10712 Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 

information subject to the requirements of 

the Paperwork Reduction Act unless that 

collection of information displays a current 

valid OMB Control Number. The OMB 

Control Number for this information 

collection is 2120–0056. Public reporting for 

this collection of information is estimated to 

be approximately 5 minutes per response, 

including the time for reviewing instructions, 

completing and reviewing the collection of 

information. All responses to this collection 

of information are mandatory. Comments 

concerning the accuracy of this burden and 

suggestions for reducing the burden should 

be directed to the FAA at: 800 Independence 

Ave. SW., Washington, DC 20591, Attn: 

Information Collection Clearance Officer, 

AES–200. 

(h) Special Flight Permit 

We are allowing special flight permits with 

the following limitations: 

(1) Essential crew only; 

(2) Minimum weight; 

(3) Limit ‘‘G’’ loading to minimum; and 

(4) Most direct flight to repair center. 

(i) Related Information 

Refer to MCAI Japan Civil Aviation Bureau 

(JCAB) AD No. TCD–8231–2013, dated 

August 6, 2013, for related information. You 

may examine the MCAI on the Internet at 

http://www.regulations.gov by searching for 

and locating it in Docket No. FAA–2014– 

0108. For service information related to this 

AD, contact Mitsubishi Heavy Industries 

America, Inc. c/o Turbine Aircraft Services, 

Inc., 4550 Jimmy Doolittle Drive, Addison, 

Texas 75001; telephone: (972) 248–3108, ext. 

209; fax: (972) 248–3321; Internet: http://mu2aircraft.com. You may review this 

referenced service information at the FAA, 

Small Airplane Directorate, 901 Locust, 

Kansas City, Missouri 64106. For information 

on the availability of this material at the 

FAA, call (816) 329–4148. 

Issued in Kansas City, Missouri, on 

February 20, 2014. 

Earl Lawrence, 

Manager, Small Airplane Directorate, Aircraft 

Certification Service. 

[FR Doc. 2014–04146 Filed 2–25–14; 8:45 am] 

BILLING CODE 4910–13–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1101 

[CPSC Docket No. CPSC–2014–0005] 

Information Disclosure Under Section 

6(b) of the Consumer Product Safety 

Act 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Consumer Product Safety 

Commission (Commission, CPSC, or we) 

is issuing this notice of proposed 

rulemaking (NPR) to update the 

regulation that interprets section 6(b) of 

the Consumer Product Safety Act 

(CPSA). In 1983, the Commission issued 

a regulation interpreting the provisions 

of section 6(b) of the CPSA, and we are 

proposing to modernize that regulation 

to account for the significant 

improvements in information 

technology that have occurred since the 

regulation’s adoption. We are also 

proposing to streamline the regulation 

to be as closely aligned with section 6(b) 

as possible, while maintaining our 

compliance with the statutory 

requirements and the protections of 

section 6(b)(5) for information filed in 

accordance with the requirements of 

section 15(b) of the CPSA. This NPR 

seeks comments on the proposed 

changes to the regulation. 

DATES: Written comments must be 

received by April 28, 2014. 

ADDRESSES: You may submit comments, 

identified by Docket No. CPSC–2014– 

0005, by any of the following methods: 

Electronic Submissions 

Submit electronic comments in the 

following way: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

The Commission is no longer 

accepting comments submitted by 

electronic mail (email), except through: 

http://www.regulations.gov. 

Written Submissions 

Submit written submissions in the 

following way: 

Mail/Hand delivery/Courier (for 

paper, disk, or CD–ROM submissions), 

preferably in five copies, to: Office of the 

Secretary, U.S. Consumer Product 

Safety Commission, 4330 East West 

Highway, Bethesda, MD 20814–4408; 

telephone (301) 504–7923. 

Instructions: All submissions received 

must include the agency name and 

docket number for this proposed rule. 

All comments received may be posted 

without change, including any personal 

identifiers, contact information, or other 

personal information provided to: 

http://www.regulations.gov. Do not 

submit confidential business 

information, trade secret information, or 

other sensitive or protected information 

electronically. Such information should 

be submitted in writing, with the 

sensitive portions clearly identified. 

Docket: For access to the docket to 

read background documents or 

comments received, go to: http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Todd A. Stevenson, Secretariat, Office 

of the Secretary, U.S. Consumer Product 

Safety Commission, 4330 East West 

Highway, Bethesda, MD 20814–4408; 

telephone (301) 504–6836; 

tstevenson@cpsc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 6(b) of the CPSA governs 

information disclosure by the 

Commission to the public. When 

disclosing information, the Commission, 

to the extent practicable, shall notify 

each manufacturer or private labeler of 

information to be disclosed that 

‘‘pertains’’ to a consumer product, if the 

information ‘‘will permit the public to 

ascertain readily the identity of [the] 

manufacturer or private labeler’’ of the 

product. 15 U.S.C. 2055(b). Section 

6(b)(1) also requires the Commission to 

‘‘take reasonable steps to assure’’ that 

the information to be disclosed ‘‘is 

accurate, and that [its] disclosure is fair 

in the circumstances and reasonably 

related to effectuating the purposes of 

[the CPSA].’’ Id. In 1980, the U.S. 

Supreme Court ruled that disclosures 

under the Freedom of Information Act 

(FOIA) are covered by the section 6(b)(1) 

restrictions. Consumer Product Safety 

Commission v. GTE Sylvania, Inc., 447 

U.S. 102 (1980). 

On December 29, 1983, we published 

a final rule interpreting section 6(b) of 

the CPSA. 48 FR 57430. The rule, 16 

CFR part 1101, describes our procedures 

for providing manufacturers and private 

labelers with advance notice and ‘‘a 

reasonable opportunity to submit 

comments’’ to the Commission on 

proposed disclosures of product-specific 

information. The rule also explains the 

‘‘reasonable steps’’ we will take 

pursuant to section 6(b) to assure, prior 

to public disclosure of product-specific 

information, that (1) the information is 

accurate; (2) disclosure of the 

information is fair in the circumstances; 

and (3) disclosure of the information is 

reasonably related to effectuating the 

purposes of the statutes the Commission 

administers. 

The Consumer Product Safety 

Improvement Act of 2008 (CPSIA), 

Public Law 110–314, 122 Stat. 3016, 

enacted on August 14, 2008, amended 

section 6 of the CPSA. The amendments 

shortened the time periods from 30 to 

15 days for manufacturers and private 

labelers to receive advance notice and 

have an opportunity to comment on any 

disclosure to the public of productspecific information. In addition, the 

amendments eliminated the 

requirement that the Commission 

publish a Federal Register notice when 

the Commission makes a finding that 

the public health and safety necessitates 

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Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 10713 

1The Commission voted 2–1 to approve the 

Proposed Rule as amended. 

public disclosure within a lesser period 

of notice than required by section 

6(b)(1). The amendments also 

broadened the statutory exceptions to 

section 6(b). For example, the 

amendments excluded from section 6(b) 

the public disclosure of information 

with respect to a consumer product 

which the Commission has reasonable 

cause to believe is in violation of any 

consumer product safety rule or 

provision under the CPSA or similar 

rule or provision of any other Act 

enforced by the Commission. On 

November 28, 2008, we published a 

final rule to reflect these statutory 

amendments. 73 FR 72335. 

On May 3, 2013, the Commission 

voted (2–1) to approve, with changes, 

the Fiscal Year 2013 Midyear Review 

and Operating Plan Adjustments (FY 

2013 Midyear Adjustments), which 

directed staff to present for Commission 

consideration, an NPR updating the rule 

in accordance with the following 

guiding principles: 

1. Modernize the rule to account for 

the significant advancements in 

information technology that have taken 

place since its initial adoption in 1983; 

2. streamline the rule to be as closely 

aligned with 15 U.S.C. 2055(b) as 

possible, with the objectives of (a) 

eliminating unnecessary administrative 

burdens to the agency, (b) removing 

extra-statutory requirements, (c) 

eliminating redundancies in providing 

notice, (d) minimizing Freedom of 

Information Act (FOIA) backlogs, and 

(e) maximizing transparency and 

openness in our disclosure of 

information; 

3. maintain CPSC’s compliance with 

the statutory requirements of 15 U.S.C. 

2055(b) (i.e., requirements related to 

notice, opportunity to submit 

comments, and taking reasonable steps 

to assure accuracy, fairness in the 

circumstances, and reasonable relation 

to effectuating the purposes of the CPSA 

outlined in 15 U.S.C. 2051(b)); and 

4. maintain the protections of 15 

U.S.C. 2055(b)(5) for information filed 

in accordance with the requirements of 

15 U.S.C. 2064(b) (e.g., Section 15(b) 

reports). 

See http://www.cpsc.gov//Global/ 

Newsroom/FOIA/Records-ofCommission-Action-and-MeetingMinutes/

RCAFY13MidyearReviewandOperating

PlanAdjustments%20050313.pdf. The 

Commission is proposing this 

amendment to update the rule in 

accordance with the principles specified 

in the FY 2013 Midyear Adjustments. 

This proposed amendment also contains 

technical revisions, including 

typographical and citation corrections, 

and changes to conform the rule to the 

statute.1

II. Description of the Proposed Rule 

The proposal would amend Title 16 of 

the Code of Federal Regulations: Part 

1101, titled ‘‘Information Disclosure 

Under Section 6(b) of the Consumer 

Product Safety Act.’’ We describe each 

proposed amendment in detail 

immediately below. 

1. Proposed Changes to the Table of 

Contents 

In § 1101.12, remove: ‘‘Commission 

must disclose information to the public’’ 

and in its place, add: ‘‘Definition of 

‘‘public’’.’’ 

2. Proposed Changes to § 1101.1 

(General background.) 

Section 1101.1(b) sets forth the 

statutory requirements on which the 

regulation is based. Currently, the last 

sentence of § 1101.1(b)(1) states: 

‘‘Additional limitations on the 

disclosure of information reported to the 

Commission under section 15(b) of the 

CPSA are established in section 6(b)(5).’’ 

Pursuant to section 6(b)(5), the 

Commission shall not disclose to the 

public information submitted to the 

Commission under section 15(b) of the 

CPSA. The section 6(b)(5) limitations, 

however, do not apply to the public 

disclosure of: 

1. Information with respect to a 

consumer product which is the subject 

of an action brought under section 12; 

2. information with respect to a 

consumer product which the 

Commission has reasonable cause to 

believe is in violation of any consumer 

product safety rule or provision under 

the CPSA or similar rule or provision of 

any other Act enforced by the 

Commission; or 

3. information in the course of or 

concerning a judicial proceeding. 

Accordingly, we propose clarifying the 

last sentence of § 1101.1(b)(1) to state: 

‘‘Section 6(b)(5) creates additional 

limitations, as well as exceptions to 

these limitations, on the disclosure of 

information reported to the Commission 

under section 15(b) of the CPSA.’’ 

In addition, we propose the following 

technical changes to § 1101.1: 

A. In § 1101.1(b)(1), insert: ‘‘calendar’’ 

between ‘‘15’’ and ‘‘days’’. 

B. In § 1101.1(b)(1), remove: 

‘‘Exceptions to these requirements are 

established in section 6(b)(4)’’ and in its 

place, add: ‘‘Section 6(b)(4) establishes 

exceptions to these requirements’’. 

C. In the last sentence of § 1101.1(c), 

remove: ‘‘April 27, 1983’’ and in its 

place, add: ‘‘January 16, 2003.)’’. 

3. Proposed Changes to § 1101.2 

(Scope.) 

We propose the following technical 

changes to § 1101.2: 

A. Remove the statutory citation: 

‘‘2085’’ and in its place, add: ‘‘2089’’. 

B. Remove the statutory citation: 

‘‘1476’’ and in its place, add: ‘‘1477’’. 

C. Remove the statutory citation: 

‘‘1276’’ and in its place, add: ‘‘1278a’’. 

D. Remove: ‘‘These provisions are 

now applicable to the Virginia Graeme 

Baker Pool and Spa Safety Act, 15 

U.S.C. 8003(a); and the Children’s 

Gasoline Burn Prevention Act § 2(a), 

Public Law 110–278, 122 Stat. 2602 

(July 17, 2008)’’ and in its place, add: 

‘‘These provisions also apply to the 

Child Safety Protection Act 101 and 

102, Public Law 103–267, 108 Stat. 722 

(June 16, 1994) (CSPA); the Virginia 

Graeme Baker Pool and Spa Safety Act, 

15 U.S.C. 8003(a) (VGBA); and the 

Children’s Gasoline Burn Prevention 

Act 2(a), Public Law 110–278, 122 Stat. 

2602 (July 17, 2008) (CGBPA)’’. 

4. Proposed Changes to § 1101.11 

(General Application of Provisions of 

Section 6(b)(1).) 

Section 1101.11(a) sets forth 

information subject to section 6(b)(1) of 

the CPSA. Section 6(b)(1) requires the 

Commission to provide notice and an 

opportunity to comment to each 

manufacturer or private labeler if the 

manner in which a consumer product is 

designated or described in the 

information proposed for disclosure 

‘‘will permit the public to ascertain 

readily the identity of such 

manufacturer or private labeler’’ 

(emphasis added). Currently, 

§ 1101.11(a)(1) deviates from the 

statutory language, stating: ‘‘The 

information must pertain to a specific 

product which is either designated or 

described in a manner which permits its 

identity to be ascertained readily by the 

public.’’ We propose revising this 

provision to conform to the language 

contained in section 6(b)(1). 

Specifically, section 6(b)(1) requires 

notice and an opportunity to comment 

only if the identity of the manufacturer 

or private labeler can be ascertained 

readily by the public. Section 6(b)(1) 

does not require that the identity of the 

product be ascertained readily by the 

public. Therefore, to be as closely 

aligned with the statutory language as 

possible, we propose removing from 

§ 1101.11(a)(1) the phrase: ‘‘which is 

either designated or described in a 

manner which permits its identity to be 

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10714 Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 

ascertained readily by the public’’. 

Proposed § 1101.11(a) would state: ‘‘(1) 

The information must pertain to a 

specific product.’’ 

Currently, § 1101.11(a)(2) states: ‘‘The 

information must be obtained, generated 

or received by the Commission as an 

entity or by individual members, 

employees, agents, contractors or 

representatives of the Commission 

acting in their official capacities.’’ This 

statement differs from the language in 

section 6(b). Section 6(b) applies to the 

‘‘public disclosure of any information 

obtained under this Act, or to be 

disclosed to the public in connection 

therewith.’’ 15 U.S.C. 2055(b). We 

propose revising § 1101.11(a)(2) to state: 

‘‘The information must be obtained 

under the acts the Commission 

administers, or be disclosed to the 

public in connection therewith.’’ 

Although the Commission would be 

conforming our regulation to relevant 

statutory language with this change, 

there is no expectation that it would 

reduce the scope of information subject 

to 6(b) requirements. 

Section 1101.11(b) sets forth 

information not subject to the 

requirements of section 6(b)(1). 

Currently, § 1101.11(b)(1) states: 

‘‘Information described in the 

exclusions contained in section 6(b)(4) 

of the CPSA (see subpart E of this rule).’’ 

As discussed above, in § 1101.1, section 

6(b)(5)’s limitations on the disclosure of 

information reported to the Commission 

under section 15(b) of the CPSA do not 

apply to the public disclosure of: 

1. Information with respect to a 

consumer product which is the subject 

of an action brought under section 12; 

2. information with respect to a 

consumer product which the 

Commission has reasonable cause to 

believe is in violation of any consumer 

product safety rule or provision under 

the CPSA or similar rule or provision of 

any other act enforced by the 

Commission; or 

3. information in the course of or 

concerning a judicial proceeding. 

We propose revising § 1101.11(b)(1) to 

clarify that the requirements of section 

6(b)(1) do not apply to these exceptions. 

Proposed § 1101.11(b)(1) would state: 

‘‘Information described in the 

exclusions contained in section 6(b)(4) 

or (b)(5) of the CPSA (see subpart E and 

G of this rule).’’ 

In addition to specifying these 

exceptions in the rule, we are proposing 

to include three other categories of 

information not subject to the 

requirements of section 6(b). Not only 

will these additions conform to new 

statutory requirements established by 

the CPSIA, but the additions also will 

maximize transparency and openness in 

our disclosure of information. 

Therefore, we propose adding the 

following three categories to the list of 

information not subject to the notice 

and comment requirements of section 

6(b)(1): 

1. A report of harm posted on the 

publicly available consumer product 

safety information database. 

2. information that is publicly 

available. 

3. information that is substantially the 

same as information that the 

Commission previously disclosed in 

accordance with section 6(b)(1), except 

as specified in § 1101.31(d). 

Section 6A(f)(1) of the CPSA 

specifically excludes reports of harm 

posted on the publicly available 

consumer product safety information 

database from the provisions of section 

6(b). To reflect this statutory exclusion, 

we propose revising § 1101.11(b) to 

include the following category: ‘‘(6) A 

report of harm posted on the publicly 

available consumer product safety 

information database pursuant to 

section 6A of the CPSA, 15 U.S.C. 

2055a.’’ 

Section 6(b) is intended to provide 

firms with a review process before the 

Commission discloses to the public 

information obtained by the 

Commission under the CPSA. 

Information already in the public 

domain has not been obtained by the 

Commission under the CPSA, nor 

would the section 6(b) process serve any 

purpose with respect to information 

already disclosed other than by the 

Commission. Neither the statute nor the 

legislative history suggests that 

information that is readily available to 

the public is, or should be, subject to 

section 6(b)(1). To increase 

transparency, we propose revising 

§ 1101.11(b) to include the following 

category: ‘‘(7) Information that is 

publicly available or that has been 

disseminated in a manner intended to 

reach the public in general, such as 

news reports; articles in academic and 

scientific journals; press releases 

distributed through news or wire 

services; or information that is available 

on the Internet.’’ 

This revision in the proposed rule, 

however, does not change the 

Commission’s obligations under both 

existing CPSC policy and federal law to 

assure that information disclosed by the 

CPSC to the public is accurate (CPSC 

Order 1450.2, Jan. 16 2003) and 

presented in an accurate, clear, 

complete, and unbiased manner. 

(Information Quality Act, Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 sec. 515, Pub. 

L. 106–554, 144 Stat. 2763 (2001) and 

OMB Guidelines 67 FR 8452 (Feb. 22, 

2002)). The Commission also notes that 

other federal health and safety agencies 

that do not operate under section 6(b)’s 

legal restrictions still generally 

coordinate the release of information 

identifying specific manufacturers with 

those manufacturers. These agencies do 

this in the name of assuring accuracy 

and fairness—concepts that the 

Commission endorses even absent the 

restrictions contained in section 6(b). 

We also propose adding to the list of 

information that is not subject to section 

6(b)(1) information that is substantially 

the same as information that the 

Commission previously disclosed in 

accordance with section 6(b)(1). Section 

6(b) does not require a new notice and 

comment process when the agency rediscloses information as to which 

appropriate notice already has been 

conveyed and applicable procedures 

followed. 

Although renotification is not 

statutorily required, firms currently may 

request renotification, or the 

opportunity to comment on subsequent 

disclosures of identical information. See 

16 CFR 1101.21(b)(7), 1101.31(d). The 

purpose of renotification was to provide 

firms with another occasion to submit 

substantive comments on information 

that the Commission previously 

released in accordance with the 

requirements of section 6(b). 

Our review of the 6(b) process and 

firms’ comments, however, reveals that 

few firms request renotification or 

provide substantive claims concerning 

accuracy, fairness, or reasonable relation 

to effectuating the purposes of the 

statutes the Commission administers for 

the staff to evaluate prior to releasing 

the information. For example, in 

calendar year 2012, approximately 25 

percent of firms that received an initial 

notice requested renotification. During 

the same period, the Commission 

renotified firms on 40 separate 

occasions. In the majority of these cases, 

the firms never responded, responded 

but did not provide any comments on 

the information, or simply repeated the 

same claims that they submitted in 

response to the initial notice without 

providing any additional information 

for the staff to evaluate. Renotification 

thus generally has not resulted in new 

substantive input to staff [nor has the 

renotification process yielded redisclosures that are handled differently 

from initial disclosures]. In short, 

renotification in practice duplicates the 

initial notification process and result. 

As a result, and in light of the absence 

of any statutory requirement for 

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Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 10715 

renotification, we propose removing this 

provision from the regulation. 

Of course, if a firm subsequently 

discovers new information that is 

relevant to information the Commission 

previously released, such as a reported 

incident, the firm may supplement its 

initial comments to the Commission. In 

addition, the requirements of section 

6(b)(1) will apply if the Commission has 

reason to question the accuracy of the 

information proposed for a subsequent 

release, as specified in the proposed 

revision to § 1101.31(d). Therefore, we 

propose revising § 1101.11(b) to include 

the following category: ‘‘(8) Information 

that is substantially the same as 

information that the Commission 

previously disclosed in accordance with 

section 6(b)(1), except as specified in 

§ 1101.31(d).’’ 

In addition, we propose the following 

technical and conforming changes to 

§ 1101.11: 

A. In § 1101.11(a)(3), remove: ‘‘The 

Commission or its members, employees, 

agents or representatives must propose 

to disclose the information to the public 

(see § 1101.12)’’ and in its place, add: 

‘‘The Commission, any member of the 

Commission, or any employee, agent, or 

representative, including contractor, of 

the Commission in an official capacity 

must propose to disclose the 

information to the public (see 

§ 1101.12)’’. 

B. In § 1101.11(b)(2), remove the 

statutory citation: ‘‘2068(b)’’ and in its 

place, add: ‘‘2067(b)’’. 

C. In § 1101.11(b)(2), remove the 

regulatory citation: ‘‘16 CFR part 1017’’ 

and in its place, add: ‘‘16 CFR part 

1019’’. 

5. Proposed Changes to § 1101.12 

(Commission Must Disclose Information 

to the Public) 

We propose the following technical 

and conforming changes to § 1101.12: 

A. Remove the heading: ‘‘Commission 

must disclose information to the public’’ 

and in its place, add: ‘‘Definition of 

‘‘public’’.’’ 

B. In § 1101.12(a), remove: ‘‘Members, 

employees, agents, representatives and 

contractors of the Commission, in their 

official capacity’’ and in its place, add: 

‘‘Any member of the Commission or any 

employee, agent, or representative, 

including contractor, of the Commission 

in an official capacity’’. 

C. In § 1101.12(d), remove: ‘‘whom’’ 

and in its place, add: ‘‘which’’. 

D. In § 1101.12(f), remove: ‘‘Federal’’ 

and in its place, add: ‘‘federal’’ 

wherever ‘‘Federal’’ appears. 

E. In § 1101.12(f), remove: ‘‘whom’’ 

and in its place, add: ‘‘which’’. 

6. Proposed Changes to § 1101.13 

(Public Ability to Ascertain Readily 

Identity of Manufacturer or Private 

Labeler) 

Currently, § 1101.13 states: ‘‘The 

advance notice and analysis provisions 

of section 6(b)(1) apply only when a 

reasonable person receiving the 

information in the form in which it is 

to be disclosed and lacking specialized 

expertise can readily ascertain from the 

information itself the identity of the 

manufacturer or private labeler of a 

particular product. The Commission 

will provide the advance notice and 

opportunity to comment if there is a 

question whether the public could 

readily ascertain the identity of a 

manufacturer or private labeler.’’ 

We propose deleting from § 1101.13 

the following sentence: ‘‘The 

Commission will provide the advance 

notice and opportunity to comment if 

there is a question whether the public 

could readily ascertain the identity of a 

manufacturer or private labeler.’’ The 

Commission adopted a ‘‘reasonable 

person’’ standard in § 1101.13 for 

determining whether the advance notice 

and analysis provisions of section 

6(b)(1) would apply to information 

proposed for disclosure. Under this 

standard, if a reasonable person who 

lacks specialized expertise can readily 

ascertain the identity of the firm from 

the information proposed to be 

disclosed, the information will be 

forwarded to the firm for section 6(b) 

comment. The Commission included 

the sentence proposed for deletion 

when we adopted the final rule in 1983 

in response to comments that we 

received. 48 FR 57409. Because we 

believe this sentence is vague and 

inconsistent with the reasonable person 

standard that the Commission adopted, 

we propose deleting the sentence from 

§ 1101.13. The Commission believes 

that in practice the reasonable person 

standard as implemented in the context 

of interpreting proposed section 1101.13 

errs in favor of providing notice to 

manufacturers and private labelers. 

In addition, we propose the following 

technical change to § 1101.13: 

A. Remove: ‘‘it’’ and in its place, add: 

‘‘the information’’. 

7. Proposed Changes to § 1101.21 (Form 

of Notice and Opportunity to Comment.) 

Section 6(b) requires the Commission 

to ‘‘notify’’ manufacturers or private 

labelers of consumer products before 

public disclosure of product-related 

information covered by the statute. 

Section 6(b) does not prescribe the 

medium to be used for providing the 

notice. Similarly, § 1101.21 prescribes 

oral or written notice, but does not 

specify the medium to be used for 

written notice. 

There have been significant 

advancements in information 

technology and communication since 

we adopted the rule in 1983. As a result, 

use of electronic means to provide 

notice is widely accepted by other 

federal departments and agencies and 

courts, among others. 

Despite these advancements, the 

Commission continues to provide 6(b) 

notice to firms via U.S. mail, a more 

time-consuming practice that incurs 

unnecessary costs, particularly from 

printing and mailing the relevant 

documents. In addition, staff resources 

are dedicated to preparing these paper 

mailings. 

To increase efficiency and limit 

unnecessary expenditures of staff 

resources, we propose revising the rule 

to permit electronic 6(b) notices, to 

direct the Commission to transmit 

requisite notices through an electronic 

medium whenever possible, and to 

encourage electronic communication 

with the Commission. To this end, the 

Commission proposes the following 

changes to § 1101.21: 

A. Insert ‘‘(1)’’ before the sentence, 

‘‘The Commission will generally 

provide manufacturers or private 

labelers written notice and opportunity 

to comment on information subject to 

section 6(b)(1).’’ 

B. Insert the following statements 

after the last sentence in § 1101.21(a): 

‘‘(2) Any notice required to be given 

under the provisions of this Part 1101 

may be transmitted using electronic 

means of communication. Whenever 

possible, the Commission will transmit 

such notice electronically.’’ 

C. In § 1101.21(b)(8), insert: 

‘‘applicable contact information for 

electronic communication,’’ between 

‘‘address,’’ and ‘‘and telephone 

number’’. 

Section 1101.21(b) specifies the 

information that will appear in a section 

6(b) notice. Currently, § 1101.21(b)(5) 

states: ‘‘A statement that a request that 

comments be withheld from disclosure 

will be honored.’’ As described below, 

in § 1101.31, we propose requiring a 

rationale, that seeks to achieve a 

reasonable balance between the public 

interest in transparency and the rights of 

identified firms to be assured that 

disclosure is fair under the 

circumstances. A firm’s rationale may 

take various forms, such as a specific 

statutory or regulatory basis or provision 

or a description of why disclosure of the 

comment would be unfair in the totality 

of the circumstances. 

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Adopting these revisions, proposed 

§ 1101.21(b)(5) would state: ‘‘A 

statement that if the manufacturer or 

private labeler objects to disclosure of 

its comments or a portion thereof, the 

manufacturer or private labeler must 

notify the Commission of such objection 

at the time the manufacturer or private 

labeler submits its comments, provide a 

rationale, such as an applicable 

statutory or regulatory basis or 

provision, for why the comments should 

not be disclosed, and explain why 

disclosure of the comments is not fair in 

the circumstances or is not reasonably 

related to effectuating the purposes of 

the CPSA.’’ 

Currently, § 1101.21(b)(7) states: ‘‘A 

statement that no further request for 

comment will be sought by the 

Commission if it intends to disclose the 

identical information in the same 

format, unless the firm specifically 

requests the opportunity to comment on 

subsequent information disclosures.’’ In 

§ 1101.31, the phrase, ‘‘identical 

information in the same format,’’ 

requires the Commission to provide 6(b) 

notice for subsequent disclosures of 

information that may differ only 

slightly, without any impact on 

accuracy, from the information the 

Commission initially released in 

accordance with section 6(b). The 

statute by its terms does not require 6(b) 

notice for changes in the appearance of 

the information or for minor editorial 

changes. Therefore, we propose revising 

the phrase to state: ‘‘information that is 

substantially the same’’. In addition, as 

discussed above, in § 1101.11, we 

propose removing renotification from 

the rule. The renotification process, 

which is not required under the statute, 

has not resulted in new substantive 

input to staff. For these reasons, the 

Commission proposes revising 

§ 1101.21(b)(7) to state: ‘‘A statement 

that no further request for comment will 

be sought by the Commission if the 

Commission intends to disclose 

information that is substantially the 

same as the information that the 

Commission previously disclosed.’’ 

In addition, we propose the following 

technical and conforming changes to 

§ 1101.21: 

A. In § 1101.21(a)(1), remove: ‘‘the 

Commission may determine that it is 

necessary to provide the notice and 

opportunity to comment orally, either in 

person or by telephone’’ and in its 

place, add: ‘‘the Commission may 

determine that notice and opportunity 

to comment orally is necessary’’. 

B. In § 1101.21(b), remove: ‘‘The 

Commission will provide the 

manufacturer or private labeler with’’ 

and in its place, add: ‘‘The Commission 

shall, to the extent practicable, provide 

the manufacturer or private labeler 

with’’. 

8. Proposed Changes to § 1101.22 

(Timing: Request for Time Extensions.) 

Section 1101.22(a) explains the time 

for comment. Currently, § 1101.22(a)(1) 

states: ‘‘Generally firms will receive ten 

(10) calendar days from the date of the 

letter in which the Commission 

transmits the notice to furnish 

comments to the Commission. Firms 

that receive requests for comments by 

mail will receive an additional three (3) 

days to comment to account for time in 

the mail.’’ As discussed above, in 

§ 1101.21, to increase efficiency and 

limit unnecessary expenditures of staff 

resources, we propose revising the rule 

to encourage electronic communication 

with the Commission whenever 

possible. Proposed § 1101.22(a)(1) 

would state: ‘‘In the interest of 

promoting timely notification, the 

Commission, whenever possible, will 

transmit electronically to the 

manufacturer or private labeler the 

notice to furnish comments to the 

Commission. Generally firms will 

receive ten (10) calendar days from the 

date of such notice. Firms that receive 

notice by mail will receive an additional 

three (3) calendar days to comment to 

account for time in the mail.’’ 

Currently, the first sentence of 

§ 1101.22(a)(2) reads: ‘‘Upon his or her 

own initiative or upon request, the 

Freedom of Information Officer may 

provide a different amount of time for 

comment, particularly for firms that 

receive voluminous or complex 

material.’’ We propose deleting from 

this sentence the phrase: ‘‘Upon his or 

her own initiative or’’. As a matter of 

practice since the rule was enacted, the 

Freedom of Information Officer 

generally has not determined on his 

own initiative whether a firm would 

require additional time to comment on 

information proposed for disclosure. If a 

firm requires such additional time, the 

firm may submit an extension request to 

the Freedom of Information Officer for 

consideration. To account for actual 

practice, we propose revising the first 

sentence of § 1101.22(a)(2) to read: 

‘‘Upon request, the Freedom of 

Information Officer may provide a 

different amount of time for comment, 

particularly for firms that receive 

voluminous or complex material.’’ 

Section 1101.11(b) explains the 

Commission’s process if a firm does not 

respond to the Commission’s 6(b) 

notice. Currently, § 1101.22(b)(2) reads: 

‘‘Unless the Commission publishes a 

finding that the public health and safety 

requires a lesser period of notice (see 

§ 1101.23), the Commission will not 

disclose the information in fewer than 

15 days after providing a manufacturer 

or private labeler notice and 

opportunity to comment.’’ As indicated 

in § 1101.23, in addition to publishing 

a finding that the public health and 

safety requires a lesser period of notice, 

the Commission may disclose 

information to the public in fewer than 

15 days, if the firm agrees to a lesser 

period of notice, or does not object to 

the proposed disclosure. We propose 

revising § 1101.22(b)(2) to incorporate 

this provision. Proposed § 1101.22(b)(2) 

would state: ‘‘The Commission will not 

disclose the information in fewer than 

15 calendar days after providing a 

manufacturer or private labeler with 

notice and an opportunity to comment, 

unless (i) the firm agrees to a lesser 

period or does not object to disclosure, 

or (ii) the Commission publishes a 

finding that the public health and safety 

requires a lesser period of notice (see 

§ 1101.23).’’ 

In addition, we propose the following 

technical changes to § 1101.22: 

A. In § 1101.22(a)(2), remove: 

‘‘§ 1101.24’’ and in its place, add: 

‘‘§ 1101.23’’. 

B. In § 1101.22(b)(1), remove ‘‘if it’’ 

and insert a comma between 

‘‘submitted’’ and ‘‘the Commission.’’ 

9. Proposed Changes to § 1101.23 

(Providing Less Than 15 Days Notice 

Before Disclosing Information.) 

As discussed above, in § 1101.21, the 

Commission, whenever possible, 

intends to communicate electronically 

with firms. Therefore, the Commission 

proposes inserting the following 

statement after the first sentence in 

§ 1101.23(c): ‘‘If written notice is 

provided, the Commission, whenever 

possible, will transmit such notice 

electronically.’’ 

In addition, we propose the following 

technical and conforming changes to 

§ 1101.23: 

A. In § 1101.23, insert: ‘‘calendar’’ 

between ‘‘15’’ and ‘‘days’’ wherever 

‘‘15’’ and ‘‘days’’ appear. 

B. In § 1101.23(a), remove: ‘‘it’’ and in 

its place, add: ‘‘the firm’’ wherever ‘‘it’’ 

appears. 

C. In the last sentence of § 1101.23(c), 

remove: ‘‘Where applicable, before 

releasing information’’ and in its place, 

add: ‘‘Before releasing information’’. 

10. Proposed Changes to § 1101.24 

(Scope of Comments Commission 

Seeks.) 

Currently, § 1101.24(c) states: 

‘‘Requests for nondisclosure of 

comments. If a firm objects to disclosure 

of its comments or a portion thereof, it 

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must notify the Commission at the time 

it submits its comments. If the firm 

objects to the disclosure of a portion of 

its comments, it must identify those 

portions which should be withheld.’’ As 

described more specifically below, in 

§ 1101.31, we propose revising 

§ 1101.24(c) to require a rationale to 

support withholding a firm’s comments 

and an explanation of why disclosure of 

the comments is not necessary to assure 

that the disclosure of the information 

that is the subject of the comments is 

fair in the circumstances. A statement 

requesting that comments be withheld 

without the firm providing a rationale 

will not be sufficient to withhold 

comments. Therefore, we propose 

revising § 1101.24(c) to state: ‘‘If a firm 

objects to disclosure of its comments or 

a portion thereof, the firm must notify 

the Commission of such objection at the 

time the firm submits its comments, 

provide a rationale, such as a statutory 

or regulatory basis or provision, for why 

the comments should not be disclosed, 

and explain why disclosure of the 

comments is not necessary to assure that 

the disclosure of the information that is 

the subject of the comments is fair in the 

circumstances. If the firm objects to the 

disclosure of a portion of its comments, 

the firm must specifically identify those 

portions that should be withheld. 

Conclusory statements that comments 

must be withheld with no supporting 

basis are not sufficient to justify a 

request for nondisclosure.’’ 

In addition, we propose the following 

technical changes to § 1101.24(b): 

A. In the first sentence, remove: 

‘‘which pertains to trade secret or other 

confidential material’’ and in its place, 

add: ‘‘which refers to trade secret or 

other confidential material and 

information subject to 5 U.S.C. 

552(b)(4)’’. 

B. In the second sentence, remove: 

‘‘believes to be confidential or trade 

secret material and must state with 

specificity the grounds on which the 

firm bases it claims’’ and in its place, 

add: ‘‘believes to be confidential or 

trade secret material or subject to 5 

U.S.C. 552(b)(4) and must state with 

specificity the grounds on which the 

firm bases its claims’’. 

11. Proposed Changes to § 1101.25 

(Notice of Intent To Disclose.) 

As discussed above, with respect to 

§ 1101.21, the Commission is revising 

the rule in part to reflect the significant 

improvements in information 

technology since 1983. Therefore, we 

propose adding the following sentence 

to the end of § 1101.25(c): ‘‘If written 

notice is provided, the Commission, 

whenever possible, will transmit such 

notice electronically.’’ 

In addition, we propose the following 

technical changes to § 1101.25: 

A. In § 1101.25, remove ‘‘5 days’’ and 

in its place, add: ‘‘five (5) calendar 

days’’ wherever ‘‘5 days’’ appears. 

B. In the first sentence of § 1101.25(a), 

remove: ‘‘that it intends’’ and in its 

place, add: ‘‘that the Commission 

intends’’. 

C. In the second sentence of 

§ 1101.25(a), remove the comma 

between ‘‘decision’’ and ‘‘copies’’ and in 

its place, add: ‘‘and’’. 

D. In the first sentence of § 1101.25(b), 

remove: ‘‘its’’ and in its place, add: ‘‘the 

Commission’s’’. 

E. In § 1101.25(b), remove the 

sentence: ‘‘For example, the 

Commission may determine it is 

necessary to warn the public quickly 

because individuals may be in danger 

from a product hazard or a potential 

hazard, or to correct product safety 

information released by third persons, 

which mischaracterized statements 

made by the Commission about the 

product or which attributes to the 

Commission statements about the 

product which the Commission did not 

make’’ and in its place, add: ‘‘For 

example, the Commission may 

determine that the public must be 

warned more quickly than five (5) 

calendar days because of danger from a 

product hazard or a potential hazard, or 

to correct product safety information 

released by third persons, which 

mischaracterizes statements made by 

the Commission about the product or 

which inaccurately attributes to the 

Commission statements about the 

product’’. 

F. In the first sentence of § 1101.25(c), 

remove ‘‘which’’ and in its place, add: 

‘‘that’’. 

12. Proposed Changes to § 1101.31 

(General Requirements.) 

Currently, § 1101.31(b), which 

addresses the inclusion of a firm’s 

comments, reads: ‘‘In disclosing any 

information under this section, the 

Commission will include any comments 

or other information submitted by the 

manufacturer or private labeler unless 

the manufacturer or private labeler at 

the time it submits its section 6(b) 

comments specifically requests the 

Commission not to include the 

comments or to include only a 

designated portion of the comments and 

disclosure of the comments on such a 

designated portion is not necessary to 

assure that the disclosure of the 

information which is the subject of the 

comments is fair in the circumstances.’’ 

We propose revising this sentence. 

As an initial matter, the Commission 

must include with the disclosure, a 

firm’s comments if the manufacturer or 

private labeler requests inclusion, and 

inclusion is permitted by and subject to 

the requirements of section 6(b)(1). 15 

U.S.C. 2055(b)(1). In instances where 

the firm does not request disclosure, 

section 6(b)(1) grants the Commission 

discretion in releasing a firm’s 

comments, stating that ‘‘the Commission 

may . . . include with the disclosure 

any comments or other information or a 

summary thereof . . . to the extent 

permitted by and subject to the 

requirements of this section’’ (emphasis 

added). Id. 

When the Commission adopted the 

final rule in 1983 interpreting section 

6(b)(1), we stated that we ‘‘intend[] to 

follow the general policy of disclosing 

comments unless the manufacturer 

specifically requests they be withheld.’’ 

48 FR 57422. We recognized that a 

blanket policy always allowing a firm’s 

comments to be withheld, even though 

the comments contained no confidential 

commercial or trade secret information, 

would not be a desirable outcome. 48 

FR 57423. The Commission was 

concerned that such a policy ‘‘would 

unnecessarily block the release of 

information, even though the 

Commission has taken the requisite 

reasonable steps to assure that the 

information is accurate and disclosure 

would be reasonably related to 

effectuating one or more purposes of the 

statutes the Commission administers.’’ 

Id. We stated our belief that section 6(b) 

‘‘should not be construed to permit a 

firm to frustrate the disclosure of 

information simply by making a blanket 

claim of confidentiality for the 

information contained in its 

comments.’’ Id. For firms that made 

blanket claims, the Commission stated 

in the preamble that we would notify 

the firm that disclosure of the firm’s 

comments is necessary to assure that 

disclosure of the information was fair in 

the circumstances. In these instances, 

we would: (1) Ask a firm to summarize 

the firm’s comments, or provide an 

edited version for public disclosure; (2) 

ask a firm to consent to the disclosure 

of information without the firm’s 

comments; or (3) disclose the 

information ‘‘with an explanatory 

statement that the manufacturer 

furnished data necessary to place the 

information in context but did not 

consent to its disclosure.’’ Id. 

Our review of how firms typically 

submit comments under section 6(b) 

and staff’s subsequent processing of 

such comments, however, indicates that 

most comments are withheld. Most 

firms request that their comments be 

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maintained in confidence, even where 

the firms do not provide any specific 

comments on the disclosure, or do not 

object at all to disclosure of the 

information. For example, even when a 

firm’s only comment is that the firm 

does not object to disclosure, the firm 

may request that this comment—that it 

has ‘‘no objection to disclosure’’—be 

withheld in confidence. Staff has 

withheld comments in this 

circumstance even though the 

comments state only that the firm has 

no objection to disclosure of the 

information. In effect, staff adopted a 

blanket policy of withholding where 

such a policy was never intended. 

To obtain more substantive and useful 

information from firms who object to 

disclosure of comments, we are 

proposing to revise the regulation to 

require firms to provide a rationale for 

why comments should not be disclosed 

and an explanation of why disclosure of 

the comments is not necessary to assure 

that the disclosure of the information is 

fair in the circumstances. Conclusory 

assertions that comments be withheld 

without a rationale will not be sufficient 

to withhold comments. In addition, a 

firm’s comment that it has no objection 

to disclosure, without any additional 

comments, will not be sufficient to 

justify withholding. Proposed 

§ 1101.31(b) would state: ‘‘In disclosing 

any information under this section, the 

Commission may, and upon the request 

of the manufacturer or private labeler 

shall, include any comments or other 

information or a summary thereof 

submitted by the manufacturer or 

private labeler to the extent permitted 

by and subject to the requirements of 

section 6(b). If the manufacturer or 

private labeler, at the time it submits its 

section 6(b) comments, specifically 

requests that the Commission not 

include the comments, or include only 

a designated portion of the comments, 

the manufacturer or private labeler must 

provide for evaluation by the 

Commission, a rationale, such as an 

applicable statutory or regulatory basis 

or provision, supporting such 

withholding and an explanation of why 

disclosure of the comments is not 

necessary to assure that the disclosure 

of the information that is the subject of 

the comments is fair in the 

circumstances.’’ 

Currently, § 1101.31(d), which 

pertains to information the Commission 

previously disclosed, reads: ‘‘If the 

Commission has previously disclosed, 

in accordance with section 6(b)(1), the 

identical information it intends to 

disclose again in the same format, it will 

not customarily take any additional 

steps to assure accuracy unless the 

Commission has some reason to 

question its accuracy or unless the firm, 

in its comments responding to the 

Commission’s initial section 6(b) notice, 

specifically requests the opportunity to 

comment on subsequent disclosures, or 

unless the Commission determines that 

sufficient time has passed to warrant 

seeking section 6(b) comment again. 

Before disclosing the information the 

Commission will again review the 

information to see if accuracy is called 

into question and will further look to 

whether disclosure is fair in the 

circumstances and reasonably related to 

effectuating the purposes of the Acts the 

Commission administers.’’ 

We propose two revisions to this 

provision. First, we propose removing: 

‘‘If the Commission has previously 

disclosed, in accordance with section 

6(b)(1), the identical information it 

intends to disclose again in the same 

format, it will not customarily take any 

additional steps to assure accuracy 

unless the Commission has some reason 

to question its accuracy’’ and in its 

place, adding: ‘‘If the Commission 

intends to disclose information that is 

substantially the same as information 

that the Commission previously 

disclosed in accordance with section 

6(b)(1), the Commission is not obligated 

to take any additional steps to assure 

accuracy unless the Commission has 

reason to question the accuracy of the 

information’’. In its current form, the 

phrase, ‘‘identical information it intends 

to disclose again in the same format,’’ 

requires the Commission to provide 6(b) 

notice for subsequent disclosures of 

information that may differ only 

slightly, without any impact on 

accuracy, from the information the 

Commission initially released in 

accordance with section 6(b). When we 

adopted the final rule in 1983, the 

Commission specifically included 

‘‘same format’’ in response to a 

comment that requested this addition. 

48 FR 57414. The Commission agreed 

with the request, stating: ‘‘the format of 

the disclosure (other than summaries of 

information previously released) or the 

intended audience may be of significant 

interest to the firm and may warrant 

comment.’’ Id. Under a strict reading of 

the current provision, however, changes 

in the appearance of the information, 

such as the use of different fonts or 

layouts, and minor editorial changes, 

such as the insertion of a comma to the 

text, without any impact on the 

accuracy of the information, would 

require the Commission to provide 

subsequent 6(b) notice. We do not 

believe the statute requires subsequent 

6(b) notice in these circumstances. In 

addition, we propose deleting the word, 

‘‘some,’’ from the phrase, ‘‘some 

reason.’’ ‘‘Reason’’ provides the staff 

with a more definitive standard for 

when staff will take additional steps to 

assure accuracy. 

Second, we propose deleting from 

§ 1101.31(d) the following: ‘‘or unless 

the firm, in its comments responding to 

the Commission’s initial section 6(b) 

notice, specifically requests the 

opportunity to comment on subsequent 

disclosures, or unless the Commission 

determines that sufficient time has 

passed to warrant seeking section 6(b) 

comment again. Before disclosing the 

information the Commission will again 

review the information to see if 

accuracy is called into question and will 

further look to whether disclosure is fair 

in the circumstances and reasonably 

related to effectuating the purposes of 

the Acts the Commission administers.’’ 

Regarding the first sentence on 

renotification, as discussed above, in 

§ 1101.11, the majority of firms that 

receive renotification fail to respond, 

respond but do not provide any 

comments on the information, or simply 

repeat the same claims that they 

submitted in response to the initial 

notice, without providing any 

additional information for the staff to 

evaluate. The Commission proposes 

deleting renotification from 

§ 1101.31(d). Regarding the second 

sentence, the statute does not require 

the Commission to conduct another 6(b) 

review for information that the 

Commission already has released to the 

public. For these reasons, we propose 

deleting these sentences from the 

regulation. 

Incorporating the changes discussed 

above, proposed § 1101.31(d) would 

state: ‘‘Information previously disclosed. 

If the Commission intends to disclose 

information that is substantially the 

same as information that the 

Commission previously disclosed in 

accordance with section 6(b)(1), the 

Commission is not obligated to take any 

additional steps to assure accuracy 

unless the Commission has reason to 

question the accuracy of the 

information.’’ 

We also propose the following 

technical and conforming changes to 

§ 1101.31: 

A. In § 1101.31(a), remove: ‘‘The 

Commission will attempt to make its 

decision on disclosure so that it can 

disclose information in accordance with 

section 6(b) as soon as is reasonably 

possible after expiration of the statutory 

fifteen day moratorium on disclosure’’ 

and in its place, add: ‘‘The Commission 

will attempt to make its decision on 

disclosure so that the Commission can 

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disclose information in accordance with 

section 6(b) after expiration of the 

statutory 15-day prohibition on 

disclosure’’. 

B. In § 1101.31(c), remove: ‘‘To the 

extent it is practical the Commission 

will also accompany the disclosure with 

any other relevant information in its 

possession that places the released 

information in context’’ and in its place, 

add: ‘‘The Commission also will 

accompany the disclosure, to the extent 

practicable, with any other relevant 

information in the Commission’s 

possession that places the released 

information in context’’. 

13. Proposed Changes to § 1101.32 

(Reasonable Steps To Assure 

Information Is Accurate.) 

We propose the following technical 

changes to § 1101.32: 

A. In § 1101.32(a), remove: ‘‘it’’ and in 

its place, add: ‘‘that the Commission’’. 

B. In § 1101.32(a)(3), remove: ‘‘it’’ and 

in its place, add: ‘‘the information’’. 

C. In § 1101.32(b), remove: ‘‘it’’ and in 

its place, add: ‘‘the Commission’’. 

D. In § 1101.32(b)(3), remove: 

‘‘investigating its accuracy’’ and in its 

place, add: ‘‘investigating the accuracy 

of the information’’. 

E. In § 1101.32(b)(4), insert: ‘‘that’’ 

between ‘‘accuracy of the information’’ 

and ‘‘the Commission proposes to 

disclose’’. 

14. Proposed Changes to § 1101.33 

(Reasonable Steps To Assure 

Information Release Is Fair in the 

Circumstances.) 

Currently, § 1101.33(a)(1), which 

provides an example of the reasonable 

steps the Commission will take to assure 

disclosure of information to the public 

is fair in the circumstances, states: ‘‘The 

Commission will accompany 

information disclosed to the public with 

the manufacturer’s or private labeler’s 

comments unless the manufacturer or 

private labeler asks in its section 6(b) 

comments that its comments or a 

designated portion thereof not 

accompany the information.’’ 

We propose revising the first part of 

this section to conform to 15 U.S.C. 

2055(b). As discussed above, in 

§ 1101.31, the Commission must include 

with the disclosure a firm’s comments if 

the manufacturer or private labeler 

requests inclusion and inclusion is 

permitted by and subject to the 

requirements of section 6(b)(1). 15 

U.S.C. 2055(b)(1). In instances where 

the firm does not request disclosure, the 

Commission has discretion in releasing 

a firm’s comments. Id. To reflect the 

statutory language, we propose revising 

the first part of § 1101.33(a)(1) to state: 

‘‘To the extent permitted by and subject 

to the requirements of section 6(b), the 

Commission may accompany 

information disclosed to the public with 

the manufacturer’s or private labeler’s 

comments or other information or a 

summary thereof.’’ 

In addition, we propose revising 

§ 1101.33(a)(1) to require firms to 

provide a rationale for why the 

comments should not be disclosed and 

an explanation of why disclosure of the 

comments is not necessary to assure that 

the disclosure of the information is fair 

in the circumstances. To encourage 

firms to provide useful information and 

clarifying comments, as discussed 

above, in § 1101.31, we propose revising 

the regulation to require specific 

information for the Commission to 

consider. The second part of 

§ 1101.33(a)(1) would state: ‘‘unless the 

manufacturer or private labeler asks in 

the firm’s section 6(b) comments that 

the comments or a designated portion 

thereof not accompany the information, 

provides a rationale, such as an 

applicable statutory or regulatory basis 

or provision, for why the comments 

should not be disclosed, and explains 

why disclosure of the comments is not 

necessary to assure that the disclosure 

of the information that is the subject of 

the comments is fair in the 

circumstances. If the firm objects to the 

disclosure of a portion of the firm’s 

comments, the firm must specifically 

identify those portions that should be 

withheld. Conclusory statements that 

comments must be withheld with no 

supporting basis are not sufficient to 

justify a request for nondisclosure.’’ 

Incorporating the changes outlined 

above, proposed § 1101.33(a)(1) would 

state: ‘‘To the extent permitted by and 

subject to the requirements of section 

6(b), the Commission may accompany 

information disclosed to the public with 

the manufacturer’s or private labeler’s 

comments or other information or a 

summary thereof unless the 

manufacturer or private labeler asks in 

the firm’s section 6(b) comments that 

the comments or a designated portion 

thereof not accompany the information, 

provides a rationale, such as an 

applicable statutory or regulatory basis 

or provision, for why the comments 

should not be disclosed, and explains 

why disclosure of the comments is not 

necessary to assure that the disclosure 

of the information that is the subject of 

the comments is fair in the 

circumstances. If the firm objects to the 

disclosure of a portion of the firm’s 

comments, the firm must specifically 

identify those portions that should be 

withheld. Conclusory statements that 

comments must be withheld with no 

supporting basis are not sufficient to 

justify a request for nondisclosure.’’ 

Currently, § 1101.33(b)(3), which 

provides an example of information that 

would not be disclosed because the 

information generally would not be 

considered fair in the circumstances, 

reads: ‘‘Disclosure of the work-product 

of attorneys employed by a firm and 

information subject to an attorney/client 

privilege, if the Commission has 

obtained the information from the client 

or the attorney, the attorney or client 

advises the Commission of the 

confidential nature of the information at 

the time it is submitted to the 

Commission, and the information has 

been maintained in confidence by the 

client and the attorney.’’ 

In general, we believe that firms 

waive these protections when they 

submit information to the Commission 

that is attorney work-product or subject 

to the attorney/client privilege. 

Moreover, firms rarely claim in their 

comments to the Commission that the 

information proposed for disclosure 

contains information subject to the 

attorney/client privilege or the workproduct doctrine. For example, in FY 

2012, our FOIA office processed 

approximately 459 notices under 

section 6(b). Of those 459 notices, firms 

claimed attorney/client privilege and/or 

the work-product doctrine in only 

approximately 12 instances. The 

majority of firms that asserted this claim 

did not identify the specific information 

to which the claim pertained, but 

included the claim in a broad list of 

claims that included confidential 

business information and general 

fairness objections. For these reasons, 

we propose removing § 1101.33(b)(3) 

from the regulation. 

Currently, § 1101.33(b)(4), which 

provides another example of 

information that would not be disclosed 

because the information generally 

would not be considered fair in the 

circumstances, reads: ‘‘Disclosure of a 

firm’s comments (or a portion thereof) 

submitted under section 6(b)(1) over the 

firm’s objection.’’ As discussed above, 

in § 1101.31, we propose revising the 

regulation to require that firms provide 

a rationale for why comments should 

not be disclosed and an explanation of 

why disclosure of the comments is not 

necessary to assure that the disclosure 

of the information is fair in the 

circumstances. In addition, because we 

propose removing § 1101.33(b)(3) from 

the regulation, we will renumber 

§ 1101.33(b)(4) as § 1101.33(b)(3). 

Proposed § 1101.33(b)(3) would state: 

‘‘Disclosure of a firm’s comments (or a 

portion thereof) submitted under section 

6(b)(1) if the firm provides a rationale, 

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10720 Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 

such as an applicable statutory or 

regulatory basis or provision, for why 

the comments should not be disclosed 

and explains why disclosure of the 

comments is not necessary to assure that 

the disclosure of the information that is 

the subject of the comments is fair in the 

circumstances.’’ 

In addition, we propose the following 

technical corrections to § 1101.33: 

A. In the second sentence of 

§ 1101.33(a)(2), remove: ‘‘information it 

its possession’’ and in its place, add: 

‘‘information in its possession’’. 

B. In the first sentence of 

§ 1101.33(a)(3), remove: ‘‘it’’ and in its 

place, add: ‘‘the Commission’’. 

C. In § 1101.33(a)(3), remove: ‘‘For 

example, the Commission may 

determine it is not appropriate to issue 

a nationwide press release in a 

particular situation and rather will issue 

a press release directed at certain 

localities, regions, or user populations’’ 

and in its place, add: ‘‘For example, the 

Commission may determine that 

issuance of a nationwide press release 

in a particular situation is not 

appropriate and rather will issue a press 

release directed at certain localities, 

regions or user populations’’. 

D. In the second sentence of 

§ 1101.33(a)(4) add after ‘‘information 

piecemeal’’ the phrase: ‘‘if such 

disclosure would be unfair’’. 

E. In § 1101.33(b)(1), remove: ‘‘in 

concidence’’ and in its place, add: ‘‘in 

confidence’’. 

F. In § 1101.33(b)(2), insert: ‘‘staff’’ 

between ‘‘Disclosure of’’ and ‘‘notes’’. 

15. Proposed Changes to § 1101.34 

(Reasonable Steps To Assure 

Information Release Is ‘‘Reasonably 

Related to Effectuating the Purposes of 

the Acts’’ the Commission Administers.) 

We propose the following technical 

changes to § 1101.34(a)(2): 

A. Remove: ‘‘Purposes of the FHSA, 

FFA, PPPA and RSA’’ and in its place, 

add: ‘‘Purposes of the FHSA, FFA, 

PPPA, RSA, CSPA, VGBA, and 

CGBPA’’. 

B. In the first sentence, insert: ‘‘and 

other’’ between ‘‘transferred’’ and 

‘‘acts’’. 

16. Proposed Changes to § 1101.41 

(Generally.) 

We propose the following technical 

changes to § 1101.41: 

A. In § 1101.41(a)(4), capitalize 

‘‘information’’. 

B. In § 1101.41(b), remove: 

‘‘transferred act’’ and in its place, add: 

‘‘transferred and other acts’’. 

C. In § 1101.41(b), remove: 

‘‘transferred acts’’ and in its place, add: 

‘‘transferred and other acts’’. 

17. Proposed Changes to § 1101.42 

(Imminent Hazard Exception.) 

Currently, § 1101.42(b), which 

discusses the scope of the imminent 

hazard exception, reads: ‘‘This 

exception applies once the Commission 

has filed an action under section 12 of 

the CPSA (15 U.S.C. 2061), in a United 

States district court. Once the exception 

applies, information may be disclosed to 

the public while the proceeding is 

pending without following the 

requirements of section 6(b)(1) if the 

information concerns or relates to the 

product alleged to be imminently 

hazardous. Upon termination of the 

proceeding, information filed with the 

court or otherwise made public is not 

subject to section 6(b). Information in 

the Commission’s possession which has 

not been made public is subject to 

section 6(b).’’ 

We propose the following revisions to 

§ 1101.42(b): 

1. In the second sentence, remove: 

‘‘while the proceeding is pending’’. 

2. Remove the third and fourth 

sentences. 

We recognize that when the 

Commission adopted the final rule in 

1983, we decided, in response to a 

comment, that ‘‘documents in the 

Commission’s possession that concern a 

product for which it has filed an 

imminent hazard action and that it has 

not made publicly available’’ are subject 

to the 6(b) requirements. 48 FR 57425. 

We stated that ‘‘these documents are 

more similar to documents prepared 

during the course of other Commission’s 

activities which are routinely subject to 

section 6(b) and, therefore, will be 

treated accordingly.’’ Id. We do not 

believe, however, that the statute 

imposes these restrictions on the 

Commission’s release of information. 

Upon the Commission’s filing of a 

section 12 action, we believe that 

information may be disclosed to the 

public during and after the proceeding, 

even if the information was not filed 

with the court or otherwise made 

public. Therefore, we propose deleting, 

‘‘while the proceeding is pending’’, from 

the second sentence and removing the 

third and fourth sentences from 

§ 1101.42(b). 

18. Proposed Changes to § 1101.45 

(Adjudicatory Proceeding Exception.) 

We propose the following technical 

correction to § 1101.45(b): 

A. Remove: ‘‘FAA’’ and in its place, 

add: ‘‘FFA’’. 

19. Proposed Changes to § 1101.46 

(Other Administrative or Judicial 

Proceeding Exception.) 

We propose the following technical 

correction to § 1101.46(b)(7): 

A. Remove: ‘‘Secretary’’ and in its 

place, add: ‘‘Secretariat’’. 

20. Proposed Changes to § 1101.51 

(Commission Interpretation.) 

We propose the following technical 

corrections to § 1101.51(b): 

A. In the first sentence, replace: ‘‘it’’ 

with ‘‘the information’’ wherever ‘‘it’’ 

appears. 

21. Proposed Changes to § 1101.52 

(Procedure for Retraction.) 

We propose the following technical 

and conforming changes to § 1101.52: 

A. In § 1101.52(a), remove the comma 

between ‘‘distributor’’ and ‘‘or’’. 

B. In § 1101.52(b), remove: ‘‘the 

Commission or an individual member, 

employee, agent, contractor or 

representative of the Commission’’ and 

in its place, add: ‘‘the Commission, any 

member of the Commission, or any 

employee, agent, or representative, 

including contractor, of the Commission 

in an official capacity’’. 

C. In § 1101.52(b), remove: ‘‘The 

request must be in writing and 

addressed to the Secretary, CPSC. 

Washington, DC 20207’’ and in its place, 

add: ‘‘The request must be in writing 

and sent via either electronic mail to 

cpsc-os@cpsc.gov or first class mail to 

The Secretariat, Office of the Secretary, 

U.S. Consumer Product Safety 

Commission, 4330 East West Highway, 

Bethesda, MD, 20814–4408’’. 

D. In § 1101.52(c)(2), add: ‘‘that’’ 

between ‘‘information’’ and ‘‘the firm’’. 

E. In § 1101.52(d), remove: ‘‘the 

Commission or any individual member, 

employee, agent [sic] contractor or 

representative of the Commission’’ and 

in its place, add: ‘‘the Commission, any 

member of the Commission, or any 

employee, agent, or representative, 

including contractor, of the Commission 

in an official capacity’’. 

F. In § 1101.52(d), remove: ‘‘If the 

Commission finds that fuller disclosure 

is necessary, it will publish a retraction 

in the manner it determines appropriate 

under the circumstances’’ and in its 

place, add: ‘‘If the Commission finds 

that fuller disclosure is necessary, the 

Commission will publish a retraction in 

the manner that the Commission 

determines appropriate under the 

circumstances’’. 

G. In § 1101.52(e), replace: ‘‘its’’ with 

‘‘the Commission’s’’. 

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Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 10721 

22. Proposed Changes to § 1101.61 

(Generally.) 

We propose the following technical 

correction to § 1101.61(b)(3): 

A. Remove the period and in its place, 

add: ‘‘; or’’. 

23. Proposed Changes to § 1101.63 

(Information Submitted Pursuant to 

Section 15(b) of the CPSA.) 

Currently, § 1101.63(c) reads: 

‘‘Section 6(b)(5) does not apply to 

information independently obtained or 

prepared by the Commission staff.’’ The 

legislative history indicates that in 

granting the Commission broad 

information-gathering powers, the 

Commission was intended to have 

access to section 15 information, such as 

trade secrets and other sensitive cost 

and competitive information, which 

would not otherwise be available to the 

public or to government. H.R. Rep. No. 

92–1153, at 31 (1972). The apparent 

intent was not to protect information 

that the staff could identify or prepare 

independently from material in the 

public realm, but only to limit 

disclosure of confidential trade secret 

and competitive information not 

otherwise publicly available. Id. 

Technological advances since 

enactment of the 1983 regulation merit 

further refinement of this exception. For 

example, Internet resources, which did 

not exist at the time of the enactment of 

the 1983 regulation, have significantly 

expanded the public availability of 

information about products; this public 

information may also be a part of a 

firm’s section 15 report. Searching the 

name of a product in any Internet search 

engine may yield significant 

information about a product, including 

product reviews and Internet sites or 

retail locations where the product can 

be purchased. The Commission does not 

believe that the restriction on the 

disclosure of information contained in 

reports submitted to the Commission 

pursuant to section 15(b) was intended 

to apply to such publicly-available 

information. Indeed, inclusion of such 

information would frustrate the 

transparent disclosure of information if 

readily available information from the 

public domain could not be disclosed 

simply because a firm included such 

information in a section 15(b) report to 

the Commission. Therefore, information 

that a firm submits to the Commission 

pursuant to section 15(b) that is readily 

available to the public because, for 

example, the information appears in 

newspaper articles, on retailer Web 

sites, in product reviews, in the 

consumer product safety information 

database, or in other sources, constitutes 

information that is independently 

obtained under this provision and thus 

not subject to the requirements of 

section 6(b)(5). 

Accordingly, we propose revising 

§ 1101.63(c) to state: ‘‘Section 6(b)(5) 

does not apply to information (1) 

independently obtained or prepared by 

the Commission staff or (2) identified by 

the Commission staff through publicly 

available sources. For example, 

information that is publicly available or 

that has been disseminated in a manner 

intended to reach the public in general, 

such as news reports; articles in 

academic and scientific journals; press 

releases distributed through news or 

wire services; information that is 

available on the Internet; or information 

appearing on the publicly available 

consumer product safety information 

database established pursuant to section 

6A of the CPSA, 15 U.S.C. 2055a, does 

not fall within section 6(b)(5)’s 

disclosure limits.’’ 

24. Proposed Changes to § 1101.71 

(Delegation of Authority.) 

We propose the following technical 

changes to § 1101.71: 

A. In § 1101.71, remove: ‘‘Secretary’’ 

and in its place, add: ‘‘Secretariat’’ 

wherever ‘‘Secretary’’ appears. 

B. In § 1101.71(a), remove: ‘‘section 

27(b)(9) of the CPSA 15 U.S.C. 

2076(b)(9)’’ and in its place, add: 

‘‘27(b)(10) of the CPSA, 15 U.S.C. 

2076(b)(10),’’. 

C. In § 1101.71(b), remove: ‘‘Findings 

not deleted’’ and in its place, add: 

‘‘Findings not delegated’’. 

D. In § 1101.71(b)(1), insert: 

‘‘calendar’’ between ‘‘15’’ and ‘‘days’’. 

E. In § 1101.71(b)(2), insert: 

‘‘calendar’’ between ‘‘(5)’’ and ‘‘days’’. 

F. In § 1101.71(b)(2), remove the 

semicolon and in its place, add a period. 

G. In § 1101.71(b)(3), remove: ‘‘it’’ and 

in its place, add: ‘‘the Commission’’. 

III. Environmental Considerations 

The Commission’s regulations address 

whether the Commission is required to 

prepare an environmental assessment or 

an environmental impact statement. 16 

CFR Part 1021. These regulations 

provide a categorical exclusion for 

certain CPSC actions that normally have 

‘‘little or no potential for affecting the 

human environment.’’ 16 CFR 

1021.5(c)(1). This proposed rule falls 

within the categorical exclusion. 

IV. Regulatory Flexibility Analysis 

Under section 603 of the Regulatory 

Flexibility Act (RFA), when the 

Administrative Procedure Act (APA) 

requires an agency to publish a general 

notice of proposed rulemaking, the 

agency must prepare an initial 

regulatory flexibility analysis (IFRA) 

assessing the economic impact of the 

proposed rule on small entities. 5 U.S.C. 

603(a). As noted, the Commission is 

proposing to update the regulation that 

interprets section 6(b) of the CPSA. 

Although the Commission is choosing to 

issue the rule through notice and 

comment procedures, the APA does not 

require a proposed rule when an agency 

issues an interpretive rule. Therefore, no 

IRFA is required under the RFA. 

Moreover, the proposed rule would not 

establish any mandatory requirements 

and would not impose any obligations 

on small entities (or any other entity or 

party). 

V. Paperwork Reduction Act 

The Paperwork Reduction Act (PRA) 

establishes certain requirements when 

an agency conducts or sponsors a 

‘‘collection of information.’’ 44 U.S.C. 

3501–3520. The proposed rule would 

amend the Commission’s rule that 

describes the agency’s procedures for 

providing manufacturers and private 

labelers with advance notice and ‘‘a 

reasonable opportunity to submit 

comments’’ to the Commission on 

proposed disclosures of product-specific 

information. The proposed rule would 

not impose any information collection 

requirements. The existing rule and the 

proposed amendment do not require or 

request information from firms, but 

rather, explain the Commission’s 

procedures that provide an opportunity 

for firms to comment on productspecific information before disclosure. 

Thus, the PRA is not implicated in this 

proposed rulemaking. 

VI. Executive Order 12988 (Preemption) 

According to Executive Order 12988 

(February 5, 1996), agencies must state 

in clear language the preemptive effect, 

if any, of new regulations. Section 26 of 

the CPSA explains the preemptive effect 

of consumer product safety standards 

issued under the CPSA. 15 U.S.C. 2075. 

The proposed rule is not a consumer 

product safety standard, but rather, is an 

interpretive rule that would interpret 

section 6(b) of the CPSA. Therefore, 

section 26 of the CPSA would not apply 

to this rulemaking. 

VII. Effective Date 

The APA generally requires that the 

effective date of a rule be at least 30 

days after publication of the final rule. 

5 U.S.C. 553(d). However, an earlier 

effective date is permitted for 

interpretive rules and statements of 

policy. Id. Thus, this proposed rule is 

excepted from the APA effective date 

requirement. Id. 553(d)(2). 

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10722 Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 

Because CPSC is giving notice and 

soliciting comment (even though notice 

and comment procedures are not 

required), the public and potentially 

affected firms will have significant 

advance notice of the agency’s proposed 

rule. Moreover, implementation of the 

rule will not result in the imposition of 

new, mandatory requirements on firms. 

Therefore, the Commission proposes 

that the effective date be the date of 

publication of a final rule in the Federal 

Register. 

VIII. Request for Comments 

The Commission requests comments 

on all aspects of the proposed rule. 

Comments should be submitted in 

accordance with the instructions in the 

ADDRESSES section at the beginning of 

this NPR. Written comments must be 

received by April 28, 2014. 

List of Subjects in 16 CFR Part 1101 

Administrative practice and 

procedure; Consumer protection. 

Accordingly, the Commission 

proposes to revise 16 CFR Part 1101 to 

read as follows: 

PART 1101—INFORMATION 

DISCLOSURE UNDER SECTION 6(B) 

OF THE CONSUMER PRODUCT 

SAFETY ACT 

Subpart A—Background 

Sec. 

1101.1 General background. 

1101.2 Scope. 

Subpart B—Information Subject to Notice 

and Analysis Provisions of Section 6(b)(1) 

1101.11 General application of provisions 

of section 6(b)(1). 

1101.12 Definition of ‘‘public’’. 

1101.13 Public ability to ascertain readily 

identity of manufacturer or private 

labeler. 

Subpart C—Procedure for Providing Notice 

and Opportunity To Comment Under 

Section 6(b)(1) 

1101.21 Form of notice and opportunity to 

comment. 

1101.22 Timing; request for time 

extensions. 

1101.23 Providing less than 15 days notice 

before disclosing information. 

1101.24 Scope of comments Commission 

seeks. 

1101.25 Notice of intent to disclose. 

1101.26 Circumstances when the 

Commission does not provide notice and 

opportunity to comment. 

Subpart D—Reasonable Steps Commission 

Will Take To Assure Information It 

Discloses Is Accurate, and That Disclosure 

Is Fair in the Circumstances and 

Reasonably Related To Effectuating the 

Purposes of the Acts It Administers 

1101.31 General requirements. 

1101.32 Reasonable steps to assure 

information is accurate. 

1101.33 Reasonable steps to assure 

information release is fair in the 

circumstances. 

1101.34 Reasonable steps to assure 

information release is ‘‘reasonably 

related to effectuating the purposes of 

the Acts’’ the Commission administers. 

Subpart E—Statutory Exceptions of Section 

6(b)(4) 

1101.41 Generally. 

1101.42 Imminent hazard exception. 

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

1101.44 Rulemaking proceeding exception. 

1101.45. Adjudicatory proceeding 

exception. 

1101.46 Other administrative or judicial 

proceeding exception. 

Subpart F—Retraction 

1101.51 Commission interpretation. 

1101.52 Procedure for retraction. 

Subpart G—Information Submitted 

Pursuant to Section 15(b) of the CPSA 

1101.61 Generally. 

1101.62 Statutory exceptions to section 

6(b)(5) requirements. 

1101.63 Information submitted pursuant to 

section 15(b) of the CPSA. 

Subpart H—Delegation of Authority to 

Information Group 

1101.71 Delegation of authority. 

Authority: Section 6(b) of Pub. L. 92–573, 

as amended by Section 211 of Pub. L. 110– 

314, 122 Stat. 3016, 15 U.S.C. 2055(b), 5 

U.S.C. 553(b). 

Subpart A—Background 

§ 1101.1 General background. 

(a) Basic purpose. This part sets forth 

the Consumer Product Safety 

Commission’s policy and procedure 

under sections 6(b)(1)–(5) of the 

Consumer Product Safety Act (CPSA) 

(15 U.S.C. 2055(b)(1)–(5)) which relate 

to public disclosure of information from 

which the identity of a manufacturer or 

private labeler of a product can be 

readily ascertained. In addition, these 

rules provide for retraction of inaccurate 

or misleading information the 

Commission has disclosed that reflects 

adversely on the safety of a consumer 

product or class of products or on the 

practices of any manufacturer, private 

labeler, distributor or retailer of 

consumer products as required by 

section 6(b)(7) of the CPSA (15 U.S.C. 

2055(b)(7)). 

(b) Statutory requirements. Section 

6(b) establishes procedures that the 

Commission must follow when it 

releases certain firm specific 

information to the public and when it 

retracts certain information it has 

released. 

(1) Generally, section 6(b)(1) requires 

the Commission to provide 

manufacturers or private labelers with 

advance notice and opportunity to 

comment on information the 

Commission proposes to release, if the 

public can readily ascertain the identity 

of the firm from the information. 

Section 6(b)(1) also requires the 

Commission to take reasonable steps to 

assure that the information is accurate 

and that disclosure is fair in the 

circumstances and reasonably related to 

effectuating the purposes of the Acts 

administered by the Commission. 

Disclosure of information may not occur 

in fewer than 15 calendar days after 

notice to the manufacturer or private 

labeler unless the Commission 

publishes a finding that the public 

health and safety requires a lesser 

period of notice. Section 6(b)(4) 

establishes exceptions to these 

requirements. Section 6(b)(5) creates 

additional limitations, as well as 

exceptions to these limitations, on the 

disclosure of information reported to the 

Commission under section 15(b) of the 

CPSA. 

(2) Section 6(b)(2) requires the 

Commission to provide further notice to 

manufacturers or private labelers where 

the Commission proposes to disclose 

product-specific information the firms 

have claimed to be inaccurate. 

(3) Section 6(b)(3) authorizes 

manufacturers and private labelers to 

bring lawsuits against the Commission 

to prevent disclosure of product-specific 

information after the firms have 

received the notice specified. 

(c) Internal clearance procedures. 

Section 6(b)(6) requires the Commission 

to establish internal clearance 

procedures for Commission initiated 

disclosures of information that reflect 

on the safety of a consumer product or 

class of products, even if the 

information is not product specific. This 

rule does not address section 6(b)(6) 

because the Commission has internal 

clearance procedures in its directives 

system. (Directive 1450.2 ‘‘Clearance 

Procedures for Commission Staff to Use 

in Providing Information to the Public.’’ 

January 16, 2003.) 

§ 1101.2 Scope. 

Section 6(b) and this part apply to 

information obtained under the CPSA or 

to be disclosed to the public concerning 

products subject to the CPSA (15 U.S.C. 

2051–2089), and to the four other acts 

the Commission administers 

(transferred acts). These transferred acts 

are the Flammable Fabrics Act, 15 

U.S.C. 1191–1204 (FFA); the Poison 

Prevention Packaging Act of 1970, 15 

U.S.C. 1471–1477 (PPPA); the Federal 

Hazardous Substances Act, 15 U.S.C. 

1261–1278a (FHSA); and the 

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Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 10723 

Refrigerator Safety Act, 15 U.S.C. 1211– 

1214 (RSA). These provisions also apply 

to the Child Safety Protection Act 101 

and 102, Public Law 103–267, 108 Stat. 

722 (June 16, 1994) (CSPA); the Virginia 

Graeme Baker Pool and Spa Safety Act, 

15 U.S.C. 8003(a) (VGBA); and the 

Children’s Gasoline Burn Prevention 

Act 2(a), Public Law 110–278, 122 Stat. 

2602 (July 17, 2008) (CGBPA). 

Subpart B—Information Subject to 

Notice and Analysis Provisions of 

Section 6(b)(1) 

§ 1101.11 General application of 

provisions of section 6(b)(1). 

(a) Information subject to section 

6(b)(1). To be subject to the notice and 

analysis provisions of section 6(b)(1), 

information must meet all the following 

criteria: 

(1) The information must pertain to a 

specific product. 

(2) The information must be obtained 

under the acts the Commission 

administers, or be disclosed to the 

public in connection therewith. 

(3) The Commission, any member of 

the Commission, or any employee, 

agent, or representative, including 

contractor, of the Commission in an 

official capacity must propose to 

disclose the information to the public 

(see § 1101.12). 

(4) The manner in which the product 

is designated or described in the 

information must permit the public to 

ascertain readily the identity of the 

manufacturer or private labeler. [See 

§ 1101.13.] 

(b) Information not subject to section 

6(b)(1). The requirements of section 

6(b)(1) do not apply to: 

(1) Information described in the 

exclusions contained in section 6(b)(4) 

or (b)(5) of the CPSA (see subpart E and 

G of this rule). 

(2) Information the Commission is 

required by law to make publicly 

available. This information includes, for 

example, Commission notifications to 

foreign governments regarding certain 

products to be exported, as required by 

section 18(b) of the CPSA, 15 U.S.C. 

2067(b); section 14(d) of the FHSA, 15 

U.S.C. 1273(d); and section 15(c) of the 

FFA, 15 U.S.C. 1202(c). (See the 

Commission’s Export Policy Statement, 

16 CFR part 1019.) 

(3) Information required to be 

disclosed to the President and Congress 

pursuant to section 27(j) of the CPSA, 15 

U.S.C. 2076(j). 

(4) Press releases issued by firms. 

(5) Information filed or presented in 

administrative proceedings or litigation 

to which the Commission is a party and 

which is not expressly subject to the 

section 6(b)(4) exceptions. 

(6) A report of harm posted on the 

publicly available consumer product 

safety information database pursuant to 

section 6A of the CPSA, 15 U.S.C. 

2055a. 

(7) Information that is publicly 

available or that has been disseminated 

in a manner intended to reach the 

public in general, such as news reports; 

articles in academic and scientific 

journals; press releases distributed 

through news or wire services; or 

information that is available on the 

Internet. 

(8) Information that is substantially 

the same as information that the 

Commission previously disclosed in 

accordance with section 6(b)(1), except 

as specified in § 1101.31(d). 

§ 1101.12 Definition of ‘‘public’’. 

Public. For the purposes of section 

6(b)(1), the public includes any person 

except: 

(a) Any member of the Commission or 

any employee, agent, or representative, 

including contractor, of the Commission 

in an official capacity. 

(b) State officials who are 

commissioned officers under section 

29(a)(2) of the CPSA, 15 U.S.C. 

2078(a)(2), to the extent that the 

Commission furnishes them information 

necessary for them to perform their 

duties under that section. Such officials 

may not release to the public copies of 

such information unless the 

Commission has complied with section 

6(b) or the information falls within an 

exception to section 6(b). 

(c) Members of a Commission Chronic 

Hazard Advisory Panel established 

under section 28 of the CPSA (15 U.S.C. 

2077). However, disclosures of 

information by such a Panel are subject 

to section 6(b). 

(d) The persons or firms to which the 

information to be disclosed pertains, or 

their legal representatives. 

(e) The persons or firms who provided 

the information to the Commission, or 

their legal representatives. 

(f) Other federal agencies or state or 

local governments to which accident 

and investigation reports are provided 

pursuant to section 29(e) of the CPSA 

(15 U.S.C. 2078(e)). However, as 

required by that section, employees of 

federal agencies or state or local 

governments may not release to the 

public copies of any accident or 

investigation report made under the 

CPSA by an officer, employee or agent 

of the Commission unless CPSC has 

complied with the applicable 

requirements of section 6(b). 

(g) The Chairman or ranking minority 

member of a committee or 

subcommittee of Congress acting 

pursuant to committee business and 

having jurisdiction over the matter 

which is the subject of the information 

requested. 

(h) Any federal, state, local, or foreign 

government agency pursuant to, and in 

accordance with, section 29(f) of the 

Consumer Product Safety Improvement 

Act of 2008 (Pub. L. 110–314, 122 Stat. 

3016 (August 14, 2008)). 

§ 1101.13 Public ability to ascertain readily 

identity of manufacturer or private labeler. 

The advance notice and analysis 

provisions of section 6(b)(1) apply only 

when a reasonable person receiving the 

information in the form in which the 

information is to be disclosed and 

lacking specialized expertise can readily 

ascertain from the information itself the 

identity of the manufacturer or private 

labeler of a particular product. 

Subpart C—Procedure for Providing 

Notice and Opportunity To Comment 

Under Section 6(b)(1) 

§ 1101.21 Form of notice and opportunity 

to comment. 

(a) Notice may be oral or written. (1) 

The Commission will generally provide 

to manufacturers or private labelers 

written notice and opportunity to 

comment on information subject to 

section 6(b)(1). Whenever possible, the 

Commission will transmit such notice 

electronically. However, when the 

Commission publishes a finding that the 

public health and safety requires a 

lesser period of notice pursuant to 

section 6(b)(1) of the CPSA, the 

Commission may determine that notice 

and opportunity to comment orally is 

necessary. 

(2) Any notice required to be given 

under the provisions of this Part 1101 

may be transmitted using electronic 

means of communication. Whenever 

possible, the Commission will transmit 

such notice electronically. 

(b) Content of notice. The 

Commission shall, to the extent 

practicable, provide the manufacturer or 

private labeler with: 

(1) Either the actual text of the 

information to be disclosed or, if 

appropriate, a summary of the 

information. 

(2) A general description of the 

manner in which the Commission will 

disclose the information, including any 

other relevant information the 

Commission intends to include with the 

disclosure. If the Commission advises 

that the form of disclosure will be by 

press release, for example, the 

Commission need not provide further 

notice to disclose a summary of the 

press release. 

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(3) A request for comment with 

respect to the information, including a 

request for explanatory data or other 

relevant information for the 

Commission’s consideration. 

(4) A statement that, in the absence of 

a specific request by a firm that its 

comments be withheld from disclosure, 

the Commission will release to the 

public the firm’s comments (or a 

summary thereof prepared by the firm 

or, if the firm declines to do so, by the 

Commission). 

(5) A statement that if the 

manufacturer or private labeler objects 

to disclosure of its comments or a 

portion thereof, the manufacturer or 

private labeler must notify the 

Commission of such objection at the 

time the manufacturer or private labeler 

submits its comments, provide a 

rationale, such as an applicable 

statutory or regulatory basis or 

provision, for why the comments should 

not be disclosed, and explain why 

disclosure of the comments is not fair in 

the circumstances or is not reasonably 

related to effectuating the purposes of 

the CPSA. 

(6) Notice that the firm may request 

confidential treatment for the 

information, in accordance with section 

6(a)(3) of the Consumer Product Safety 

Act, 15 U.S.C. 2055(a)(3) (see 

§ 1101.24(b)). 

(7) A statement that no further request 

for comment will be sought by the 

Commission if the Commission intends 

to disclose information that is 

substantially the same as the 

information that the Commission 

previously disclosed. 

(8) The name, address, applicable 

contact information for electronic 

communication, and telephone number 

of the person to whom comments 

should be sent and the time when any 

comments are due (see § 1101.22). 

§ 1101.22 Timing: request for time 

extensions. 

(a) Time for comment. (1) In the 

interest of promoting timely 

notification, the Commission, whenever 

possible, will transmit electronically to 

the manufacturer or private labeler the 

notice to furnish comments to the 

Commission. Generally firms will 

receive ten (10) calendar days from the 

date of such notice. Firms that receive 

notice by mail will receive an additional 

three (3) calendar days to comment to 

account for time in the mail. 

(2) Upon request, the Freedom of 

Information Officer may provide a 

different amount of time for comment, 

particularly for firms that receive 

voluminous or complex material. In 

addition, the Commission may publish 

a finding that the public health and 

safety requires a lesser period of notice 

and may require a response in a shorter 

period of time (see § 1101.23). 

(b) No response submitted. (1) If the 

Commission has not received a response 

within the time specified and has 

received no request for extension of 

time, the Commission will analyze the 

information as provided in subpart D of 

this part. If no comments are submitted, 

the Commission will not give the further 

notice provided in section 6(b)(2). 

(2) The Commission will not disclose 

the information in fewer than 15 

calendar days after providing a 

manufacturer or private labeler with 

notice and an opportunity to comment, 

unless (i) the firm agrees to a lesser 

period or does not object to disclosure, 

or (ii) the Commission publishes a 

finding that the public health and safety 

requires a lesser period of notice (see 

§ 1101.23). 

(c) Requests for time extension. (1) 

Requests for extension of time to 

comment on information to be disclosed 

must be made to the person who 

provided the Commission’s notice and 

opportunity to comment. The request 

for time extension may be either oral or 

written. An oral request for a time 

extension must be promptly confirmed 

in writing. 

(2) Requests for extension of time 

must explain with specificity why the 

extension is needed and how much 

additional time is required. 

(3) The Commission will promptly 

respond to requests for extension of 

time. 

§ 1101.23 Providing less than 15 days 

notice before disclosing information. 

There are two circumstances in which 

the Commission may disclose to the 

public information subject to section 

6(b)(1) in a time less than 15 calendar 

days after providing notice to the 

manufacturer or private labeler. 

(a) Firm agrees to lesser period or does 

not object to disclosure. The 

Commission may disclose to the public 

information subject to section 6(b)(1) 

before the 15-day period expires when, 

after receiving the Commission’s notice 

and opportunity to comment, the firm 

involved agrees to the earlier disclosure; 

notifies the Commission that the firm 

has no comment; or notifies the 

Commission that the firm does not 

object to disclosure. 

(b) Commission finding a lesser 

period is required. Section 6(b)(1) 

provides that the Commission may 

publish a finding that the public health 

and safety requires a lesser period of 

notice than the 15 calendar days 

advance notice that section 6(b)(1) 

generally requires. The Commission 

may find that the public health and 

safety requires less than 15 calendar 

days advance notice, for example, to 

warn the public quickly because 

individuals may be in danger from a 

product hazard or a potential hazard, or 

to correct product safety information 

released by third persons, which 

mischaracterizes statements made by 

the Commission about the product or 

which attributes to the Commission 

statements about the product which the 

Commission did not make. 

(c) Notice of finding. The Commission 

will inform a manufacturer or private 

labeler of a product which is the subject 

of a public health and safety finding that 

the public health and safety requires 

less than 15 calendar days advance 

notice either orally or in writing, 

depending on the immediacy of the 

need for quick action. If written notice 

is provided, the Commission, whenever 

possible, will transmit such notice 

electronically. Before releasing 

information, the Commission will 

comply with the requirements of section 

6(b)(1) and (2) by giving the firm the 

opportunity to comment on the 

information, either orally or in writing 

depending on the immediacy of the 

need for quick action, and by giving the 

firm advance notice before disclosing 

information claimed by a manufacturer 

or private labeler to be inaccurate (see 

§ 1101.25). 

§ 1101.24 Scope of comments 

Commission seeks. 

(a) Comment in regard to the 

information. The section 6(b) 

opportunity to comment on information 

is intended to permit firms to furnish 

information and data to the Commission 

to assist the agency in its evaluation of 

the accuracy of the information. A firm’s 

submission, therefore, must be specific 

and should be accompanied by 

documentation, where available, if the 

comments are to assist the Commission 

in its evaluation of the information. 

Comments of a general nature, such as 

general suggestions or allegations that a 

document is inaccurate or that the 

Commission has not taken reasonable 

steps to assure accuracy, are not 

sufficient to assist the Commission in its 

evaluation of the information or to 

justify a claim of inaccuracy. The weight 

accorded a firm’s comments on the 

accuracy of information and the degree 

of scrutiny which the Commission will 

exercise in evaluating the information 

will depend on the specificity and 

completeness of the firm’s comments 

and of the accompanying 

documentation. In general, specific 

comments which are accompanied by 

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documentation will be given more 

weight than those which are 

undocumented and general in nature. 

(b) Claims of confidentiality. If the 

manufacturer or private labeler believes 

the information involved cannot be 

disclosed because of section 6(a)(2) of 

the CPSA (15 U.S.C. 2055(a)(2)), which 

refers to trade secret or other 

confidential material and information 

subject to 5 U.S.C. 552(b)(4), the firm 

may make claims of confidentiality at 

the time it submits its comments to the 

Commission under this section. Such 

claims must identify the specific 

information which the firm believes to 

be confidential or trade secret material 

or subject to 5 U.S.C. 552(b)(4) and must 

state with specificity the grounds on 

which the firm bases its claims. (See 

Commission’s Freedom of Information 

Act regulation, 16 CFR part 1015, 

particularly 16 CFR 1015.18.) 

(c) Requests for nondisclosure of 

comments. If a firm objects to disclosure 

of its comments or a portion thereof, the 

firm must notify the Commission of 

such objection at the time the firm 

submits its comments, provide a 

rationale, such as an applicable 

statutory or regulatory basis or 

provision, for why the comments should 

not be disclosed, and explain why 

disclosure of the comments is not 

necessary to assure that the disclosure 

of the information that is the subject of 

the comments is fair in the 

circumstances. If the firm objects to the 

disclosure of a portion of its comments, 

the firm must specifically identify those 

portions that should be withheld. 

Conclusory statements that comments 

must be withheld with no supporting 

basis are not sufficient to justify a 

request for nondisclosure. 

§ 1101.25 Notice of intent to disclose. 

(a) Notice to manufacturer or private 

labeler. In accordance with section 

6(b)(2) of the CPSA, if the Commission, 

after following the notice provisions of 

section 6(b)(1), determines that 

information claimed to be inaccurate by 

a manufacturer or private labeler in 

comments submitted under section 

6(b)(1) should be disclosed because the 

Commission believes it has complied 

with section 6(b)(1), the Commission 

shall notify the manufacturer or private 

labeler that the Commission intends to 

disclose the information not less than 

five (5) calendar days after the date of 

the receipt of notification by the firm. 

The notice of intent to disclose will 

include an explanation of the reason for 

the Commission’s decision and copies 

of any additional materials, such as 

explanatory statements and letters to 

Freedom of Information Act requesters, 

which were not previously sent to the 

firm. 

(b) Commission finding a lesser 

period is required. The Commission 

may determine that the public health 

and safety requires less than five (5) 

calendar days advance notice of the 

Commission’s intent to disclose 

information claimed to be inaccurate. 

For example, the Commission may 

determine that the public must be 

warned more quickly than five (5) 

calendar days because of danger from a 

product hazard or a potential hazard, or 

to correct product safety information 

released by third persons, which 

mischaracterizes statements made by 

the Commission about the product or 

which inaccurately attributes to the 

Commission statements about the 

product. 

(c) Notice of findings. The 

Commission will inform a manufacturer 

or private labeler of a product that is the 

subject of a public health and safety 

finding that the public health and safety 

requires less than five (5) calendar days 

advance notice either orally or in 

writing, depending on the immediacy of 

the need for quick action. If written 

notice is provided, the Commission, 

whenever possible, will transmit such 

notice electronically. 

§ 1101.26 Circumstances when the 

Commission does not provide notice and 

opportunity to comment. 

(a) Notice to the extent practicable. 

Section 6(b)(1) requires that ‘‘to the 

extent practicable’’ the Commission 

must provide manufacturers and private 

labelers notice and opportunity to 

comment before disclosing information 

from which the public can ascertain 

readily their identity. 

(b) Circumstances when notice and 

opportunity to comment is not 

practicable. The Commission has 

determined that there are various 

circumstances when notice and 

opportunity to comment is not 

practicable. Examples include the 

following: 

(1) When the Commission has taken 

reasonable steps to assure that the 

company to which the information 

pertains is out of business and has no 

identifiable successor. 

(2) When the information is disclosed 

in testimony in response to an order of 

the court during litigation to which the 

Commission is not a party. 

Subpart D—Reasonable Steps 

Commission Will Take To Assure 

Information It Discloses Is Accurate, 

and That Disclosure Is Fair in the 

Circumstances and Reasonably 

Related to Effectuating the Purposes 

of the Acts It Administers 

§ 1101.31 General requirements. 

(a) Timing of decisions. The 

Commission will attempt to make its 

decision on disclosure so that the 

Commission can disclose information in 

accordance with section 6(b) after 

expiration of the statutory 15-day 

prohibition on disclosure. 

(b) Inclusion of comments. In 

disclosing any information under this 

section, the Commission may, and upon 

the request of the manufacturer or 

private labeler shall, include any 

comments or other information or a 

summary thereof submitted by the 

manufacturer or private labeler to the 

extent permitted by and subject to the 

requirements of section 6(b). If the 

manufacturer or private labeler, at the 

time it submits its section 6(b) 

comments, specifically requests that the 

Commission not include the comments, 

or include only a designated portion of 

the comments, the manufacturer or 

private labeler must provide for 

evaluation by the Commission, a 

rationale, such as an applicable 

statutory or regulatory basis or 

provision, supporting such withholding 

and an explanation of why disclosure of 

the comments is not necessary to assure 

that the disclosure of the information 

that is the subject of the comments is 

fair in the circumstances. 

(c) Explanatory statements. Where 

appropriate, the Commission will 

accompany the disclosure of 

information subject to this subpart with 

an explanatory statement that makes the 

nature of the information disclosed clear 

to the public. Inclusion of an 

explanatory statement is in addition to, 

and not a substitute for, taking 

reasonable steps to assure the accuracy 

of information. The Commission also 

will accompany the disclosure, to the 

extent practicable, with any other 

relevant information in the 

Commission’s possession that places the 

released information in context. 

(d) Information previously disclosed. 

If the Commission intends to disclose 

information that is substantially the 

same as information that the 

Commission previously disclosed in 

accordance with section 6(b)(1), the 

Commission is not obligated to take any 

additional steps to assure accuracy 

unless the Commission has reason to 

question the accuracy of the 

information. 

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10726 Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 

§ 1101.32 Reasonable steps to assure 

information is accurate. 

(a) The Commission considers that the 

following types of actions are reasonable 

steps to assure the accuracy of 

information that the Commission 

proposes to release to the public: 

(1) The Commission staff or a 

qualified person or entity outside the 

Commission (e.g., someone with 

requisite training or experience, such as 

a fire marshal, a fire investigator, an 

electrical engineer, or an attending 

physician) conducts an investigation or 

an inspection which yields or 

corroborates the product information to 

be disclosed; or 

(2) The Commission staff conducts a 

technical, scientific, or other evaluation 

which yields or corroborates the 

product information to be disclosed or 

the staff obtains a copy of such an 

evaluation conducted by a qualified 

person or entity; or 

(3) The Commission staff provides the 

information to be disclosed to the 

person who submitted the information 

to the Commission for review and, if 

necessary, correction, and the submitter 

confirms the information as accurate to 

the best of the submitter’s knowledge 

and belief, provided that: 

(i) The confirmation is made by the 

person injured or nearly injured in an 

incident involving the product; or 

(ii) The confirmation is made by a 

person who, on the basis of his or her 

own observation or experience, 

identifies an alleged safety-related 

defect in or problem with such a 

product even though no incident or 

injury associated with the defect or 

problem may have occurred; or 

(iii) The confirmation is made by an 

eyewitness to an injury or safety-related 

incident involving such a product; or 

(iv) The confirmation is made by an 

individual with requisite training or 

experience who has investigated and/or 

determined the cause of deaths, injuries 

or safety-related incidents involving 

such a product. Such persons would 

include, for example, a fire marshal, a 

fire investigator, an electrical engineer, 

an ambulance attendant, or an attending 

physician; or 

(v) The confirmation is made by a 

parent or guardian of a child involved 

in an incident involving such a product, 

or by a person to whom a child is 

entrusted on a temporary basis. 

(b) The steps set forth below are the 

steps the Commission will take to 

analyze the accuracy of information 

which the Commission proposes to 

release to the public. 

(1) The Commission will review each 

proposed disclosure of information 

which is susceptible of factual 

verification to assure that reasonable 

steps have been taken to assure accuracy 

in accordance with § 1101.32(a). 

(2) As described in subpart C of this 

part, the Commission will provide a 

manufacturer or private labeler with a 

summary or text of the information the 

Commission proposes to disclose and 

will invite comment with respect to that 

information. 

(3) If the Commission receives no 

comments or only general, 

undocumented comments claiming 

inaccuracy, the Commission will review 

the information in accordance with 

paragraph (a) of this section and release 

it, generally without further 

investigating the accuracy of the 

information if there is nothing on the 

face of the information that calls its 

accuracy into question. 

(4) If a firm comments on the accuracy 

of the information that the Commission 

proposes to disclose, the Commission 

will review the information in light of 

the comments. The degree of review by 

the Commission and the weight 

accorded a firm’s comments will be 

directly related to the specificity and 

completeness of the firm’s comments on 

accuracy and the accompanying 

documentation. Documented comments 

will be given more weight than 

undocumented comments. Specific 

comments will be given more weight 

than general comments. Further steps 

may be taken to determine the accuracy 

of the information if the Commission 

determines such action appropriate. 

§ 1101.33 Reasonable steps to assure 

information release is fair in the 

circumstances. 

(a) The steps set forth below are the 

steps the Commission has determined 

are reasonable to take to assure 

disclosure of information to the public 

is fair in the circumstances: 

(1) To the extent permitted by and 

subject to the requirements of section 

6(b), the Commission may accompany 

information disclosed to the public with 

the manufacturer’s or private labeler’s 

comments or other information or a 

summary thereof unless the 

manufacturer or private labeler asks in 

the firm’s section 6(b) comments that 

the comments or a designated portion 

thereof not accompany the information, 

provides a rationale, such as an 

applicable statutory or regulatory basis 

or provision, for why the comments 

should not be disclosed, and explains 

why disclosure of the comments is not 

necessary to assure that the disclosure 

of the information that is the subject of 

the comments is fair in the 

circumstances. If the firm objects to the 

disclosure of a portion of the firm’s 

comments, the firm must specifically 

identify those portions that should be 

withheld. Conclusory statements that 

comments must be withheld with no 

supporting basis are not sufficient to 

justify a request for nondisclosure. 

(2) The Commission generally will 

accompany the disclosure of 

information with an explanatory 

statement that makes the nature of the 

information disclosed clear to the 

public. The Commission will also take 

reasonable steps to disclose any other 

relevant information in its possession 

that will assure disclosure is fair in the 

circumstances. 

(3) The Commission will limit the 

form of disclosure to that which the 

Commission considers appropriate in 

the circumstances. For example, the 

Commission may determine that 

issuance of a nationwide press release 

in a particular situation is not 

appropriate and rather will issue a press 

release directed at certain localities, 

regions or user populations. 

(4) The Commission may delay 

disclosure of information in some 

circumstances. For example, the 

Commission may elect to postpone an 

information release until an 

investigation, analysis or test of a 

product is complete, rather than 

releasing information piecemeal if such 

disclosure would be unfair. 

(b) The Commission will not disclose 

information when it determines that 

disclosure would not be fair in the 

circumstances. The following are 

examples of disclosures which generally 

would not be fair in the circumstances. 

(1) Disclosure of information 

furnished by a firm to facilitate prompt 

remedial action or settlement of a case 

when the firm has a reasonable 

expectation that the information will be 

maintained by the Commission in 

confidence. 

(2) Disclosure of staff notes or minutes 

of meetings to discuss or negotiate 

settlement agreements and of drafts of 

documents prepared during settlement 

negotiations, where the firm has a 

reasonable expectation that such written 

materials will be maintained by the 

Commission in confidence. 

(3) Disclosure of a firm’s comments 

(or a portion thereof) submitted under 

section 6(b)(1) if the firm provides a 

rationale, such as an applicable 

statutory or regulatory basis or 

provision, for why the comments should 

not be disclosed and explains why 

disclosure of the comments is not 

necessary to assure that the disclosure 

of the information that is the subject of 

the comments is fair in the 

circumstances. 

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§ 1101.34 Reasonable steps to assure 

information release is ‘‘reasonably related 

to effectuating the purposes of the Acts’’ 

the Commission administers. 

(a) The steps set forth below are the 

steps the Commission has determined 

are reasonable to take to assure that the 

disclosure of information to the public 

effectuates the purposes of the Acts it 

administers. 

(1) Purposes of the CPSA. The 

Commission will review information to 

determine whether disclosure would be 

reasonably related to effectuating one or 

more of the specific purposes of the 

CPSA, as set forth in sections 2(b) and 

5, 15 U.S.C. 2051(b) and 2054. 

(2) Purposes of the FHSA, FFA, PPPA, 

RSA, CSPA, VGBA, and CGBPA. The 

Commission will also review 

information concerning products subject 

to the transferred and other acts it 

administers and to the Commission’s 

specific functions under those acts to 

determine whether disclosure of 

information would be reasonably related 

to effectuating the purposes of those 

acts. 

(3) Purposes of the FOIA. FOIA 

requests will be reviewed to determine 

whether disclosure of the information is 

reasonably related to effectuating one or 

more of the purposes of the acts 

administered by the Commission. In the 

event of a close question on this issue, 

the Commission will defer to the 

purposes of the FOIA. The FOIA 

establishes a general right of the public 

to have access to information in the 

Commission’s possession, particularly 

information that reveals whether the 

Commission is meeting its statutory 

responsibilities or information upon 

which the Commission bases a decision 

that affects the public health and safety. 

(b) In reviewing proposed information 

disclosures, the Commission will 

consider disclosing the material on the 

basis of whether release of the 

information, when taken as a whole, 

was prepared or is maintained in the 

course of or to support an activity of the 

Commission designed to accomplish 

one or more of the statutory purposes. 

Subpart E—Statutory Exceptions of 

Section 6(b)(4) 

§ 1101.41 Generally. 

(a) Scope. This subpart describes and 

interprets the exceptions to the 

requirements of section 6(b)(1)–(b)(3) 

that are set forth in section 6(b)(4). 

These exceptions apply to: 

(1) Information about a product 

reasonably related to the subject matter 

of an imminent hazard action in federal 

court; 

(2) Information about a product which 

the Commission has reasonable cause to 

believe is in violation of any consumer 

product safety rule or provision under 

the Consumer Product Safety Act (15 

U.S.C. 2051, et seq.) or similar rule or 

provision of any other act enforced by 

the Commission; 

(3) Information in the course of or 

concerning a rulemaking proceeding; or 

(4) Information in the course of or 

concerning an adjudicatory, 

administrative or judicial proceeding. 

(b) Application to transferred and 

other acts. The Commission will apply 

the exceptions contained in section 

6(b)(4) to those provisions in the 

transferred and other acts, comparable 

to the specific provisions in the CPSA 

to which section 6(b)(4) applies. 

§ 1101.42 Imminent hazard exception. 

(a) Statutory provision. Section 

6(b)(4)(A) provides that the 

requirements of section 6(b)(1) do not 

apply to public disclosure of 

‘‘information about any consumer 

product with respect to which product 

the Commission has filed an action 

under section 12 (relating to imminently 

hazardous products).’’ 

(b) Scope of exception. This exception 

applies once the Commission has filed 

an action under section 12 of the CPSA 

(15 U.S.C. 2061), in a United States 

district court. Once the exception 

applies, information may be disclosed to 

the public without following the 

requirements of section 6(b)(1) if the 

information concerns or relates to the 

product alleged to be imminently 

hazardous. 

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

(a) Statutory provision. Section 

(6)(b)(4)(A) provides that the 

requirements of section 6(b)(1) do not 

apply to public disclosure of 

information about any consumer 

product which the Commission has 

reasonable cause to believe is in 

violation of any consumer product 

safety rule or provision under the 

Consumer Product Safety Act (15 U.S.C. 

2051 et seq.) or similar rule or provision 

of any other act enforced by the 

Commission. 

(b) Scope of exception. This exception 

applies once the Commission has 

‘‘reasonable cause to believe’’ there has 

occurred a violation of any consumer 

product safety rule or provision under 

the Consumer Product Safety Act (15 

U.S.C. 2051 et seq.) or similar rule or 

provision of any other act enforced by 

the Commission. Once the exception 

applies, the Commission may disclose 

information to the public without 

following the requirements of section 

6(b)(1) if the information concerning the 

product is reasonably related to the 

violation. 

§ 1101.44 Rulemaking proceeding 

exception. 

(a) Statutory provision. Section 

6(b)(4)(B) provides that the 

requirements of section 6(b)(1) do not 

apply to public disclosure of 

information ‘‘in the course of or 

concerning a rulemaking proceeding 

(which shall commence upon the 

publication of an advance notice of 

proposed rulemaking or a notice of 

proposed rulemaking) * * * under this 

Act.’’ 

(b) Scope of exception. This exception 

applies upon publication in the Federal 

Register of an advance notice of 

proposed rulemaking or, if no advance 

notice of proposed rulemaking is issued, 

upon publication in the Federal 

Register of a notice of proposed 

rulemaking, under any of the acts the 

Commission administers. Once the 

exception applies, the Commission may 

publicly disclose information in the 

course of the rulemaking proceeding 

which is presented during the 

proceeding or which is contained or 

referenced in the public record of the 

proceeding and or which concerns the 

proceeding without following the 

requirements of section 6(b)(1). 

Documentation supporting the public 

record is also excepted from section 

6(b). A rulemaking proceeding includes 

a proceeding either to issue, to amend, 

or to revoke a rule. 

(c) The phrase ‘‘in the course of’’ 

refers to information disclosed as part of 

the proceeding and may, therefore, 

include information generated before 

the proceeding began and later 

presented as part of the proceeding. A 

rulemaking proceeding ends once the 

Commission has published the final rule 

or a notice of termination of the 

rulemaking in the Federal Register. 

(d) The phrase ‘‘concerning’’ refers to 

information about the proceeding itself 

both after the proceeding has begun and 

indefinitely thereafter. Therefore, the 

Commission may publicly disclose 

information that describes the 

substance, process and outcome of the 

proceeding. By issuing opinions and 

public statements, the Commissioners, 

and the presiding official, who act as 

decisionmakers, may also publicly 

explain their individual votes and any 

decision rendered. 

§ 1101.45 Adjudicatory proceeding 

exception. 

(a) Statutory provision. Section 

6(b)(4)(B) provides that the 

requirements of section 6(b)(1) do not 

apply to public disclosure of 

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10728 Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 

‘‘information in the course of or 

concerning * * * [an] adjudicatory 

proceeding * * * under this Act.’’ 

(b) Scope of exception. This exception 

applies once the Commission begins an 

administrative adjudication under the 

CPSA. The Commission will also apply 

the exception to any administrative 

adjudicatory proceeding under FHSA, 

FFA, or PPPA. An adjudicatory 

proceeding begins with the filing of a 

complaint under section 15 (c) or (d), 

17(a) (1) or (3), or 20 of the CPSA (15 

U.S.C. 2064 (c) or (d), 2066 (a) (1), or (3), 

or 2069); section 15 of the FHSA (15 

U.S.C. 1274); section 5(b) of the FFA, 

(15 U.S.C. 1194(b)); or section 4(c) of the 

PPPA (15 U.S.C. 1473(c)). An 

adjudicatory proceeding ends when the 

Commission issues a final order, 16 CFR 

1025.51–1025.58. 

(c) The phrase ‘‘in the course of’’ 

refers to information disclosed as part of 

the adjudication, whether in documents 

filed or exchanged during discovery, or 

in testimony given in such proceedings, 

and may therefore, include information 

generated before the adjudication began. 

(d) The phrase ‘‘concerning’’ refers to 

information about the administrative 

adjudication itself, both once it begins 

and indefinitely thereafter. Therefore, 

the Commission may publicly disclose 

information that describes the 

substance, process and outcome of the 

proceeding including, for example, the 

effectiveness of any corrective action 

such as information on the number of 

products corrected as a result of a 

remedial action. By issuing opinions 

and public statements, the 

Commissioners and the presiding 

official, who act as decisionmakers, may 

publicly explain their individual votes 

and any decision rendered. 

§ 1101.46 Other administrative or judicial 

proceeding exception. 

(a) Statutory provision. Section 

6(b)(4)(B) provides that the 

requirements of section 6(b)(1) do not 

apply to public disclosure of 

‘‘information in the course of or 

concerning any . . . other 

administrative or judicial proceeding 

under this Act.’’ 

(b) Scope of exception. This exception 

applies to an administrative or judicial 

proceeding, other than a rulemaking or 

administrative adjudicatory proceeding, 

under the CPSA, FHSA, FFA, or PPPA. 

Proceedings within this exception 

include: 

(1) A proceeding to act on a petition 

to start a rulemaking proceeding. This 

proceeding begins with the filing of a 

petition and ends when the petition is 

denied or, if granted, when the 

rulemaking proceeding begins. 

Information subject to the exception for 

petition proceedings is the petition itself 

and the supporting documentation, and 

information subsequently compiled by 

the staff and incorporated or referenced 

in the staff briefing papers for and 

recommendation to the Commission. 

(2) A proceeding to act on a request 

for exemption from a rule or regulation. 

This proceeding begins with the filing of 

a request for exemption and ends when 

the request is denied or, if granted, 

when the Commission takes the first 

step to implement the exemption, e.g., 

when an amendment to the rule or 

regulation is proposed. 

(3) A proceeding to issue a subpoena 

or general or special order. This 

proceeding begins with a staff request to 

the Commission to issue a subpoena or 

general or special order and ends once 

the request is granted or denied. 

(4) A proceeding to act on a motion 

to quash or to limit a subpoena or 

general or special order. This 

proceeding begins with the filing with 

the Commission of a motion to quash or 

to limit and ends when the motion is 

granted or denied. 

(5) Any judicial proceeding to which 

the Commission is a party. This 

proceeding begins when a complaint is 

filed and ends when a final decision 

(including appeal) is rendered with 

respect to the Commission. 

(6) Any administrative proceeding to 

which the Commission is a party, such 

as an administrative proceeding before 

the Merit Systems Protection Board or 

the Federal Labor Relations Authority. 

This proceeding begins and ends in 

accordance with the applicable 

regulations or procedures of the 

administrative body before which the 

proceeding is heard. 

(7) A proceeding to obtain a retraction 

from the Commission pursuant to 

subpart F of these rules. This 

proceeding begins with the filing with 

the Secretariat of the Commission of a 

request for retraction and ends when the 

request is denied or, if granted, when 

the information is retracted. 

(c) In the course of or concerning. The 

phrase ‘‘in the course of or concerning’’ 

shall have the same meaning as set forth 

in either § 1101.44 (c) and (d) or 

§ 1101.45 (c) and (d), whichever is 

applicable. 

Subpart F—Retraction 

§ 1101.51 Commission interpretation. 

(a) Statutory provisions. Section 

6(b)(7) of the CPSA provides: If the 

Commission finds that, in the 

administration of this Act, it has made 

public disclosure of inaccurate or 

misleading information which reflects 

adversely upon the safety of any 

consumer product or class of consumer 

products, or the practices of any 

manufacturer, private labeler, 

distributor, or retailer of consumer 

products, it shall, in a manner 

equivalent to that in which such 

disclosure was made, take reasonable 

steps to publish a retraction of such 

inaccurate or misleading information. 

(b) Scope. Section 6(b)(7) applies to 

inaccurate or misleading information 

only if the information is adverse—i.e., 

if the information reflects adversely 

either on the safety of a consumer 

product or on the practices of a 

manufacturer, private labeler, 

distributor or retailer. In addition, the 

Commission will apply section 6(b)(7) 

to information about products, and 

about manufacturers and private 

labelers of products, the Commission 

may regulate under any of the statutes 

it administers. Section 6(b)(7) applies to 

information already disclosed by the 

Commission, members of the 

Commission, or the Commission 

employees, agents, contractors or 

representatives in their official 

capacities. 

§ 1101.52 Procedure for retraction. 

(a) Initiative. The Commission may 

retract information under section 6(b)(7) 

on the initiative of the Commission, 

upon the request of a manufacturer, 

private labeler, distributor or retailer of 

a consumer product, or upon the request 

of any other person in accordance with 

the procedures provided in this section. 

(b) Request for retraction. Any 

manufacturer, private labeler, 

distributor or retailer of a consumer 

product or any other person may request 

a retraction if he/she believes the 

Commission, any member of the 

Commission, or any employee, agent, or 

representative, including contractor, of 

the Commission in an official capacity 

has made public disclosure of 

inaccurate or misleading information, 

which reflects adversely either on the 

safety of a product with which the firm 

deals or on the practices of the firm. The 

request must be in writing and sent via 

either electronic mail to cpscos@cpsc.gov or first class mail to The 

Secretariat, Office of the Secretary, U.S. 

Consumer Product Safety Commission, 

4330 East West Highway, Bethesda, MD, 

20814–4408. 

(c) Content of request. A request for 

retraction must include the following 

information to the extent it is reasonably 

available: 

(1) The information disclosed for 

which retraction is requested, the date 

on which the information was 

disclosed, the manner in which it was 

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Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 10729 

disclosed, who disclosed it, the type of 

document (e.g., letter, memorandum, 

news release) and any other relevant 

information the firm has to assist the 

Commission in identifying the 

information. A photocopy of the 

disclosure should accompany the 

request. 

(2) A statement of the specific aspects 

of the information that the firm believes 

are inaccurate or misleading and reflect 

adversely either on the safety of a 

consumer product with which the firm 

deals or on the firm’s practices. 

(3) A statement of the reasons the firm 

believes the information is inaccurate or 

misleading and reflects adversely either 

on the safety of a consumer product 

with which the firm deals or on the 

firm’s practices. 

(4) A statement of the action the firm 

requests the Commission to take in 

publishing a retraction in a manner 

equivalent to that in which disclosure 

was made. 

(5) Any additional data or information 

the firm believes is relevant. 

(d) Commission action on request. 

The Commission will act expeditiously 

on any request for retraction within 30 

working days unless the Commission 

determines, for good cause, that a longer 

time period is appropriate. If the 

Commission finds that the Commission, 

any member of the Commission, or any 

employee, agent, or representative, 

including contractor, of the Commission 

in an official capacity has made public 

disclosure of inaccurate or misleading 

information that reflects adversely 

either on the safety of the firm’s product 

or the practices of the firm, the 

Commission will publish a retraction of 

information in a manner equivalent to 

that in which the disclosure was made. 

If the Commission finds that fuller 

disclosure is necessary, the Commission 

will publish a retraction in the manner 

that the Commission determines 

appropriate under the circumstances. 

(e) Notification to requester. The 

Commission will promptly notify the 

requester in writing of the Commission’s 

decision on request for retraction. 

Notification shall set forth the reasons 

for the Commission’s decision. 

Subpart G—Information Submitted 

Pursuant to Section 15(b) of the CPSA 

§ 1101.61 Generally. 

(a) Generally. In addition to the 

requirements of section 6(b)(1), section 

6(b)(5) of the CPSA imposes further 

limitations on the disclosure of 

information submitted to the 

Commission pursuant to section 15(b) of 

the CPSA, 15 U.S.C. 2064(b). 

(b) Criteria for disclosure. Under 

section 6(b)(5) the Commission shall not 

disclose to the public information 

which is identified as being submitted 

pursuant to section 15(b) or which is 

treated by the Commission staff as being 

submitted pursuant to section 15(b). 

Section 6(b)(5) also applies to 

information voluntarily submitted after 

a firm’s initial report to assist the 

Commission in its evaluation of the 

section 15 report. However, the 

Commission may disclose information 

submitted pursuant to section 15(b) in 

accordance with section 6(b)(1)–(3) if: 

(1) The Commission has issued a 

complaint under section 15 (c) or (d) of 

the CPSA alleging that such product 

presents a substantial product hazard; or 

(2) In lieu of proceeding against such 

product under section 15 (c) or (d), the 

Commission has accepted in writing a 

remedial settlement agreement dealing 

with such product; or 

(3) The person who submitted the 

information under section 15(b) agrees 

to its public disclosure; or 

(4) The Commission publishes a 

finding that the public health and safety 

requires public disclosure with a lesser 

period of notice than is required by 

section 6(b)(1). 

§ 1101.62 Statutory exceptions to section 

6(b)(5) requirements. 

(a) Scope. The limitations established 

by section 6(b)(5) do not apply to the 

public disclosure of: 

(1) Information with respect to a 

consumer product which is the subject 

of an action brought under section 12 

(see § 1101.42); 

(2) Information with respect to a 

consumer product which the 

Commission has reasonable cause to 

believe is in violation of any consumer 

product safety rule or provision under 

the Consumer Product Safety Act (Pub. 

L. 92–573, 86 Stat. 1207, as amended 

(15 U.S.C. 2051, et seq.)) or similar rule 

or provision of any other act enforced by 

the Commission; or 

(3) Information in the course of or 

concerning a judicial proceeding (see 

§ 1101.45). 

(b) [Reserved] 

§ 1101.63 Information submitted pursuant 

to section 15(b) of the CPSA. 

(a) Section 6(b)(5) applies only to 

information provided to the 

Commission by a manufacturer, 

distributor, or retailer which is 

identified by the manufacturer, 

distributor or retailer, or treated by the 

Commission staff as being submitted 

pursuant to section 15(b). 

(b) Section 6(b)(5)’s limitation also 

applies to the portions of staff generated 

documents that contain, summarize or 

analyze such information submitted 

pursuant to section 15(b). 

(c) Section 6(b)(5) does not apply to 

information (1) independently obtained 

or prepared by the Commission staff or 

(2) identified by the Commission staff 

through publicly available sources. For 

example, information that is publicly 

available or that has been disseminated 

in a manner intended to reach the 

public in general, such as news reports; 

articles in academic and scientific 

journals; press releases distributed 

through news or wire services; 

information that is available on the 

Internet; or information appearing on 

the publicly available consumer product 

safety information database established 

pursuant to section 6A of the CPSA, 15 

U.S.C. 2055a, does not fall within 

section 6(b)(5)’s disclosure limits. 

Subpart H—Delegation of Authority to 

Information Group 

§ 1101.71 Delegation of authority. 

(a) Delegation. Pursuant to section 

27(b)(10) of the CPSA, 15 U.S.C. 

2076(b)(10), the Commission delegates 

to the General Counsel or his or her 

senior staff designees, the authority to 

render all decisions under this part 

concerning the release of information 

subject to section 6(b) when firms have 

furnished section 6(b) comment except 

as provided in paragraph (b). The 

Commission also delegates to the 

Secretariat of the Commission, or his or 

her senior staff designee, authority to 

make all decisions under this part 

concerning the release of information 

under section 6(b) when firms have 

failed to furnish section 6(b) comment 

or have consented to disclosure except 

as provided in paragraph (b) of this 

section. The General Counsel shall have 

authority to establish an Information 

Group composed of the General Counsel 

and the Secretariat of the Commission 

or their designees who shall be senior 

staff members. 

(b) Findings not delegated. The 

Commission does not delegate its 

authority— 

(1) To find, pursuant to section 6(b)(1) 

and § 1101.23(b) of this part, that the 

public health and safety requires less 

than 15 calendar days advance notice of 

proposed disclosures of information. 

(2) To find, pursuant to section 6(b)(2) 

and § 1101.25(b) of this part, that the 

public health and safety requires less 

than five (5) calendar days advance 

notice of its intent to disclose 

information claimed to be inaccurate. 

(3) To decide whether the 

Commission should take reasonable 

steps to publish a retraction of 

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10730 Federal Register / Vol. 79, No. 38 / Wednesday, February 26, 2014 / Proposed Rules 

1 58 FR 36008. 

2 73 FR 14570. 

3 73 FR 14409. 

4We received seven comment letters. You may 

read the comment letters at http://

www.regulations.gov under the same docket 

number as this notice. 

5 You can read a transcript of the policy 

conference at http://www.ssa.gov/disability/SSA_

HIV_Policy_Conf_Transcript.pdf. 

information in accordance with section 

6(b)(7) and § 1101.52 of this part. 

(c) Final agency action; Commission 

decision. A decision of the General 

Counsel or the Secretariat or their 

designees shall be a final agency 

decision and shall not be appealable as 

of right to the Commission. However, 

the General Counsel or the Secretariat 

may in his or her discretion refer an 

issue to the Commission for decision. 

Dated: February 14, 2014. 

Todd A. Stevenson, 

Secretariat, Consumer Product Safety 

Commission. 

[FR Doc. 2014–03600 Filed 2–25–14; 8:45 am] 

BILLING CODE 6355–01–P 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Part 404 

[Docket No. SSA–2007–0082] 

RIN 0960–AG71 

Revised Medical Criteria for Evaluating 

Human Immunodeficiency Virus (HIV) 

Infection and for Evaluating Functional 

Limitations in Immune System 

Disorders 

AGENCY: Social Security Administration. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: We propose to revise the 

criteria in the Listing of Impairments 

(listings) that we use to evaluate claims 

involving human immunodeficiency 

virus (HIV) infection in adults and 

children under titles II and XVI of the 

Social Security Act (Act). We also 

propose to revise the introductory text 

of the listings that we use to evaluate 

functional limitations resulting from 

immune system disorders. The 

proposed revisions reflect our program 

experience, advances in medical 

knowledge, recommendations from a 

commissioned report and comments 

from medical experts and the public. 

DATES: To ensure that your comments 

are considered, we must receive them 

by no later than April 28, 2014. 

ADDRESSES: You may submit comments 

by any one of three methods—Internet, 

fax, or mail. Do not submit the same 

comments multiple times or by more 

than one method. Regardless of which 

method you choose, please state that 

your comments refer to Docket No. 

SSA–2007–0082 so that we may 

associate your comments with the 

correct regulation. 

Caution: You should be careful to 

include in your comments only 

information that you wish to make 

publicly available. We strongly urge you 

not to include in your comments any 

personal information, such as Social 

Security numbers or medical 

information. 

1. Internet: We strongly recommend 

that you submit your comments via the 

Internet. Please visit the Federal 

eRulemaking portal at http://

www.regulations.gov. Use the Search 

function to find docket number SSA– 

2007–0082. The system will issue you a 

tracking number to confirm your 

submission. You will not be able to 

view your comment immediately 

because we must post each comment 

manually. It may take up to a week for 

your comment to be viewable. 

2. Fax: Fax comments to (410) 966– 

2830. 

3. Mail: Address your comments to 

the Office of Regulations and Reports 

Clearance, Social Security 

Administration, 107 Altmeyer Building, 

6401 Security Boulevard, Baltimore, 

Maryland 21235–6401. 

Comments are available for public 

viewing on the Federal eRulemaking 

portal at http://www.regulations.gov or 

in person, during regular business 

hours, by arranging with the contact 

person identified below. 

FOR FURTHER INFORMATION CONTACT: 

Cheryl Williams, Office of Medical 

Listings Improvement, Social Security 

Administration, 6401 Security 

Boulevard, Baltimore, Maryland 21235– 

6401, (410) 965–1020. For information 

on eligibility or filing for benefits, call 

our national toll-free number, 1–800– 

772–1213, or TTY 1–800–325–0778, or 

visit our Internet site, Social Security 

Online, at http://

www.socialsecurity.gov. 

SUPPLEMENTARY INFORMATION: 

Why are we proposing to revise the 

listings for evaluating HIV infection? 

We have not comprehensively revised 

the HIV infection listings, 14.08 for 

adults and 114.08 for children, since we 

first published final rules for them on 

July 2, 1993.1 Although we published 

final rules for immune system disorders 

on March 18, 2008 that included 

changes to listings 14.08 and 114.08, the 

criteria in the current HIV infection 

listings are not substantively different 

from the criteria in the final rules we 

published in 1993.2

What revisions are we proposing? 

We propose to: 

• Revise and expand the introductory 

text for evaluating HIV infection for 

both adults (section 14.00) and children 

(section 114.00); 

• Revise the introductory text for 

evaluating functional limitations 

resulting from immune system disorders 

for adults (section 14.00); 

• Remove current HIV infection 

listings 14.08A–J for adults; 

• Add HIV infection listings 14.11A– 

H for adults; 

• Redesignate and revise current HIV 

infection listing 14.08K for adults as 

proposed listing 14.11I; 

• Remove current HIV infection 

listings 114.08A–K for children; and 

• Add HIV infection listings 

114.11A–H for children. 

How did we develop these proposed 

rules? 

In addition to our adjudicative 

experience and our review of the 

advances in medical knowledge, 

treatment, and methods of evaluating 

HIV infection, we asked experts and the 

public to provide us with information 

that helped us develop the proposals. 

We published an Advanced Notice of 

Proposed Rulemaking (ANPRM) in the 

Federal Register on March 18, 2008.3

We informed the public that we were 

considering whether and how to update 

and revise the rules we use to evaluate 

HIV infection. We also invited 

interested persons and organizations to 

send us comments and suggestions 

about whether we should add, change, 

or remove any of the criteria in listings 

14.08 and 114.08, and if so, what 

revisions did the commenters think we 

should make. We received comments 

from medical experts, advocates, and 

our adjudicators.4

In addition, we hosted a policy 

conference called ‘‘HIV Infection in the 

Disability Programs’’ in New York, N.Y., 

on September 10, 2008.5 At this 

conference, we received comments and 

suggestions about how to update and 

revise our rules from professionals who 

work with patients with HIV infection, 

including physicians, medical experts, 

and advocates, as well as a person with 

HIV infection, and a mother of a child 

with HIV infection. 

In 2009, we commissioned a report 

from the Institute of Medicine (IOM) of 

The National Academies on the criteria 

that we use to evaluate disability in 

persons with HIV infection. The IOM 

published the report, HIV and 

Disability: Updating the Social Security 

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