CPSC Issues Final Rule on Public Database of Safety Incidents

The final rule interprets statutory requirements pertaining to the information to be included in the database. It also establishes provisions regarding submitting reports of harm; providing notice of reports of harm to manufacturers (which includes importer) or private labelers (collectively, manufacturers); publishing reports of harm and manufacturer comments in the database; and dealing with confidential and materially inaccurate information.

Though the final rule takes effect January 10, 2011, the database is only expected to "go live" in March 2011.

CPSC Has Collected Data for Years, CPSIA Mandated Faster & Easier Public Access

For several decades, CPSC has maintained a database of consumer complaints, known as consumer product incident reports. This information has not been immediately available or searchable by the public. Instead, CPSC has had to follow the notice provisions of section 6 of the Consumer Product Safety Act before publicly disclosing any information (through a FOIA¹ request) that allows the public to readily ascertain the identity of a manufacturer of a consumer product. It also had to take reasonable steps to ensure that the disclosed information was accurate.

The CPSIA changed this by setting up a new framework for collecting reports of harm from the public, transmitting them to the manufacturer or private labeler for comment, and then quickly posting them in a public database, without verification of accuracy.

Reports of Harm to be Submitted by Public on CPSC’s Website

Reports of harm² will be submitted by the public through CPSC’s Web site at http://www.saferproducts.gov/ on an electronic incident report form specifically developed for this purpose. (Information will also be able to be submitted through a CPSC call center, email, etc., as long as the same submission requirements are met.)

Can be submitted by “consumers,” agencies, etc. Reports of harm may be submitted by: (i) consumers (this includes but is not limited to users of consumer products, family members, relatives, parents, guardians, friends, attorneys, investigators, professional engineers, agents of a user of a consumer product, and observers of the consumer products being used; (ii) local, state, or federal government agencies (e.g., social services, child protective services, state attorneys general); (iii) health care professionals; (iv) child service providers; and (v) public safety entities.

Requirements for publication. A report of harm would have to include all of the following information in order to be published in the database: (i) description of the consumer product (such as brand name, model, serial number, etc.) (ii) identification of the manufacturer; (iii) description of the harm; (iv) incident date; (v) category of the submitter (e.g. consumer, government agency, etc.); (vi) submitter’s contact information (though this would not be published); (vii) verification that the information is true and accurate to the best of the submitter’s knowledge; (viii) consent to publish the report in the database.

CPSC will notify mfr w/in 5 days. Before publishing a report of harm in the database CPSC will send it to the manufacturer identified in the report for comment. This information will be transmitted within five business days, to the extent practicable. CSPC will not send photographs, medical records, or the name and contact information of the submitter if he/she did not authorize this information to be shared. The information will be sent to the manufacturer in the manner they requested during their registration process or by mail if the manufacturer is not registered.

CPSC will publish report 10 days later. CPSC will publish reports of harm as soon as practicable, but not later than the tenth business day after such report of harm is transmitted to the manufacturer or private labeler by the CPSC. (The final rule allows an exception to this requirement if the report of harm misidentifies or fails to identify all manufacturers. In such cases the ten day period would only start to apply once the manufacturer(s) has been correctly identified and the report of harm is transmitted.)

Manufacturers Can Comment on Reports of Harm

A manufacturer may submit comments for publication in the database related to a report of harm which identifies them.

Submission via mfr portal. Manufacturers who register with CPSC (by providing and maintaining updated contact information, etc.) will be able submit comments through a “manufacturer portal” maintained on CPSC’s Web site. (Those who do not register can submit comments via email or mail.)

Requirements for publication. The manufacturer will have to meet the following requirements to have their comments published: (i) relate their comments to information contained in a specific report of harm; (ii) state the unique identifier provided by CPSC; (iii) verify that the information provided is true and accurate to the best of the firm’s knowledge, information, and belief; (iv) include a consent to publish.

Manufacturer comments published with report of harm. Manufacturer comments meeting the above criteria will be published at the same time as the report of harm is published in the Web site database (i.e., ten days after the report of harm is transmitted to the manufacturer) or as soon as practicable thereafter. Therefore, manufacturers wishing to have their comments published at the same time as the report of harm, would have less than ten days to submit their comments.

CPSC explained during its November 24, 2010 vote to issue this final rule that it will publish manufacturer comments whenever it receives them and not set a one year cut-off date to submit comments as originally proposed.

Mfrs Can Request Confidentiality, CPSC Can Limit Content of Reports of Harm

Manufacturers identified in a report of harm will be able to request that CPSC determine portions of the publically submitted reports to be confidential.³

Submission requirements. To make such a request, the manufacturer must (partial list): (i) identify the exact portion(s) of the report of harm claimed to be confidential; (ii) state whether the information claimed to be confidential has ever been released in any manner to a person who was not an employee or in a confidential relationship with the company; (iii) state whether the information so specified is commonly known within the industry or is readily ascertainable by outside persons with a minimum of time and effort; (iv) state how the release of the information would be likely to cause substantial harm to the company’s competitive position; (v) etc.

Must be submitted before 10th business day. In order to ensure that the allegedly confidential information is not placed in the database, a request for designation of confidential information must be received by CPSC in a timely manner prior to the 10th business day after the date on which CPSC transmits the report to the manufacturer.

CPSC determination or temporary redaction. If a request for confidential treatment is submitted in a timely fashion, CPSC will either make a determination on the claim prior to posting on the 10th business day after transmittal to the manufacturer or, as a matter of policy, redact the allegedly confidential information from the report of harm before publication in the database until it makes its determination regarding confidential treatment.

Removal or publication of info. If CPSC determines that the information in a report of harm is confidential, it will notify the manufacturer, redact the information, and publish the rest of the report in the database. If it does not determine the information to be confidential, CPSC will notify the manufacturer and publish the information (if not already published).

Anyone Can Request “Material Inaccuracy” Determinations

Under the final rule, any person or entity reviewing a report of harm or manufacturer comment, either before or after publication in the database, can request that CPSC make a determination that certain information is materially inaccurate⁴ and should be corrected or excluded from the database.

Submission requirements. A requester seeking such a determination will have to: (i) specifically identify the portion(s) of the report of harm or the manufacturer comment claimed to be materially inaccurate; (ii) state the basis for the allegation; (iii) provide evidence which could include documents, statements, photographs, or any other evidence sufficient for CPSC to make a determination; (iv) state what the requester is seeking (i.e. exclusion of the entire report of harm or manufacturer comment, redaction of specific information; correction of specific information; addition of information); (v) etc.

Publication of report will not be delayed. A request for designation of information as materially inaccurate can be submitted at any time. If a request for determination of materially inaccurate information is submitted prior to publication of a report of harm in the Database, CPSC cannot withhold the report of harm from publication until it makes a determination.

Removal or publication of info. If CPSC determines that the information is materially inaccurate before publication, it will either: (i) decline to add the materially inaccurate report of harm or manufacturer comment to the database; or (ii) correct the materially inaccurate information; or (iii) add information to the report of harm or the manufacturer comment to correct the materially inaccurate information. If CPSC determines, after an investigation, that the requested designated information contains materially inaccurate information after the report of harm or manufacturer comment has been published in the database, CPSC would make the required corrections, deletions, or additions no later than seven business days after such a determination.

Expedited determinations. If a manufacturer files a request for a correction or exclusion within the recommended page limit (5 pages), CPSC will attempt where practicable to make an expedited determination regarding material inaccuracy. If CPSC is unable to make a determination prior to the mandated publication of the report by the 10th business day after its submission to the manufacturer, it will publish the report but make any necessary correction, exclusion, or addition not later than seven business days after making a material inaccuracy determination.

Database Will Include Warning on Accuracy

The final rule states that CPSC does not guarantee the accuracy, completeness or adequacy of the database, particularly with respect to information submitted by persons outside of the CPSC. Therefore, the database will contain a notice to this effect that will be prominently and conspicuously displayed on the database and on any documents that are printed from it.

CPSC Will Include Recall Notices & Other Info in Database

All information presented in a voluntary or mandatory recall notice that has been made available to the public will also be accessible and searchable in the database. In addition, CPSC will include any other information it determines to be in the public interest.

Commissioners Comment on Final Rule

Note that the final rule was approved for publication by a vote of 3-2 after contentious debate, and all five Commissioners have submitted comments on this rule. The three Commissioners that voted for it (Chairman Tenenbaum and Commissioners Moore and Adler) submitted positive comments, while the two Commissioners voting against it (Commissioners Nord and Northup) posted highly critical comments and had even submitted an alternative final rule. (See ITT’s Online Archives or 11/10/10 news, 10111015, for BP summary on the alternative final rule.)

¹Freedom of Information Act.

²Report of harm means any information submitted to the Commission through the manner described in 16 CFR 1102.10(b), regarding any injury, illness, or death; or any risk of injury, illness, or death, as determined by the Commission, relating to the use of a consumer product. (Note that consumer product includes any other products or substances regulated by CPSC.)

³For purposes of this section, “confidential information” is considered information that contains or relates to a trade secret or other matter referred to in 18 USC 1905 or that is subject to 5 USC 552(b)(4).

⁴Materially inaccurate information in a report of harm means information that is false or misleading, and which is so substantial and important as to affect a reasonable consumer’s decision making about the product, including: (i) the identification of a consumer product; (ii) the identification of a manufacturer or private labeler; (iii) the harm or risk of harm related to use of the consumer product; or (iv) the date, or approximate date on which the incident occurred.

Materially inaccurate information in a manufacturer comment means information that is false or misleading, and which is so substantial and important as to affect a reasonable consumer’s decision making about the product, including: (i) the description of the consumer product; (ii) the identity of the firm or firms responsible for the importation, manufacture, distribution, sale, or holding for sale of a consumer product; (iii) the harm or risk of harm related to the use of a consumer product; (iv) the status of a Commission, manufacturer, or private labeler investigation; (v) whether the manufacturer or private labeler is engaging in a corrective action and whether such action has not been approved by the Commission; or (vi) whether the manufacturer has taken, or promised to take, any other action with regard to the product.

(See ITT’s Online Archives or 12/06/10 news, 10120644, for BP summary of a letter from Representative Barton stating that the public database final rule overstepped Congressional intent.

See ITT’s Online Archives or 10/21/10 news, 10102115, for BP summary of the Commissioners’ debate on the final rule.

See ITT’s Online Archives or 05/25/10 and 10/08/10 news, 10052524 and 10100818, for BP summaries of the proposed rule and highlights of the many comments received on it.)

CPSC contact - Mary Kelsey James (301) 504--7213

(FR Pub 12/09/10)