Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 3355 

the vessel, including its authorizations 

to fish, gear, equipment, records, 

facilities, fish and fish products and any 

relevant documents necessary to verify 

compliance with the conservation and 

management measures in force pursuant 

to the WCPF Convention; 

(ii) Allow any WCPFC inspector to 

communicate with the crew of the 

WCPFC inspection vessel, the 

authorities of the WCPFC inspection 

vessel and the authorities of the vessel 

being inspected; 

(iii) Provide any WCPFC inspector 

with reasonable facilities, including, 

where appropriate, food and 

accommodation; and 

(iv) Facilitate safe disembarkation by 

any WCPFC inspector. 

(4) If the operator or crew refuses to 

allow a WCPFC inspector to board and 

inspect the vessel in the manner 

described in this paragraph, they shall 

offer to the WCPFC inspector an 

explanation of the reason for such 

refusal. 

(5) The operator and crew shall not 

assault, obstruct, resist, delay, refuse 

boarding to, intimidate, harass, interfere 

with, unduly obstruct or delay any 

WCPFC inspector in the performance of 

such person’s duties, or attempt to do 

any of the same. 

(c) When a fishing vessel of the 

United States that is used for 

commercial fishing for HMS is in the 

Convention Area and is either on the 

high seas without a valid WCPFC Area 

Endorsement or is in an area under the 

jurisdiction of a nation other than the 

United States without an authorization 

by that nation to fish in that area, all the 

fishing gear and fishing equipment on 

the fishing vessel shall be stowed in a 

manner so as not to be readily available 

for fishing, specifically: 

(1) If the fishing vessel is used for 

purse seining and equipped with purse 

seine gear, the boom must be lowered as 

far as possible so that the vessel cannot 

be used for fishing but so that the skiff 

is accessible for use in emergency 

situations; the helicopter, if any, must 

be tied down; and the launches must be 

secured. 

(2) If the fishing vessel is used for 

longlining and equipped with longline 

gear, the branch or dropper lines and 

floats used to buoy the mainline must be 

stowed and not available for immediate 

use, and any power-operated mainline 

hauler on deck must be covered in such 

a manner that it is not readily available 

for use. 

(3) If the fishing vessel is used for 

trolling and equipped with troll gear, no 

lines or hooks may be placed in the 

water; if outriggers are present on the 

vessel, they must be secured in a 

vertical position; if any power-operated 

haulers are located on deck they must 

be covered in such a manner that they 

are not readily available for use. 

(4) If the fishing vessel is used for 

pole-and-line fishing and equipped with 

pole-and-line gear, any poles rigged 

with lines and hooks must be stowed in 

such a manner that they are not readily 

available for use. 

(5) For any other type of fishing 

vessel, all the fishing gear and 

equipment on the vessel must be stowed 

in a manner so as not to be readily 

available for use. 

(d) For the purpose of this section, the 

meaning of transshipment does not 

include transfers that exclusively 

involve fish that have been previously 

landed and processed. 

■ 17. In § 300.222, paragraphs (a) 

through (u) are added to read as follows: 

§ 300.222 Prohibitions. 

* * * * * 

(a) Fail to obtain and have on board 

a fishing vessel a valid WCPFC Area 

Endorsement as required in § 300.212. 

(b) Fail to report a change in the 

information required in an application 

for a WCPFC Area Endorsement as 

required in § 300.212(g). 

(c) Fail to provide information on 

vessels and fishing authorizations or fail 

to report changes in such information as 

required in § 300.213. 

(d) Fish for, retain on board, or land 

fish, including HMS, in areas under the 

jurisdiction of a nation other than the 

United States without authorization by 

such nation to do so, as provided in 

§ 300.214(a)(1) and (b)(1). 

(e) Operate a fishing vessel in 

violation of, or fail to ensure the vessel 

crew complies with, the applicable 

national laws of a member of the 

Commission other than the United 

States, including any laws related to 

carrying vessel observers or the 

operation of VMS units, as provided in 

§ 300.214(a)(2) and (b)(2). 

(f) Fail to carry, allow on board, or 

assist a WCPFC observer as required in 

§ 300.215. 

(g) Assault, obstruct, resist, delay, 

refuse boarding to, intimidate, harass, or 

interfere with a WCPFC observer, or 

attempt to do any of the same, or fail to 

provide a WCPFC observer with food, 

accommodation or medical facilities, as 

required in § 300.215. 

(h) Offload, receive, or load fish from 

a purse seine vessel at sea in the 

Convention Area, in contravention of 

§ 300.216. 

(i) Fail to mark a fishing vessel or a 

boat, skiff, or other watercraft on board 

the fishing vessel as required in 

§ 300.217, or remove, obscure, or 

obstruct such markings, or attempt to do 

so. 

(j) Fail to maintain and report catch 

and effort information or transshipment 

information as required in § 300.218. 

(k) Fail to install, activate, or operate 

a VMS unit as required in § 300.219(c). 

(l) In the event of VMS unit failure or 

interruption, fail to repair or replace a 

VMS unit, fail to notify the SAC and 

follow the instructions provided, or 

otherwise fail to act as provided in 

§ 300.219(c)(4). 

(m) Disable, destroy, damage or 

operate improperly a VMS unit installed 

under § 300.219, or attempt to do any of 

the same, or fail to ensure that its 

operation is not impeded or interfered 

with, as provided in § 300.219(e). 

(n) Fail to make a VMS unit installed 

under § 300.219 or the position data 

obtained from it available for 

inspection, as provided in § 300.219(f) 

and (g). 

(o) Fail to carry on board and monitor 

communication devices as required in 

§ 300.219(h). 

(p) Fail to carry on board and make 

available the required vessel 

documentation and authorizations as 

required in § 300.221(a)(1). 

(q) Fail to continuously monitor the 

specified radio frequencies as required 

in § 300.221(a)(2). 

(r) Fail to carry on board, and keep 

accessible, an up-to-date copy of the 

International Code of Signals as 

required in § 300.221(a)(3). 

(s) Fail to provide access to, or fail to 

allow and assist, a WCPFC 

transshipment monitor as required in 

§ 300.221(a)(4). 

(t) Fail to comply with the 

instructions of, or fail to accept and 

facilitate prompt and safe boarding by, 

a WCPFC inspector, or fail to cooperate 

and assist a WCPFC inspector in the 

inspection of a fishing vessel, as 

provided in § 300.221(b). 

(u) Fail to stow fishing gear or fishing 

equipment as required in § 300.221(c). 

* * * * * 

[FR Doc. 2010–1087 Filed 1–20–10; 8:45 am] 

BILLING CODE 3510–22–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1115 

Guidelines and Requirements for 

Mandatory Recall Notices 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Final rule. 


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3356 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 

SUMMARY: The Consumer Product Safety 

Commission (‘‘Commission,’’ ‘‘CPSC,’’ 

‘‘we’’) is issuing a final rule establishing 

guidelines and requirements for 

mandatory recall notices as required by 

section 214 of the Consumer Product 

Safety Improvement Act of 2008 

(‘‘CPSIA’’). The rule contains the 

Commission’s interpretation of 

information which must appear on 

mandatory recall notices ordered by the 

Commission or a United States district 

court pursuant to certain sections of the 

Consumer Product Safety Act (‘‘CPSA’’). 

The rule also contains Commission 

guidelines for additional information 

that the Commission or a court may 

order to be included on a mandatory 

recall notice. 

DATES: Effective Date: This rule is 

effective on February 22, 2010. 

Compliance Date: Regardless of when 

a product subject to a recall was 

manufactured, all mandatory recalls 

ordered pursuant to sections 12, 15(c) or 

15(d) of the CPSA are subject to the 

guidelines and requirements herein as 

of February 22, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Marc Schoem, Deputy Director, Office of 

Compliance and Field Operations, 

Consumer Product Safety Commission, 

4330 East West Highway, Bethesda, MD 

20814; telephone (301) 504–7520. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

In the Federal Register of March 20, 

2009 (74 FR 11883), the CPSC published 

a proposed rule that would establish 

guidelines and requirements for 

mandatory recall notices ordered by the 

Commission or a United States District 

Court under the Consumer Product 

Safety Act. The rule was intended to 

provide firms with a uniform set of 

information they can expect to find in 

a recall notice ordered by the 

Commission or a court. The 

Commission and a court’s substantive 

authority to order that a mandatory 

recall notice be issued, including 

control over the final form and content 

of such notice, arises under sections 12, 

15(c), and 15(d) of the CPSA. Section 

214 of the CPSIA (Pub. L. 110–314) did 

not change this authority. Rather, 

section 214(c) of the CPSIA, which adds 

a new subsection 15(i) to the CPSA, 

requires the Commission to establish 

guidelines which set forth a uniform 

class of information that will be 

included in mandatory recall notices, 

and specifies certain content that must 

be included in mandatory recall notices. 

However, the Commission or a court 

ordering that a recall notice issue retains 

final authority over the form and 

content of mandatory recall notices. 

Accordingly, the Commission or a court 

may remove information that is 

unnecessary or inappropriate under the 

circumstances, or add additional 

appropriate information to a mandatory 

recall notice. Sections 15(i)(2) and 

15(i)(2)(I) of the CPSA. 

The preamble to the proposed rule 

contained detailed explanations of the 

proposed rule and described the basis 

for the proposed rule. See 74 FR 11883 

through 11886. We refer readers to that 

preamble if they wish to obtain further 

information or explanation with regard 

to the rule. In brief, the Commission 

developed the proposed rule based on 

its expertise with recall notifications 

since the Commission’s inception. 

Accordingly, the final rule is a 

culmination of the statutory 

requirements and the Commission’s 

expertise, which is summarized in the 

Commission’s Recall Handbook, 

available at http://www.cpsc.gov/ 

BUSINFO/8002.html. Each section of 

the rule is either statutorily required by 

section 214 of the CPSIA, or the 

Commission has determined will likely 

increase recall effectiveness by helping 

consumers to: (a) Identify a product 

subject to a recall; (b) understand the 

hazard identified with such product; or 

(c) understand what remedy is being 

offered with regard to the recalled 

product. 

The rule does not contain 

requirements for voluntary recall 

notices which result from corrective 

action settlement agreements with 

Commission staff. If the Commission 

decides to extend the requirements to 

voluntary recall notices, it would 

proceed with a separate rulemaking. 

While this rule may serve as a general 

guide for information to include on 

voluntary recall notices in some 

instances, we recognize that each 

voluntary recall is unique and is 

negotiated as such. Therefore, all recall 

notices issued, whether voluntary or 

mandatory, should be tailored to the 

specific product and circumstances of a 

recall. Section 214 of the CPSIA did not 

alter the Commission’s ability to 

negotiate voluntary recall notices with a 

manufacturer and to tailor both 

voluntary and mandatory recall notices 

to a particular recall scenario. 

The Commission received 43 

substantive comments on the proposed 

rule. After reviewing the comments the 

CPSC made several changes to the rule. 

The changes between the proposed and 

the final rules are as follows: 

TABLE 1—SUMMARY OF CHANGES TO THE FINAL RULE

Proposed rule Final rule 

Did not contain a definition of ‘‘Other persons’’ ....................................... Defines ‘‘Other persons’’ in a new § 1115.25(e). This change is discussed in more detail in response to comment 12 in section III of this 

document below. 

Provided that ‘‘firms’’ target and tailor recall notices and consider the 

manner in which a product was marketed and advertised in determining the form and content of a recall notice.

Removes the word ‘‘firm’’ in § 1115.26(a)(3) to clarify that, in a mandatory recall scenario, firms are not the entity determining the form and 

content of a recall notice. By statute, the final form and content of 

mandatory recall notices are ordered by a United States district court 

or the Commission. See sections 12, 15(c) and 15(d) of the CPSA. 

Did not address use of more than one form of recall notice ................... Clarifies in § 1115.26(a)(5) that more than one form of recall notice 

should be used. This change is discussed in more detail in response 

to comments 15 and 17 in section III of this document below. 

Did not address when a firm has direct contact information. Unclear 

whether a telephone number is considered direct contact information.

Clarifies in § 1115.26(b)(2) when a firm has direct contact information. 

Also clarifies that a telephone number is considered direct contact information. These changes are discussed in more detail in response 

to comment 16 in section III of this document below. 

Did not contain examples of when a recall notice may be required in 

languages in addition to English.

Provides examples of circumstances when a recall notice may be required to be made available in languages in addition to English in 

§ 1115.26(c). This change is discussed in more detail in response to 

comment 19 in section III of this document below. 


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Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 3357 

TABLE 1—SUMMARY OF CHANGES TO THE FINAL RULE—Continued 

Proposed rule Final rule 

Did not clearly set forth that information related to the product description is required.Clarifies in § 1115.27(c) that the information outlined therein must be 

included in a recall notice when applicable to a product. This change 

is discussed in more detail in response to comment 23 in section III 

of this document below. 

Did not specify when a foreign manufacturer’s legal name must be 

identified.

Clarifies in § 1115.27(h) that foreign manufacturers must be identified 

by a legal name, city, and country of headquarters. This change is 

discussed in more detail in response to comment 32 in section III of 

this document below. 

Did not require a description of the region where a product was sold or 

offered for sale.

Adds ‘‘Region’’ at a new § 1115.27(j) as a separate category of information which is required when necessary or appropriate to assist 

consumers to identify a product. This change is discussed in more 

detail in response to comment 21 in section III of this document 

below. 

II. Legal Authority 

The substantive authority for the 

Commission or a United States District 

Court to order that a firm issue a 

mandatory recall notice comes from 

existing statutes in sections 12, 15(c), 

and 15(d) of the CPSA. Section 15(c) of 

the CPSA specifically provides that, 

when the Commission orders that a firm 

conduct a mandatory recall, such order 

‘‘shall specify the form and content of 

any notice required to be given * * *.’’ 

Section 214 of the CPSIA does not alter 

the Commission’s or a court’s authority 

over the final form and content of a 

mandatory recall notice. Section 214(c) 

of the CPSIA, which added subsection 

15(i) to the CPSA, states that the 

Commission shall, by rule, within 180 

days of the date of enactment of the 

CPSIA (August 14, 2008), establish 

guidelines which set forth a uniform 

class of information to be included in 

any recall notice ordered under sections 

15(c) or (d), or by court order pursuant 

to section 12 of the CPSA. (15 U.S.C. 

2061, 2064(c), or 2064(d)). Thus, the 

statute calls for a rulemaking which sets 

forth guidelines concerning information 

that firms can expect may be ordered in 

any Commission or court-ordered 

mandatory recall and the statute 

specifies specific content that must be 

included in mandatory recall notices. 

Section 15(i) of the CPSA states that 

the guidelines established by the 

Commission must include information 

that would help consumers: (a) Identify 

a specific product; (b) understand the 

identified hazard; and (c) understand 

any remedy available to the consumer. 

Section 15(i) of the CPSA also requires 

that a recall notice include certain 

specific information, unless the 

Commission determines otherwise. This 

information includes, but is not limited 

to, descriptions of the product, hazard, 

injuries, deaths, action being taken, and 

remedy; identification of the 

manufacturer and retailers; 

identification of relevant dates; and any 

other information the Commission 

deems appropriate. 

Finally, in addition to section 214 of 

the CPSIA, section 3 of the CPSIA grants 

the Commission general rulemaking 

authority to issue regulations, as 

necessary, to implement the CPSIA. 

Accordingly, the Commission has 

authority to implement section 15(i) of 

the CPSA, as amended by section 214(c) 

of the CPSIA, through section 3 of the 

CPSIA as well as section 214(c) of the 

CPSIA. 

III. Comments on the Proposed Rule 

and the CPSC’s Responses 

We describe and respond to 

significant issues raised by the 

comments below. To make it easier to 

identify comments and the 

Commission’s responses, the word 

‘‘Comment’’ will appear in italics before 

each comment description, and the 

word ‘‘Response’’ will appear in italics 

before the Commission’s response. We 

have grouped comments based on their 

similarity and have numbered the 

comments to help distinguish between 

different comment themes. The number 

assigned to each comment summary is 

for organizational purposes and does 

not signify the comment’s value, 

importance, or order in which it was 

received. 

Additionally, on our own initiative, 

we have replaced ‘‘U.S.’’ with ‘‘United 

States’’ in the codified text to preclude 

any potential confusion as to what the 

abbreviation of ‘‘United States’’ means. 

A. Comments Related to Procedural 

Issues 

Comment 1—Administrative 

Procedure Act (APA)—One commenter 

states that the NPR is lacking because it 

does not contain a list of data or studies 

relied upon as required by the APA. 

Although the preamble to the proposed 

rule states that the agency relied on 

agency recall guidance materials, 

including but not limited to the Recall 

Handbook, the commenter maintains 

that these resources were not made 

available to the general public. The 

commenter believes that, at minimum, 

information on where to access the 

resources should be provided or, a Web 

link provided for direct access to the 

documents. The commenter states that 

no final rule should issue until the 

public has the opportunity to review the 

underlying data. 

Response—The requirements for 

mandatory recall notices set forth in the 

proposed rule are largely dictated by 

section 214 of the CPSIA. The proposed 

rule also includes the Commission’s 

interpretation and clarification of 

section 214 of the CPSIA, as well as 

additional guidelines. The preamble to 

the proposed rule states that, in drafting 

the proposed rule, the agency relied on 

its experience conducting recalls and 

recall effectiveness gained since the 

CPSC’s inception, as well as agency 

recall guidance materials, including but 

not limited to the Recall Handbook. 

Contrary to the commenter’s assertion 

that access to the Recall Handbook was 

not provided, the preamble to the 

proposed rule contained a link to the 

Recall Handbook (see 74 FR at 11883). 

Moreover, the Commission did not rely 

on quantifiable ‘‘data’’ in drafting the 

proposed rule; it relied on the text of the 

statute and more than thirty years of 

experience conducting recalls, which is 

summarized in the Recall Handbook. 

Recall templates and a recall checklist 

are also available to the public on the 

CPSC’s Web site at http://www.cpsc.gov/ 

businfo/corrective.html. These materials 

have been available to the public on the 

CPSC Web site long before passage of 

the CPSIA. 

Comment 2—Regulatory Flexibility 

Act—Two commenters take opposite 

positions with regard to applicability of 

the Regulatory Flexibility Act (‘‘RFA’’) to 

the proposed rule. One comment states 

that the RFA should not be applicable 


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3358 Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 

to children’s products so that small 

businesses will not be able to 

circumvent recall duties. Another 

commenter opines that the CPSC is 

attempting to evade the RFA when it 

states that small businesses will not be 

affected by the rule. The commenter 

takes this position based on the 

discretion the Commission has with 

regard to determining a ‘‘significant 

retailer,’’ which the commenter believes, 

depending on the definition, could have 

a large effect on small businesses. The 

comment suggests that a small business 

analysis should be done on the 

proposed regulation. 

Response—The RFA generally 

requires that agencies review proposed 

rules for their potential economic 

impact on small entities, including 

small businesses. A regulatory 

flexibility analysis was not conducted 

pursuant to section 605(b) of the RFA, 

which states that the requirement to 

prepare and make available for public 

comment an initial regulatory flexibility 

analysis does not apply if the head of 

the agency certifies that the rule will 

not, if promulgated, have a significant 

economic impact on a substantial 

number of small entities, and the agency 

provides an explanation for that 

conclusion. 

As with the proposed rule, the final 

rule will have little to no effect on small 

businesses. First, the recall notice 

requirements set forth in the final rule 

are largely dictated by the CPSIA and 

are already in effect. Second, mandatory 

recalls are rare in the Commission’s 

history, so, even if we were to assume 

that a significant economic impact 

would exist (and we do not claim that 

such an impact exists), the impact 

would not affect a ‘‘substantial number’’ 

of small entities. Third, the final rule 

will not alter the agency’s reliance on 

voluntary recalls. Finally, the recall 

burden on small businesses will not be 

altered by the definition of ‘‘significant 

retailer.’’ The sole purpose of identifying 

retailers in the recall notice is to assist 

consumers with product identification. 

It has no effect on which firm issues a 

recall notice or has responsibility for 

conducting a recall. 

Comment 3—Effective Date—Several 

commenters state that because they 

believe the proposed rule seeks to 

impose requirements that go beyond the 

CPSIA, firms require notice of the 

additional requirements and time to 

comply. Accordingly, these commenters 

state that the rule should not be 

effective upon publication, but should 

follow the standard of becoming 

effective 30 days after publication so 

that firms have time to comply. One 

commenter suggests further that the rule 

be clarified not to apply retroactively 

and that the requirements only apply to 

goods manufactured after August 14, 

2009. 

Response—The final rule applies only 

to mandatory recalls pursuant to a court 

order (section 12 of the CPSA) or an 

order of the Commission (sections 15(c), 

and 15(d) of the CPSA). Mandatory 

recalls are infrequent in the 

Commission’s history, and currently 

there are no pending matters where a 

mandatory recall is at issue. Because of 

the length of time involved in litigating 

these issues in a United States district 

court or administratively, it is 

impracticable that any action would be 

litigated to conclusion and that an order 

requiring a mandatory recall notice 

would be issued in 30 days time. 

Therefore, setting the effective date 30 

days after publication is appropriate and 

there is no good cause for shortening the 

period. Finally, the final rule does not 

go beyond the CPSIA. Section 214 of the 

CPSIA specifically provides that the 

Commission shall promulgate both 

guidelines and requirements for 

mandatory recall notices, and authorizes 

the Commission to issue additional 

requirements as it deems appropriate. 

Section 15(i)(2)(I) of the CPSA. 

B. General Comments on the Proposed 

Rule and Commission Responses 

Comment 4—Many commenters seek 

clarification of the rule. Several are 

concerned that many requirements are 

unnecessary, extraneous, too 

complicated, and do not help 

consumers locate relevant products and 

determine what to do with them. In 

particular, several commenters are 

concerned about harm that could occur 

to business reputation based on the 

detailed requirements and the speed at 

which imperfect information may travel. 

Several commenters state that some 

information is burdensome for firms to 

maintain and report with no added 

benefit to consumers, and are concerned 

about the costs to maintain detailed 

records such as photographs and pricing 

information. These commenters prefer a 

shorter mandatory recall notice that 

would purportedly be more helpful to 

consumers. 

Response—Most requirements set 

forth in the final rule are statutorily 

mandated, and the Commission has the 

authority to add requirements it 

determines are appropriate. A review of 

the CPSC Web site demonstrates that the 

use of many of the requirements in the 

final rule in previously issued voluntary 

recall notices have not resulted in 

lengthy recall notices. Moreover, the 

final rule is not burdensome because it 

does not impose any recordkeeping 

requirements on firms. Locating a 

photograph of the product and the price 

range has not been a significant issue for 

firms at the time of a recall. Finally, the 

Commission rejects the idea that a recall 

notice causes undue harm to business 

reputation. Responsible firms generally 

desire to move quickly to remove 

defective products from the marketplace 

because it is statutorily required, 

preserves their brand and consumer 

confidence, limits liability, and, most 

importantly, reduces the likelihood of 

injuries and deaths from unsafe 

products. 

Comment 5—One commenter would 

create a mandatory recall notice 

template form that includes all required 

sections for a notice. The commenter 

believes that a template will be more 

efficient, save time and resources, and 

allow the Commission to quickly check 

for all requirements to speed approval of 

recall notices. 

Response—The CPSC already has a 

bank of recall notice examples that staff 

provides to firms to help create a recall 

notice. To the extent such a template is 

revised, it can and should be done 

outside of this rulemaking process, to 

allow both the Commission and 

industry flexibility to update such 

templates as appropriate. 

Comment 6—Several commenters 

discuss use of the words ‘‘should’’ and 

‘‘must’’ in the proposed rule, and suggest 

that in the final rule, use of the word 

‘‘should’’ should be changed to ‘‘must’’ to 

alleviate any confusion regarding the 

mandatory nature of the requirements. 

Response—With regard to use of the 

words ‘‘should’’ and ‘‘must’’ in the final 

rule generally, the statute directs the 

Commission to issue both a guidance 

and requirements for mandatory recall 

notices. Guidance provided by the 

Commission regarding mandatory recall 

notices uses the term ‘‘should,’’ while 

requirements are described in the 

regulation using the words ‘‘must’’ or 

‘‘shall.’’ 

Comment 7—One commenter notes 

that the rule omits timeliness issues 

with regard to issuing a mandatory 

recall notice. This commenter argues 

that the rule should incentivize firms to 

comply in a timely fashion, and provide 

penalties for non-compliance. 

Response—Timeliness is important 

with regard to both mandatory and 

voluntary recall notices. With regard to 

mandatory recall notices specifically, 

the Commission or a court will have 

control over the timing of recall notices 

once ordered. 

Comment 8—One commenter suggests 

using the civil penalties in section 20(a) 

of the CPSA as a guideline for penalties 

for non-compliance with any time 


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Federal Register / Vol. 75, No. 13 / Thursday, January 21, 2010 / Rules and Regulations 3359 

constraints imposed. Another 

commenter suggests adding a section on 

prohibited acts for non-compliance with 

part C generally. 

Response—All prohibited acts over 

which the Commission has penalty 

authority are listed in section 19 of the 

CPSA, and the associated penalty 

amount provisions are located in section 

20 of the CPSA. Section 19(a)(5) of the 

CPSA provides that it is unlawful for 

any person to ‘‘fail to comply with an 

order issued under section 15(c) or (d).’’ 

Accordingly, these penalty provisions 

already apply to mandatory recall orders 

and the Commission declines to 

duplicate these provisions in the rule. 

Comment 9—FOIA Rights—One 

commenter suggests that the rule 

include a section on Freedom of 

Information Act (‘‘FOIA’’) rights. 

Response—The Commission declines 

to address FOIA issues in the rule 

because a separate, pre-existing, rule on 

FOIA exists at 16 CFR part 1015. 

C. Specific Comments on the Proposed 

Rule and Commission Responses 

1. Section 1115.23—Purpose 

Proposed § 1115.23 would describe 

the purpose for a new subpart C, 

‘‘Guidelines and Requirements for 

Mandatory Recall Notices.’’ In 

accordance with direction in the CPSIA, 

the proposed rule would set out 

guidelines and requirements for recall 

notices issued under section 15(c) and 

(d) or section 12 of the CPSA. 

Comment 10—One commenter 

believes that the proposed rule’s 

purpose and reasoning section are too 

generic and lack specific information. 

The commenter suggests including 

specific rationales for why certain 

requirements will be effective and 

suggests adding specific examples or 

data to illustrate what the specific recall 

problem is and how the rule will 

address the problem. 

Response—Section 214 of the CPSIA 

sets forth a uniform class of information 

to be included in mandatory recall 

notices. The final rule’s requirements 

are largely dictated by the statutory 

language. Further, the Commission’s 

interpretation of section 214 of the 

CPSIA is not based on a scientific study, 

but rather on the culmination of the 

Commission’s and the staff’s many years 

of experience conducting product safety 

recalls. Because of the wide variety of 

consumer products and industries that 

such recalls encompass, it is necessary 

to allow flexibility to tailor recall 

notices to a specific target consumer 

group, product, and hazard situation to 

effectively remove hazardous products 

from the hands of consumers. The 

statute and the final rule give the 

Commission and/or a court the 

flexibility to add or remove 

requirements from a particular recall 

notice as necessary and appropriate, 

keeping in mind the goal of increasing 

recall effectiveness, and to help 

consumers identify products, 

understand the product hazard, and 

understand any available remedy. 

2. Section 1115.24—Applicability 

Proposed § 1115.24 would explain the 

requirements in subpart C apply to 

manufacturers (including importers), 

retailers, and distributors of consumer 

products. The preamble to the proposed 

rule (see 74 FR at 11883) explained that 

the rule would not contain requirements 

for recalls and recall notices that are 

voluntary and result from corrective 

action settlement agreements with 

Commission staff. The preamble to the 

proposed rule further noted that, if the 

Commission decides to extend the 

requirements to voluntary recalls, it 

would proceed with a separate 

rulemaking initiated by a separate 

notice of proposed rulemaking. 

Comment 11—Many commenters note 

the Commission’s statement that the 

proposed rule will apply to mandatory 

recall notices only and will serve as a 

guideline for voluntary recalls unless 

and until the Commission initiates a 

separate rulemaking to apply the 

requirements to voluntary recalls. 

Comments from individuals and 

consumer groups generally support the 

extension of the mandatory notice 

requirements to voluntary recalls to 

promote uniformity and consistency in 

providing consumers recall data and to 

prevent firms from circumventing the 

requirements for a mandatory recall 

notice by agreeing to a voluntary recall. 

One commenter notes that voluntary 

recalls comprise the vast majority of 

recalls and that the protections and 

information afforded by the mandatory 

recall notice should be extended to 

consumers in voluntary recall notices as 

well. Some commenters believe that 

consumer safety is compromised by not 

using the same notice requirements for 

both mandatory and voluntary recalls. 

One commenter states that the 

mandatory recall notice requirements 

should at least be applied to voluntary 

recall notices for ultrahazardous 

products. 

Industry commenters are generally 

opposed to extending the mandatory 

recall notice requirements to voluntary 

recall notices, arguing that important 

differences exist between a mandatory 

and voluntary recall. For example, one 

commenter states that, during a 

voluntary recall, the firm and the CPSC 

staff have time to develop an effective 

recall notice in a more positive 

environment. Depending on the nature 

of the product and the harm, the same 

level of detail may not be necessary for 

every recall to be helpful to consumers. 

These commenters support the current 

system whereby the final notice 

requirements are left for each specific 

recall situation working with the staff. 

One commenter notes the success of the 

Fast Track program and believes the 

Commission should continue to foster 

cooperation in that program and only 

impose mandatory recall procedures 

when absolutely required. Some 

commenters state that imposing 

mandatory notice requirements will 

discourage firms from conducting 

voluntary recalls, which is typically 

done to avoid the burdens of a 

mandatory recall. Less voluntary recalls 

will lead to over-burdening the 

Commission staff and resources. 

A few commenters are concerned 

about the mandatory notice 

requirements even serving as a 

guideline for a voluntary recall notice 

and urge the Commission to withdraw 

this statement. One commenter believes 

that a heightened level of importance 

should be associated with mandatory 

recalls. Other commenters note that, 

even though the Commission 

acknowledges that a separate 

rulemaking will be necessary to extend 

the requirements to voluntary recalls, 

using the rule as a guideline is 

essentially a distinction without a 

difference. One commenter suggests that 

the Commission explicitly acknowledge 

in the preamble that a voluntary recall 

notice will not need to meet all of the 

guidelines for a mandatory recall notice 

in order to be approved for voluntary 

corrective action. 

Response—While the Commission 

may use the mandatory recall 

requirements as a general guide for 

voluntary recall notices, we recognize 

that a separate rule on voluntary recall 

notices is needed to make these 

requirements uniform and required. The 

ultimate purpose of every recall notice 

is to get dangerous products out of the 

hands of consumers as quickly as 

possible, and each recall notice must be 

negotiated with that goal in mind. The 

Commission still retains the flexibility 

to work with firms to tailor voluntary 

recall notices to a particular product 

and particular recall circumstance. 

3. Section 1115.25—Definitions 

Proposed § 1115.25 would define 

‘‘recall,’’ ‘‘recall notice,’’ ‘‘direct recall 

notice,’’ and ‘‘firm.’’ 

Comment 12—One commenter 

suggests that the final rule define ‘‘other 


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persons,’’ who were mentioned in 

proposed § 1115.26. The preamble to the 

proposed rule explained that ‘‘the term 

‘other persons’ would include, but 

would not be limited to, consumer 

safety advocacy organizations, public 

interest groups, trade associations, other 

State, local and Federal government 

agencies, and the media.’’ 74 FR at 

11884. Another commenter states that it 

is important to keep ‘‘other persons’’ in 

the rule to acknowledge that both 

governmental and non-governmental 

entities are involved in the 

dissemination of information in the 

interest of consumer safety. 

Response—The Commission agrees 

that defining ‘‘other persons’’ in the rule 

acknowledges the importance that both 

governmental and non-governmental 

entities can play in the broad 

dissemination of consumer product 

safety information. Accordingly, the 

final rule adds the definition of ‘‘other 

persons’’ at § 1115.25(e) as follows: 

‘‘Other persons means, but is not limited 

to, consumer safety advocacy 

organizations, public interest groups, 

trade associations, industry advocacy 

organizations, other State, local, and 

Federal government agencies, and the 

media.’’ This definition is the same as 

set forth in the preamble to the 

proposed rule, with the addition of 

‘‘industry advocacy organizations,’’ to 

demonstrate the broad range of entities 

that assist in disseminating product 

safety information. 

4. Section 1115.26—Guidelines and 

Policies 

Proposed § 1115.26 provides general 

guidance and describes the policies 

pertaining to recall notices. The 

proposed guidelines would restate the 

goals delineated in section 214 of the 

CPSIA. The CPSIA requires the 

guidelines to include information 

helpful to consumers. 

In general, proposed § 1115.26(a) 

would state general principles that are 

important for recall notices to be 

effective. For example, proposed 

§ 1115.26(a)(1) would state that a recall 

notice should provide information that 

enables consumers and other persons to 

identify the product and take a stated 

action. Proposed § 1115.26(a)(2) through 

(a)(4) would provide guidance on the 

form of the recall notice, recognizing the 

various forms of notice and providing 

guidance concerning direct recall 

notices and Web site recall notices. 

Proposed § 1115.26(a)(4) would 

recognize that a direct recall notice is 

the most effective form of a recall 

notice, and proposed § 1115.26(b)(2) 

would state that when firms have 

contact information they should issue 

direct recall notices. 

Comment 13—Many comments 

discuss § 1115.26(b)(2) on direct recall 

notices and § 1115.26(a)(4) which states 

that direct recall notices are the most 

effective form of a recall notice. Overall, 

individual consumer comments support 

the proposed rule with regard to direct 

recall notices, suggesting that 

consumers tend to tune out information 

not directed to them. One commenter 

notes that direct recall notices have 

worked effectively in Illinois since 

2006. A few commenters suggest 

revising the rule to require firms to 

exhaust resources and to send direct 

recall notices via every means possible 

depending on the data they have, i.e., 

mail, electronic mail, and via telephone. 

One commenter suggests requiring email notification when a firm has e-mail 

contact information. One commenter 

suggests asking consumers to forward email notices to people they know have 

an interest in receiving the information 

in order to take advantage of social 

networking abilities. However, another 

commenter suggests that, because 

people ignore e-mails based on the large 

volume received, direct regular mail 

notices and automated phone messages 

would be more effective. Another 

commenter suggests that a direct recall 

notice be required in all cases where a 

firm has contact information unless the 

firm can prove by a preponderance of 

evidence that a direct recall notice will 

not be as effective as other forms of a 

recall notice. 

However, one commenter urges that 

direct recall notices should only be 

required when a significant and 

imminent health and safety risk is 

involved because of the costs involved 

in direct notice and because overwarning can de-sensitize consumers. 

Moreover, section 15 of the CPSA 

recognizes that the form of notice 

depends on the risk involved and 

affords parties the opportunity for a 

hearing before the Commission can 

order a number of actions. 

Response—Direct recall notices are 

the most effective form of a recall 

notice. 74 FR at 11886. The statement is 

based on the Commission’s experience 

that one of the most important aspects 

of conducting a recall is to target recall 

notices to those consumers that are 

more likely to have purchased the 

product at issue. Direct recall notices 

have the advantage of reaching a large 

portion of the consuming public that 

may have actually purchased the 

product. Even if the product was not 

ultimately used by the purchaser, in the 

case of a parent buying a product for a 

child or a consumer buying a gift, the 

purchaser is in a good position to notify 

the product’s user about the recall. 

Ensuring that notice of the recall is 

provided in a timely manner to the 

affected target audience is a major 

component of recall effectiveness, and 

direct recall notices are a key advantage 

in the recall process when this 

information is known. Moreover, the 

rule recommends, but does not require, 

use of direct recall notices. Assessing 

whether direct notice is necessary, 

appropriate, or possible in a particular 

mandatory recall is best done on an 

individual basis. 

Comment 14—One commenter 

advocates a clear delineation in the rule 

with regard to responsibility for direct 

recall notices. This commenter argues 

that manufacturers should never have 

responsibility for a direct recall notice, 

but should have responsibility for broad 

dissemination through other means. 

Direct notice responsibility should fall 

to the product distributors and retailers 

that have such contact information. 

Response—Determining which firms 

have responsibility for a recall and 

disseminating recall notices is beyond 

the scope of the rule, which solely 

relates to information categories 

required on a mandatory recall notice. 

Comment 15—Some commenters note 

the limitations of relying solely on 

direct recall notices. One commenter 

states that direct recall notices are not 

the best method of notifying consumers, 

and should never be used as the sole 

method of notifying consumers because 

they miss third party consumers that 

purchase products second-hand or 

receive them as gifts. Considering the 

popularity of certain Web sites that sell, 

re-sell, or auction consumer products, 

direct recall notices could miss a large 

population of the consuming public. 

Additionally, the general public has an 

interest in knowing about recalled 

products, such that the recall strategy 

should be to reach the broadest possible 

audience. 

Response—The Commission agrees 

that a direct recall notice should not be 

the sole form of recall notification 

because the purpose of a recall notice is 

to reach the broadest possible audience 

of consumers that may have purchased 

or received the products. Sole reliance 

on direct recall notices ignores the fact 

that other persons may benefit from 

receiving recall notices and assist in 

broad dissemination of recall notices. 

The final rule acknowledges this by 

adding § 1115.26(a)(5) stating that at 

least two of the recall notice forms listed 

in subsection (b) should be used. 

Comment 16—One commenter asks 

the Commission to clarify the rule with 

regard to the factors for determining 


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when a firm actually has direct contact 

information. This commenter states that 

firms have millions of bits of 

information, but being able to track the 

information to a specific time frame and 

product is time consuming and costly. 

Moreover, firms may have some 

information related to the sale, i.e., 

credit card information, but may not 

have all information without relying on 

a third party to match data, which can 

also be time consuming and costly. The 

commenter urges that the rule clarify 

that it only applies when accurate, up 

to date, contact information is readily 

and practically available, and is in fact 

in the firm’s direct possession. Another 

commenter suggests adding ‘‘telephone 

number’’ to the list of contact 

information, and to prioritize the direct 

notice methods as follows: (1) Direct 

mail; (2) e-mail; and (3) telephone. 

Response—Assessing when a firm has 

possession of direct contact information 

and when the information should be 

used is best done on an individual basis 

because of the variety of information 

that firms or third parties may possess. 

However, the final rule clarifies that ‘‘[a] 

direct recall notice should be used for 

each consumer for whom a firm has 

direct contact information, or when 

such information is obtainable, 

regardless of whether the information 

was collected for product registration, 

sales records, catalog orders, billing 

records, marketing purposes, warranty 

information, loyal purchaser clubs, or 

other such purposes.’’ The Commission 

or a court retains flexibility to determine 

when a firm has direct contact 

information and when a direct recall 

notice is appropriate. The final rule also 

clarifies that a telephone number is 

considered direct contact information: 

‘‘[D]irect contact information includes, 

but is not limited to, name and address, 

telephone number, and electronic mail 

address.’’ 

Comment 17—Some commenters are 

positive about the various methods 

available for dissemination of 

information, but want the Commission 

to make more than one form of notice 

mandatory. For example, one 

commenter would require multiple 

forms of dissemination so that firms 

cannot rely on a single press release and 

notice to retailers. Another commenter 

suggests requiring firms to contact 

national and local media. Another 

commenter is concerned that the rule 

does not require firms to ensure that 

notices are actually received and not 

dismissed as spam or junk mail and says 

requiring multiple dissemination 

methods would address this problem. 

Several commenters would require the 

use of paid advertisements, for example, 

where injuries and deaths have 

occurred. Similarly, another commenter 

suggests that the recall notice be 

required to be disseminated in the same 

manner as advertising and promotion 

for the product. 

Response—Section 1115.26(a)(5) in 

the final rule provides that more than 

one form of recall notice should be 

used. The Commission declines to 

provide for any certain type of notice for 

every recall in the final rule. Recall 

notice forms may vary depending on the 

type of hazard, the severity of the risk, 

and the nature and distribution of the 

target audience. While circumstances 

will arise where paid advertisements are 

warranted and the Commission’s or a 

court’s order may require their use 

directed to certain target audiences, in 

certain time frames and intervals, 

retaining flexibility and creativity to 

adjust the forms of required recall 

notices to the specifics of each case and 

to allow for technological advancements 

in recall notice forms should be 

maintained. 

Comment 18—Several comments 

support § 1115.26(b)(3), stating that a 

Web site recall notice should be 

prominent and clear on the first entry 

point of a Web site, such as a home 

page, and be interactive. Several 

commenters suggest making a Web site 

recall notice a mandatory requirement 

when a firm maintains a Web site. One 

commenter agrees that the information 

must be on the home page and urges the 

CPSC not to allow firms to bury recall 

notices deep within a Web site. These 

commenters support the idea of an 

interactive Web site that allows a 

consumer to seek a remedy on-line. 

However, one commenter opposes 

placing a recall notice on a firm’s home 

page and states that such a requirement 

goes beyond the CPSIA mandate. This 

commenter argues that manufacturers 

and distributors post Web site recall 

notices in a location where consumers 

have become familiar with locating the 

information. This commenter urges that 

the CPSC should not adopt a ‘‘one-size 

fits all’’ home page requirement and that 

the decision should be based on the 

circumstances of each case. Moreover, 

the requirement for an interactive Web 

site which allows a consumer to request 

a remedy does not make sense in all 

cases. The commenter gives the example 

of ATVs and RVs, which must be taken 

into an independent dealer for repair. 

Because section 214 of the CPSIA does 

not require an interactive Web site, the 

commenter would delete this section 

from the final rule. 

Response—The Commission agrees 

that product safety information should 

not be buried in a firm’s Web site. Since 

at least 2000, the CPSC has provided 

guidance to firms to post recall notices 

prominently on the home page of the 

firm’s Web site. The Commission rejects 

the proposition that the rule goes 

beyond the requirements of the CPSIA 

with regard to providing an interactive 

Web site for recalls. First, the guidelines 

and policies set forth in section 1115.26 

of the final rule are guidelines, not 

requirements. And, as reviewed above, 

section 214 of the CPSIA specifically 

provides that the Commission should 

‘‘include any information that the 

Commission determines would be 

helpful to consumers’’ to identify the 

product, understand the hazard, and 

understand the proposed remedy. 

Although, for example, an ATV cannot 

be exchanged through a Web site, a 

prominently placed Web site recall 

notice that is interactive will expand the 

recall notice to the relevant target 

audience, and increase recall 

effectiveness by helping consumers with 

product identification, hazard 

identification and to understand the 

nature of the remedy being offered. 

Moreover, if the remedy is a repair, an 

interactive Web site can help consumers 

to locate a dealer to make the necessary 

repair and/or arrange an appointment 

for such repair at an appropriate dealer. 

While the content and nature of Web 

site interactivity may be product and 

remedy specific, the tool itself can be 

used in many ways to enhance 

consumer understanding and recall 

effectiveness. 

Comment 19—Comments generally 

support § 1115.26(c), which states that 

the Commission or a court may require 

that a recall notice be in languages in 

addition to English ‘‘when necessary or 

appropriate to adequately inform and 

protect the public,’’ but would set 

mandatory criteria for recall notices in 

additional languages. For example, one 

commenter states that the phrase 

‘‘necessary and appropriate’’ requires 

further clarification and an explanation 

of the criteria that will be used. Another 

commenter urges the Commission to 

consider languages likely used by 

consumers when reviewing and 

approving recall notices and to insure 

that recall hotlines and on-line forms 

should be made available in additional 

languages when the product was likely 

purchased by non-English speaking 

consumers. 

Several commenters note the current 

demographic situation in the United 

States, stating that approximately 12% 

of the population speaks Spanish, and 

suggest that the Commission require 

that all recall notices be drafted in both 

English and Spanish. Another 

commenter suggests requiring that all 


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recall notices be drafted in the top two 

or three other languages spoken in the 

United States. 

Moreover, several commenters opine 

that the rule should contain criteria to 

help determine when recall notices in 

additional languages should be 

required. Suggestions for criteria for a 

mandatory language requirement 

include: 

• When product labeling is primarily 

in a language other than English; 

• When product instructions are 

written in more than one language; and 

• When a product is marketed in a 

language other than English. 

Finally, one commenter suggests that 

the Commission maintain a ‘‘bank’’ of 

standard recall information in other 

major languages spoken in the United 

States to help reduce the costs of 

providing recall notices in additional 

languages. 

Response—The final rule clarifies 

when the Commission or a court may 

order that a recall notice be made in 

languages in addition to English by 

providing non-exhaustive examples. 

However, the Commission and/or a 

court retain flexibility to tailor recall 

notices to individual recall 

circumstances. Two criteria suggested 

by commenters have been added as 

examples in the final rule: When the 

product labeling is primarily in a 

language other than English and when 

a product is marketed in a language 

other than English. Both examples 

establish circumstances where it may be 

necessary or appropriate to issue recall 

notices in additional languages in order 

to increase the likelihood that audiences 

will understand the notices. The final 

rule, at § 1115.26(c), states one 

additional example: When a product is 

marketed or available in a geographic 

area where English is not the 

predominant language. This example 

demonstrates that even when a 

product’s marketing or labeling is in 

English, there may be circumstances 

that arise in a mandatory recall scenario 

that still make it appropriate to 

distribute recall notices in languages in 

addition to English. 

The Commission declines to adopt 

additional criteria in the final rule that 

would not result in an efficient use of 

staff resources. For example, insufficient 

information exists to impose a 

requirement that every mandatory recall 

notice be made available in two or three 

languages. Finally, maintaining a ‘‘bank’’ 

of standard recall information in other 

languages is something the Commission 

may consider doing as a matter of 

efficiency, but it is not within the scope 

of the rule. 

5. Section 1115.27—Recall Notice 

Content Requirements 

Proposed § 1115.27 would set forth 

the recall notice content requirements 

specified in the CPSIA and would 

provide further details where 

appropriate. For example, proposed 

§ 1115.27(a) would require that a recall 

notice include the word ‘‘recall’’ in the 

heading and text. As another example, 

proposed § 1115.27(b) would require the 

recall notice to contain the date of its 

release, issuance, posting, or 

publication. 

Comment 20—One commenter would 

have the rule address the sequence of 

information found in a mandatory recall 

notice. The commenter would have the 

most important information appear at 

the top of the notice because it is more 

likely to be read. For example, the 

photograph of the product should 

appear at the top of the notice under the 

‘‘recall’’ heading. The commenter would 

use the following order: Description of 

product hazard, type of hazard or risk, 

identification of retailers, etc. This 

commenter also suggests that the rule 

address readability issues, such as the 

use of bullet points over lengthy 

paragraphs. 

Response—The Commission agrees 

that recall notices should be written 

with the intent to aid readability and 

understanding by consumers, but that 

this issue is best addressed on an 

individual, case-by-case basis. In a 

mandatory recall situation, the 

Commission or a court has control over 

the final form and content of a recall 

notice, and can require such notices to 

conform to the standard format already 

in use. The Commission declines to set 

a uniform sequence in the current 

rulemaking because what represents the 

most critical recall information may 

vary slightly depending on the 

circumstances surrounding the recall. 

Comment 21—One commenter 

suggests adding a ‘‘Region’’ provision to 

mandatory recall notices to specify the 

geographic region in which the product 

was made available in order to narrow 

down areas of concern when a national 

retailer is involved. This commenter 

suggests that the ‘‘Region’’ should state 

whether the product was for sale on 

line, so that a consumer understands 

when the geographic area may have 

been broadened by Internet sales. 

Response—When it is relevant, a 

specific geographic region where a 

product is sold or offered for sale is 

typically included in a recall notice. 

Although the proposed rule did not list 

‘‘region’’ as part of the recall notice 

content requirements, adding a separate 

‘‘region’’ requirement to a mandatory 

recall notice could help to narrow the 

geographic range for affected retailers 

and consumers (while not narrowing the 

range for dissemination of a recall 

notice generally), and would allow for a 

description of the region in situations 

where no significant retailer is 

identified. Designation of a region may 

help consumers to identify whether they 

have the product being recalled. 

Accordingly, the final rule adds a 

requirement for ‘‘Region’’ as a new 

§ 1115.27(j), which provides that 

‘‘[w]here necessary or appropriate to 

assist consumers in determining 

whether they have the product at issue, 

a description of the region where the 

product was sold, or held for purposes 

of sale or distribution in commerce, 

must be provided’’ and has renumbered 

the remaining paragraphs accordingly. 

Comment 22—Most commenters 

support § 1115.27(a)’s requirement to 

use the word ‘‘recall’’ in the heading and 

text of the notice. A few commenters 

suggest use of the label ‘‘Safety Recall’’ 

in the heading to alert consumers to a 

safety issue with regard to the product. 

One commenter suggests using the term 

‘‘Urgent Recall’’ in the heading 

whenever there is a serious risk of death 

or loss of limb. This commenter urges 

that the Commission use this 

designation to create a more serious 

class of product recalls. 

One commenter dislikes using the 

word ‘‘recall’’ in every notice, arguing 

that it may be misleading and 

‘‘unnecessarily harmful to the character 

of a product, manufacturer, importer, or 

retailer’’ by suggesting the harm is 

greater than it actually may be. This 

commenter suggests using language 

from the ‘‘action taken’’ section, which 

the commenter believes will be more 

accurate in describing the nature of the 

recall at issue. At minimum, the 

commenter suggests using ‘‘recall’’ along 

with the ‘‘action taken’’ in the header so 

that consumers can quickly and easily 

see the nature of the action being taken 

with regard to the product. 

Response—As a matter of 

Commission policy for consistency and 

uniformity, use of the word ‘‘recall’’ is 

preferred because consumers and other 

persons recognize the word ‘‘recall’’ as 

meaning that a safety issue has arisen 

that requires action by the consumer. 

The CPSC’s position on the title of a 

recall notice has been in the Recall 

Handbook for many years. The 

Commission does not agree that the 

dissemination of a recall notice 

necessarily harms manufacturers. As 

reviewed in the Recall Handbook, 

consumers no longer necessarily view 

product recalls in a negative light and 

are, instead, more likely to have a 


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negative view of a firm if it does not 

take responsibility for conducting an 

effective recall. How well a company 

conducts a timely, reasonable recall of 

a product may have a strong influence 

on consumers’ attitudes about the firm. 

Successful product recalls can result in 

continuing consumer support and 

demand for the firm’s products. 

While the Commission categorizes 

recalls, as set forth in the Recall 

Handbook Section III, CPSC Evaluation 

of Section 15 Reports, the Commission 

has avoided categorizing recall notices 

because it wants consumers to review 

and respond to all recall notices. 

Consumers should have the opportunity 

to read each notice and make an 

informed decision regarding whether 

they have the product, whether the risk 

of injury applies to them, how to avoid 

injury, and how to take advantage of any 

remedy associated with the recall. 

Categorizing recalls by the severity of 

risk may hinder the overall goal of recall 

effectiveness. 

Comment 23—A few commenters 

agree with proposed § 1115.27(c)’s 

requirements pertaining to a description 

of the product. However, one 

commenter suggests that it is unclear 

whether § 1115.27(c)(1) through (6) 

establishes requirements because the 

word ‘‘must’’ is not used. This 

commenter suggests clarifying the rule 

so that firms know whether all or some 

subset of these product identification 

guidelines are required. 

Response—Section 15(i)(2) of the 

CPSA requires that a mandatory recall 

notice include a product description, 

including model numbers or SKUs, 

common product name(s), and a 

photograph of the product. The final 

rule is organized such that items in 

§ 1115.26 are guidelines and policies, 

and items in § 1115.27 are requirements. 

Accordingly, § 1115.27(c) provides that 

‘‘[a] recall notice must include a clear 

and concise statement of the 

information that will enable consumers 

and other persons to readily and 

accurately identify the specific product 

and distinguish it from similar products. 

The information must enable consumers 

to readily determine whether or not they 

have, or may be exposed to, the 

product.’’ The rule lists six types of 

descriptive information relevant to 

product identification, including the 

fact that a photograph ‘‘must’’ be 

included. The final rule clarifies that 

when the information specified under 

this section is applicable to a particular 

product, it must be included as part of 

the product description: ‘‘[T]o the extent 

applicable to a product, descriptive 

information that must appear on a recall 

notice includes, but is not limited to:’’ 

The list is not exhaustive, however, and 

additional product identification 

information may be required for a 

particular recall notice. 

Comment 24—Several comments 

would strengthen the remedy 

requirements in proposed §§ 1115.27(d) 

and (m). One commenter observes that 

the remedy offered must be 

implementable by all parties. The 

commenter notes that there have been 

several instances where a manufacturer 

offered a remedy, such as a voucher or 

coupon, that was not recognized by all 

retailers’ computer systems when 

presented by a consumer. Accordingly, 

consideration of different systems 

should be given when providing a 

remedy and approval by the CPSC. 

A few commenters suggest limiting a 

manufacturer’s ability to instruct 

consumers to discard products. They 

argue that this remedy should be limited 

to situations where a firm has gone out 

of business or the product is of nominal 

value. One commenter urges the 

Commission to not approve any recall 

notice that does not include 

replacement, repair, or refund of the 

purchase price as a remedy because 

consumers will be less likely to comply 

without compensation as they do not 

want to pay for the item twice. Finally, 

one commenter urges the Commission 

to include a section for ‘‘incentive’’ or 

‘‘reward’’ to inform consumers about any 

additional incentives for the return of 

the product, or state that ‘‘none’’ are 

being given. 

Response—The nature of remedies 

approved as part of a corrective action 

plan goes to the substance of a 

corrective action plan, which is not at 

issue in the final rule. With regard to the 

suggestion to include a category for a 

description of any recall incentive in a 

mandatory recall notice, while the 

Commission generally encourages firms 

to offer incentives for compliance with 

a recall, the Commission declines to 

require a separate category for such 

information. Incentives are properly 

part of the remedy being offered. An 

additional category for incentives in 

every recall notice, even when an 

incentive is not being offered, will 

lengthen the recall notice without 

improving the overall effectiveness of 

the notice or providing new or different 

information to help consumers 

understand the remedy being offered. 

The Commission also notes that 

proposed § 1115.27(m) is now 

renumbered as § 1115.27(n) in the final 

rule. 

Comment 25—Proposed § 1115.27(e) 

would require the recall notice to state 

the approximate number of product 

units covered by the recall, including all 

product units manufactured, imported, 

and/or distributed in commerce. Several 

comments suggest clarifying 

§ 1115.27(e) by requiring a statement of 

the number of product units included in 

a recall notice. A few commenters state 

that the rule should only include 

products actually sold to consumers so 

that the number does not include 

products that were never sold to any 

distributor or retailer or are still in the 

hands of the manufacturer and were 

never imported. The commenters 

believe that these products are not 

subject to a recall and that it is 

inappropriate and beyond the scope of 

the CPSIA to include in the number of 

units products that have never been in 

the hands of consumers. Moreover, 

these commenters argue that including 

such data is misleading and distorting of 

the number of products actually subject 

to the recall and cannot be said to help 

consumers identify a product, 

understand a product hazard, or obtain 

a remedy. 

One commenter suggests that product 

unit information is unnecessary, 

unhelpful to the consumer, and is likely 

to overwhelm the average consumer. 

According to this commenter, including 

product unit information only serves to 

frustrate the purpose of understanding 

the product’s actual or potential hazard. 

This information could have a negative 

effect on the firm, and media and other 

groups could incorrectly focus on the 

number of products being recalled 

rather than any actual threat of public 

harm. 

Response—Section 15(i)(2)(C) of the 

CPSA requires that a mandatory recall 

notice include ‘‘[t]he number of units of 

the product with respect to which the 

action is being taken.’’ Accordingly, 

firms must state product unit 

information in a mandatory recall notice 

pursuant to the statute. The 

Commission’s interpretation of this 

section of the statute is consistent with 

past Commission practice for all recall 

notices, as set forth in the Recall 

Handbook, which is to list all units of 

a product manufactured, imported, and/ 

or distributed in commerce. As for those 

comments suggesting that products that 

are not in the hands of consumers are 

not subject to a recall, the CPSC has 

jurisdiction over all consumer products 

subject to a recall, and all such products 

must be dealt with in a corrective action 

plan, regardless of where the product is 

in the supply chain. For example, in a 

mandatory recall situation, a 

manufacturer holding product could not 

sell, modify, or destroy product without 

CPSC authorization. Stating the number 

of product units involved informs 

consumers as to the scope of a recall, 


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aids product identification, and 

increases recall effectiveness. 

Comment 26—Many comments 

address proposed §§ 1115.27(f) and (l) 

regarding a description of substantial 

product hazard and a description of the 

incidents, injuries and deaths. Several 

commenters agree that requiring a 

mandatory recall notice to describe and 

state the number of injuries and deaths 

is helpful to consumers and will 

motivate them to comply with the 

recall. Many commenters, however, 

state that specific information on 

injuries and deaths is unnecessary and 

irrelevant, or suggest that the rule 

should be further clarified to prevent 

the recall notice from becoming a 

lengthy, multi-paged document. One 

commenter states that proposed 

§ 1115.27(f) exceeds the scope of the 

intent of the CPSIA with regard to a 

description of the substantial product 

hazard and reason for action. This 

information may not be feasible for 

firms to provide and may be more 

misleading than informative because a 

firm may not know all of this 

information at the time of a recall. 

Further, several commenters state that 

reporting death statistics is outside the 

purpose of a recall, will not help 

consumers or their decision to 

participate in a recall, but will have an 

adverse effect on retailers and 

producers. 

Response—Sections 15(i)(2)(D) and 

(G) of the CPSA require that a 

mandatory recall notice include ‘‘[a] 

description of the substantial product 

hazard and the reasons for the action,’’ 

as well as ‘‘[t]he number and a 

description of any injuries or deaths 

associated with the product, the ages of 

any individuals injured or killed, and 

the dates on which the Commission 

received information about such injuries 

or deaths.’’ Accordingly, the statute and 

the final rule require both a description 

of the substantial product hazard and 

specific information on injuries and 

deaths, including the number, 

description and ages of persons 

involved. However, recall notices will, 

by necessity, only include information 

regarding a substantial product hazard 

and any injuries or deaths that are 

known at the time of the recall notice. 

The Commission also notes that it has 

renumbered § 1115.27(l) as § 1115.27(m) 

in the final rule. 

Comment 27—Some commenters 

request clarification on what constitutes 

an injury that requires reporting, what 

the phrase ‘‘associated with the product’’ 

in proposed § 1115.27(f) means, what 

‘‘product conditions or circumstances’’ 

can give rise to an injury or death 

related to a product, and what a 

‘‘concise summary’’ constitutes. For 

example, one commenter opines that the 

term ‘‘injury’’ should be defined to only 

include injuries which require medical 

treatment, and to exclude minor injuries 

such as superficial scrapes and bruises. 

This commenter states that defining 

‘‘injury’’ will make reporting consistent 

across recall notices. Another 

commenter states that ‘‘associated with 

the product’’ language could be 

interpreted broadly to require that all 

deaths or injuries be reported, even 

when there may be other causes, such 

as gross negligence or use contrary to 

warning labels. One commenter suggests 

that the rule address whether a 

manufacturer must list any death or 

injury, however tangential, or may 

qualify injuries where gross negligence 

and contrary use are involved. Finally, 

one commenter believes that requiring 

detailed information on injuries and 

deaths will expose firms to liability for 

acts that have not been proven in court 

to be causally linked to the products 

without providing any benefits to the 

consumer. Moreover, it could require 

corporations to implicate themselves 

criminally or civilly, in violation of the 

Fifth Amendment of the Constitution. 

Response—With regard to the types of 

injuries required to be reported on a 

recall notice, the Commission interprets 

the statutory requirement consistent 

with past agency practice with regard to 

reporting injuries on a recall notice, 

which is to include all injuries, 

regardless of whether a consumer 

sought medical treatment, where the 

consumer product is present at the time 

of the injury and may have been a 

contributing factor. 

A well-crafted recall notice does not 

necessarily subject a firm to increased 

product liability. The Commission’s 

mandate is public safety, and effective 

recall notices can play an important role 

in enhancing public safety. Allowing a 

defective product to stay on the market 

without providing the public with 

timely hazard and recall information 

would likely result in increased liability 

for non-compliant firms, not only from 

potential civil and criminal penalties by 

the Commission, but from product 

liability lawsuits as well. Finally, no 

concern exists that providing 

information on injuries and deaths in a 

recall notice impairs any Fifth 

Amendment right against selfincrimination, as the Fifth Amendment 

protects individuals, not corporate 

entities. See, e.g., Bellis v. United States, 

417 U.S. 85, 88–90 (1974) (reviewing 

history of decisions regarding the Fifth 

Amendment privilege and its 

inapplicability to corporations and 

stating that no artificial organization 

may utilize the personal privilege 

against self-incrimination to avoid 

producing corporate documents). 

Comment 28—Several comments 

would clarify the rule to allow reporting 

of injuries and age ranges in the 

aggregate. These commenters argue that 

reporting specific ages is not necessarily 

helpful for the consumer to evaluate the 

risks involved. Moreover, if the rule is 

interpreted to require a description of 

each injury and the age of each person, 

this could turn the recall notice into a 

lengthy, multi-page document that 

defeats the purpose of efficiently and 

effectively identifying the product, 

explaining the hazard, and 

communicating a remedy to consumers. 

Age ranges can be described in 

numbered ranges, or, for example, as 

adult, child, infant. One commenter 

opines that the number of injuries is not 

as important as the details of the 

injuries and deaths, to distinguish 

minor injuries from other types of harm. 

Response—Reporting of injuries and 

deaths, including the ages of individuals 

injured or killed, is statutorily required 

in a mandatory recall notice. Providing 

this information, however, need not 

result in a lengthy recall notice. 

Consumers and firms can find 

numerous examples of recall notices on 

the CPSC’s Web site, and note that when 

age and injury information is detailed, 

it does not result in lengthy, unreadable 

recall notices. The Commission or a 

court retains the flexibility to craft 

effective recall notices for particular 

recall scenarios which are in the best 

interest of the consumer. The exact 

wording of any recall notice cannot be 

done before the fact, and the 

Commission declines to adopt a 

specific, one size fits all, approach to 

how this information is presented for 

every recall notice. Firms should 

anticipate that aggregation of age 

information will be required in limited 

circumstances. 

Comment 29—One commenter states 

that information regarding injuries on 

exact dates can be considered 

confidential material supplied to staff 

under section 15(b) of the CPSA. 

Including such information in a recall 

notice would undermine confidentiality 

under section 6(b) of the CPSA and 

otherwise. Another commenter notes 

that the date of injury may be unrelated 

to when the consumer decides to report 

the injury and how accurately the injury 

is characterized. One commenter states 

that if the information must be 

provided, then the Commission should 

at least allow firms to provide a range 

of dates rather than exact dates, or a 

summary such as ‘‘prior to the time of 

this announcement.’’ Another 


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commenter, however, agrees that the 

recall notices should include the dates 

or date ranges when the Commission 

received information about deaths or 

injuries, and suggests that the 

Commission further require the dates or 

date ranges when the recalling firm 

received information about deaths or 

injuries. 

Response—Some commenters may 

misunderstand the statutory 

requirement with regard to reporting 

dates related to injuries. Neither the 

statute nor the rule require that a 

mandatory recall notice state the actual 

date that an injury or death occurred, or 

the actual date when a firm received 

information about an injury. Section 

15(i)(2)(G) of the CPSA requires that a 

mandatory recall notice include ‘‘the 

dates on which the Commission 

received information about such injuries 

or deaths.’’ (Emphasis added.) At 

minimum, a month and year must be 

reported as to when the Commission 

received such information. Accordingly, 

aggregation of the month and year may 

occur when necessary or appropriate to 

shorten the information presented on a 

recall notice while not sacrificing 

appropriate and statutorily required 

detail. For example, if the Commission 

learns of three injuries on three separate 

dates in a single month, a mandatory 

recall notice may provide the month 

and year in which these injuries were 

reported, presenting accurate 

information in a shortened format. 

However, the Commission or a court 

retains the flexibility to order the use of 

exact dates or the use of a range of dates 

by month and year, depending, among 

other things, on the number of injuries 

and the risk involved, if it is more 

helpful to consumers. 

Comment 30—One commenter 

suggests that information on injuries 

and deaths is a subpart of the section on 

substantial product hazard and should 

be moved under that section. 

Response—A description of the 

substantial product hazard and a 

description of the associated injuries 

and deaths are separate categories of 

information presented on a recall notice. 

Both the statute and the final rule 

separate these categories of information. 

See, e.g., sections 15(i)(2)(D) and (G) of 

the CPSA. The information presented 

under substantial product hazard is a 

short, factual statement regarding the 

actual or potential harm, i.e., choking, 

laceration, drowning, while the number 

and description of injuries reports 

actual injuries that have occurred. In 

some instances, for example, the risk of 

injury for choking may be present, but 

no reported injuries have occurred. 

Comment 31—Many comments 

address § 1115.27(h) regarding 

identification of manufacturers on a 

mandatory recall notice. A few 

comments are favorable, but many 

comments question the value of 

identifying a foreign manufacturer, and 

suggest that this information is 

confidential business information 

subject to trade secret protection. 

A few comments simply state that 

while the identification of 

manufacturers may be helpful to the 

CPSC, it is not helpful to a consumer 

and may be confusing with regard to 

who is responsible for the recall. Several 

commenters opine that not only is the 

information irrelevant to an effective 

recall and the stated goals of a recall 

notice under section 214 of the CPSIA, 

but the identity of foreign manufacturers 

is proprietary, confidential business 

information which should only be 

required to be provided to the 

Commission under trade secret 

protection. These commenters state that 

the CPSIA does not require 

identification of a foreign manufacturer, 

and that the name of the importer and 

country of origin should be sufficient. 

Moreover, publishing the name of 

foreign manufacturers can cause 

significant harm to a firm and is 

information not shared with 

competitors. Naming a foreign 

manufacturer may cause confusion to 

consumers, and unfairly place blame on 

foreign manufacturers when the 

problem, for example, may actually be 

with the design of the product. Finally, 

one commenter opines that information 

on the country of origin is not helpful 

to the consumer and detracts from the 

overall effectiveness of a recall notice. 

Such information may confuse 

consumers to believe that all products 

manufactured in a country are 

dangerous. 

Response—Section 15(i)(2)(E) of the 

CPSA requires that a mandatory recall 

notice shall include ‘‘[a]n identification 

of the manufacturers * * * of the 

product.’’ Section 3(a)(11) of the CPSA 

defines ‘‘manufacturer’’ as ‘‘any person 

who manufactures or imports a 

consumer product.’’ The term 

‘‘manufactured’’ means to ‘‘manufacture, 

produce, or assemble.’’ Section 3(a)(10) 

of the CPSA. A consumer product 

includes ‘‘any article, or component part 

thereof, produced or distributed’’ for 

sale to consumers. Section 3(a)(5) of the 

CPSA. Thus, any firm that 

manufactures, produces, assembles or 

imports a consumer product, or any 

component part thereof, may be 

characterized as a product 

manufacturer. As is often the case, a 

consumer product may have more than 

one manufacturer. This fact is 

acknowledged both by the statute, 

which employs the plural term 

‘‘manufacturers’’ and the rule, which 

provides that ‘‘[a] recall notice must 

identify each manufacturer (including 

importer) of the product and the country 

of manufacture.’’ 

The identity of a foreign manufacturer 

is not a trade secret or commercially 

sensitive information in every case. For 

example, many voluntary recall notices 

issued in the past identify a foreign 

manufacturer. In the context of a 

mandatory recall situation, whether 

identification of a foreign manufacturer 

is indeed trade secret, confidential 

information, and/or whether an 

exception to section 6 of the CPSA 

applies, will necessarily be litigated in 

the judicial or administrative 

proceeding. These issues require a factdependent, individualized analysis in 

every case; it is not something that 

could ever be decided broadly and 

apply to all manufacturers. To the 

extent that section 6 of the CPSA is 

applicable, the Commission 

acknowledges that it, and a firm, must 

comply with the law and any exceptions 

thereto. 

Comment 32—Another commenter 

opines that the rule is ambiguous as to 

whether different information is 

required from foreign and domestic 

manufacturers. The commenter would 

clarify the rule to state that a recall 

notice must identify a domestic 

manufacturer’s legal name, city, and 

state of headquarters, or if a foreign 

manufacturer is involved, identify the 

city and country of its headquarters (but 

omit the name of the company). Another 

commenter agrees that the manufacturer 

name and country of manufacture 

should be on the recall notice, but not 

the city and state of the headquarters. 

This commenter does not see any added 

benefit to the consumer to have this 

information. 

Response—The rule anticipates that 

many consumer products have both 

foreign and domestic manufacturers and 

importers, both of whom must be 

identified. The rule requires all 

manufacturers to be identified by their 

legal names. Additionally, domestic 

companies should be identified by the 

city and state of their headquarters, and 

foreign companies should be identified 

by the city and country of their 

headquarters. The Commission agrees 

that the language in the proposed rule 

was unclear with regard to what 

identifying information is required for 

foreign manufacturers. The final rule 

clarifies that foreign manufacturers must 

be identified by: (i) Legal name; (ii) city; 

and (iii) country of headquarters. 


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Comment 33—One commenter 

suggests that the Commission require a 

manufacturer’s Web site address to be 

listed with the identification 

information, in addition to name, trade 

name, city, and state, to facilitate recall 

information dissemination and allow 

consumers to access recall and remedy 

information via the company’s Web site. 

Response—The Commission declines 

to require that a manufacturer’s Web 

address be listed as identifying 

information in every mandatory recall 

notice. A Web address for recall 

information is already provided 

elsewhere on the recall notice. The 

manufacturer may or may not have a 

Web site and may or may not be the firm 

in charge of a recall. The Commission 

does not want consumers to be confused 

with regard to which entity is 

responsible for the recall, or to deluge 

the wrong firm with phone calls about 

a recall. 

Comment 34—One commenter 

suggests excluding small importers that 

are not the sole importer or retailer from 

any provision that allows them to be 

characterized as a ‘‘manufacturer’’ or 

‘‘significant retailer’’ for purposes of a 

recall, because the burden on small 

importers would be too great and they 

would not likely have the type of 

information available to manufacturers 

and retailers to implement a recall. 

However, another commenter observed 

that the burden on small businesses 

should not be great because there are 

few mandatory recalls. 

Response—Determining which firm is 

responsible for conducting a recall is 

outside the scope of the final rule, 

which focuses on guidelines and 

requirements for information categories 

to include in a mandatory recall notice. 

Comment 35—Many commenters 

request clarification of proposed 

§ 1115.27(i) with regard to identification 

of ‘‘significant retailers,’’ arguing that the 

rule is too vague regarding what criteria 

will be used to determine a ‘‘significant 

retailer.’’ 

One commenter opines that singling 

out retailers does not help to identify a 

product. This information is only 

relevant if the remedy is to return the 

product to the retailer, or if there is only 

one retailer. Moreover, several 

commenters prefer to keep the current 

system whereby no specific retailer is 

named, and the firm can rely on 

language such as ‘‘sold at department 

store and retail stores nationwide.’’ 

Response—Section 15(i)(2)(E) of the 

CPSA requires that a mandatory recall 

notice include ‘‘[a]n identification of the 

* * * significant retailers of the 

product.’’ Thus, the statute requires the 

identification of ‘‘significant’’ retailers 

but does not define ‘‘significant.’’ 

Comment 36—Several commenters 

believe the language regarding 

‘‘significant retailers’’ should be 

expanded to include all retailers, 

instead of just ‘‘significant’’ retailers. 

Many commenters state that if only a 

few retailers are listed, consumers may 

be confused and believe that their 

product is not at issue in the recall 

simply because the retailer they 

purchased the product from is not 

listed. Moreover, this scenario would 

leave out the majority of retailers where 

the products were actually purchased 

and may compromise dissemination of 

recall information to the majority of the 

consuming public. One commenter 

suggests that, in order to keep the notice 

short, the Commission should require 

the notice to state that the retailer list is 

not exhaustive and to provide a Web 

site address where the consumer can 

find an exhaustive list of retailers. 

Several commenters claim that, because 

the definition of ‘‘significant retailer’’ is 

so vague, firms will simply list all 

retailers to avoid non-compliance. 

These commenters argue that a long list 

of retailers will increase the length of 

the notice and make it difficult for 

consumers to obtain the information 

required for an effective recall. 

Response—Section 15(i)(2)(E) of the 

CPSA requires that a mandatory recall 

notice identify significant retailers of 

the product. Although the statute does 

not define ‘‘significant,’’ the Commission 

does not read it to mean identification 

of all retailers. While the Commission 

could identify all retailers on its Web 

site if it were in the interest of public 

safety, it declines to do so in every 

mandatory recall scenario. First, the 

statute requires identification of 

‘‘significant’’ retailers, not all retailers. 

Second, it is unclear whether requiring 

every mandatory recall notice to include 

an exhaustive list of retailers on the 

CPSC Web site would increase recall 

effectiveness or would be an efficient 

use of Commission resources. Such a 

requirement may become burdensome 

with no added value to consumers. 

Finally, listing significant retailers will 

not result in a lengthy recall notice 

because the Commission retains the 

discretion to control the substance, 

format, and organization of recall 

notices in the interest of consumer 

safety and recall effectiveness. 

Comment 37—Many commenters 

suggest that the concept of, and the 

criteria for, ‘‘significant retailer’’ be 

clarified and that § 1115.27(i)(5) should 

not contain a vague catch-all that allows 

the Commission to find a retailer 

significant if it ‘‘is in the public 

interest.’’ Many commenters request that 

the Commission set forth criteria the 

Commission will consider in 

determining what is in the public 

interest. 

Response—The Commission’s 

experience with recall notices and 

identification of retailers is that such 

information helps consumers to 

determine whether or not they may have 

the defective product. Accordingly, the 

rule provides four circumstances under 

which identifying a retailer may be 

helpful to consumers to identify a 

product: (i) An exclusive retailer; (ii) a 

retailer that is also an importer of the 

product; (iii) a retailer with national 

and/or regionally located stores; and (iv) 

a retailer that holds or sold a significant 

number of the defective products. The 

rule also provides the Commission, or a 

court, with the flexibility to determine 

that although a retailer may not fall into 

one of the four enumerated categories, 

circumstances may arise whereby 

designation of the retailer as 

‘‘significant’’ for a particular mandatory 

recall would help consumers identify 

the product. The final rule maintains 

this flexibility because: (i) It is not 

possible to anticipate every 

circumstance where listing a particular 

retailer may become helpful to 

consumers beforehand; and (ii) the 

Commission, under sections 15(c) and 

(d) of the CPSA, and a court, pursuant 

to section 12 of the CPSA, already have 

final authority over the form and 

content of mandatory recall notices. 

Such authority is not altered by section 

15(i) of the CPSA and the Commission 

declines to do so in the final rule. 

Comment 38—Some commenters state 

that the Commission failed to define 

‘‘regional retailer,’’ or ‘‘regionallylocated.’’ Accordingly, these 

commenters argue that the rule is too 

vague. 

Response—The term ‘‘regional’’ 

should be understood based on its 

ordinary and customary usage. For 

example, a regional chain could be 

located in one region of the state of 

California, it could comprise affiliated 

stores existing in an entire state, or it 

could comprise affiliated stores located 

in a group of states, or finally, stores 

located in one or more regions of the 

United States. 

Comment 39—Some commenters note 

that there are many situations where 

regional chains or ‘‘mom and pop’’ stores 

sell the majority of the products and 

collectively outsell a national retailer, 

but the national retailer may end up 

being named as a ‘‘significant retailer’’ 

because, compared to any one store, it 

may have sold more products. Several 

commenters observe that the rule, as 


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proposed, will likely result in a small 

number of national retailers being 

named in virtually every recall notice, 

which will dilute the purpose of the 

information. One commenter suggests 

addressing this problem by changing 

§ 1115.27(i)(4) from ‘‘a significant 

number of the total manufactured’’ to ‘‘a 

majority of the total manufactured.’’ 

This commenter believes that naming 

one retailer where a majority of the 

products were sold would be more 

helpful to the consumer than listing 

every ‘‘significant retailer.’’ 

Response—With regard to the idea 

that listing some, but not all, retailers 

will cause consumer confusion, this has 

not been the Commission’s experience. 

For example, a recall notice can list 

major retail outlets, but also explain that 

the list of retailers is not exhaustive. In 

a situation where Store A sold 40% of 

the defective product and more than 50 

smaller home centers and hardware 

stores sold the remaining 60%, a recall 

notice could employ additional, helpful 

language describing the types of stores 

where the product was sold without 

causing the notice to become unduly 

long and unreadable: ‘‘Product was sold 

nationwide at Store A and at home 

centers and hardware stores 

nationwide.’’ 

The Commission declines to adopt the 

suggestion that the required statutory 

term ‘‘significant’’ be modified to mean 

a ‘‘majority’’ of the products. The statute 

itself requires identification of 

‘‘significant’’ retailers. Many situations 

arise where there may be two or three 

retailers that sell 60% to 80% of the 

products. While no retailer individually 

sold a majority of the products, listing 

these retailers is helpful to consumers to 

determine whether or not they may have 

the defective product. 

Comment 40—One commenter would 

expand the description of retailers to 

include contractors, so that contractors 

must notify consumers when the 

materials were used in building 

projects. The commenter cited, as an 

example, the drywall situation, where 

the nature of the product makes it 

difficult for consumers to discern 

whether the defective product is in their 

home. 

Response—The Commission declines 

to include the term ‘‘contractors’’ in the 

description of retailers, but this does not 

preclude the fact that there may be 

situations when contractors may be 

considered to be retailers. Even if the 

Commission were to include contractors 

in the description of retailers, it would 

not address the commenter’s primary 

concern that contractors notify 

homeowners about the materials used in 

building projects. The statute at issue 

here, section 15(i) of the CPSA, does not 

impose any specific obligation on a 

retailer to notify consumers. Being listed 

as a ‘‘significant retailer’’ does not create 

any obligation on the part of retailers so 

listed; the information is present solely 

to assist consumers with product 

identification. 

Comment 41—One commenter opines 

that the dates of manufacture and sale 

under proposed § 1115.27(j) (now 

renumbered as § 1115.27(k) in the final 

rule) are too expansive. Manufacturers 

date code products by the date of 

manufacture, not the date of sale. 

Manufacturers often do not know the 

date a product first hits retail shelves. 

Providing more than manufacturing 

dates may be confusing to consumers. 

The current system of citing 

manufacturing dates by date code, or 

date of sale if known, has been 

successful. 

Response—Section 15(i)(2)(F) of the 

CPSA requires that a mandatory recall 

notice include ‘‘[t]he dates between 

which the product was manufactured 

and sold.’’ The statute thus requires both 

the dates of manufacture and the dates 

of sale. If a manufacturer does not have 

this information, it is expected that, 

where available, it may be provided by 

retailers or distributors. 

Comment 42—A few commenters 

suggest expanding the price requirement 

in proposed § 1115.27(k) (now 

renumbered as § 1115.27(l) in the final 

rule). One commenter would require 

suggested retail price, prices known to 

the manufacturer, and the highest and 

lowest retail price known. Another 

commenter suggests that the 

approximate price range is not helpful 

enough, and that the price range should 

be made specific for geographic 

locations. 

One commenter opines that a price 

should only be required when the 

remedy is a purchase price refund. 

Otherwise, this information is unhelpful 

and clutters the recall notice. 

Response—The Commission typically 

requires approximate price information 

in all recall notices to assist with 

product identification. We decline to 

require every price known to the 

manufacturer in every mandatory recall 

notice; the approximate price range is 

sufficient for product identification 

purposes, and to assist the consumer in 

understanding what the price refund 

may be. Further, providing a price range 

for each specific geographic location in 

every recall situation is not always 

practical. It is unclear whether such 

information will add sufficient value to 

the recall notice to offset the use of 

resources in every recall situation. The 

Commission retains the flexibility, 

however, to require more information 

on price if it would assist consumers. 

Comment 43—One commenter states 

that proposed § 1115.27(n) (now 

renumbered as § 1115.27(o) in the final 

rule) regarding ‘‘other information’’ that 

the Commission or a court may deem 

appropriate for inclusion in a recall 

notice should state what types of 

additional information may be required 

to put firms on notice. The commenter 

argues that without such clarification an 

aggrieved party may later argue that a 

requirement placed on it is burdensome 

and not contemplated by the rule. 

Accordingly, the commenter suggests 

that the rule clarify that § 1115.27 is 

exhaustive as can be currently 

contemplated, but that other 

requirements will be included as the 

situation demands. At a minimum, the 

rule should state that future 

requirements will be based on a fair 

assessment of the situation. 

Response—Section 15(i)(2)(I) of the 

CPSA provides that a mandatory recall 

notice must include ‘‘[o]ther information 

the Commission deems appropriate.’’ 

Moreover, when a mandatory recall 

notice is ordered by a court or the 

Commission, it has authority over the 

final form and content of the recall 

notice and can require additional 

information deemed appropriate in 

particular cases pursuant to sections 12, 

15(c) and 15(d) of the CPSA. Thus, the 

authority to include any other 

information the Commission deems 

appropriate in a mandatory recall notice 

does not solely originate from section 

15(i) of the CPSA. The rule reflects the 

Commission or a court’s inherent 

authority with regard to the form and 

content of mandatory recall notices, and 

the Commission declines to limit its 

own authority in the rule. 

6. Section 1115.28—Multiple Products 

or Models 

Proposed § 1115.28 would require the 

notice for each product or model 

covered by a recall notice to meet the 

requirements of this subpart. 

We received no comments on this 

provision and have finalized it without 

change. 

7. Section 1115.29—Final 

Determination Regarding Form and 

Content 

Comment 44—Most commenters 

support § 1115.29 which states that the 

Commission or the Court has the final 

determination as to the form and 

content of a recall notice. Consumer 

groups, in particular, support this rule 

to level the influence that firms have 

traditionally had over form and content. 

One commenter suggests imposing a 


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deadline on firms for disseminating the 

recall notice after Commission approval 

and immediate posting on the CPSC’s 

Web site after approval. One 

commenter, however, feels that the rule 

is vague and allows the CPSC excessive 

discretion with regard to recall form and 

content. This commenter suggests more 

specificity and criteria be inserted into 

the rule to create more uniform 

expectations for firms. Another 

commenter suggests imposing a 

deadline on the Commission’s approval 

process, and allowing firms to 

disseminate a recall notice if the 

Commission has not rejected or 

approved the proposed recall notice 

within the time frame in order to get 

recall information out to the public as 

soon as possible. 

Response—The Commission and/or a 

court have statutory authority to control 

the final form and content of mandatory 

recall notices. Mandatory recall notices 

must be approved by the Commission 

before they are disseminated. Sections 

15(c)(1) and 15(d)(2) of the CPSA. 

Nothing in section 15(i) of the CPSA or 

the final rule changes this control; the 

statute merely requires that the 

Commission provide guidance on a 

uniform set of information that firms 

can expect to find in a mandatory recall 

notice, as well as sets forth certain 

requirements for mandatory recall 

notices which can be altered by the 

Commission in particular recall 

scenarios as necessary or appropriate. 

Thus, the date of dissemination by both 

the CPSC and the firm is directed by the 

CPSC, and the CPSC posts all recall 

press notices on its Web site at http:// 

www.CPSC.gov after approval by the 

Commission. 

IV. Environmental Impact 

Generally, the Commission’s 

regulations are considered to ‘‘have little 

or no potential for affecting the human 

environment,’’ and environmental 

assessments and impact statements are 

not usually prepared. See 16 CFR 

1021.5(c). The final rule establishes 

requirements and guidelines for 

mandatory recall notices is not expected 

to have an adverse impact on the 

environment. Thus, the Commission 

concludes that no environmental 

assessment or environmental impact 

statement is required in this proceeding. 

V. Paperwork Reduction Act of 1995 

The rule does not impose information 

collection requirements. Rather, the rule 

sets forth a uniform set of information 

categories that are either statutorily 

required or provided as guidelines by 

the Commission for use in recall notices 

that are ordered by the Commission or 

a United States district court in 

individual enforcement actions under 

sections 12, 15(c) or 15(d) of the CPSA. 

Additionally, under 5 CFR 1320.4(a)(2), 

the Paperwork Reduction Act 

requirements do not apply to collections 

of information ‘‘during the conduct of a 

civil action to which the United States 

or any official or agency thereof is a 

party, or during the conduct of an 

administrative action * * * against 

specific individuals or entities.’’ 

Accordingly, it is not subject to the 

Paperwork Reduction Act, 44 U.S.C. 

3501 through 3520. 

VI. Executive Order 12988 

According to Executive Order 12988 

(February 5, 1996), agencies must state 

in clear language the preemptive effect, 

if any, of new regulations. The 

requirements and guidelines contained 

in the rule do not impact the States, as 

they only apply to mandatory recalls 

ordered by the Commission or a United 

States district court. Moreover, section 

26 of the CPSA with regard to 

preemption only addresses the 

preemptive effect of consumer product 

safety standards under the CPSA. The 

current rule is not a consumer product 

safety standard under the Act. 

Accordingly, the Commission has 

determined that this rule does not 

contain requirements or guidelines that 

impact the States. 

VII. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(‘‘RFA’’) generally requires that agencies 

review proposed rules for their potential 

economic impact on small entities, 

including small businesses. Section 603 

of the RFA calls for agencies to prepare 

and make available for public comment 

an initial regulatory flexibility analysis 

describing the impact of the proposed 

rule on small entities and identifying 

impact-reducing alternatives. 5 U.S.C. 

603. Section 605(b) of the RFA, 

however, states that this requirement 

does not apply if the head of the agency 

certifies that the rule will not, if 

promulgated, have a significant 

economic impact on a substantial 

number of small entities, and the agency 

provides an explanation for that 

conclusion. 

This final rule will have little or no 

effect on small businesses. First, this 

rule consists of guidelines (which do 

not require a regulatory flexibility 

analysis) and recall notice content 

requirements that are largely dictated by 

the CPSIA. Second, these guidelines and 

requirements apply in the context of an 

administratively adjudicated order to a 

specific party to issue a recall notice. 

Such mandatory recalls have occurred 

infrequently in the Commission’s 

history. Finally, the substantive 

authority for a court or the Commission 

to order that a mandatory recall notice 

issue comes from existing law, sections 

12, 15(c) and 15(d) of the CPSA, rather 

than the final rule. Therefore, the 

Commission concludes that the final 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

VIII. Effective Date 

In the preamble to the proposed rule, 

the Commission indicated that the final 

rule would be effective upon 

publication in the Federal Register 

based upon good cause shown (74 FR 

11885). However, in its vote to approve 

the issuance of the final rule, the 

Commission voted to follow the APA 

standard, codified at 5 U.S.C. 553(d), 

such that the effective date of the final 

rule is 30 days after publication in the 

Federal Register. 

List of Subjects in 16 CFR Part 1115 

Administrative practice and 

procedure, Business and industry, 

Consumer protection, Reporting and 

recordkeeping requirements. 

■ For the reasons stated above, the 

Commission amends chapter II of title 

16 of the Code of Federal Regulations as 

follows: 

PART 1115—SUBSTANTIAL PRODUCT 

HAZARD REPORTS 

■ 1. The authority citation for part 1115 

continues to read as follows: 

Authority: 15 U.S.C. 2061, 2064, 2065, 

2066(a), 2068, 2069, 2070, 2071, 2073, 2076, 

2079, and 2080. 

■ 2. Add a new Subpart C to read as 

follows: 

Subpart C—Guidelines and Requirements 

for Mandatory Recall Notices 

Sec. 

1115.23 Purpose. 

1115.24 Applicability. 

1115.25 Definitions. 

1115.26 Guidelines and policies. 

1115.27 Recall notice content requirements. 

1115.28 Multiple products or models. 

1115.29 Final determination regarding form 

and content. 

Subpart C—Guidelines and 

Requirements for Mandatory Recall 

Notices 

§ 1115.23 Purpose. 

(a) The Commission establishes these 

guidelines and requirements for recall 

notices as required by section 15(i) of 

the Consumer Product Safety Act, as 

amended (CPSA) (15 U.S.C. 2064(i)). 

The guidelines and requirements set 


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forth the information to be included in 

a notice required by an order under 

sections 12, 15(c), or 15(d) of the CPSA 

(15 U.S.C. 2061, 2064(c), or 2064(d)). 

Unless otherwise ordered by the 

Commission under section 15(c) or (d) 

of the CPSA (15 U.S.C. 2064(c) or (d)), 

or by a United States district court 

under section 12 of the CPSA (15 U.S.C. 

2061), the content information required 

in this subpart must be included in 

every such notice. 

(b) The Commission establishes these 

guidelines and requirements to ensure 

that every recall notice effectively helps 

consumers and other persons to: 

(1) Identify the specific product to 

which the recall notice pertains; 

(2) Understand the product’s actual or 

potential hazards to which the recall 

notice pertains, and information relating 

to such hazards; and 

(3) Understand all remedies available 

to consumers concerning the product to 

which the recall notice pertains. 

§ 1115.24 Applicability. 

This subpart applies to manufacturers 

(including importers), retailers, and 

distributors of consumer products as 

those terms are defined herein and in 

the CPSA. 

§ 1115.25 Definitions. 

In addition to the definitions given in 

section 3 of the CPSA (15 U.S.C. 2052), 

the following definitions apply: 

(a) Recall means any one or more of 

the actions required by an order under 

sections 12, 15(c), or 15(d) of the CPSA 

(15 U.S.C. 2061, 2064(c), or 2064(d)). 

(b) Recall notice means a notification 

required by an order under sections 12, 

15(c), or 15(d) of the CPSA (15 U.S.C. 

2061, 2064(c), or 2064(d)). 

(c) Direct recall notice means a 

notification required by an order under 

sections 12, 15(c), or 15(d) of the CPSA 

(15 U.S.C. 2061, 2064(c), or 2064(d)), 

that is sent directly to specificallyidentified consumers. 

(d) Firm means a manufacturer 

(including an importer), retailer, or 

distributor as those terms are defined in 

the CPSA. 

(e) Other persons means, but is not 

limited to, consumer safety advocacy 

organizations, public interest groups, 

trade associations, industry advocacy 

organizations, other State, local, and 

Federal government agencies, and the 

media. 

§ 1115.26 Guidelines and policies. 

(a) General. (1) A recall notice should 

provide sufficient information and 

motivation for consumers and other 

persons to identify the product and its 

actual or potential hazards, and to 

respond and take the stated action. A 

recall notice should clearly and 

concisely state the potential for injury or 

death. 

(2) A recall notice should be written 

in language designed for, and readily 

understood by, the targeted consumers 

or other persons. The language should 

be simple and should avoid or minimize 

the use of highly technical or legal 

terminology. 

(3) A recall notice should be targeted 

and tailored to the specific product and 

circumstances. In determining the form 

and content of a recall notice, the 

manner in which the product was 

advertised and marketed should be 

considered. 

(4) A direct recall notice is the most 

effective form of a recall notice. 

(5) At least two of the recall notice 

forms listed in subsection (b) should be 

used. 

(b) Form of recall notice—(1) Possible 

forms. A recall notice may be written, 

electronic, audio, visual, or in any other 

form ordered by the Commission in an 

order under section 15(c) or (d) of the 

CPSA (15 U.S.C. 2064(c) or (d)), or by 

a United States district court under 

section 12 of the CPSA (15 U.S.C. 2061). 

The forms of, and means for 

communicating, recall notices include, 

but are not limited to: 

(i) Letter, Web site posting, electronic 

mail, RSS feed, or text message; 

(ii) Computer, radio, television, or 

other electronic transmission or 

medium; 

(iii) Video news release, press release, 

recall alert, Web stream, or other form 

of news release; 

(iv) Newspaper, magazine, catalog, or 

other publication; and 

(v) Advertisement, newsletter, and 

service bulletin. 

(2) Direct recall notice. A direct recall 

notice should be used for each 

consumer for whom a firm has direct 

contact information, or when such 

information is obtainable, regardless of 

whether the information was collected 

for product registration, sales records, 

catalog orders, billing records, 

marketing purposes, warranty 

information, loyal purchaser clubs, or 

other such purposes. Direct contact 

information includes, but is not limited 

to, name and address, telephone 

number, and electronic mail address. 

Forms of direct recall notice include, 

but are not limited to, United States 

mail, electronic mail, and telephone 

calls. A direct recall notice should 

prominently show its importance over 

other consumer notices or mail by 

including ‘‘Safety Recall’’ or other 

appropriate terms in an electronic mail 

subject line, and, in large bold red 

typeface, on the front of an envelope 

and in the body of a recall notice. 

(3) Web site recall notice. A Web site 

recall notice should be on a Web site’s 

first entry point such as a home page, 

should be clear and prominent, and 

should be interactive by permitting 

consumers and other persons to obtain 

recall information and request a remedy 

directly on the Web site. 

(c) Languages. Where the Commission 

for purposes of an order under section 

15(c) or (d) of the CPSA (15 U.S.C. 

2064(c) or (d)), or a United States 

district court for purposes of an order 

under section 12 of the CPSA (15 U.S.C. 

2061), determines that it is necessary or 

appropriate to adequately inform and 

protect the public, a recall notice may 

be required to be in languages in 

addition to English. For example, it may 

be necessary or appropriate to require a 

recall notice be in a language in 

addition to English when a product 

label is in a language in addition to 

English, when a product is marketed in 

a language in addition to English, or 

when a product is marketed or available 

in a geographic location where English 

is not the predominant language. 

§ 1115.27 Recall notice content 

requirements. 

Except as provided in § 1115.29, every 

recall notice must include the 

information set forth below: 

(a) Terms. A recall notice must 

include the word ‘‘recall’’ in the heading 

and text. 

(b) Date. A recall notice must include 

its date of release, issuance, posting, or 

publication. 

(c) Description of product. A recall 

notice must include a clear and concise 

statement of the information that will 

enable consumers and other persons to 

readily and accurately identify the 

specific product and distinguish it from 

similar products. The information must 

enable consumers to readily determine 

whether or not they have, or may be 

exposed to, the product. To the extent 

applicable to a product, descriptive 

information that must appear on a recall 

notice includes, but is not limited to: 

(1) The product’s names, including 

informal and abbreviated names, by 

which consumers and other persons 

should know or recognize the product; 

(2) The product’s intended or targeted 

use population (e.g., infants, children, 

or adults); 

(3) The product’s colors and sizes; 

(4) The product’s model numbers, 

serial numbers, date codes, stock 

keeping unit (SKU) numbers, and 

tracking labels, including their exact 

locations on the product; 


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(5) Identification and exact locations 

of product tags, labels, and other 

identifying parts, and a statement of the 

specific identifying information found 

on each part; and 

(6) Product photographs. A firm must 

provide photographs. Each photograph 

must be electronic or digital, in color, of 

high resolution and quality, and in a 

format readily transferable with high 

quality to a Web site or other 

appropriate medium. As needed for 

effective notification, multiple 

photographs and photograph angles may 

be required. 

(d) Description of action being taken. 

A recall notice must contain a clear and 

concise statement of the actions that a 

firm is taking concerning the product. 

These actions may include, but are not 

limited to, one or more of the following: 

Stop sale and distribution in commerce; 

recall to the distributor, retailer, or 

consumer level; repair; request return 

and provide a replacement; and request 

return and provide a refund. 

(e) Statement of number of product 

units. A recall notice must state the 

approximate number of product units 

covered by the recall, including all 

product units manufactured, imported, 

and/or distributed in commerce. 

(f) Description of substantial product 

hazard. A recall notice must contain a 

clear and concise description of the 

product’s actual or potential hazards 

that result from the product condition or 

circumstances giving rise to the recall. 

The description must enable consumers 

and other persons to readily identify the 

reasons that a firm is conducting a 

recall. The description must also enable 

consumers and other persons to readily 

identify and understand the risks and 

potential injuries or deaths associated 

with the product conditions and 

circumstances giving rise to the recall. 

The description must include: 

(1) The product defect, fault, failure, 

flaw, and/or problem giving rise to the 

recall; and 

(2) The type of hazard or risk, 

including, by way of example only, 

burn, fall, choking, laceration, 

entrapment, and/or death. 

(g) Identification of recalling firm. A 

recall notice must identify the firm 

conducting the recall by stating the 

firm’s legal name and commonly known 

trade name, and the city and state of its 

headquarters. The notice must state 

whether the recalling firm is a 

manufacturer (including importer), 

retailer, or distributor. 

(h) Identification of manufacturers. A 

recall notice must identify each 

manufacturer (including importer) of 

the product and the country of 

manufacture. Under the definition in 

section 3(a)(11) of the CPSA (15 U.S.C. 

2052(a)(11)), a manufacturer means ‘‘any 

person who manufactures or imports a 

consumer product.’’ If a product has 

been manufactured outside of the 

United States, a recall notice must 

identify the foreign manufacturer and 

the United States importer. A recall 

notice must identify the manufacturer 

by stating the manufacturer’s legal name 

and the city and state of its 

headquarters, or, if a foreign 

manufacturer, the foreign 

manufacturer’s legal name and the city 

and country of its headquarters. 

(i) Identification of significant 

retailers. A recall notice must identify 

each significant retailer of the product. 

A recall notice must identify such a 

retailer by stating the retailer’s 

commonly known trade name. Under 

the definition in section 3(a)(13) of the 

CPSA (15 U.S.C. 2052(a)(13)), a retailer 

means ‘‘a person to whom a consumer 

product is delivered or sold for 

purposes of sale or distribution by such 

person to a consumer.’’ A product’s 

retailer is ‘‘significant’’ if, upon the 

Commission’s information and belief, 

and in the sole discretion of the 

Commission for purposes of an order 

under section 15(c) or (d) of the CPSA 

(15 U.S.C. 2064(c) or (d)), or in the sole 

discretion of a United States district 

court for purposes of an order under 

section 12 of the CPSA (15 U.S.C. 2061), 

any one or more of the circumstances 

set forth below is present (the 

Commission may require manufacturers 

(including importers), retailers, and 

distributors to provide information 

relating to these circumstances): 

(1) The retailer was the exclusive 

retailer of the product; 

(2) The retailer was an importer of the 

product; 

(3) The retailer has stores nationwide 

or regionally-located; 

(4) The retailer sold, or held for 

purposes of sale or distribution in 

commerce, a significant number of the 

total manufactured, imported, or 

distributed units of the product; or 

(5) Identification of the retailer is in 

the public interest. 

(j) Region. Where necessary or 

appropriate to assist consumers in 

determining whether they have the 

product at issue, a description of the 

region where the product was sold, or 

held for purposes of sale or distribution 

in commerce, must be provided. 

(k) Dates of manufacture and sale. A 

recall notice must state the month and 

year in which the manufacture of the 

product began and ended, and the 

month and year in which the retail sales 

of the product began and ended. These 

dates must be included for each make 

and model of the product. 

(l) Price. A recall notice must state the 

approximate retail price or price range 

of the product. 

(m) Description of incidents, injuries, 

and deaths. A recall notice must contain 

a clear and concise summary 

description of all incidents (including, 

but not limited to, property damage), 

injuries, and deaths associated with the 

product conditions or circumstances 

giving rise to the recall, as well as a 

statement of the number of such 

incidents, injuries, and deaths. The 

description must enable consumers and 

other persons to readily understand the 

nature and extent of the incidents and 

injuries. A recall notice must state the 

ages of all persons injured and killed. A 

recall notice must state the dates or 

range of dates on which the Commission 

received information about injuries and 

deaths. 

(n) Description of remedy. A recall 

notice must contain a clear and concise 

statement, readily understandable by 

consumers and other persons, of: 

(1) Each remedy available to a 

consumer for the product conditions or 

circumstances giving rise to the recall. 

Remedies include, but are not limited 

to, refunds, product repairs, product 

replacements, rebates, coupons, gifts, 

premiums, and other incentives. 

(2) All specific actions that a 

consumer must take to obtain each 

remedy, including, but not limited to, 

instructions on how to participate in the 

recall. These actions may include, but 

are not limited to, contacting a firm, 

removing the product from use, 

discarding the product, returning part or 

all of the product, or removing or 

disabling part of the product. 

(3) All specific information that a 

consumer needs in order to obtain each 

remedy and to obtain all information 

about each remedy. This information 

may include, but is not limited to, the 

following: Manufacturer, retailer, and 

distributor contact information (such as 

name, address, telephone and facsimile 

numbers, e-mail address, and Web site 

address); whether telephone calls will 

be toll-free or collect; and telephone 

number days and hours of operation 

including time zone. 

(o) Other information. A recall notice 

must contain such other information as 

the Commission for purposes of an 

order under section 15(c) or (d) of the 

CPSA (15 U.S.C. 2064(c) or (d)), or a 

United States district court for purposes 

of an order under section 12 of the 

CPSA (15 U.S.C. 2061), deems 

appropriate and orders. 


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1Section 14 of the Act establishes the 

Commission’s reparations program, which provides 

an ‘‘expeditious, inexpensive, and easy to use 

dispute resolution process, available to as many 

customers as possible.’’ Marianne K. Smythe, The 

Reparations Program of the Commodity Futures 

Trading Commission: Reducing Formality in 

Agency Adjudication, 2 Admin. L.J. 39, 40 (1988) 

(quoting Government Accounting Office Report, 

Reparations and Other Presently Available Forums 

for Resolution of Customer Claims, reprinted in 

CFTC Oversight: Hearings before the Subcomm. on 

Commerce, Consumer, and Monetary Affairs on the 

House Comm. on Government Operations, 97th 

Cong., 2d Sess. 861 app. 5 (1982)). 

2 Kenneth M. Raisler & Edward S. Geldermann, 

The CFTC’s New Reparation Rules: In Search of a 

Fair, Responsive, and Practical Forum for Resolving 

Commodity-Related Disputes, 40 Bus. Law 537, 540 

(1985). 

3 Id. 

§ 1115.28 Multiple products or models. 

For each product or model covered by 

a recall notice, the notice must meet the 

requirements of this subpart. 

§ 1115.29 Final determination regarding 

form and content. 

(a) Commission or court discretion. 

The recall notice content required by 

this subpart must be included in a recall 

notice whether or not the firm admits 

the existence of a defect or of an actual 

or potential hazard, and whether or not 

the firm concedes the accuracy or 

applicability of all of the information 

contained in the recall notice. The 

Commission will make the final 

determination as to the form and 

content of the recall notice for purposes 

of an order under section 15(c) or (d) of 

the CPSA (15 U.S.C. 2064(c) or (d)), and 

a United States district court will make 

the final determination as to the form 

and content of a recall notice for 

purposes of an order under section 12 

of the CPSA (15 U.S.C. 2061). 

(b) Recall notice exceptions. The 

Commission for purposes of an order 

under section 15(c) or (d) of the CPSA 

(15 U.S.C. 2064(c) or (d)), or a United 

States district court for purposes of an 

order under section 12 of the CPSA (15 

U.S.C. 2061), may determine that one or 

more of the recall notice requirements 

set forth in this subpart is not required, 

and will not be included, in a recall 

notice. 

(c) Commission approval. Before a 

firm may publish, broadcast, or 

otherwise disseminate a recall notice to 

be issued pursuant to an order under 

section 15(c) or (d) of the CPSA (15 

U.S.C. 2064(c) or (d)), the Commission 

must review and agree in writing to all 

aspects of the notice. 

Dated: January 13, 2010. 

Todd A. Stevenson, 

Secretary, United States Consumer Product 

Safety Commission. 

[FR Doc. 2010–873 Filed 1–20–10; 8:45 am] 

BILLING CODE 6355–01–P 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Part 12 

Commission Guidance Concerning the 

Rules of Practice Relating to 

Reparations 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Statement of policy. 

SUMMARY: The Commodity Futures 

Trading Commission (‘‘Commission’’ or 

‘‘CFTC’’) is issuing this policy statement 

to clarify and provide guidance to 

Commission staff and affected parties 

that Commission Rule 12.1(a), 17 CFR 

12.1(a), requires that all rules of practice 

relating to reparation proceedings under 

17 CFR part 12 ‘‘shall be construed 

liberally so as to secure the just, speedy 

and inexpensive determination of the 

issues presented with full protection for 

the rights of all parties.’’ 

DATES: Effective Date: This Statement of 

Policy is effective January 21, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Edwin J. Yoshimura, Office of General 

Counsel, Commodity Futures Trading 

Commission, 525 West Monroe Street, 

Suite 1100, Chicago, IL 60661. 

Telephone: (312) 596–0562. E-mail: 

eyoshimura@cftc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Under Section 14(a) of the 

Commodity Exchange Act, as amended, 

(‘‘Act’’), 7 U.S.C. 18(a), any person 

complaining of a violation of the Act or 

any rule, regulation, or order 

thereunder, by any person registered or 

required to be registered with the 

Commission, may file a complaint with 

the Commission seeking an award of 

damages.1

On January 22, 1976, the Commission 

issued its original ‘‘Rules Relating to 

Reparation Proceedings.’’ 2 17 CFR part 

12. These rules originally were intended 

to conform to the procedural 

requirements of the Administrative 

Procedure Act (‘‘APA’’), as well as the 

guidelines established by section 14 of 

the Act.3

On January 11, 1983, Section 14(b) of 

the Act, 7 U.S.C. 18(b) was amended, 

effective May 11, 1983, to authorize the 

Commission to ‘‘promulgate such rules, 

regulations and orders as it deems 

necessary or appropriate for the efficient 

administration of this section.’’ Congress 

conferred this broad discretion upon the 

Commission ‘‘[t]o enable the 

Commission to simplify its rules of 

procedure regarding reparations and 

streamline the process,’’ H.R. Rep. No. 

565, 97th Cong., 2d Sess. 55 (1982). In 

addition, the amendments to Section 

14(b) were intended to authorize the 

Commission ‘‘to use its best judgment in 

fashioning appropriate procedures that 

will be both fair and efficient.’’ Id. 

II. Statement of Policy 

Currently, Rule 12.1(a), 17 CFR 

12.1(a), provides that ‘‘[t]he rules in [17 

CFR Part 12] shall be construed liberally 

so as to secure the just, speedy and 

inexpensive determination of the issues 

presented with full protection for the 

rights of all parties.’’ 

The Commission generally has 

maintained a longstanding policy of 

liberally construing its Part 12 

Reparation Rules. We have restated that 

policy in several decisions: 

As we said in Wade v. Chevalier, 

[2007–2009 Transfer Binder] Comm. 

Fut. L. Rep. (CCH) ¶ 30,781 at 61,680 

(CFTC Feb. 27, 2008), ‘‘Congress created 

the reparation forum as an informal 

venue and decreed that parties are not 

to be subjected to strict rules found in 

the courts.’’ In Sommer v. 

Conticommodity Services, Inc., [1987– 

1990 Transfer Binder] Comm. Fut. L. 

Rep. (CCH) ¶ 24,244 at 35,106 (CFTC 

May 20, 1988), we also said, that 

‘‘Congress[] inten[ded] that the 

reparations program provide a more 

flexible and informal forum than that 

available in court * * *.’’ Further, in 

Cook v. Monex International, Ltd., 

[1984–1986 Transfer Binder] Comm. 

Fut. L. Rep. (CCH) ¶ 22,532 at 30,295 

(CFTC Mar. 19, 1985) (citations to 

legislative history omitted), we held that 

‘‘[a]s remedial legislation, the 

reparations procedure should be 

liberally interpreted to effectuate that 

congressional purpose.’’ 

We stated elsewhere that the 

complexities and formalities of district 

court litigation are not involved in the 

reparation program. Nelson v. Chilcott 

Commodities Corp., [1982–1984 

Transfer Binder] Comm. Fut. L. Rep. 

(CCH) ¶ 21,934 at 28,033 (CFTC Dec. 12, 

1983). Furthermore, ‘‘[t]o remain 

inexpensive, the reparations forum 

must, at a minimum, remain hospitable 

to the participation of pro se parties.’’ 

Hall v. Diversified Trading Systems, 

Inc., [1992–1994 Transfer Binder] 

Comm. Fut. L. Rep. (CCH) ¶ 26,131 at 

41,751 (CFTC July 7, 1994). ‘‘As a result, 

we have recognized that allowances 

must be made for pro se status in 

interpreting and applying procedural 

requirements.’’ Id. 

Recently, we said in Moss-Thomas v. 

East Coast Commodities: 


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