Guide to Public Information

November 09, 2011

U.S. CONSUMER PRODUCT SAFETY COMMISSION

Guide to Public Information

 


Introduction

The U.S. Consumer Product Safety Commission (CPSC) is an independent federal regulatory agency created to protect the public from unreasonable risks of injuries and deaths associated with some 15,000 types of consumer products. An important part of this mission is to inform the public about product hazards. CPSC uses various means to inform the public. These include local and national media coverage, publication of numerous booklets and product alerts, a web site, a telephone Hotline, the National Injury Information Clearinghouse, CPSC's Public Information Center and responses to Freedom of Information Act (FOIA) requests.



CPSC Reading Room and Web Site

The CPSC's public reference reading room contains numerous agency records, including the materials the CPSC makes available for public inspection and copying pursuant to the FOIA, 5 U.S.C. §§ 552(a)(2) and (5). The reading room is in the Public Information Center (room 419) at the CPSC's headquarters at 4330 East West Highway, Bethesda, Maryland 20814. The records available for review are listed at Appendix A to this Guide. Those reading room records that the CPSC creates after November 1, 1996 and certain others, are also available on the CPSC's electronic reading room on CPSC's World Wide Web site, which the public can access at www.cpsc.gov, in the FOIA portion of the "Library" section.


CPSC's extensive World Wide Web also includes information about agency meetings, product recalls and hazards, job vacancies, publications, publicly available records, the agency's current calendar of public meetings and other activities. The site also includes an interactive feature that allows consumers to report unsafe products and related injuries electronically. CPSC also maintains an On-Line Form for contact by electronic mail. This can be used for inquiries about product recalls or to report potential product hazards.



CPSC Office of Information and Public Affairs

Numerous publications, press releases and product safety alerts are available without a FOIA request from the CPSC's Office of Information and Public Affairs, PUBLICATION REQUEST, U.S. CONSUMER PRODUCT SAFETY COMMISSION, 4330 East West Highway, Bethesda, MD 20814. You may receive this information 24 hours a day via this web site (www.cpsc.gov). You can also use e-mail to order hard copies of publications and publications not yet available on the web site (be sure to include mailing address and specify the publications desired). You can use CPSC's On-Line Form to e-mail such requests. Please allow 3-4 weeks for delivery. For more information about these services, call CPSC's Office of Information Services, 301-504-7909, or fax 301-504-0124 or 0025, or contact them via the On-Line Form.


You can have copies of product recall and safety information, and the agency's public calendar, automatically sent to you. To subscribe to this service, go to https://www.cpsc.gov/cpsclist.aspx



Type of Information Source
   
   
CPSC Publications Office of Information and Public Affairs
CPSC Press Releases  Office of Information and Public Affairs;  web site
CPSC Product Safety Alerts, Fact Sheets Office of Information and Public Affairs;  web site
Incident Reports FOIA request to the Office of the Secretary (also through the National Injury Information Clearinghouse with some exceptions discussed further below)
Commission Briefing Packages FOIA request to the Office of the Secretary; web site
Special Studies and Reports for Engineering, Health Science, or Hazard Analysis Issues FOIA request to the Office of the Secretary; web site
Safety Standards for Products FOIA request to the Office of the Secretary; web site; Government Printing Office
Unrestricted Staff Investigatory Files and Product Corrective Action and Recall Files FOIA request to the Office of the Secretary; web site
Reading Room Materials See Appendix A; FOIA request to the Office of the Secretary; web site

CPSC's toll-free Hotline, 1-800-638-2772, is another source of public information available 24 hours a day. The Hotline can be used to find out whether a product has been recalled, learn how to return a recalled product or arrange for its repair, obtain information on what to look for when buying consumer products, obtain information on how to use a consumer product safely, obtain information about ordering CPSC publications, report an unsafe product, and report a product-related injury.


A wide variety of recorded messages on product recalls and consumer product safety also are available on the Hotline anytime. To report product complaints or injuries, the Hotline staff is available between 8:00 a.m. and 5:30 p.m. Eastern time Monday through Friday, except holidays. There are staff available who speak both English and Spanish. In addition, callers can arrange to speak with CPSC staff members fluent in other languages.  



CPSC National Injury Information Clearinghouse (Clearinghouse)

The Clearinghouse disseminates statistics and information relating to the prevention of death and injury associated with consumer products. Each year the Clearinghouse responds to 6,000 requests for information from the American public. The Clearinghouse uses the following databases as sources of information.


The National Electronic Injury Surveillance System (NEISS): NEISS is comprised of a sample of hospitals that are statistically representative of hospital emergency rooms nationwide. From the data collected, estimates can be made of the numbers of injuries associated with consumer products and treated in hospital emergency departments. Data is collected on a broad range of injury-related issues covering hundreds of product categories and provides national estimates of the number and severity of product-related injuries.


Death Certificate File: State health departments provide these death certificate files to CPSC where consumer products are found to be involved in the deaths. The Clearinghouse provides summaries of the death certificates with victim information removed.


In-Depth Investigations (INDP) File: The INDP file contains summaries of reports of investigations into events surrounding product-related injuries or incidents. Based on victim/witness interviews, the reports provide details about incident sequence, human behavior, and product involvement.


Injury/Potential Injury Incident File (IPII): The IPII file contains summaries, indexed by consumer product, of Hotline reports, product related newspaper accounts, reports from medical examiners, and letters to CPSC.


To contact the Clearinghouse and request information, call the CPSC Hotline at 1-800-638-2772; go to our web site at http://www.cpsc.gov; or write your request by e-mail to clearinghouse@cpsc.gov or conventional mail to Clearinghouse, CPSC, 4330 East West Highway, Bethesda, MD 20814.



Available Information


The following types of information are typically available from the CPSC, from the sources noted:




Restricted Information

The CPSC generally does not disclose to the public the following types of information:


- Documents prohibited from disclosure by the Consumer Product Safety Act (CPSA) (15 U.S.C. §§ 2055 (a) and (b)), which prohibits the release of: trade secrets and confidential commercial or financial information; and information that identifies manufacturers of consumer products, unless the CPSC has taken reasonable steps to assure it is accurate, its release would be fair under the circumstances, and its release is reasonably related to effectuating the purposes of the acts the Commission administers.


- Information that identifies injured persons and the persons who treated them, without their consent.


- Certain inter-agency and intra-agency memoranda containing opinions and recommendations prepared to assist in decision-making.


- Personnel, medical and similar files, the disclosure of which would be a clearly unwarranted invasion of personal privacy.


- Investigatory records compiled for law enforcement purposes when disclosure could reasonably be expected to interfere with enforcement procedures or would disclose techniques, guidelines and procedures for law enforcement investigations or prosecutions -- for example, records from CPSC's compliance and enforcement files pertaining to active investigations.



CPSC FOIA Regulations

As described in this Guide, many agency records are available without a Freedom of Information Act (FOIA) request. Certain records, however, can only be obtained by filing a FOIA request with the CPSC Office of the Secretary. The CPSC's FOIA regulations are published at 16 C.F.R. Part 1015, and are reprinted as Appendix B to this Guide. Information disclosure at CPSC is also subject to the requirements of section 6(b) of the CPSA, 15 U.S.C. § 2055(b), and the Commission's section 6(b) regulations, published at 16 C.F.R. Part 1101, reprinted as Appendix C to this guide.



Making a FOIA Request


All FOIA requests for CPSC records should be made in writing to:

FOIA REQUEST
Office of the Secretary
U.S. CONSUMER PRODUCT SAFETY COMMISSION
4330 East West Highway
Bethesda, MD 20814

or by E-mail via CPSC's On-Line Form.

You can deliver your request by hand or express mail to:

Office of the Secretary
U.S. CONSUMER PRODUCT SAFETY COMMISSION
4340 East West Highway, Suite 820
Bethesda, Maryland 20814-4408

If you have questions regarding the making or processing of a FOIA request, you may write us at the above address, or contact us by:

telephone (301) 504-7923;

facsimile (301) 504-0127; or

E-mail - via CPSC's On-Line Form or Information Center On-Line Form


As described in previous sections, the CPSC maintains hundreds of files involving thousands of records on manufacturers, products, and on administrative and rule-making proceedings. CPSC also maintains computer stored or generated information that summarizes incidents and investigations of incidents and contains analyses of injury information. Because of CPSC's numerous types of files and records, please include in your request the following information, as appropriate:


- Identity and address of the manufacturer, private labeler or importer of interest;


- Type of consumer product, brand name and model number;


- Kinds of records sought;


- Time period for which you wish the files searched;


- Specific accident or hazard scenario of interest;


- The extent of your willingness to pay any fees that would be incurred in the processing of your request; and


- The purpose of your organization or your need for the information if requesting a waiver of the fees.


The more you narrow your request to specific descriptions, the quicker the request can be processed. Please keep in mind that the FOIA pertains only to existing records and is not a research service that compiles information that cannot be readily identified. If your request does not specify a time period for the file search, the Commission will limit the search to the most recent two years and the current year. Records for injury information and most other records for the time periods before 1980 are no longer immediately available through Commission records systems and data bases. Requests for records older than 1980 will take longer to retrieve and process and the cost to you could be more substantial.



FOIA Processing Fees

CPSC's FOIA regulations at 16 C.F.R. § 1015.9 provide for the charging of fees for the processing of FOIA requests. Fees charged and any fees to be waived are different for commercial use requesters, non-commercial educational or scientific institutions, the news media or "others," including consumers and plaintiffs' attorneys. Waiver requests must specifically explain the intended use of the information and the reasons the requester is entitled to a waiver.



CPSC Information and Record Locator Systems

CPSC's Government Information Locator Service (GILS) records are maintained by the Government Printing Office (GPO). GILS records identify public information sources within the federal government, describe the information available in these resources, and assist in obtaining the information. CPSC's GILS can be viewed either by going directly to the GPO web site at http://www.gpoaccess.gov/gils/index.html, or by going to the CPSC web site, clicking the button marked "Business/Contracts," then "Official Federal Information," then "Federal Register, GILS," then "Search the Government Information Locator Service (GILS)." Then, scroll through the agencies listed or enter: Consumer Product Safety Commission.



CPSC Annual FOIA Report

Pursuant to the FOIA, 5 U.S.C. § 552(e), the Commission prepares an annual report regarding its FOIA activities. You may obtain a copy of these reports on our web site, or by calling or writing the Office of the Secretary.



Appendix A - Documents Available for Review in the Commission's Reading Room/Information Center


1. SUMMARY RECORDS (Commission Decisions)

2. CONTINUING GUARANTEES under the Flammable Fabrics Act

3. FEDERAL REGISTER NOTICES

4. BRIEFING PACKAGES

5. PETITIONS

6. PUBLIC CALENDAR

7. GENERAL COUNSEL ADVISORY OPINIONS

8. MINUTES OF MEETINGS/RECORD OF COMMISSION ACTIONS

9. PUBLIC HEARING FILES

10. POLICY AND PROCEDURES

11. SPEECH FILES

12. COMMISSIONERS' OPINIONS

13. FOI ANNUAL REPORT TO CONGRESS

14. DOCKET FILES/CONSENT AGREEMENTS

15. COMMENTS AND RULEMAKING

16. CPSC OPERATING PLAN

17. NOTICES OF CLOSED COMMISSION MEETINGS

18. SUMMARIES OF EMPLOYEES' MEETINGS WITH THE PUBLIC

19. MASTER CALENDAR FOR MEETINGS

20. SPECIAL FILES (SUCH AS ATV REPOSITORY OF MANUFACTURER SUBMISSIONS)

21. FINANCIAL DISCLOSURE STATEMENTS

22. COMMISSION MEETING AGENDAS

23. FREQUENTLY REQUESTED FOIA-PROCESSED DOCUMENTS



Appendix B - The CPSC FOIA Regulations, 16 C.F.R. Part 1015 


[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: 16CFR1015]


[Page 36-46]


TITLE 16--COMMERCIAL PRACTICES


CHAPTER II--CONSUMER PRODUCT SAFETY COMMISSION


PART 1015--PROCEDURES FOR DISCLOSURE OR PRODUCTION OF INFORMATION UNDER THE FREEDOM OF INFORMATION ACT


Subpart A--Production or Disclosure Under 5 U.S.C. 552(a)

Sec.

1015.1 Purpose and scope.

1015.2 Public reference facilities.

1015.3 Requests for records and copies.

1015.4 Responses to requests for records; responsibility.

1015.5 Time limitations on responses to requests for records.

1015.6 Responses: Form and content.

1015.7 Appeals from initial denials; reconsideration by the Secretary.

1015.8 Requests received during the course of administrative hearings.

[Reserved]

1015.9 Fees for production of records.

1015.10 Commission report of actions to Congress.

1015.11 Disclosure of trade secrets to consultants and contractors;

nondisclosure to advisory committees and other Government agencies.

1015.12 Disclosure to Congress.

Subpart B--Exemptions From Production and Disclosure Under 5 U.S.C.

552(b)

1015.15 Purpose and scope.

1015.16 Exemptions (5 U.S.C. 552(b)).

1015.17 Internal Commission procedure for withholding exempt records.

1015.18 Information submitted to the Commission; request for treatment

as exempt material.

1015.19 Decisions on requests for exemption from disclosure under 5

U.S.C. 552(b)(4).


Subpart C--Disclosure of Commission Accident or Investigation Reports

Under 15 U.S.C. 2074(c)

1015.20 Public availability of accident or investigation reports.


Authority: 86 Stat. 1207; (15 U.S.C. 2051), 74 Stat. 372 as amended;

(15 U.S.C. 1261), 84 Stat. 1670; (15 U.S.C. 1471), 70 Stat. 953; (15

U.S.C. 1211), 68 Stat. 11 as amended; (15 U.S.C. 1191), 81 Stat. 54 as

amended (5 U.S.C. 552).


Source: 42 FR 10490, Feb. 22, 1977, unless otherwise noted.

[[Page 37]]


Subpart A--Production or Disclosure Under 5 U.S.C. 552(a)

Sec. 1015.1 Purpose and scope.


(a) The regulations of this subpart provide information concerning

the procedures by which Consumer Product Safety Commission records may

be made available for inspection and the procedures for obtaining copies

of records from the Consumer Product Safety Commission. Official records

of the Consumer Product Safety Commission consist of all documentary

material maintained by the Commission in connection with its

responsibilities and functions under the Consumer Product Safety Act.

Commission records include records transferred to the Commission under

the Federal Hazardous Substances Act, Poison Prevention Packaging Act of

1970, Refrigerator Safety Act, and Flammable Fabrics Act, as well as

records maintained under any other authorized activity. Official records

do not, however, include objects or articles such as tangible exhibits,

samples, models, equipment, or other items of valuable property; books,

magazines, or other reference material; or documents routinely

distributed by the Commission in the normal course of business such as

copies of Federal Register notices, pamphlets, and laws. Official

records include only existing records. Official records of the

Commission made available under the requirements of the Freedom of

Information Act (5 U.S.C. 552) shall be furnished to the public as

prescribed by this part 1015. A request by an individual for records

about himself or herself that are contained in the Commission's system

of records under the Privacy Act (5 U.S.C. 552a) will be processed under

the Privacy Act. A request by a third party for records that are

contained in the Commission's system of records under the Privacy Act

will be processed administratively under these regulations with respect

to the time limits and appeals rights (Secs. 1015.5 and 1015.7), but

substantively under the applicable provisions of first the Freedom of

Information Act and then the Privacy Act. Documents routinely

distributed to the public in the normal course of business will continue

to be furnished to the public by employees of the Commission informally

and without compliance with the procedures prescribed herein.

(b) The Commission's policy with respect to requests for records is

that disclosure is the rule and withholding is the exception. All

records not exempt from disclosure will be made available. Moreover,

records which may be exempted from disclosure will be made available as

a matter of discretion when disclosure is not prohibited by law, or is

not against the public interest. See, Sec. 1015.15(b). Section 6(a)(2)

of the Consumer Product Safety Act, 15 U.S.C. 2055(a)(2), prohibits the

disclosure of trade secrets or other matters referred to in 18 U.S.C.

1905.

(c) The Attorney General's Memorandum on the 1974 Amendments to the

Freedom of Information Act published in February, 1975 is available from

the Superintendent of Documents and may be consulted in considering

questions arising under the Freedom of Information Act.



Sec. 1015.2 Public reference facilities.



(a) The Consumer Product Safety Commission will maintain in a public

reference room or area the materials relating to the Consumer Product

Safety Commission which are required by 5 U.S.C. 552(a)(2) and 552(a)(5)

to be made available for public inspection and copying. The principal

location will be in the Office of the Secretary. The address of this

office is:



Office of the Secretary, Consumer Product Safety Commission, 1111 18th

Street, NW., Washington, DC 20207.



(b) This public reference facility will maintain and make available

for public inspection and copying a current index of the materials

available at that facility which are required to be indexed by 5 U.S.C.

552(a)(2). For the purpose of providing the opportunity for greater

public access to records of the Consumer Product Safety Commission, the

Commission may establish additional public reference facilities. Each

such additional reference facility will also maintain and make available

for public inspection and copying a current index of the materials

available at that facility which are required to be indexed by 5 U.S.C.

552(a)(2).



[[Page 38]]



Sec. 1015.3 Requests for records and copies.



(a) A request for access to records of the Commission shall be in

writing addressed to the Secretary, Consumer Product Safety Commission,

Washington, DC 20207. Any written request for records covered by this

part shall be deemed to be a request for records pursuant to the Freedom

of Information Act, whether or not the Freedom of Information Act is

mentioned in the request. An oral request for records will not be

considered a request for records pursuant to the Freedom of Information

Act. Responses to oral requests for records shall be made as promptly as

resources and time restraints permit.

(b) A request for access to records must reasonably describe the

records requested. Where possible, specific information regarding dates,

title, file designations, and other information which may help identify

the records should be supplied by the requester. If the request relates

to a matter in pending litigation, where the Commission is a party, the

court and its location should be identified. Where the information

supplied by the requester is not sufficient to permit identification and

location of the records by Commission personnel without an unreasonable

amount of effort, the requester will be contacted and asked to supply

the necessary information. Every reasonable effort shall be made by

Commission personnel to assist in the identification and location of

requested records.

(c) If it is determined that a request would unduly burden or

interfere with the operations of the Commission, the response shall so

state and shall extend to the requester an opportunity to confer with

appropriate Commission personnel in an attempt to reduce the request to

manageable proportions by reformulation and by agreeing on an orderly

procedure for the production of the records.

(d) If a requested record cannot be located from the information

supplied, or is known to have been destroyed or otherwise disposed of,

the requester shall be so notified by the Secretary or delegate of the

Secretary.



Sec. 1015.4 Responses to requests for records; responsibility.



The ultimate responsibility for responding to requests for records

is vested in the Secretary of the Consumer Product Safety Commission.

The Secretary or delegate of the Secretary may respond directly or

forward the request to any other office of the Commission for response.

In any case where the Secretary or delegate of the Secretary in his/her

discretion determines that a request for an identifiable record should

be initially determined by the Commission, the Secretary, or the

delegate of the Secretary, may certify the matter to the Commission for

a decision. In that event the Commission decision shall be made within

the time limits set forth in Sec. 1015.5 and shall be final. The

Commission response shall be in the form set forth in Sec. 1015.7(d) for

action on appeal. If no response is made by the Commission within ten

working days, or any extension thereof, the requester and the Commission

may take the action specified in Sec. 1015.7(e).



Sec. 1015.5 Time limitations on responses to requests for records.



(a) The Secretary or delegate of the Secretary shall respond to all

written requests for records within ten (10) working days (excepting

Saturdays, Sundays, and legal public holidays). The time limitations on

responses to requests for records shall begin to run as of the time a

request for records is received by the Office of the Secretary and a

date stamp notation placed directly on the request.

(b) The time for responding to requests for records may be extended

by the Secretary at the initial stage or by the Chairman of the

Commission at the appellate stage up to an additional ten (10) working

days under the following unusual circumstances:

(1) The need to search for and collect the requested records from

field facilities or other establishments that are separate from the

Office of the Secretary.

(2) The need to search for, collect and appropriately examine a

voluminous amount of separate and distinct records which are demanded in

a single request.



[[Page 39]]



(3) The need for consultation, which shall be conducted with all

practicable speed, with another agency having a substantial interest in

the determination of the request or among two or more components of the

Commission having substantial subject matter interest therein.

(c) Any extension of time must be accompanied by written notice to

the person making the request setting forth the reason(s) for such

extension and the time within which a response is expected to be made.



Sec. 1015.6 Responses: Form and content.



(a) When a requested record has been identified and is available for

disclosure, the requester shall either be supplied with a copy or

notified as to where and when the record will be made available for

inspection. If a requester desires to inspect records at one of the

regional offices of the Commission, the Secretary will ordinarily make

the records available at the requested regional office. If the payment

of fees is required the requester shall be advised by the Secretary in

writing of any applicable fees under Sec. 1015.9 hereof.

(b) A response denying a written request for a record shall be in

writing signed by the Secretary or delegate of the Secretary and shall

include:

(1) The identity of each person responsible for the denial.

(2) A reference to the specific exemption or exemptions under the

Freedom of Information Act authorizing the withholding of the record

with a brief explanation of how the exemption applies to the record

withheld; and

(3) A statement that the denial may be appealed to the Commissioners

of the Consumer Product Safety Commission. Any such appeal must be made

within 30 calendar days of receipt of the denial by the requester.

(c) If no response is made within ten (10) working days or any

extension thereof, the requester can consider his/her administrative

remedies exhausted and seek judicial relief in a United States District

Court as specified in 5 U.S.C. 552(a)(4)(B). When it appears that no

response can be made to the requester within the applicable time limit,

the Secretary or delegate of the Secretary may ask the requester to

forego judicial relief until a response can be made. The Secretary or

delegate of the Secretary shall inform the requester of the reason for

the delay, of the date on which a response may be expected and of his/

her right to seek judicial review as specified in 5 U.S.C. 552(a)(4)(B).



Sec. 1015.7 Appeals from initial denials; reconsideration by the

Secretary.



(a) When the Secretary or delegate of the Secretary has denied a

request for records in whole or in part, the requester may, within 30

days of its receipt, appeal the denial to the General Counsel of the

Consumer Product Safety Commission, attention of the Secretary,

Washington, DC 20207.

(b) The General Counsel, or the Secretary upon reconsideration, will

act upon an appeal within 20 working days of its receipt. The time

limitations on an appeal begin to run as of the time an appeal is

received by the Office of the Secretary and date stamped.

(c) After reviewing the appeal, the Secretary will reconsider his/

her initial denial. If the Secretary upon reconsideration decides to

release any or all of the information requested on appeal, an appeal as

to the information released will be considered moot; and the Secretary

will so inform the requester and submitter of the information in

accordance with Secs. 1015.6(a) and 1015.18(b). If the Secretary decides

to affirm the initial denial, in whole or in part, the General Counsel

will decide the appeal within the 20-day time limit or any extension

thereof in accordance with Sec. 1015.5.

(d) The General Counsel shall have the authority to grant or deny

all appeals and, as an exercise of discretion, to disclose records

exempt from mandatory disclosure under 5 U.S.C. 552(b). In unusual or

difficult cases the General Counsel may, in his/her discretion, refer an

appeal to the Commissioners for determination.

(e) The General Counsel's action on appeal shall be in writing,

shall be signed by the General Counsel, and shall constitute final

agency action. A denial in whole or in part of a request on appeal shall

set forth the exemption



[[Page 40]]



relied upon; a brief explanation, consistent with the purpose of the

exemption, of how the exemption applies to the records withheld; and the

reasons for asserting it. A denial in whole or in part shall also inform

the requester of his/her right to seek judicial review of the

Commission's final determination in a United States district court, as

specified in 5 U.S.C. 552(a)(4)(B).

(f) If no response is made to the requester within 20 working days

or any extension thereof, the requester may consider his/her

administrative remedies exhausted and seek judicial relief in a United

States district court. When no response can be made within the

applicable time limit, the General Counsel shall inform the requester of

the reason for the delay, of the date by which a response may be

expected, and of the requester's right to seek judicial review as

specified in 5 U.S.C. 552(a)(4)(B).

(g) Copies of all appeals and copies of all actions on appeal shall

be furnished to and maintained in a public file by the Secretary.



(5 U.S.C. 552(a)(6)(A); 5 U.S.C. 553; 15 U.S.C. 2076(b)(9))



[50 FR 7753, Feb. 26, 1985]

Sec. 1015.8 Requests received during the course of administrative

hearings. [Reserved]



Sec. 1015.9 Fees for production of records.



(a) The Commission will provide, at no charge, certain routine

information. For other Commission responses to information requests, the

Secretary shall determine and levy fees for duplication, search, review,

and other services, in accordance with this section.

(b) Fees shall be paid by check or money order, payable to the

Treasury of the United States and sent to the Commission.

(c) The following definitions shall apply under this section:

(1) Direct costs means those expenditures which an agency actually

incurs in searching for and duplicating (and in the case of commercial

requesters, reviewing) documents to respond to a FOIA request.

(2) Search includes all time spent looking for material that is

responsive to a request, including page-by-page or line-by-line

identification of material within documents.

(3) Duplication refers to the process of making a copy of a document

necessary to respond to a FOIA request.

(4) Review refers to the process of examining documents located in

response to a commercial use request to determine whether any portion of

any document located is permitted to be withheld.

(5) Commercial use request refers to a request that seeks

information for a use or purpose that furthers commercial, trade, or

profit interests.

(6) Educational institution refers to an entity organized and

operated exclusively for educational purposes, whose purpose is

scholarly.

(7) Non-commercial scientific institution refers to an entity

organized and operated exclusively for the purpose of conducting

scientific research, the results of which are not intended to promote

any particular product or industry.

(8) Representative of the news media refers to any person or

organization which regularly publishes or disseminates news to the

public, in print or electronically.

(d) A commercial use request may incur charges for duplication,

search, and review. The following requests may incur charges only for

duplication: A request from an educational institution for records not

sought for commercial use; a request from a non-commercial scientific

institution for records not sought for commercial use; a request from a

representative of the news media. Any other request may incur charges

for duplication and search.

(e) The following fee schedule will apply:

(1) Copies of documents reproduced on a standard photocopying

machine: $0.10 per page.

(2) File searches conducted by clerical personnel: $3.00 for each

one-quarter hour (a fraction thereof to be counted as one-quarter hour).

Any special costs of sending records from field locations to

headquarters for review will be included in search fees, billed at the

clerical personnel rate.

(3) File searches conducted by non-clerical or professional or

managerial



[[Page 41]]



personnel: $4.90 for each one-quarter hour (a fraction thereof to be

counted as one-quarter hour).

(4) Review of records: $4.90 for each one-quarter hour (a fraction

thereof to be counted as one-quarter hour).

(5) Computerized records: for central processing, $0.32 per second

of central processing unit (CPU) time; for printer, $10.00 per 1,000

lines; and for computer magnetic tapes or discs, direct costs.

(6) Postage: Direct-cost basis for mailing requested materials, if

the requester wants special handling or if the volume or dimensions of

the materials requires special handling.

(7) Microfiche: $0.35 for each frame.

(8) Other charges for materials requiring special reproducing or

handling, such as photographs, slides, blueprints, video and audio tape

recordings, or other unusual materials: direct-cost basis.

(9) Any other service: An appropriate fee established by the

Secretary, based on direct costs.

(f) Fees shall be waived as follows:

(1) No automatic fee waiver shall apply to commercial use requests.

(2) The first $10.00 of duplication costs shall be waived for

requests from educational institutions, non-commercial scientific

institutions, and representatives of the news media.

(3) For all other requests, the first $10.00 of duplication costs

and the first $40 of search costs shall be waived.

(4) The Secretary shall waive or reduce fees whenever disclosure of

the requested information is in the public interest because it is likely

to contribute significantly to public understanding of the operations or

activities of the government and disclosure of the requested information

is not primarily in the commercial interest of the requester.

(5) In making a determination under paragraph (f)(4) of this

section, the Secretary shall consider the following factors:

(i) The subject of the request: Whether the subject of the requested

records concerns the operations or activities of the government.

(ii) The informative value of the information to be disclosed:

Whether the disclosure is likely to contribute to an understanding of

government operations or activities.

(iii) The contribution to an understanding of the subject by the

general public likely to result from disclosure: Whether disclosure of

the requested information will contribute to public understanding.

(iv) The significance of the contribution to public understanding:

Whether the disclosure is likely to contribute significantly to public

understanding of government operations or activities.

(v) The existence and magnitude of a commercial interest: Whether

the requester has a commercial interest that would be furthered by the

requested disclosure; and, if so

(vi) The primary interest in disclosure: Whether the magnitude of

the identified commercial interest of the requester is sufficiently

large, in comparison with the public interest in disclosure, that

disclosure is primarily in the commercial interest of the requester.

(6) Any determination made by the Secretary concerning fee waivers

may be appealed by the requester to the Commission's General Counsel in

the manner described at Sec. 1015.7.

(g) Collection of fees shall be in accordance with the following:

(1) Interest will be charged on amounts billed, starting on the 31st

day following the day on which the billing was sent. Interest will be at

the rate prescribed in 31 U.S.C. 3717.

(2) Search fees will be imposed (on requesters charged for search

time) even if no responsive documents are located or if the search leads

to responsive documents that are withheld under an exemption to the

Freedom of Information Act. Such fees shall not exceed $25.00, unless

the requester has authorized a higher amount.

(3) Before the Commission begins processing a request or discloses

any information, it will require advance payment if:

(i) Charges are estimated to exceed $250.00 and the requester has no

history of payment and cannot provide satisfactory assurance that

payment will be made; or

(ii) A requester failed to pay the Commission for a previous Freedom

of



[[Page 42]]



Information Act request within 30 days of the billing date.

(4) The Commission will aggregate requests, for the purposes of

billing, whenever it reasonably believes that a requester or group of

requesters is attempting to separate a request into more than one

request for the purpose of evading fees.

(5) If a requester's total bill is less than $9.00, the Commission

will not request payment.



[52 FR 28979, Aug. 5, 1987]



Sec. 1015.10 Commission report of actions to Congress.



On or before March 1, of each calendar year, the Commission shall

submit a report of its activities with regard to freedom of information

requests during the preceding calendar year to the Speaker of the House

of Representatives and to the President of the Senate. This report shall

include:

(a) The number of determinations made by the Commission not to

comply with requests for records made to the Commission under the

provisions of this part and the reasons for each such determination.

(b) The number of appeals made by persons under such provisions, the

result of such appeals, and the reason for the action upon each appeal

that results in a denial of information.

(c) The names and titles or positions of each person responsible for

the denial of records requested under the provisions of this part and

the number of instances of participation for each.

(d) The results of each proceeding conducted pursuant to subsection

(a)(4)(f) of FOIA as amended November 21, 1974, including a report of

the disciplinary action taken against the officer or employee who was

primarily responsible for improperly withholding records or an

explanation of why disciplinary action was not taken.

(e) A copy of every rule made by the Commission implementing the

provisions of the FOIA, as amended November 21, 1974.

(f) A copy of the fee schedule and the total amount of fees

collected by the agency for making records available under this section.

(g) Such other information as indicates efforts to administer fully

the provisions of the FOIA, as amended.



Sec. 1015.11 Disclosure of trade secrets to consultants and

contractors; nondisclosure to advisory committees and other

government agencies.



(a) In accordance with section 6(a)(2) of the CPSA, the Commission

may disclose information which it has determined to be a trade secret

under 5 U.S.C. 552(b)(4) to Commission consultants and contractors for

use only in their work for the Commission. Such persons are subject to

the same restrictions with respect to disclosure of such information as

any Commission employee.

(b) In accordance with section 6(a)(2) of the CPSA, the Commission

is prohibited from disclosing information which it has determined to be

a trade secret under 5 U.S.C. 552(b)(4) to advisory committees, except

when required in the official conduct of their business, or to other

Federal agencies and state and local governments.



Sec. 1015.12 Disclosure to Congress.



(a) All records of the Commission shall be disclosed to Congress

upon a request made by the chairman or ranking minority member of a

committee or subcommittee of Congress acting pursuant to committee

business and having jurisdiction over the matter about which information

is requested.

(b) An individual member of Congress who requests a record for his

or her personal use or on behalf of any constituent shall be subject to

the same rules that apply to members of the general public.



[42 FR 10490, Feb. 22, 1977, as amended at 52 FR 45632, Dec. 1, 1987; 53

FR 3868, Feb. 10, 1988]



Subpart B--Exemptions From Production and Disclosure Under 5 U.S.C.

552(b)



Sec. 1015.15 Purpose and scope.



(a) The regulations of this subpart provide information concerning

the types of records which may be withheld from production and

disclosure by the Consumer Product Safety Commission and the internal

Commission procedure



[[Page 43]]



for withholding exempt records. These regulations also provide

information on the method whereby persons submitting information to the

Commission may request that the information be considered exempt from

disclosure, and information concerning the Commission's treatment of

documents submitted with a request that they be treated as exempt from

disclosure.

(b) No identifiable record requested in accordance with the

procedures contained in this part shall be withheld from disclosure

unless it falls within one of the classes of records exempt under 5

U.S.C 552(b). The Commission will make available, to the extent

permitted by law, records authorized to be withheld under 5 U.S.C.

552(b) unless the Commission determines that disclosure is contrary to

the public interest. In this regard the Commission will not ordinarily

release documents that provide legal advice to the Commission concerning

pending or prospective litigation where the release of such documents

would significantly interfere with the Commission's regulatory or

enforcement proceedings.

(c) Draft documents that are agency records are subject to release

upon request in accordance with this regulation. However, in order to

avoid any misunderstanding of the preliminary nature of a draft

document, each draft document released will be marked to indicate its

tentative nature. Similarly, staff briefing packages, which have been

completed but not yet transmitted to the Commission by the Office of the

Secretary are subject to release upon request in accordance with this

regulation. Each briefing package or portion thereof released will be

marked to indicate that it has not been transmitted to or acted upon by

the Commission. In addition, briefing packages, or portions thereof,

which the Secretary upon the advice of the Office of the General Counsel

has determined would be released upon request in accordance with this

regulation, will be publicly available in the public reference facility

established under Sec. 1015.2 promptly after the briefing package has

been transmitted to the Commissioners by the Office of the Secretary.

Such packages will be marked to indicate that they have not been acted

upon by the Commission.

(d) The exceptions contained in Sec. 1015.16 are as contained in 5

U.S.C. 552(b). These exemptions will be interpreted in accordance with

the applicable law at the time a request for production or disclosure is

considered.



[42 FR 10490, Feb. 22, 1977, as amended at 45 FR 22022, Apr. 3, 1980]



Sec. 1015.16 Exemptions (5 U.S.C. 552(b)).



(a) Records specifically authorized under criteria established by an

Executive Order to be kept secret in the interest of national defense or

foreign policy and are in fact properly classified pursuant to such

Executive Order.

(b) Records related solely to the internal personnel rules and

practices of the Commission.

(c) Records specifically exempted from disclosure by statute (other

than section 552b of Title 5, United States Code), provided that such

statute either requires that the matters be withheld from the public in

such a manner as to leave no discretion on the issue, or establishes

particular criteria for withholding or refers to particular types of

matters to be withheld.

(d) Trade secrets and commercial or financial information obtained

from a person and privileged or confidential.

(e) Interagency or intra-agency memoranda or letters which would not

be available by law to a party other than an agency in litigation with

the agency.

(f) Personnel and medical files and similar files the disclosure of

which would consititute a clearly unwarranted invasion of personal

privacy.

(g) Records or information compiled for law enforcement purposes,

but only to the extent that the production of such law enforcement

records or information:

(1) Could reasonably be expected to interfere with enforcement

proceedings,

(2) Would deprive a person of a right to a fair trial or an

impartial adjudication,

(3) Could reasonably be expected to constitute an unwarranted

invasion of personal privacy,

(4) Could reasonably be expected to disclose the identity of a

confidential



[[Page 44]]



source, including a State, local, or foreign agency or authority or any

private institution which furnished information on a confidential basis,

and, in the case of a record or information compiled by criminal law

enforcement authority in the course of a criminal investigation or by an

agency conducting a lawful national security intelligence investigation,

information furnished by a confidential source,

(5) Would disclose techniques and procedures for law enforcement

investigations or prosecutions, or would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure could

reasonably be expected to risk circumvention of the law, or

(6) Could reasonably be expected to endanger the life or physical

safety of any individual.

(h) Records contained in or related to examinations, operating, or

condition reports prepared by, on behalf of, or for the use of an agency

responsible for the regulation or supervision of financial institutions.

(i) Records of geological and geophysical information and data,

including maps, concerning wells.



[42 FR 10490, Feb. 22, 1977, as amended at 52 FR 44597, Nov. 20, 1987]



Sec. 1015.17 Internal Commission procedure for withholding exempt

records.



Paragraphs (a) and (b) of this section describe the internal

Commission procedure to be followed for requesting that a record exempt

from disclosure under the inter- intra-agency memorandum exemption, 5

U.S.C. 552(b)(5), or the investigatory file exemption, 5 U.S.C.

552(b)(7), not be disclosed.

(a) If a bureau or office director believes that it is against the

public interest to disclose a Commission record prepared by his/her

bureau or office, he/she may request in writing that the Secretary

withhold the document. The request must specify why the release would be

against the public interest.

(1) If the Secretary agrees to withhold the document, the requester

shall be notified in writing of the denial and of his/her right to

appeal in accordance with Sec. 1015.6(b).

(2) If the Secretary decides to release the document, the bureau or

office director shall be notified and given two working days within

which to appeal to the Commissioners. An appeal by a bureau or office

director shall be in writing addressed to the Chairman. If an appeal is

taken by a bureau or office director, the Secretary will not disclose

the document. The Commissioner's action on appeal shall be in accordance

with Sec. 1015.7(d).

(b) If a Commissioner believes that it is not in the public interest

to disclose a Commission record prepared by himself/herself or by his/

her office personnel, the Commissioner shall so inform the Secretary and

shall specify in writing why the release would be against the public

interest. The Secretary shall notify the requester in writing of the

denial in accordance with Sec. 1015.6(b). Any appeal by a requester

shall be in accordance with Sec. 1015.7 except the provisions for

reconsideration by the Secretary is not applicable. On appeal, the

Commissioner who withheld the document shall not participate in the

decision.



[42 FR 10490, Feb. 22, 1977, as amended at 45 FR 22023, Apr. 3, 1980]



Sec. 1015.18 Information submitted to the Commission; request for

treatment as exempt material.



(a) A person who is submitting information to the Commission, after

being notified by the Commission of his/her opportunity to request

confidential treatment for information, must accompany the submission

with a request that the information be considered exempt from disclosure

or indicate that a request will be submitted within 10 working days of

the submission. The failure to make a request within the prescribed time

limit will be considered an acknowledgment that the submitter does not

wish to claim exempt status.

(b) A person who has previously submitted information to the

Commission, that is now the subject of a Freedom of Information request,

after being notified by the Commission of his/her opportunity to request

confidential treatment for the information, must submit a request that

the information be considered exempt from disclosure within



[[Page 45]]



5 working days from receipt of notification. The failure to make a

request within the prescribed time limit will be considered an

acknowledgment that the submitter does not wish to claim exempt status.

(c) Each request for exemption from disclosure under 5 U.S.C.

552(b)(4) as a trade secret or privileged or confidential commercial or

financial information must:

(1) Specifically identify the exact portion(s) of the document

claimed to be confidential;

(2) State whether the information claimed to be confidential has

ever been released in any manner to a person who was not an employee or

in a confidential relationship with the company;

(3) State whether the information so specified is commonly known

within the industry or is readily ascertainable by outside persons with

a minimum of time and effort;

(4) State how release of the information so specified would be

likely to cause substantial harm to the company's competitive position;

and

(5) State whether the submitter is authorized to make claims of

confidentiality on behalf of the person or organization concerned.

(d) Material received with a request that it be considered exempt

shall not be maintained in a public file. If, in complying with a

request for the disclosure of records, it is determined that some or all

of the material relative to the request has been claimed to be exempt

from disclosure, the requester will be supplied with a list of this

material and informed that those portions found not to be exempt will be

made available as soon as possible.

(e) No request for exemption from disclosure under 5 U.S.C.

552(b)(4) should be made by any person who does not intend in good faith

to assist the Commission in the defense of any judicial proceeding that

might thereafter be brought to compel the disclosure of information

which the Commission has determined to be a trade secret or privileged

or confidential commercial or financial information.



Sec. 1015.19 Decisions on requests for exemption from disclosure under

5 U.S.C. 552(b)(4).



(a) The Commission generally will not decide whether material

received with a request for exemption from disclosure under 5 U.S.C.

552(b)(4) is entitled to be withheld until a request for production or

disclosure is made for that information. The determination will be based

on the most authoritative judicial interpretations available at the time

a request for disclosure or production is considered. Any reasonably

segregable portion of a record will be disclosed to any person

requesting such record after deletion of any portions determined to be

exempt under 5 U.S.C. 552(b)(4). The requester will be given a brief

description of any information found to be exempt.



(b) If material received with a request for exemption from

disclosure under 5 U.S.C. 552(b)(4) is found to be disclosable, in whole

or in part, the person submitting the material will be notified in

writing and given 10 calendar days from the receipt of the letter to

seek judicial relief. In no event, however, will the material be

returned to the person submitting it.



Subpart C--Disclosure of Commission Accident or Investigation Reports

Under 15 U.S.C. 2074(c)



Sec. 1015.20 Public availability of accident or investigation reports.



(a) Accident or investigation reports made by an officer, employee,

or agent of the Commission are available to the public under the

procedures set forth in subpart A of this part 1015. No portion of such

report are subject to the investigatory file exemption contained in the

Freedom of Information Act (as restated in Sec. 1015.16) except that

portions identifying any injured person or any person treating such

injured person will be deleted in accordance with section 25(c)(1) of

the CPSA. Where disclosure of an accident or investigation report is

requested by supplying the name of the person injured or other details

of a specific accident (other than cases where the report is requested

by



[[Page 46]]



the injured person or the injured person's legal representative), the

Commission will offer to obtain the written consent of the injured party

or the injured party's representative to the disclosure of the report

without deleting the party's identity. No deletion of identifying

portions of such reports or refusal to disclose without the Commission

having first obtained written consent shall be considered as a denial by

the Commission of disclosure of Commission records.

(b) Research reports, demonstration reports, and reports of other

related activities of the Commission are available to the public under

the procedures set forth in subpart A of this part 1015.



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



[[Page 168]]



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



[[Page 169]]



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



[[Page 170]]



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.



[[Page 171]]



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.



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