2023-20184. Disclosure of Interests in Commission Proceedings

AGENCY:

Consumer Product Safety Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The United States Consumer Product Safety Commission (“Commission” or “CPSC”) is issuing this notice of proposed rulemaking (“NPR”) to establish disclosure requirements for persons seeking to make certain appearances before the Commission. Specifically, the proposed requirements provide for disclosure of whether: any person other than the submitter authored, in whole or in part, an oral presentation, adjudicative testimony, or petition for rulemaking submitted to the Commission; any person other than the submitter made or has agreed to make a monetary contribution to fund the oral presentation, adjudicative testimony, or petition for rulemaking; and the submitter of a request to provide oral testimony before the Commission has an existing business relationship by which the submitter expects to receive direct or indirect financial benefit in connection with the oral presentation or the Commission activity that is the subject of the oral presentation. The Commission similarly proposes to require that any person seeking to participate as an intervenor or other participant in any adjudicative proceeding before the Commission shall disclose whether a party in the proceeding or a party's counsel authored the petition to intervene or request to participate, as well as the identity of each person who has made or has agreed to make a monetary contribution to fund the request to participate or proposed participation. Additionally, the Commission proposes disclosure of certain corporate affiliations in these contexts. Finally, the Commission proposes technical revisions to its regulations establishing procedures for filing petitions for rulemaking and requests for oral presentation.

DATES:

Submit comments by November 28, 2023.

ADDRESSES:

You may submit comments, identified by Docket No. CPSC–2023–0038, 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/confidential Written Submissions: CPSC encourages you to submit electronic comments 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 [phone].

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: [e-mail].

Docket: For access to the docket to read background documents or comments received, go to: www.regulations.gov, and insert the docket number, CPSC–2023–0038, into the “Search” box, and follow the prompts.

FOR FURTHER INFORMATION CONTACT:

Hilda M. Garcia Concepcion, Attorney, Division of Federal Court Litigation, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone: [phone]; email: [e-mail].

SUPPLEMENTARY INFORMATION:

The Commission proposes in this NPR to amend its regulations to require disclosures of interests and sources of funding by those seeking to present oral testimony, request rulemaking before the Commission, or participate in an adjudicative proceeding. These proposed amendments are modeled after Supreme Court Rule 37.6 and Rule 29(a)(4)(e) of the Federal Rules of Appellate Procedure (FRAP). Both of those judicial rules provide that amici curiae ( i.e., those filing briefs as “friends of the court”) must state: whether a party's counsel authored the brief in whole or in part; whether a party or a party's counsel contributed money that was intended to fund preparing or submitting the brief; and whether any person other than the amicus curiae, its members, or its counsel, funded preparing or submitting the brief, and if so, identifies those persons.

The proposed amendment also includes a requirement for disclosure of certain corporate affiliations that is modeled after FRAP 26.1(a), which provides that any non-governmental corporation that is a party to a proceeding must file a statement identifying any parent corporation and any publicly held corporation that owns 10% or more of its stock or stating that there is no such corporation.

I. Statutory Authority and Background

The Commission seeks to encourage interested stakeholders, including consumers and consumer organizations, among others, to participate actively in the agency's decision-making processes. This includes participation in public hearings before the Commission, adjudicative proceedings, and petitioning for rulemaking, among other opportunities. To that end, 16 CFR part 1025 establishes the Commission's Rules of Practice for Adjudicative Proceedings (“Rules of Practice”), 16 CFR part 1051 establishes the Procedures for Petitioning for Rule Making, and 16 CFR part 1052 establishes the Procedural Regulations for Informal Oral Presentations in Proceedings before the Commission.

A. Adjudicative Proceedings and Evidentiary Public Hearings

The Consumer Product Safety Act (15 U.S.C. 2064(c), (d), (f) & 2076(b)) (CPSA), Federal Hazardous Substances Act (15 U.S.C. 1274) (FHSA), Flammable Fabrics Act (15 U.S.C. 1192, 1194, 1197(b)) (FFA), and Poison Prevention Packaging Act (15 U.S.C. 1473(c)) (PPPA) all authorize the Commission to conduct adjudicative proceedings for mandatory recalls of covered products, or other action to protect the public. Final Decisions and Orders in adjudicative proceedings are decided based on an administrative record after opportunity for a hearing.

The Commission's Rules of Practice at 16 CFR 1025.17, titled “Intervention,” allow persons who are not parties to an adjudication to apply for participation as either an intervening party or a non-party. In making a discretionary determination to grant or deny participation, the presiding officer is required to consider, among other things, the extent to which the petitioner's intervention may reasonably be expected to assist in developing a sound record; the extent to which the petitioner's interest will be represented by existing parties; the extent to which the petitioner's intervention may broaden the issues or delay the proceedings; and the extent to which the person's participation can be expected to assist the presiding officer and the Commission in rendering a fair and equitable resolution of all matters in controversy. If the presiding officer determines that there is a duplication of interest among those seeking to participate, the presiding officer may limit the participation by designating a single representative. 16 CFR 1025.17(f).

In addition to these adjudications, the Commission may hold formal evidentiary public hearings under certain sections of the FHSA and PPA. Part 1502 of the Commission's rules establishes procedures for these formal evidentiary public hearings, including the processes for requesting hearings and filing notices of participation. 16 CFR 1502.5–1502.17.

B. Petitions for Rulemaking

In accordance with the Administrative Procedure Act (5 U.S.C. 553(e)), any person may petition the Commission to issue, amend, or revoke Commission regulations under the Acts the Commission administers. At 16 CFR part 1051, the Commission has established procedures for the submission and disposition of petitions for the issuance, amendment, or revocation of rules under the CPSA or other statutes administered by the Commission.

Section 1051.5(a) establishes the requirements for petitioning for rulemaking, which include that the petition shall be written in English, contain the name and address of the petitioner, indicate the product regulated under the CPSA or other statute administered by the Commission for which rulemaking is sought, set forth facts establishing that the rulemaking is necessary, make an explicit request to the Commission to initiate rulemaking, and set forth a brief description of the substance of the proposed rule, amendment, or revocation. The Commission may grant or deny the petition. 16 CFR 1051.10, 1051.11.

C. Informal Oral Presentations in Proceedings Before the Commission

The CPSA (15 U.S.C. 2058(d)(2) and 2064(c)), FHSA ( id. 1274), FFA ( id. 1193(d)), and PPPA ( id. 1473(c)) all require the Commission to give interested persons an opportunity to make oral presentations of data, views, or arguments, or provide for an opportunity for a hearing regarding rulemaking. The CPSA also authorizes informal hearings or other inquiries, which can be conducted by the Commission or by one or more of its members, or by designated agents in non-rulemaking situations. 15 U.S.C. 2076(a). The CPSA further provides that the Commission shall conduct a public hearing on the annual agenda and priorities for Commission action. 15 U.S.C. 2053(j). Section 1000.8 of the Commission's rules provides that the Commission may conduct hearings as necessary or appropriate to its functions and will afford reasonable opportunity for interested persons to present relevant testimony at such hearings.

Part 1052 of the Commission's rules sets forth the rules of procedure for oral presentation of data, views or arguments in informal rulemakings or investigatory situations. The Chairman of the Commission, or another presiding officer appointed by the Chairman with the concurrence of the Commission, shall have the powers necessary to secure the efficient conduct of the oral proceedings, including the right to require a single representative to present the views of others with similar interests. 16 CFR 1052.4.

II. Reasons for Proposed Revisions

The proposed rule changes are based on the Supreme Court Rules and the FRAP, which establish requirements for amicus curiae briefs written by non-parties to assist the court by providing relevant information not otherwise submitted, and on the FRAP's provisions for disclosure of certain corporate affiliations.

In 1997 the Supreme Court amended its rules to require disclosure of a party's involvement in the drafting or funding of non-governmental amicus briefs. Supreme Court Rule 37.6 provides that “a brief filed under this Rule shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person or entity, other than the amicus curiae, its members, or its counsel, who made such a monetary contribution.”

Similarly, FRAP 29(a)(4)(E), adopted in 2010 and modeled after Supreme Court Rule 37.6, provides that an amicus filer that is not a Federal or state government entity must include a statement in the amicus brief addressing whether “a party's counsel authored the brief in whole or in part;” whether “a party or party's counsel contributed money that was intended to fund preparing or submitting the brief,” and whether “a person—other than the amicus curiae, its member, or its counsel—contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person.”

The Supreme Court is understood to have adopted its disclosure rule “in an effort to stop parties in a case from surreptitiously `buying' what amounts to a second or supplemental merits brief, disguised as an amicus brief, to get around word limits.” Supreme Court Rule Crimps Crowd-Funded Amicus Briefs, LAW.COM (Dec. 10, 2018, 2:53 p.m.), available at https://www.yahoo.com/​entertainment/​supreme-court-rule-puts-crimp-075351473.html?​guce_​referrer=​aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&​guce_​referrer_​sig=​AQAAADJ2YF4CP_​uQ2RVhjKDq6IXyiSRacfhjKhuXKIh9V-bTxca5H7uVdDtnYSHb-TcniJrVwTS9p-jWaoOjsHmckiI0QQiOpbBnFmxvQjHlFKr0OiPoouGbezukzy88VPBIP6I2Ghg8OUcDL-2TW0ZZ2UyS4LklU3RQhFqaXmAs4Xuw, Supreme Court Rule Crimps Crowd-Funded Amicus Briefs | National Law Journal. In 2018, the Supreme Court's Public Information Office further explained that “Rule 37.6 [serves] to preclude an amicus from filing a brief if contributors are anonymous.” LAW.COM, supra. The parallel Federal Rule of Appellate Procedure serves efficiency and transparency goals by “deter[ring] counsel from using an amicus brief to circumvent page limits” that the FRAP places on parties' briefs. FRAP 29(c)(5) advisory committee's note to 2010 amendment.

Like these rules of the U.S. Supreme Court and Federal Court of Appeals, the proposed rules would deter circumvention of Commission procedural requirements, avoid redundant presentations, and improve transparency regarding the motivations of those with an interest in proceedings before the Commission. The disclosure requirement for any contributing party improves the fairness and accuracy of decision-making by providing the Commission relevant information it otherwise lacks. Knowing if a proposed participant is funded or financed by another or has a business relationship by which the proposed participant expects to receive financial benefit in connection with the oral presentation or the Commission activity subject of the oral presentation, assists the Commission in appropriately evaluating the intent of the proposed participation, identifying bias or special interest, and eliminating duplicative presentations. Just as the Federal courts' disclosure requirements provide the decisionmakers, the litigants, and the general public insight into the parties that are framing the appellate proceeding, see S. Whitehouse, A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency, 131 Yale L.J. F. 141 (Oct. 24, 2021), the proposed rule changes will allow the Commission, the parties to a matter, and the public to know who is seeking to influence the Commission's decisions on consumer product safety issues. With the proposed disclosure requirements, the Commission can better identify those seeking to influence its decisions and better maintain the efficiency and integrity of the proceedings. Indeed, particularly in the context of the Commission's adjudicative proceedings, the function of the proposed rule's requirements is precisely the same as the role of the parallel Supreme Court and appellate rules.

In adjudicative proceedings when considering a petition to intervene or request to participate, the presiding officer will consider, among other things, the extent to which the participation will assist the Commission in rendering a fair and equitable resolution of the matters in controversy, the extent to which a petitioner's interest will be represented by an existing party, and the extent to which the participation might delay the proceedings. 16 CFR 1025.17(d) and (e). The presiding officer also has the power to designate a single representative where the petitioner or requester shares “identity of interest” with any other intervenor or participant. 16 CFR 1025.17(f). Similarly, when making determinations regarding objections or requests for a public hearing under 16 CFR part 1502, the Commission may broadly investigate whether a hearing has been justified. See16 CFR 1502.8.

When considering petitions for rulemaking, the Commission considers, among other factors, whether failure to initiate the requested proceeding would unreasonably expose the petitioner or other consumers to a risk of injury. To allocate its limited resources, the Commission treats as an important component of each petition the relative priority of the risk of injury associated with the product. 16 CFR 1051.9. When rulemaking petitions are filed by parties—such as consultants—who do not disclose the identity of their paying clients or others whose interests they represent, the Commission is less able to assess accurately the actual priority of the asserted risk of injury. Therefore, the information afforded by the proposed disclosure requirements better positions the Commission to prioritize the requests it receives.

The Procedural Regulations for Oral Presentations in Proceedings Before the Consumer Product Safety Commission already give the officer presiding over a hearing authority to: (1) apportion the time for presentations; (2) terminate or shorten a presentation that is repetitive or not relevant; and (3) identify groups or persons with the same or similar interests in the proceedings and require a single representative to present the views of participants who have the same or similar interests. To do this, the presiding officer may question those making an oral presentation as to their testimony and any other relevant matter. 16 CFR 1052.4(c).

The pre-hearing disclosure requirements proposed in this NPR likewise serves the public interest by avoiding repetitive, inefficient, and/or misleading testimony that can come as a result of multiple presentations that in fact represent a single interest. It complements the Commission's practice of requiring those seeking to make an oral presentation to provide, as part of their request, the written text of the proposed oral presentation.^[1]

Importantly, this NPR's proposals do not limit participation in Commission proceedings, but only provide the Commission and the public additional information about potential participants. We agree on this point with the United States Chamber of Commerce, which explained, in discussing FRAP 29(a)(4)(e), that its approach “strikes an appropriate and time-tested balance between the interest in protecting the integrity of the amicus process and the protection of associational rights.” Letter from Daryl Joseffer, Exec. Vice President & Chief Couns., U.S. Chamber of Commerce Litigation Center., to Honorable Jay S. Bybee (Oct. 6, 2021) (discussing potential amendments to the amicus disclosure requirements of FRAP 29), available at https://www.uscourts.gov/​sites/​default/​files/​21-ap-h_​suggestion_​from_​sen._​whitehouse_​and_​rep._​johnson_​-_​rule_​29_​0.pdf.

Similarly, the proposed requirements to disclose business interests that may shape an oral presentation do not implicate or burden associational rights. The proposed rules require disclosure of direct or indirect financial benefits that are expected to stem from the Commission's relevant activity, or participation in it. For example, the requester might receive payment specifically for appearing before the Commission or, might expect an indirect financial benefit if a client (such as a client in an ongoing contract for consulting services) will be directly affected by the Commission's activity. The disclosure of these pertinent financial interests does not require the identification of specific business partners, but rather disclosure of the existence of a business relationship by which the requester expects to receive a direct or indirect financial benefit. These disclosure requirements provide information that is useful for the Commission to assess proposed testimony and, if participation is granted, to place it in context.

Other Federal and state agencies have similar disclosure requirements, either in their rules or as part of the information that must be provided when making submissions. As an example, the Federal Communications Commission requires that a person seeking to submit a filing in its proceedings must identify the person or entities “whose views the filing represents.” Federal Communications Commission, Submit Standard Filing, available at https://www.fcc.gov./​ecfs/​filings/​standard. Similarly, Rule 1.4(b)(1) of the Rules of Practice and Procedure of the California Public Utilities Commission requires a person seeking to become a party to a proceeding before that agency to “fully disclose the persons or entities in whose behalf the filing [of the motion to become a party], appearance or motion is made, and the interest of such persons or entities in the proceeding.”

The proposed disclosure of interest requirements would not only improve transparency and efficiency as a general matter, but also allow the Commission and its staff, including presiding officers in adjudications, to better identify potential conflicts of interest or other ethical concerns that could arise from the identities or interests of participants in those proceedings.

Relatedly, and similar to the FRAP, the proposed rules require disclosure of certain corporate affiliations. The purpose of the corporate disclosure statement required by the FRAP 26.1 is to assist judges in making a determination of whether they have interests in any of a party's related corporate entities that would disqualify the judge from participating in a judicial appeal. See Fed R. App. P. 26.1(a) advisory committee's note to 1998 amendment; Fed R. App. P. 26.1(a) advisory committee's note on Rules-1989. In the same way, the proposed requirements for disclosure of certain corporate affiliations will better enable CPSC Commissioners and staff to identify a potential conflict of interest that might merit recusal from a proceeding. See18 U.S.C. 208(a) (generally barring Federal employees from participating personally and substantially in any particular matter in which they know they, or any person whose interest is imputed to them, have a financial interest directly and predictably affected by the matter); 16 CFR 1025.42(e) (disqualification of presiding officers in adjudicative proceedings). Disclosure of underlying corporate interests also may serve efficiency interests by allowing the Commission and its presiding officers to better organize proceedings to reflect commonalities of interest among the participants.

As with the disclosure interest requirements discussed above, corporate disclosure requirements are required by other administrative agencies. For example, the Occupational Safety and Health Review Commission (OSHRC) requires that: “All answers, petitions for modification of abatement period, or other initial pleadings filed under these rules by a corporation shall be accompanied by a separate declaration listing all parents, subsidiaries, and affiliates of that corporation or stating that the corporation has no parents, subsidiaries, or affiliates, whichever is applicable.” 29 CFR 2200.35.

There may be material interests that would not be revealed even under this NPR's proposals. In section IX below, we seek comment whether other amendments to the Commission's rules should be adopted to promote the purposes of this NPR in circumstances that are not covered by the specific rules proposed here.

III. Description of the Proposed Revisions

This section describes the changes proposed in this NPR in the order in which they will appear in the Commission's rules.

A. Table of Contents

The NPR proposes conforming changes to the Tables of Contents for 16 CFR parts 1025 and 1052.

B. Part 1000—Commission Organization and Functions

1. Proposed Changes to § 1000.5 (Petitions)

In conjunction with the proposed changes regarding requirements for testimony and participation in Commission proceedings, the NPR proposes a technical change that directs petitioners to follow the procedure for submitting petitions found in 16 CFR part 1051.

2. Proposed Changes to § 1000.8 (Meetings and Hearings; Public Notice)

To conform to the proposed changes implementing disclosure of interest requirements for testimony and participation in Commission proceedings, the NPR proposes to add a new paragraph (e) stating: “Any person requesting the opportunity to present oral testimony before the Commission shall satisfy the requirements in § 1052.3.”

C. Part 1025—Subpart B—Pleadings, Form, Execution, Service of Documents

The NPR proposes to adopt disclosure of interest requirements for any person seeking to provide testimony or participate in an adjudicative proceeding before the Commission. The proposed changes would align CPSC's Rules of Procedure with the amicus funding disclosure requirements in Supreme Court Rule 37.6 and FRAP 29(a)(4)(e). The disclosure of interest requirements will improve transparency and lessen the likelihood of delay or repetition in adjudicative proceedings by giving the presiding officer information necessary to determine the identity of interest of those seeking to participate. For Part 1025–Subpart B, the NPR proposes to replace the heading of § 1025.17 “Intervention” with “Participation.” This is a non-substantive change to better align the heading of the section with its content.

The NPR also proposes to add a new paragraph (3) to § 1025.17(a), “Participation as an intervenor,” adding a new requirement for a petition to intervene in an adjudicative proceeding. The proposed paragraph (a)(3) reads as follows:

(3) Unless a petition to intervene is made by the United States or a State, local or foreign government, or by an agency thereof, or an Indian Tribe, city, county, town or similar entity when submitted by its law officer, the petition shall include a statement that indicates whether:

(i) a party or a party's counsel authored the petition to intervene in whole or in part, and, if so, identifies such party;

(ii) a party or a party's counsel has made or has agreed to make a monetary contribution to the petitioner intended to fund the petition or proposed participation and, if so, identifies such party; and

(iii) a person other than the petitioner, its members, or its counsel has made or has agreed to make a monetary contribution intended to fund the petition or proposed participation and, if so, identifies each such person;

(iv) if no such authorship or contributions were or will be provided, the statement should affirmatively indicate that no assistance that is reportable under this Rule has been provided or promised.

New paragraph 1025.17(a)(4) would require a corporate disclosure statement for corporations that seek to participate as intervenors.

Current paragraph (3) of § 1025.17(a) would be redesignated as paragraph (5), with no other changes.

The NPR also proposes to add similar disclosure of interest requirements and corporate disclosure requirements for persons who request to participate in an adjudicative proceeding without gaining the party status of an intervenor.

D. Part 1051—Procedure for Petitioning for Rulemaking

1. Proposed Changes to § 1051.1 (Scope)

Section 1051.1(b) states the requirements and recommendations to be followed by those seeking to file a petition for rulemaking. The NPR proposes to clarify this provision by replacing “Persons filing petitions for rulemaking shall follow as closely as possible the requirements and are encouraged to follow as closely as possible the recommendations for filing petitions under § 1051.5” with “Persons filing petitions for rulemaking shall satisfy the requirements in § 1051.5(a) and are encouraged to follow as closely as possible the recommendations for filing petitions under § 1051.5(b).”

To conform with these changes, the NPR also proposes a change to § 1051.1(c). The NPR proposes to replace the last sentence of § 1051.1(c), which currently reads “In addition, however, persons filing such petitions shall follow the requirements and are encouraged to follow the recommendations for filing petitions as set forth in § 1051.5,” with “In addition, persons filing such petitions shall satisfy the requirements in § 1051.5(a) and are encouraged to follow the recommendations for filing petitions in § 1051.5(b).”

2. Proposed Changes to § 1051.3 (Place of Filing)

To improve efficiency and reflect current technologies, the NPR proposes to provide that petitions for rulemaking may be filed by electronic submission, in addition to mail or hand delivery.

3. Proposed Changes to § 1051.4 (Time of Filing)

To conform to the change proposed in § 1051.3 to include electronic submission as a permitted method of filing petitions for rulemaking, the NPR proposes clarification to the time of filing. The proposed revised section reads as follows:

A petition shall be considered filed by electronic submission ( i.e., emailed) when it is received in the Office of the Secretary. If the electronic submission is received outside of business hours, or on a weekend or holiday, the date of receipt shall be the next business day. A petition shall be considered filed by mail or in person when time-date stamped as received in the Office of the Secretary.

4. Proposed Changes to § 1051.5 (Requirement and Recommendations for Petitions)

The NPR proposes to add the disclosure of interest and corporate disclosure requirements as new paragraphs “(3)” and “(4)” of § 1051.5(a), which read as follows:

(3) Unless the petition is made by the United States or a State, local or foreign government or by an agency thereof, or an Indian Tribe, city, county, town or similar entity when submitted by its law officer, the petition shall include a statement that indicates whether:

(i) a person, other than the petitioner, its members, or its counsel authored the petition in whole or in part and, if so, identifies each such person; and

(ii) a person other than the petitioner, its members, or its counsel has made or has agreed to make a monetary contribution intended to fund the petition and, if so, identifies each such person;

(iii) if no such authorship or contributions were or will be provided, the statement should affirmatively indicate that no assistance that is reportable under this Rule has been provided or promised.

(4) In the case of a corporation, contain a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock, or state that there is no such corporation.

To conform with these proposed additions, former requirements “(3), (4) and (5)” would become, respectively, requirements “(5), (6) and (7).”

E. Part 1052—Procedural Regulations for Informal Oral Presentations in Proceedings Before the Consumer Product Safety Commission

1. Proposed Changes to § 1052.1 (Scope and Purpose)

Section 1052.1 states the Scope and Purpose for informal oral presentations in proceedings before the Commission. For clarity and uniformity, and in order to ensure the disclosure of interest requirements apply generally throughout CPSC's proceedings, the NPR proposes to reference in § 1052.1(a) the following statutory provisions: Section 15(c) and (d) of the Consumer Product Safety Act, 15 U.S.C. 2064(c) and (d), section 15 of the Federal Hazardous Substances Act, 15 U.S.C. 1274, section 4(j) of the Consumer Product Safety Act, 15 U.S.C. 2053(j), and 16 CFR 1000.8, all of which provide that the Commission shall give interested persons an opportunity for oral presentations or an opportunity for a hearing before the Commission. Reflecting this new specificity and to avoid confusion, the NPR also proposes to eliminate from this paragraph (a) the following, less specific language: “Several rulemaking provisions of the statutes administered by the Commission are subject only to the rulemaking procedures of the Administrative Procedure Act. Section 4(c) of the Administrative Procedure Act provides that the opportunity for oral presentations may or may not be granted in rulemaking under that section.”

The NPR further proposes minor changes to § 1052.2(b) with the same purpose of achieving clarity and uniformity throughout its regulations and statutes.

2. Proposed Changes to § 1052.3 (Conduct of Oral Presentation)

The NPR proposes to add a new § 1052.3 for informal oral presentations in proceedings before the Commission, to be titled “Requesting Opportunity for Oral Presentations.” The proposed section reads:

§ 1052.3

Requesting opportunity for oral presentations.

(a) Unless otherwise stated in the Federal Register notice referenced in § 1052.2, any person who seeks to make an oral presentation shall make an electronic submission of the request to the Office of the Secretary, Consumer Product Safety Commission at [e-mail], not later than five business days before the scheduled opportunity.

(b) Unless otherwise stated in the Federal Register notice referenced in § 1052.2, the request to make an oral presentation shall:

(1) Be written in the English language;

(2) Contain the name and address of the requester, and its counsel, if any;

(3) Contain the name and address of any person on whose behalf the requested oral presentation is to be made;

(4) Unless the request to make an oral presentation is made by the United States or a State, local or foreign government, or by an agency thereof, or an Indian Tribe, city, county, town or similar entity when submitted by its law officer, the request shall include a statement that indicates whether:

(i) a person other than the requester, its members, or its counsel authored the request in whole or in part and, if so, identifies such person;

(ii) a person other than the requester, its members, or its counsel has made or has agreed to make a monetary contribution intended to fund the oral presentation and, if so, identifies each such person;

(iii) the requester has an existing business relationship by which the requester expects to receive direct or indirect financial benefit in connection with the oral presentation or the Commission activity that is the subject of the oral presentation and, if so, describes the nature of that business relationship;

(iv) if no such authorship or contributions were or will be provided, and no such business relationship exists, the statement should affirmatively indicate that no assistance that is reportable under this Rule has been provided or promised and no business relationship that is reportable under this Rule exists.

(5) If the requester is a corporation, contain a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock, or state that there is no such corporation.

(6) Contain the written text of the proposed oral presentation.

3. Proposed Changes to New § 1052.4 (Conduct of Oral Presentation)

Given the addition of new 16 CFR 1052.3 “Requesting Opportunity for oral presentations,” the NPR proposes to renumber former § 1052.3 “Conduct of oral presentation” as § 1052.4. For clarity, the NPR also proposes to make a technical change and to eliminate “legislative type” from paragraph (b). The proposed § 1052.4(b) would read: “(b) The oral presentation, which shall be taped or transcribed, shall be an informal, non-adversarial proceeding at which there will be no formal pleadings or adverse parties.”

4. Proposed Changes to New § 1052.5

Also, as a conforming change, the NPR proposes to renumber § 1052.4 “Presiding Officer; appointment, duties and powers” as § 1052.5, with no other changes.

F. Part 1502—Procedures for Formal Evidentiary Public Hearing

1. Proposed Changes to Subpart B—Initiation of Proceedings—§ 1502.5 (Initiation of a Hearing Involving the Issuance, Amendment, or Revocation of a Regulation)

Consistent with the other proposed changes requiring disclosure of interests and corporate affiliations for testimony and participation in Commission proceedings, the NPR proposes to add a new paragraph (c) to § 1502.5, stating: “Any person requesting the opportunity for a public hearing under this part shall satisfy the disclosure requirements of § 1025.17(b)(3) and (4), in addition to all requirements in this part.”

2. Proposed Changes to Subpart C—Notice of Participation—§ 1502.16 (Notice of Participation)

In conjunction with the changes proposed above, the NPR proposes to require disclosure of interests and corporate disclosure within the notice of participation to be filed under 16 CFR 1502.16(a).

IV. Environmental Considerations

The Commission's regulations address whether the agency must prepare an environmental assessment or an environmental impact statement. Under these regulations, certain categories of CPSC actions that have “little or no potential for affecting the human environment” do not require an environmental assessment or an environmental impact statement. 16 CFR 1021.5(c). The proposed changes to the rules fall within the categorical exclusion and therefore, no environmental assessment or environmental impact statement is required.

V. Regulatory Flexibility Analysis

Under section 603 of the Regulatory Flexibility Act (RFA), when the Administrative Procedure Act (APA) requires an agency to publish a general notice of proposed rulemaking, the agency must prepare an initial regulatory flexibility analysis (IRFA), assessing the economic impact of the proposed rule on small entities. 5 U.S.C. 603(a). Although the Commission has chosen to propose this disclosure rule through notice and comment procedures, the APA does not require a proposed rule when an agency issues rules of agency procedure and practice. 5 U.S.C. 553(b). Therefore, the CPSC is not required to prepare an IRFA under the RFA. See79 FR 10721 (discussing IRFA requirement). Moreover, the NPR does not propose to establish mandatory requirements for, and would not impose any significant obligations on, small entities (or any other entity or party).

VI. Paperwork Reduction Act

The Paperwork Reduction Act (PRA) establishes certain requirements when an agency conducts or sponsors a “collection of information.” 44 U.S.C. 3501–3520. The NPR would amend the Commission's rules for testimony and participation in proceedings before the Commission. The existing rules and the proposed revisions do not require or request information from the public, but rather, establish procedures for voluntary testimony and other participation in proceedings before the Commission. Further, the PRA does not apply to collections of information during the conduct of an administrative action or investigation involving an agency against specific individual or entities (44 U.S.C. 3518; see5 CFR 1320.4(a)(2)), or to facts or opinions submitted in response to general solicitations of comments from the public (5 CFR 1320.3(h)(4)) or obtained or solicited at or in connection with public hearings or meetings ( id. 1320.3(h)(4)). For these reasons, the proposed rule does not implicate the PRA.

VII. Executive Order 12988 (Preemption)

According to Executive Order 12988 (Feb. 5, 1996), agencies must state in clear language the preemptive effect, if any, of new regulations. This NPR proposes procedural provisions that are uniquely applicable to the Commission, and not enforced by state or local governments. Preemption therefore is not relevant.

VIII. Proposed Effective Date

Consistent with the APA's general requirement that the effective date of a rule be at least 30 days after publication of the final rule, the Commission proposes that the effective date of the rule will be 30 days after the date of the publication in the Federal Register . See5 U.S.C. 553(d).

IX. Request for Comments

The Commission requests comments on all aspects of the NPR. The Commission also invites public comment on whether the same goals of transparency, fairness, efficiency, and improved decision-making should be advanced through disclosure provisions beyond those included in the NPR, for instance additional rule revisions that more fully enable the Commission to identify alignments of financial interest between different persons or entities requesting participation in the same CPSC hearing or public meeting. Comments must be submitted in accordance with the instructions in the ADDRESSES section of the preamble. Comments must be received no later than November 28, 2023.

List of Subjects in 16 CFR Parts 1000, 1025, 1051, 1052, and 1502

• Administrative practice and procedure; Consumer protection; Requirement; Statement; Participation; Oral testimony; Petition

For the reasons set forth in the Preamble, the Commission proposes to amend 16 CFR parts 1000, 1025, 1051, 1052 and 1502 as follows:

PART 1000—COMMISSION ORGANIZATION AND FUNCTIONS

1. The authority citation for part 1000 continues to read as follows:

Authority: 5 U.S.C. 552(a).

2. Revise § 1000.5 to read as follows:

§ 1000.5

Petitions.

Any interested person may petition the Commission to issue, amend, or revoke a rule or regulation by submitting a written request to the Office of the Secretary, Consumer Product Safety Commission. Petitions must comply with the Commission's procedure for petitioning for rulemaking at 16 CFR part 1051.

3. Amend § 1000.8 by adding paragraph (e) to read as follows:

§ 1000.8

Meetings and hearings; public notice.

* * * * *

(e) Any person requesting the opportunity to present oral testimony before the Commission shall satisfy the requirements in § 1052.3.

PART 1025—RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS

4. The authority citation for part 1025 continues to read as follows:

Authority: Consumer Product Safety Act (secs. 15, 20, 27 (15 U.S.C. 2064, 2069, 2076), the Flammable Fabrics Act (sec. 5, 15 U.S.C. 1194), the Federal Trade Commission Act (15 U.S.C. 45)), unless otherwise noted.

5. Amend § 1025.17 by:

a. Revising the subject heading.

b. Redesignating paragraph (a)(3) as paragraph (a)(5).

c. Adding new paragraphs (a)(3) and (4).

The revisions and additions read as follows:

§ 1025.17

Participation.

* * * * *

(a)(3) Unless a petition to intervene is made by the United States or a State, local or foreign government, or by an agency thereof, or an Indian Tribe, city, county, town or similar entity when submitted by its law officer, the petition shall include a statement that indicates whether:

(i) a party or a party's counsel authored the petition to intervene in whole or in part, and, if so, identifies such party;

(ii) a party or a party's counsel has made or has agreed to make a monetary contribution to the petitioner intended to fund the petition or proposed participation and, if so, identifies such party; and

(iii) a person other than the petitioner, its members, or its counsel has made or has agreed to make a monetary contribution intended to fund the petition or proposed participation and, if so, identifies each such person;

(iv) if no such authorship or contributions were or will be provided, the statement should affirmatively indicate that no assistance that is reportable under this Rule has been provided or promised.

(a)(4) If the petitioner is a corporation the petition shall include a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or state that there is no such corporation.

* * * * *

PART 1051—PROCEDURE FOR PETITIONING FOR RULEMAKING

6. The authority citation for part 1051 continues to read as follows:

Authority: 5 U.S.C. 553(e), 5 U.S.C. 555(e).

7. Amend § 1051.1 by revising paragraph (b), and the last sentence in paragraph (c) to read as follows:

§ 1051.1

Scope.

* * * * *

(b) Persons filing petitions for rulemaking shall satisfy the requirements in § 1051.5(a) and are encouraged to follow as closely as possible the recommendations for filing petitions under § 1051.5(b).

(c) * * * In addition, persons filing such petitions shall satisfy the requirements in § 1051.5(a) and are encouraged to follow the recommendations for filing petitions in § 1051.5(b).

8. Revise § 1051.3 to read as follows:

§ 1051.3

Place of filing.

A petition shall be filed in any of the following ways:

(1) By electronic submission. A petition shall be emailed to: Office of the Secretary, Consumer Product Safety Commission at [e-mail]; or

(2) Mail/hand delivery/courier. A petition shall be mailed or hand delivered to the Office of the Secretary, Consumer Product Safety Commission, at 4330 East West Highway, Bethesda, MD 20814.

9. Revise § 1051.4 to read as follows:

§ 1051.4

Time of filing.

A petition shall be considered filed by electronic submission when it is received in the Office of the Secretary. If the electronic submission is received outside of business hours, or on a weekend or holiday, the date of receipt shall be the next business day. A petition shall be considered filed by mail or in person when time-date stamped as received in the Office of the Secretary.

10. Amend § 1051.5 by:

a. Redesignating paragraphs (a)(3), (a)(4), and (a)(5) as paragraphs (a)(5), (a)(6), and (a)(7).

b. Adding new paragraphs (a)(3) and (4).

The revisions and additions read as follows:

§ 1051.5

Requirements and recommendations for petitions.

* * * * *

(a)(3) Unless the petition is made by the United States or a State, local or foreign government or by an agency thereof, or Indian Tribe, city, county, town or similar entity when submitted by its law officer, include a statement that indicates whether:

(i) a person, other than the petitioner, its members, or its counsel authored the petition in whole or in part and, if so, identifies each such person; and

(ii) a person other than the petitioner, its members, or its counsel has made or has agreed to make a monetary contribution intended to fund the petition and, if so, identifies each such person;

(iii) if no such authorship or contributions were or will be provided, the statement should affirmatively indicate that no assistance that is reportable under this Rule has been provided or promised.

(a)(4) If the petitioner is a corporation, include a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or state that there is no such corporation.

* * * * *

PART 1052—PROCEDURAL REGULATIONS FOR INFORMAL ORAL PRESENTATIONS IN PROCEEDINGS BEFORE THE CONSUMER PRODUCT SAFETY COMMISSION

11. The authority citation for part 1052 continues to read as follows:

Authority: 15 U.S.C. 1193(d), 15 U.S.C. 2058(d)(2), 15 U.S.C. 2076(a), and 5 U.S.C. 553(c).

12. Amend § 1052.1 by revising the last two sentences of paragraph (a), and the first sentence in paragraph (b) to read as follows:

§ 1052.1

Scope and purpose.

(a) * * * Section 15(c) and (d) of the Consumer Product Safety Act, 15 U.S.C. 2064(c) and (d), and section 15 of the Federal Hazardous Substances Act, 15 U.S.C. 1274, provide that the Commission will afford interested persons, including consumers and consumer organizations, an opportunity for a hearing. In addition, section 27(a) of the Consumer Product Safety Act, 15 U.S.C. 2076(a), authorizes informal proceedings that can be conducted in non-rulemaking investigatory situations; section 4(j) of the Consumer Product Safety Act, 15 U.S.C. 2053(j), provides that the Commission shall conduct a public hearing on the annual agenda and priorities for Commission action; and as set forth in § 1000.8 of the Commission's rules, the Commission may conduct any hearings necessary to its functions and afford reasonable opportunity for interested persons to present relevant testimony.

(b) This part sets forth rules of procedure for the oral presentation of data, views or arguments in the informal rulemaking or investigatory situations or hearings described in paragraph (a) of this section or under any other laws administered by the Commission. * * *

§§ 1052.3 and 1052.4

[Redesignated as §§ 1052.4 and 1052.5]

13. Redesignate § 1052.3 and § 1052.4 as § 1052.4 and § 1052.5, and add a new § 1052.3 to read as follows:

§ 1052.3

Requesting opportunity for oral presentations.

(a) Unless otherwise stated in the Federal Register notice referenced in § 1052.2, any person who seeks to make an oral presentation shall make an electronic submission of the request to the Office of the Secretary, Consumer Product Safety Commission at [e-mail], not later than five business days before the scheduled opportunity.

(b) Unless otherwise stated in the Federal Register notice referenced in § 1052.2, the request to make an oral presentation shall:

(1) Be written in the English language;

(2) Contain the name and address of the requester, and its counsel, if any;

(3) Contain the name and address of any person on whose behalf the requested oral presentation is to be made;

(4) Unless the request to make an oral presentation is made by the United States or a State, local or foreign government, or by an agency thereof, or an Indian Tribe, city, county, town or similar entity when submitted by its law officer, the request shall include a statement that indicates whether:

(i) a person other than the requester, its members, or its counsel authored the request in whole or in part and, if so, identifies such person;

(ii) a person other than the requester, its members, or its counsel has made or has agreed to make a monetary contribution intended to fund the oral presentation and, if so, identifies each such person;

(iii) the requester has an existing business relationship by which the requester expects to receive direct or indirect financial benefit in connection with the oral presentation or the Commission activity that is the subject of the oral presentation and, if so, describes the nature of that business relationship;

(iv) if no such authorship or contributions were or will be provided, and no such business relationship exists, the statement should affirmatively indicate that no assistance that is reportable under this Rule has been provided or promised and no business relationship that is reportable under this Rule exists.

(5) If the requester is a corporation, contain a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock, or state that there is no such corporation.

(6) Contain the written text of the proposed oral presentation.

14. In newly redesignated § 1052.4, revise paragraph (b) to read as follows:

§ 1052.4

Conduct of oral presentation.

* * * * *

(b) The oral presentation, which shall be taped or transcribed, shall be an informal, non-adversarial proceeding at which there will be no formal pleadings or adverse parties.

* * * * *

PART 1502—PROCEDURES FOR FORMAL EVIDENTIARY PUBLIC HEARING

15. The authority citation for part 1502 continues to read as follows:

Authority: 15 U.S.C. 1261(q)(1)(B), 1262(a), 1262(e), 1269(a); 15 U.S.C. 1474(a); 21 U.S.C. 371(e)–(g).

16. Amend § 1502.5 by adding a new paragraph (c) to read as follows:

§ 1502.5

Initiation of a hearing involving the issuance, amendment, or revocation of a regulation.

* * * * *

(c) Any person requesting the opportunity for a public hearing under this part shall satisfy the disclosure requirements of § 1025.17(b)(3) and (4), in addition to all requirements in this part.

17. Amend § 1502.16 by revising paragraph (a) to read as follows:

§ 1502.16

Notice of participation.

(a) Within 30 days after publication of the notice of hearing under § 1502.13, a person desiring to participate in a hearing is to file with the Office of the Secretary a notice of participation containing the following information:

(i) Date of submission;

(ii) Title of submission: Notice of Participation;

(iii) To whom the notice is being directed: Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD. Mailing address: Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207; [e-mail].

(iv) Title of Regulation and CPSC Docket Number;

(v) Name and contact information of person or entity seeking to participate, including Street Address, City, State, and Zip Code, Telephone number, and email address;

(vi) Service on the above will be accepted by: Name, Street Address, City, State, and Zip Code, Telephone number, and email address;

(vii) The following statements are made as part of this notice of participation:

(A) Specific interests. Provide a statement of the specific interest of the person in the proceeding, including the specific issues of fact concerning which the person desires to be heard. This part need not be completed by a party to the proceeding;

(B) Commitment to participate. Provide a statement that the person will present documentary evidence or testimony at the hearing and will comply with the requirements of § 1502.25 of these procedures;

(C) Disclosure of interest. Unless the notice of participation is made by the United States or a State, local or foreign government, or by an agency thereof, or Indian Tribe, city, county, town or similar entity when submitted by its law officer, provide a statement that indicates whether:

(1) A party or a party's counsel authored the notice of participation in whole or in part, and, if so, identifies such party;

(2) A party or a party's counsel has made or has agreed to make a monetary contribution intended to fund the proposed participation and, if so, identifies such party; and

(3) A person other than the one filing the notice of participation, its members, or its counsel has made or has agreed to make a monetary contribution intended to fund the proposed participation and, if so, identifies each such person;

(4) If no such authorship or contributions were or will be provided, the statement should affirmatively indicate that no assistance that is reportable under this Rule has been provided or promised;

(D) Corporate disclosure. If the proposed participant is a corporation the notice shall include a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or state that there is no such corporation; and

(viii) Signature.

* * * * *

Alberta E. Mills,

Secretary, Consumer Product Safety Commission.

Footnotes

1.   See, e.g., Commission Agenda and Priorities, Notice of Hearing, 87 FR 15,209 (Mar. 17, 2022); Safety Standard for Clothing Storage Units; Notice of Opportunity for Oral Presentation and Comments, 87 FR 11,366 (Mar. 1, 2022).