[Federal Register: November 28, 2008 (Volume 73, Number 230)]
[Rules and Regulations]               
[Page 72334-72336]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28no08-12]                         

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1101

 
Information Disclosure Under Section 6(b) of the Consumer Product 
Safety Act

AGENCY: Consumer Product Safety Commission.

ACTION: Final Rule.

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

DATES: These amendments are effective November 28, 2008.

FOR FURTHER INFORMATION CONTACT: Patricia Kennedy Vieira, Attorney, 
Office of the General Counsel, U.S. Consumer Product Safety Commission, 
4330 East West Highway, Bethesda, MD 20814, (301) 504-7623, 
pvieira@cpsc.gov.

SUPPLEMENTARY INFORMATION: On August 14, 2008 the Consumer Product 
Safety Improvement Act (CPSIA) became law. The CPSIA amends section 6 
of the Consumer Product Safety Act by shortening the time from 30 to 15 
days in Section 6(b) of the CPSA for notice and opportunity to comment 
on information prior to the Commission's disclosure to the public of 
certain product-specific information. The statutory amendments also 
shorten the time from 10 to five days in which the Commission must 
notify a company of its intention to disclose information over its 
objection. The amendments shorten the time for notice and opportunity 
to comment under section 6(b) where the Commission publishes a finding 
that the public health and safety requires public disclosure in less 
than 15 days. The amendments eliminate the requirement to publish such 
finding in the Federal Register.
    The amendments also broaden the scope of the exceptions in section 
6(b). First, the amendments provide an additional exception to the 
definition of the term ``public'' to exclude any federal, state, local, 
or foreign government agency pursuant to section 29(f) of the CPSIA. 
The regulatory definition of ``public'' has been changed to reflect the 
additional exclusion. The amendments broaden the exception under 
6(b)(4) for information not covered by section 6(b) of the CPSA where 
the Commission has reasonable cause to believe the product is in 
violation of any consumer product safety rule or provision under the 
CPSA or similar rule or provision of any other act enforced by the 
Commission. Finally, the amendments also broaden the exception under 
section 6(b)(5) for information provided under Section 15(b) of the 
CPSA where the Commission publishes a finding that the public health 
and safety requires public disclosure within a lesser period of notice 
than is required by section 6(b)(1). The amendments eliminate the 
requirement that the Commission publish such health and safety finding 
in the Federal Register. Existing regulatory provisions are 
inconsistent with the statutory amendments to section 6(b) under the 
CPSIA and, therefore, the Commission is amending the regulatory 
provisions of section 6 to reflect these statutory changes.
    Section 553(b)(3)(B) of the Administrative Procedure Act (APA) 
authorizes an agency to dispense with certain notice procedures for a 
rule when it finds ``good cause'' to do so. 5 U.S.C. 553(b)(3)(B). 
Specifically, under 5 U.S.C. 553(b)(3)(B), the requirement for notice 
and an opportunity to comment does not apply when the agency, for good 
cause, finds that those procedures are ``impractical, unnecessary, or 
contrary to the public interest.'' The statutory changes reflected in 
these amendments are imposed by the CPSIA and are not discretionary 
with the Commission. The Commission has no authority to make changes to 
the CPSIA provisions, and therefore could not make any changes in 
response to public comments. Accordingly, the Commission hereby finds 
that notice and an opportunity to comment on these amendments are 
unnecessary.
    The amendments became effective by statutory enactment (August 14, 
2008). Accordingly, the Commission is publishing these amendments to 
its regulations to make them consistent with the statutory provisions.

Effective Date

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

Impact on Small Business

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

Environmental Considerations

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

List of Subjects in 16 CFR Part 1101

    Administrative practice and procedure, Business and Industry, 
Consumer protection, Reporting and recordkeeping requirements.

0
Accordingly, 16 CFR part 1101 is amended as follows:

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

0
1. The authority citation for part 1101 is revised to read as follows:

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


Sec.  1101.1  [Amended]

0
2. Section 1101.1(b)(1) is amended as follows:
0
a. Remove the number ``30'' and add, in its place ``15.''
0
b. Remove the word ``finds'' and add, in its place ``publishes a 
finding that.''

0
3. Section 1101.2 is revised to read as follows:


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). 
These provisions are now

[[Page 72335]]

applicable to the Virginia Graeme Baker Pool and Spa Safety Act, 15 
U.S.C. 8003(a); and the Children's Gasoline Burn Prevention Act Sec.  
2(a), Public Law 110-278, 122 Stat. 2602 (July 17, 2008).

0
4. Section 1101.12 is amended by adding new paragraph (h) to read as 
follows:


Sec.  1101.12.  Commission must disclose information to the public.

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


Sec.  1101.21  [Amended]

0
5. In the third sentence of Sec.  1101.21(a), remove the words ``makes 
a public health and safety finding'' and add, in its place ``publishes 
a finding that the public health and safety requires a lesser period of 
notice.''


Sec.  1101.22  [Amended]

0
6. Section 1101.22 is amended as follows:
0
a. In paragraph (a)(1) remove the words ``a minimum of twenty (20)'' 
and add, in its place ``ten (10).''
0
b. In the second sentence of paragraph (a)(2) remove the word ``find'' 
and add, in its place ``publish a finding.''
0
c. In paragraph (b)(2) remove the word ``finds'' and add, in its place 
``publishes a finding.''
0
d. In paragraph (b)(2) remove the number ``30'' and add, in its place 
``15.''

0
7. Section 1101.23 is amended as follows:
0
a. Revise the heading to read follows:
0
b. In the introductory paragraph remove the number ``30'' and add, in 
its place ``15.''
0
c. In paragraph (a) remove the number ``30'' and add, in its place 
``15.''
0
d. In paragraph (b) remove the number ``30'' and add, in its place 
``15'' wherever it appears.
0
e. In the first sentence of paragraph (b) remove the word ``find'' and 
add, in its place ``publish a finding.''
0
f. In the second sentence of paragraph (b) remove the word 
``determine'' and add, in its place ``find.''
0
g. Revise paragraph (c) to read as follows:


Sec.  1101.23  Providing less than 15 days notice before disclosing 
information.

* * * * *
    (c) Notice of finding. The Commission will inform a manufacturer or 
private labeler of a product which is the subject of a public health 
and safety finding that the public health and safety requires less than 
15 days advance notice either orally or in writing, depending on the 
immediacy of the need for quick action. Where applicable, before 
releasing information, the Commission will comply with the requirements 
of section 6(b) (1) and (2) by giving the firm the opportunity to 
comment on the information, either orally or in writing depending on 
the immediacy of the need for quick action, and by giving the firm 
advance notice before disclosing information claimed by a manufacturer 
or private labeler to be inaccurate (see Sec.  1101.25).

0
8. Section 1101.25 is amended as follows:
0
a. In paragraph (a) remove the words ``10 working'' and add, in its 
place ``5.''
0
b. In paragraph (b) remove the words ``10 working'' and add, in its 
place ``5.''
0
c. Revise paragraph (c) to read as follows:


Sec.  1101.25  Notice of intent to disclose.

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


Sec.  1101.31  [Amended]

0
9. In Sec.  1101.31(a) remove the word ``thirty'' and add, in its place 
``fifteen.''

0
10. Section 1101.41(a) is revised to read as follows:


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 is in violation of any consumer product safety rule or 
provision under the Consumer Product Safety Act (15 U.S.C. 2051, et 
seq.) or similar rule or provision of any other act enforced by the 
Commission;
    (3) Information in the course of or concerning a rulemaking 
proceeding; or
    (4) information in the course of or concerning an adjudicatory, 
administrative or judicial proceeding.
* * * * *

0
11. Section 1101.43 is revised to read as follows:


Sec.  1101.43  Section 6(b)(4)(A) exception.

    (a) Statutory provision. Section (6)(b)(4)(A) provides that the 
requirements of section 6(b)(1) do not apply to public disclosure of 
information about any consumer product which the Commission has 
reasonable cause to believe is in violation of any consumer product 
safety rule or provision under the Consumer Product Safety Act (15 
U.S.C. 2051 et seq.) or similar rule or provision of any other act 
enforced by the Commission.
    (b) Scope of exception. This exception applies once the Commission 
has ``reasonable cause to believe'' there has occurred a violation of 
any consumer product safety rule or provision under the Consumer 
Product Safety Act (15 U.S.C. 2051 et seq.) or similar rule or 
provision of any other act enforced by the Commission. Once the 
exception applies, the Commission may disclose information to the 
public without following the requirements of section 6(b)(1) if the 
information concerning the product is reasonably related to the 
violation.

0
12. Section 1101.61 is amended by adding a new paragraph (b)(4) to read 
as follows:


Sec.  1101.61  Generally.

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

0
13. Section 1101.62(a)(2) is revised to read as follows:


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

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


Sec.  1101.71  [Amended]

0
14. Section 1101.71(b) is amended as follows:
0
a. In paragraph (b)(1) remove the number ``30'' and add, in its place 
``15.''
0
b. In paragraph (b)(2) remove the words ``ten (10)'' and add, in its 
place ``five (5).''


[[Page 72336]]


    Dated: November 20, 2008.
Todd A. Stevenson,
 Secretary, Consumer Product Safety Commission.
 [FR Doc. E8-28200 Filed 11-26-08; 8:45 am]

BILLING CODE 6355-01-P