[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