discovery, or in testimony given in such proceedings, and may therefore,

include information generated before the adjudication began.

(d) The phrase ``concerning'' refers to information about the

administrative adjudication itself, both once it begins and indefinitely

thereafter. Therefore, the Commission may publicly disclose information

that describes the substance, process and outcome of the proceeding

including, for example, the effectiveness of any corrective action such

as information on the number of products corrected as a result of a

remedial action. By issuing opinions and public statements, the

Commissioners and the presiding official, who act as decisionmakers, may

publicly explain their individual votes and any decision rendered.

[48 FR 57430, Dec. 29, 1983, as amended at 49 FR 8428, Mar 7, 1984]

Sec. 1101.46 Other administrative or judicial proceeding exception.

(a) Statutory provision. Section 6(b)(4)(B) provides that the

requirements of section 6(b)(1) do not apply to public disclosure of

``information in the course of or concerning any * * * other

administrative or judicial proceeding under this Act.''

(b) Scope of exception. This exception applies to an administrative

or judicial proceeding, other than a rulemaking or administrative

adjudicatory proceeding, under the CPSA, FHSA, FFA, or PPPA. Proceedings

within this exception include:

(1) A proceeding to act on a petition to start a rulemaking

proceeding. This proceeding begins with the filing of a petition and

ends when the petition is denied or, if granted, when the rulemaking

proceeding begins. Information subject to the exception for petition

proceedings is the petition itself and the supporting documentation, and

information subsequently compiled by the staff and incorporated or

referenced in the staff briefing papers for and recommendation to the

Commission.

(2) A proceeding to act on a request for exemption from a rule or

regulation. This proceeding begins with the filing of a request for

exemption and ends when the request is denied or, if granted, when the

Commission takes the first step to implement the exemption, e.g., when

an amendment to the rule or regulation is proposed.

(3) A proceeding to issue a subpoena or general or special order.

This proceeding begins with a staff request to the Commission to issue a

subpoena or general or special order and ends once the request is

granted or denied.

(4) A proceeding to act on a motion to quash or to limit a subpoena

or general or special order. This proceeding begins with the filing with

the Commission of a motion to quash or to limit and ends when the motion

is granted or denied.

(5) Any judicial proceeding to which the Commission is a party. This

proceeding begins when a complaint is filed and ends when a final

decision (including appeal) is rendered with respect to the Commission.

(6) Any administrative proceeding to which the Commission is a

party, such as an administrative proceeding before the Merit Systems

Protection Board or the Federal Labor Relations Authority. This

proceeding begins and ends in accordance with the applicable regulations

or procedures of the administrative body before which the proceeding is

heard.

(7) A proceeding to obtain a retraction from the Commission pursuant

to subpart F of these rules. This proceeding begins with the filing with

the Secretary of the Commission of a request for retraction and ends

when the request is denied or, if granted, when the information is

retracted.

(c) In the course of or concerning. The phrase ``in the course of or

concerning'' shall have the same meaning as set forth in either

Sec. 1101.44 (c) and (d) or Sec. 1101.45 (c) and (d), whichever is

applicable.

Subpart F--Retraction

Sec. 1101.51 Commission interpretation.

(a) Statutory provisions. Section 6(b)(7) of the CPSA provides: If

the Commission finds that, in the administration of this Act, it has

made public disclosure of inaccurate or misleading information which

reflects adversely upon

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the safety of any consumer product or class of consumer products, or the

practices of any manufacturer, private labeler, distributor, or retailer

of consumer products, it shall, in a manner equivalent to that in which

such disclosure was made, take reasonable steps to publish a retraction

of such inaccurate or misleading information.

(b) Scope. Section 6(b)(7) applies to inaccurate or misleading

information only if it is adverse--i.e., if it reflects adversely either

on the safety of a consumer product or on the practices of a

manufacturer, private labeler, distributor or retailer. In addition, the

Commission will apply section 6(b)(7) to information about products, and

about manufacturers and private labelers of products, the Commission may

regulate under any of the statutes it administers. Section 6(b)(7)

applies to information already disclosed by the Commission, members of

the Commission, or the Commission employees, agents, contractors or

representatives in their official capacities.

Sec. 1101.52 Procedure for retraction.

(a) Initiative. The Commission may retract information under section

6(b)(7) on the initiative of the Commission, upon the request of a

manufacturer, private labeler, distributor, or retailer of a consumer

product, or upon the request of any other person in accordance with the

procedures provided in this section.

(b) Request for retraction. Any manufacturer, private labeler,

distributor or retailer of a consumer product or any other person may

request a retraction if he/she believes the Commission or an individual

member, employee, agent, contractor or representative of the Commission

has made public disclosure of inaccurate or misleading information,

which reflects adversely either on the safety of a product with which

the firm deals or on the practices of the firm. The request must be in

writing and addressed to the Secretary, CPSC. Washington, D.C. 20207.

(c) Content of request. A request for retraction must include the

following information to the extent it is reasonably available:

(1) The information disclosed for which retraction is requested, the

date on which the information was disclosed, the manner in which it was

disclosed, who disclosed it, the type of document (e.g., letter,

memorandum, news release) and any other relevant information the firm

has to assist the Commission in identifying the information. A photocopy

of the disclosure should accompany the request.

(2) A statement of the specific aspects of the information the firm

believes are inaccurate or misleading and reflect adversely either on

the safety of a consumer product with which the firm deals or on the

firm's practices.

(3) A statement of the reasons the firm believes the information is

inaccurate or misleading and reflects adversely either on the safety of

a consumer product with which the firm deals or on the firm's practices.

(4) A statement of the action the firm requests the Commission to

take in publishing a retraction in a manner equivalent to that in which

disclosure was made.

(5) Any additional data or information the firm believes is

relevant.

(d) Commission action on request. The Commission will act

expeditiously on any request for retraction within 30 working days

unless the Commission determines, for good cause, that a longer time

period is appropriate. If the Commission finds that the Commission or

any individual member, employee, agent contractor or representative of

the Commission has made public disclosure of inaccurate or misleading

information that reflects adversely either on the safety of the firm's

product or the practices of the firm, the Commission will publish a

retraction of information in a manner equivalent to that in which the

disclosure was made. If the Commission finds that fuller disclosure is

necessary, it will publish a retraction in the manner it determines

appropriate under the circumstances.

(e) Notification to requester. The Commission will promptly notify

the requester in writing of its decision on request for retraction.

Notification shall set forth the reasons for the Commission's decision.

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

Sec. 1101.61 Generally.

(a) Generally. In addition to the requirements of section 6(b)(1),

section 6(b)(5) of the CPSA imposes further limitations on the

disclosure of information submitted to the Commission pursuant to

section 15(b) of the CPSA, 15 U.S.C. 2064(b).

(b) Criteria for disclosure. Under section 6(b)(5) the Commission

shall not disclose to the public information which is identified as

being submitted pursuant to section 15(b) or which is treated by the

Commission staff as being submitted pursuant to section 15(b). Section

6(b)(5) also applies to information voluntarily submitted after a firm's

initial report to assist the Commission in its evaluation of the section

15 report. However, the Commission may disclose information submitted

pursuant to section 15(b) in accordance with section 6(b)(1)-(3) if:

(1) The Commission has issued a complaint under section 15 (c) or

(d) of the CPSA alleging that such product presents a substantial

product hazard; or

(2) In lieu of proceeding against such product under section 15 (c)

or (d), the Commission has accepted in writing a remedial settlement

agreement dealing with such product; or

(3) The person who submitted the information under section 15(b)

agrees to its public disclosure.

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

(a) Scope. The limitations established by section 6(b)(5) do not

apply to the public disclosure of:

(1) Information with respect to a consumer product which is the

subject of an action brought under section 12 (see Sec. 1101.42);

(2) Information about a consumer product which the Commission has

reasonable cause to believe is in violation of a ``prohibited act''

section under any of the statutes administered by the Commission (see

Sec. 1101.43); or

(3) Information in the course of or concerning a judicial proceeding

(see Sec. 1101.45).

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

CPSA.

(a) Section 6(b)(5) applies only to information provided to the

Commission by a manufacturer, distributor, or retailer which is

identified by the manufacturer, distributor or retailer, or treated by

the Commission staff as being submitted pursuant to section 15(b).

(b) Section 6(b)(5)'s limitation also applies to the portions of

staff generated documents that contain, summarize or analyze such

information submitted pursuant to section 15(b).

(c) Section 6(b)(5) does not apply to information independently

obtained or prepared by the Commission staff.

Subpart H--Delegation of Authority to Information Group

Sec. 1101.71 Delegation of authority.

(a) Delegation. Pursuant to section 27(b)(9) of the CPSA 15 U.S.C.

2076(b)(9) the Commission delegates to the General Counsel or his or her

senior staff designees, the authority to render all decisions under this

part concerning the release of information subject to section 6(b) when

firms have furnished section 6(b) comment except as provided in

paragraph (b). The Commission also delegates to the Secretary of the

Commission, or his or her senior staff designee, authority to make all

decisions under this part concerning the release of information under

section 6(b) when firms have failed to furnish section 6(b) comment or

have consented to disclosure except as provided in paragraph (b) of this

section. The General Counsel shall have authority to establish an

Information Group composed of the General Counsel and the Secretary of

the Commission or their designees who shall be senior staff members.

(b) Findings not deleted. The Commission does not delegate its

authority--

(1) To find, pursuant to section 6(b)(1) and Sec. 1101.23(b) of this

part, that the public health and safety requires less than 30 days

advance notice of proposed disclosures of information.

(2) To find, pursuant to section 6(b)(2) and Sec. 1101.25(b) of this

part, that the public health and safety requires less

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than ten (10) days advance notice of its intent to disclose information

claimed to be inaccurate;

(3) To decide whether it should take reasonable steps to publish a

retraction of information in accordance with section 6(b)(7) and

Sec. 1101.52 of this part.

(c) Final agency action; Commission decision. A decision of the

General Counsel or the Secretary or their designees shall be a final

agency decision and shall not be appealable as of right to the

Commission. However, the General Counsel or the Secretary may in his or

her discretion refer an issue to the Commission for decision.