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CPSC Releases Amendment to 6(b) Information Disclosure Regulations

The CPSC has released the staff briefing package for a Notice of Proposed Rulemaking (NPR) to amend its existing regulation interpreting the requirements of Section 6(b) of the Consumer Product Safety Act (CPSA). Agency staff will brief the Commissioners on January 23rd and the Commission is scheduled to vote on the NPR on February 5th. It would not be surprising for the vote to be pushed back one or two weeks as the Commissioners consider the staff changes, develop their own amendments, and attempt to negotiate agreed upon language.

For those readers unfamiliar with Section 6(b), the statute requires the agency to take "reasonable steps" to assure that any information it intends to disclose to the public identifying a manufacturer or private labeler of a product (whether on its own initiative or in response to a Freedom of Information Act request) is accurate, that the disclosure is "fair in the circumstances" and is reasonably related to effectuating the purposes of the Acts administered by the CPSC. The statute also requires the agency to give companies at least 15 days advance notice and an opportunity to comment or object to the release of the information identifying them if they do not believe it meets the statutory criteria for release. The CPSC created a "fact sheet" some time ago that provides additional basics of 6(b) and answers common questions about the current requirements and procedures.

Among other changes proposed by the staff, the amendment proposes to:

  • Increase the categories of information that are exempted from 6(b) to include information that is already publicly available on the internet or from other sources and information that the agency has previously disclosed in substantially similar form
  • Decrease the amount of information subject to 6(b) by changing the scope from information "obtained, generated, or received" by the agency to now only cover information "obtained" by the agency
  • Remove a provision that states the agency will provide advance notice and opportunity to comment to companies if there is a question whether the public could readily ascertain the identify of a manufacturer or private labeler
  • Remove the ability for companies to designate that they be renotified each time the agency releases information that has already gone through the 6(b) process
  • Remove the ability for companies to designate that their comments or objections in response to a 6(b) notice be withheld from public disclosure
  • Remove the ability for companies to protect information from disclosure by designating them "work product" or "attorney client" privileged
  • Change the standard notification method to companies from written notice through the mail to electronic notice

Acting Chairman Adler has previously made clear his desire for Congress to repeal the statutory 6(b) provision altogether (see page 4 here). He's also publicly stated his belief that the 6(b) provision "inhibits, to the point of virtual prohibition, the CPSC from releasing to the public in a timely fashion manufacturer specific safety information that almost every other federal health and safety agency releases on a regular basis." It should therefore be expected that additional amendments he may propose to the staff version of the amendment will be aimed at further reducing the scope of information subject to the Section 6(b) requirements and removing any remaining administrative procedures the agency must currently go through that are not expressly required by the statute.

The amendment to the existing regulation was initiated by a 2-1 Commission vote in May of last year. As a part of that vote the Commission instructed staff to draft a NPR to update the existing regulation 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 Section 6(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 the disclosure of information;
  3. Maintain CPSC's compliance with the statutory requirements of Section 6(b); and
  4. Maintain the protections for information filed under Section 15 of the CPSA

This is an important regulation to watch. Stay tuned for further updates and analysis as it makes its way through the Commission.

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Charles A. Samuels

Member / Co-chair, Retail and Consumer Products

Charles A. Samuels is an antitrust and regulatory lawyer at Mintz. He assists clients with consumer product safety, product recalls and environmental regulations. and Chuck also serves as general counsel to many trade associations. Chuck represents clients before federal agencies like the Consumer Product Safety Commission.