E8-28200. Information Disclosure Under Section 6(b) of the Consumer Product Safety Act

AGENCY:

Consumer Product Safety Commission.

ACTION:

Final Rule.

SUMMARY:

The Consumer Product Safety Improvement Act of 2008, Public Law 110-314, 122 Stat. 3016, enacted August 14, 2008, amends section 6 of the Consumer Product Safety Act (CPSA), 15 U.S.C. 2051 et seq. Specifically, the amendments shorten the time periods for notice and opportunity to comment on public disclosure of product-specific information, broaden the statutory exceptions to section 6(b), and eliminate the Federal Register publication requirement the Commission previously had to follow when it made a finding that the public health and safety required public disclosure within a lesser period of notice than that is required by section 6(b)(1). The Commission is issuing this rule to reflect the newly-enacted statutory amendments on public disclosure of product-specific information.

DATES:

These amendments are effective November 28, 2008.

FOR FURTHER INFORMATION CONTACT:

Patricia Kennedy Vieira, Attorney, Office of the General Counsel, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

On August 14, 2008 the Consumer Product Safety Improvement Act (CPSIA) became law. The CPSIA amends section 6 of the Consumer Product Safety Act by shortening the time from 30 to 15 days in Section 6(b) of the CPSA for notice and opportunity to comment on information prior to the Commission's disclosure to the public of certain product-specific information. The statutory amendments also shorten the time from 10 to five days in which the Commission must notify a company of its intention to disclose information over its objection. The amendments shorten the time for notice and opportunity to comment under section 6(b) where the Commission publishes a finding that the public health and safety requires public disclosure in less than 15 days. The amendments eliminate the requirement to publish such finding in the Federal Register.

The amendments also broaden the scope of the exceptions in section 6(b). First, the amendments provide an additional exception to the definition of the term “public” to exclude any federal, state, local, or foreign government agency pursuant to section 29(f) of the CPSIA. The regulatory definition of “public” has been changed to reflect the additional exclusion. The amendments broaden the exception under 6(b)(4) for information not covered by section 6(b) of the CPSA where the Commission has reasonable cause to believe the product is in violation of any consumer product safety rule or provision under the CPSA or similar rule or provision of any other act enforced by the Commission. Finally, the amendments also broaden the exception under section 6(b)(5) for information provided under Section 15(b) of the CPSA where the Commission publishes a finding that the public health and safety requires public disclosure within a lesser period of notice than is required by section 6(b)(1). The amendments eliminate the requirement that the Commission publish such health and safety finding in the Federal Register. Existing regulatory provisions are inconsistent with the statutory amendments to section 6(b) under the CPSIA and, therefore, the Commission is amending the regulatory provisions of section 6 to reflect these statutory changes.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) authorizes an agency to dispense with certain notice procedures for a rule when it finds “good cause” to do so. 5 U.S.C. 553(b)(3)(B). Specifically, under 5 U.S.C. 553(b)(3)(B), the requirement for notice and an opportunity to comment does not apply when the agency, for good cause, finds that those procedures are “impractical, unnecessary, or contrary to the public interest.” The statutory changes reflected in these amendments are imposed by the CPSIA and are not discretionary with the Commission. The Commission has no authority to make changes to the CPSIA provisions, and therefore could not make any changes in response to public comments. Accordingly, the Commission hereby finds that notice and an opportunity to comment on these amendments are unnecessary.

The amendments became effective by statutory enactment (August 14, 2008). Accordingly, the Commission is publishing these amendments to its regulations to make them consistent with the statutory provisions.

Effective Date

The amendments are effective immediately upon their publication in final form in the Federal Register, and cover all requests for information received by the Commission since August 14, 2008.

Impact on Small Business

Because these clauses are mandated by statute and not discretionary with the Commission, these amendments are not subject to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

Environmental Considerations

The amendments are not subject to the National Environmental Policy Act, 42 U.S.C. 4321 et seq., because they incorporate a statutory requirement not subject to agency discretion.

List of Subjects in 16 CFR Part 1101

• Administrative practice and procedure
• Business and Industry
• Consumer protection
• Reporting and recordkeeping requirements

Accordingly, 16 CFR part 1101 is amended as follows:

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

1. The authority citation for part 1101 is revised to read as follows:

Authority: Section 6(b) of Public Law 92-573, as amended by Section 211 of Public Law 110-314, 122 Stat. 3016, 15 U.S.C. 2055(b), 5 U.S.C. 553(b).

§ 1101.1

[Amended]

2. Section 1101.1(b)(1) is amended as follows:

a. Remove the number “30” and add, in its place “15.”

b. Remove the word “finds” and add, in its place “publishes a finding that.”

3. Section 1101.2 is revised to read as follows:

§ 1101.2.

Scope.

Section 6(b) and these rules apply to information concerning products subject to the CPSA (15 U.S.C. 2051-2085), and to the four other acts the Commission administers (transferred acts). These transferred acts are the Flammable Fabrics Act, 15 U.S.C. 1191-1204 (FFA); the Poison Prevention Packaging Act of 1970, 15 U.S.C. 1471-1476 (PPPA); the Federal Hazardous Substances Act, 15 U.S.C. 1261-1276 (FHSA); and the Refrigerator Safety Act, 15 U.S.C. 1211-1214 (RSA). These provisions are now applicable to the Virginia Graeme Baker Pool and Spa Safety Act, 15 U.S.C. 8003(a); and the Children's Gasoline Burn Prevention Act § 2(a), Public Law 110-278, 122 Stat. 2602 (July 17, 2008).

4. Section 1101.12 is amended by adding new paragraph (h) to read as follows:

§ 1101.12.

Commission must disclose information to the public.

* * * * *

(h) Any federal, state, local, or foreign government agency pursuant to, and in accordance with, section 29(f) of the Consumer Product Safety Improvement Act of 2008 (Pub. L. 110-314, 122 Stat. 3016 (August 14, 2008)).

§ 1101.21

[Amended]

5. In the third sentence of § 1101.21(a), remove the words “makes a public health and safety finding” and add, in its place “publishes a finding that the public health and safety requires a lesser period of notice.”

§ 1101.22

[Amended]

6. Section 1101.22 is amended as follows:

a. In paragraph (a)(1) remove the words “a minimum of twenty (20)” and add, in its place “ten (10).”

b. In the second sentence of paragraph (a)(2) remove the word “find” and add, in its place “publish a finding.”

c. In paragraph (b)(2) remove the word “finds” and add, in its place “publishes a finding.”

d. In paragraph (b)(2) remove the number “30” and add, in its place “15.”

7. Section 1101.23 is amended as follows:

a. Revise the heading to read follows:

b. In the introductory paragraph remove the number “30” and add, in its place “15.”

c. In paragraph (a) remove the number “30” and add, in its place “15.”

d. In paragraph (b) remove the number “30” and add, in its place “15” wherever it appears.

e. In the first sentence of paragraph (b) remove the word “find” and add, in its place “publish a finding.”

f. In the second sentence of paragraph (b) remove the word “determine” and add, in its place “find.”

g. Revise paragraph (c) to read as follows:

§ 1101.23

Providing less than 15 days notice before disclosing information.

* * * * *

(c) Notice of finding. The Commission will inform a manufacturer or private labeler of a product which is the subject of a public health and safety finding that the public health and safety requires less than 15 days advance notice either orally or in writing, depending on the immediacy of the need for quick action. 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 § 1101.25).

8. Section 1101.25 is amended as follows:

a. In paragraph (a) remove the words “10 working” and add, in its place “5.”

b. In paragraph (b) remove the words “10 working” and add, in its place “5.”

c. Revise paragraph (c) to read as follows:

§ 1101.25

Notice of intent to disclose.

* * * * *

(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 5 days advance notice either orally or in writing, depending on the immediacy of the need for quick action.

§ 1101.31

[Amended]

9. In § 1101.31(a) remove the word “thirty” and add, in its place “fifteen.”

10. Section 1101.41(a) is revised to read as follows:

§ 1101.41

Generally.

(a) Scope. This subpart describes and interprets the exceptions to the requirements of section 6(b)(1)-(b)(3) that are set forth in section 6(b)(4). These exceptions apply to:

(1) Information about a product reasonably related to the subject matter of an imminent hazard action in federal court;

(2) Information about a product which the Commission has reasonable cause to believe is in violation of any consumer product safety rule or provision under the Consumer Product Safety Act (15 U.S.C. 2051, et seq.) or similar rule or provision of any other act enforced by the Commission;

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

(4) information in the course of or concerning an adjudicatory, administrative or judicial proceeding.

* * * * *

11. Section 1101.43 is revised to read as follows:

§ 1101.43

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

(a) Statutory provision. Section (6)(b)(4)(A) provides that the requirements of section 6(b)(1) do not apply to public disclosure of information about any consumer product which the Commission has reasonable cause to believe is in violation of any consumer product safety rule or provision under the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) or similar rule or provision of any other act enforced by the Commission.

(b) Scope of exception. This exception applies once the Commission has “reasonable cause to believe” there has occurred a violation of any consumer product safety rule or provision under the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) or similar rule or provision of any other act enforced by the Commission. Once the exception applies, the Commission may disclose information to the public without following the requirements of section 6(b)(1) if the information concerning the product is reasonably related to the violation.

12. Section 1101.61 is amended by adding a new paragraph (b)(4) to read as follows:

§ 1101.61

Generally.

* * * * *

(b) * * *

(4) The Commission publishes a finding that the public health and safety requires public disclosure with a lesser period of notice than is required by section 6(b)(1).

* * * * *

13. Section 1101.62(a)(2) is revised to read as follows:

§ 1101.62

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

(a) * * *

(2) Information with respect to a consumer product which the Commission has reasonable cause to believe is in violation of any consumer product safety rule or provision under the Consumer Product Safety Act (Pub. L. 92-573, 86 Stat. 1207, as amended (15 U.S.C. 2051, et seq.)) or similar rule or provision of any other act enforced by the Commission; or

* * * * *

§ 1101.71

[Amended]

14. Section 1101.71(b) is amended as follows:

a. In paragraph (b)(1) remove the number “30” and add, in its place “15.”

b. In paragraph (b)(2) remove the words “ten (10)” and add, in its place “five (5).”

Dated: November 20, 2008.

Todd A. Stevenson,

Secretary, Consumer Product Safety Commission.