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Statement on the NPR Amendment to Regulation on Information Disclosure under Section 6(b) of the Consumer Product Safety Act

February 18, 2014

On Wednesday, February 12th, the Commission met to discuss the NPR Amendment to Regulation on Information Disclosure under Section 6(b) of the Consumer Product Safety Act.  The Commission’s goal in the FY 2013 Midyear Review Operation Plan was to streamline the process of 6(b) regulation and “to be more in line with the statute.”

I support the use of electronic media in an effort to modernize and streamline the process of (6b). However, I have serious concerns that the other proposed changes to the 6(b) regulation are beyond the scope of the Commission’s legal authority.

In enacting CPSA, Congress provided to the Commission wide authority to access, collect, gather, and disseminate volumes of private information. And while the overarching goal of CPSA is to protect the consumer from unreasonable harm, it must not be ignored that Congress’s inclusion of 6(b) directs this Commission, when using such authority and power, to take “reasonable steps” to ensure “information is accurate” and “such disclosure is fair.” 6(b) exists to provide a balance between the public’s access to information in the government’s possession while minimizing a product from being unnecessarily maligned or disparaged.

As the agency tasked with enforcement of the Consumer Product Safety Act, we need to assess the proposed amendments to our regulations governing how we will enforce Section 6(b) by first looking to the language and requirements of the statute itself as well as relevant law. Our assessment of the NPR must begin with a close look at what the law says we are required to do.

The statute dictates the specific steps we must take to make sure that the public disclosure of information about a consumer product is accurate and fair. Under basic regulatory law, it is well-understood that an agency cannot promulgate and enforce rules that contradict, eliminate or diminish the protections mandated by the law it is enforcing. This Commission and our rules governing our enforcement of 6(b) are no exception.

The statutory protections and procedures mandated by section 6(b) of the CPSA are explicit and unambiguous. Most importantly, however, is that the protections afforded under 6(b) are not optional. Section 6(b) clearly mandates that this Commission must adhere to procedural steps concerning the Commission’s disclosure of information about a consumer product. My purpose for focusing on the statute is this: there is no question from the language of the statute that public disclosures by the Commission of any information about a consumer product are a very serious matter calling for strict adherence to the 6(b) procedures and protections.

I have serious concerns that the proposed amendments to the Commission’s rule appear to contradict and conflict with the clear and unambiguous letter of the law. If there is a problem or someone perceives there is a problem with 6(b), Congress, not the Commission, has the legal authority to make such substantial and material changes.

What is also alarming is the dismissive regard for the plain language of the statute, Congressional intent and unambiguous judicial precedent, evidenced by the Commission’s characterization of material changes to 6(b) as “tweaks”, merely to modernize the existing rule, eliminate unnecessary burdens, and minimizing FOIA backlogs. Because such rationales simply cannot be squared with the plain language of the statute and U.S, Supreme Court authority – if not common sense -- and because the proposed rule, in fact, substantively alters the protections and procedures mandated by Congress and Section 6(b) of the CPSA, the proposed rule is outside the scope of our authority.

Despite feeling as though the proposal is outside of CPSC’s jurisdiction, in an attempt to mitigate some of the negative changes, I introduced amendments related to the following concerns:

  • The change to the current manner of re-notification to a firm;• Change how publically available information is used by this Agency;
  • That this Commission no longer assures that we will honor the request of a firm not to publish its comments; 
  • And the removal of situations where if the agency ultimately is unsure what to do, it would then take the appropriate steps to check on the fairness and accuracy of the information. 

These amendments were not supported by my fellow Commissioners, and were not an exhaustive list of my concerns with the proposed NPR. The amendments served as an attempt to alleviate some of the more egregious provisions within the proposed rule, but I have other concerns, including waiver of attorney/client privilege, waiver of work product claim, publicly available information exception to 6(b)(5), and deletion of the identity of a product as a trigger for 6(b). However, these amendments do not in any way diminish my very fundamental concern that, in proposing this NPR, the Commission is acting extra-statutorily.

These recent proposed changes signal a troubling shift in the tone and the direction of this agency. CPSC seems to be moving from being an entity with which firms and companies can and should be open and candid, to one with which businesses will have to have their guard up. This sea change predictably will hamper our ability to keep consumers safe. Our focus should be on strengthening the channels of communication with all participants in the safety triangle – consumers, business and government – and not taking affirmative steps to favor one at the expense of unnecessarily disregarding and alienating another.

Efficiency is important but it must not come at the cost of our integrity or by comprising the way in which we conduct business. Efficiency does not allow this Agency to circumvent the law that we are clearly directed to uphold. 

The stated intent of this NPR is to make is less burdensome for the Commission and its staff to comply with 6(b). However, the U.S. Supreme Court already has flatly rejected this rationale stating that “…our interpretation of the language and legislative history of 6(b) (1) reveals that any increased burdens imposed on the Commission as a result of its compliance with 6(b) (1) were intended by Congress in striking an appropriate balance between the interests of consumers and the need for fairness and accuracy with respect to information disclosed by the Commission.” Consumer Product Safety Commission v. GTE Sylvania, Inc., v. GTE Sylvania, Inc., 447 U.S. 102 (1980).

Enforcing 6(b) is not our burden, it is our duty.

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