CPSC Proposes Revisions to Section 6(b) Information Disclosure Rule

Recent Happenings in APRM February 2014 Virginia Court Confirms Standard for Revealing Identities of Anonymous Online Defamers Case CPSC Proposes Revisions to Section 6(b) Information Disclosure Rule NHTSA Heads Down the Road to New Vehicle-to-Vehicle Communications Regulations FDA to Consider Overhaul of Over-the-Counter Drug Approval Process New Data Security Legislation On Horizon

On February 26, 2014, the U.S. Consumer Product Safety Commission (CPSC) published a notice of proposed rulemaking in the Federal Register to revise its information disclosure rules at 16 CFR part 1110 that interpret section 6(b) of the Consumer Product Safety Act (CPSA). 79 Fed. Reg. 10,712. Most notably, section 6(b) requires the CPSC take steps to assure the fairness and accuracy of information it publishes and to notify firms identified in those releases prior to public disclosures. This marks the first time the Commission has sought to revise the rule since it was first promulgated in 1983,¹ and comments must be submitted by April 28, 2014. Our analysis about what the proposed revision may mean for the confidentiality of information submitted to the CPSC is available here.

Key changes contained in the proposed rule include:

• Electronic Notice. In order to modernize the rule and account for technological advancements, the proposal would establish a preference for electronic transmission of 6(b) notice and follow-up communications with firms.
• Information Obtained by the CPSC. The scope of section 6(b) would be limited to information "obtained under the acts the Commission administers," or to "be disclosed to the public in connection therewith." This closely tracks the CPSA and removes the language covering "information generated or received by the Commission" in the current rule. See 16 CFR § 1101.11(a)(2). 
• Publicly Available Information. The scope of the rule would carve publicly available information out of 6(b), including "news reports; articles in academic and scientific journals; press releases . . . ; or information that is available on the Internet."
• Substantially Similar Information. In the proposed recast, 6(b) notice will not be provided for information that is "substantially similar" to what has been previously released, and firms would no longer be able to affirmatively elect to receive later notices where substantially similar information is set for public disclosure. See 16 CFR § 1101.21. 
• Disclosing a Firm's Comments. Firms would no longer be able to simply elect to have their 6(b) comments protected from public disclosure but would instead be required to "provide a rationale . . . why the comments should not be disclosed . . . ," and cite to legal authority as appropriate. The proposed rule states that "[c]onclusory statements that comments must be withheld with no supporting basis are not sufficient to justify a request for nondisclosure." 79 Fed. Reg. 10,717.
• Product or Manufacturer's Identity. To fall within section 6(b), the revised rule would require that "information . . . pertain to a specific product," as opposed to encompassing information permitting the product's "identity to be ascertained readily by the public," as stated in the current rule. See 16 CFR § 1101.11(a)(1). The new rule would also do away with the requirement in the regulation that the Commission notify a firm where "there is a question whether the public could readily ascertain the identity of a manufacturer or private labeler." 16 CFR § 1101.13.
• Public Database. Any report of harm published on the public database would not be protected by 6(b), which would bring part 1101 into conformity with the public database regulations. See 16 CFR § 1102.44.
• Imminent Hazards. Any information about a product against which the Commission has initiated an imminent hazard proceeding would not be afforded 6(b) protection, even "[i]nformation in the Commission's possession which has not been made public . . . ." as recognized in the current rule.  See 16 CFR § 1101.42(b).
• Privileged Materials. The rule would remove the protection for attorney-client privileged or work product protected materials provided to the Commission by a firm. See 16 CFR § 1101.33(b)(3). This reverses the Commission's long-established policy that it would be unfair to disclose "attorney work product and other attorney-client privilege[d] material furnished to the Commission to facilitate the Commission's investigation of a particular product . . . ." 48 Fed. Reg. 57,422 (Dec. 29, 1983).

 

---

¹ The Commission revised the rule once before, in 2008, as required by the Consumer Product Safety Improvement Act of 2008.

---