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Confidential Treatment of Info Submitted to the Consumer Product Safety Commission

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This file provides information on the confidential treatment of information submitted to the CPSC in response to a Letter of Advice (LOA) or a report filed with the Commission under sections 15 and 37 of the Consumer Product Safety Act (CPSA).

CONFIDENTIALITY OF INFORMATION UNDER SECTION 6 OF THE CPSA

Section 6(a) of the CPSA, as amended by the Consumer Product Safety Amendments of 1981, provides protection for trade secrets or confidential information. Section 6(a) gives manufacturers an opportunity to mark information as confidential.

If you believe any of the information you submit to the Commission is a trade secret, or privileged or confidential information, you must accompany the submission with a request that the information be considered exempt from disclosure or indicate that a request will be submitted within 10 working days of the submission. The failure to make a request within that time will be considered an acknowledgment that you do not wish to claim exempt status. In accordance with the Commission's regulations at 16 C.F.R. section 1015.18(c), the following information must be included with the request for exemption:

(1) Specifically identify the exact portion(s) of the document claimed to be confidential;

(2) 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;

(3) 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;

(4) State how release of the information so specified would be likely to cause substantial harm to the company's competitive position; and

(5) State whether the submitter is authorized to make claims of confidentiality on behalf of the person or organization concerned.

If the Commission determines that information marked as confidential may be disclosed because it is not confidential, the Commission must provide written notice that it intends to disclose this information. This notice must be provided not less than 10 working days prior to disclosure. Any person receiving such notice may bring an action in an appropriate district court to prevent disclosure of the information.

In addition to the above, section 6(b) of the CPSA also provides limitations on the Commission's disclosure of any information identifying manufacturers or private labelers, and further limits the Commission's disclosure of information received under section 15(b) of the CPSA.

CONFIDENTIALITY OF REPORTS UNDER SECTION 15(b) OF THE CPSA

The Commission often receives requests for information provided by firms under section 15(b) of the Consumer Product Safety Act (CPSA). Section 6(b)(5) of the CPSA, prohibits the release of such information unless a remedial action has been accepted in writing, a complaint has been issued or a firm consents to the release. Firms submitting information considered to be trade secret, confidential, commercial, or financial, must mark it "confidential" in accordance with section 6(a)(3) of the CPSA. If a firm does not request confidential treatment at the time of its submission of information, or within ten days thereafter, the CPSC staff will assume that the firm does not consider the material in its submission to be a trade secret or otherwise exempt from disclosure under section 6(a) of the CPSA and the Freedom of Information Act, 5 U.S.C. 522(b)(4).

CONFIDENTIALITY OF REPORTS UNDER SECTION 37 OF THE CPSA.

Section 6(e) of the CPSA protects from disclosure certain information submitted to the Commission by a manufacturer pursuant to section 37 of the CPSA. See Chapter 5, page 10 of this Handbook for information on the Section 37 reporting requirement.

Section 6(e)(1) provides that information furnished under sections 37(c)(1) and (c)(2)(A) may not be publicly disclosed. Section 6(e)(2) provides that any report submitted pursuant to section 37(c)(1) or (c)(2)(a) shall be immune from legal process and shall not be subject to subpoena or other discovery in any civil action in a State or Federal court or in any administrative proceeding, except in an action against such manufacturer under section 20, 21, or 22 of the CPSA for failure to furnish information required by section 37.

USE OF INFORMATION BY THE COMMISSION

As part of any recall or other corrective action plan undertaken by your firm, pertinent information relating to the corrective action plan will be included in a periodic public listing. This listing will include the date the corrective action plan is initiated, the name of the firm involved, the name of the product(s) involved, the geographic area of distribution of the product(s), the hazard identified by the Commission staff, the labeling of the product(s) and the type of corrective action being taken.
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excerpted from the REGULATED PRODUCTS HANDBOOK
U.S. Consumer Product Safety Commission, Office of Compliance
February 1994 - 2nd Edition*

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