CPSC's Final Interpretive Rule Relating To The Public Database Published In The Federal Register Today

Today, the final interpretive rule establishing the Consumer Product Safety Commission's ("CPSC") Publicly Available Product Safety Information Database was published in the Federal Register.  The Commissioners voted to approve the revised final interpretive rule covering the public database ("Database") following a public meeting held on November 24, 2010.  Section 212 of the Consumer Product Safety Improvement Act of 2008 ("CPSIA") requires the CPSC to establish and maintain a publicly accessible, searchable database "on the safety of consumer products" that must be available to the public by March 11, 2011.  15 U.S.C. § 2055a(a)(1).

The CPSC first published a draft proposed rule to establish the Database on May 24, 2010.  Under the May 24 draft, specified categories of individuals ("submitters") may submit reports of consumer product harm, and registered manufacturers and private labelers may then comment on the reports and intervene to dispute confidential or materially inaccurate content.

After receiving and evaluating comments on the proposed rule, the Agency published a draft final rule on October 14, 2010.  The draft final rule narrowed the identified categories of submitters to the five enumerated by Congress (consumers, government agencies, health care professionals, child service providers, and public safety entities) and eliminated a catch-all "others" category originally contemplated by the earlier draft proposed rule.  The draft final rule also required submitters to supply additional information -- incident date and their submitter category -- before publication of the report in the Database, and amended the rules for verification and publication of, and manufacturer challenges to, material inaccuracies.

During the November 24, 2010 public meeting, Commissioner Robert Adler proposed six additional substantive amendments to the draft final rule.  The changes included slight revisions to the explicit categories of information that cannot be published in a report of harm or transmitted to a manufacturer or private labeler, as well as more substantive changes:

• Inability to identify the manufacturer (§1102.20(c)): The amended final rule adds a provision that the Commission will not post an incident report if it cannot determine whom the manufacturer or private labeler is from the report but will maintain the report for "internal agency use."
  
  
• Manufacturer comments (§1102.20(g)): The rule permits manufacturers and private labelers to comment on reports of harm, but originally limited publication of such comments to a one-year time frame.  Under the amendment, there is no time limit for posting such comments to the database.  The Commission also retains discretion not to publish comments that are not in the public interest.
  
  
• Confidential Information:  
  
  
  • Information Required by the CPSC (§1102.24(b)(4)): The revised final rule further provides that a manufacturer or private labeler who seeks to designate information in an incident report as "confidential" need only state its relationship with the victim and/or submitter and how he or she came to possess confidential information if that that information is "known."
    
    
  • Timing (§1102.24(d)):  The revised rule imposes timing requirements on manufacturers' requests that information be kept confidential.  Once it receives an incident report from the CPSC, a manufacturer or private labeler has nine business days to submit a confidentiality request.  The Commission will then make a determination on the request before posting on the tenth day after transmittal to the manufacturer, or it may redact the allegedly confidential information from the report before publication until it has made a determination regarding confidential treatment.
    
    
• Materially Inaccurate Information (§1102.26(g)): Whereas the draft rule provided that the CPSC "may" refuse to publish, revise or add information to a report after determining that a report contains materially inaccurate information prior to publication, the amended rule now states that the Commission "shall" take appropriate action.

The final draft rule, as modified by Commissioner Adler's amendments, was passed by a 3-2 vote, with Chairman Inez Tenenbaum and Commissioners Adler and Thomas Moore voting in favor, and Commissioners Nancy Nord and Anne Northrup against.  The amendments are reflected in the final rule published today in the Federal Register.

The November 24 public meeting approving this final interpretive rule featured a lively debate among the Commissioners regarding the competing aims of providing consumers with helpful product safety information and ensuring that that information is accurate and trustworthy.  Commissioners Nord and Northrup expressed continuing concerns that under the proposed final rule the Database will contain inaccurate and confusing information based on the Commission's interpretation of acceptable submitters and investigations into material inaccuracies.  In their joint statement, Chairman Tenenbaum and Commissioners Adler and Moore lauded the passage of the rule as a "major victory for consumers and supports of an open government" because of the access to information that it provides. 

The Database is scheduled to launch on March 11, 2011, at SaferProducts.gov.  Manufacturers and private labelers may begin registering with the CPSC online at SaferProducts.gov in January 2011, which will enable manufacturers and private labelers to receive electronic notification of reports of harm.

To access Crowell & Moring's prior alert regarding the CPSC's draft final rule relating to the Database, please click here.