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Title 16: Commercial Practices
§1102.24 Designation of confidential information.
(a) For purposes of this section, “confidential information” is considered to be information that contains or relates to a trade secret or other matter referred to in 18 U.S.C. 1905 or that is subject to 5 U.S.C. 552(b)(4).
(b) A manufacturer or private labeler identified in a report of harm and who receives a report of harm from the CPSC may review such report of harm for confidential information and request that portions of the report of harm be designated as confidential information. Each requester seeking such a designation of confidential information bears the burden of proof and must:
(1) Specifically identify the exact portion(s) of the report of harm 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) If known, state the company's relationship with the victim and/or submitter of the report of harm and how the victim and/or submitter of the report of harm came to be in possession of such allegedly confidential information;
(5) State how the release of the information would be likely to cause substantial harm to the company's competitive position; and
(6) State whether the person submitting the request for treatment as confidential information is authorized to make claims of confidentiality on behalf of the person or organization concerned.
(c) Manner of submission. Requests for designation of confidential information may be submitted in the same manner as manufacturer comments as described in §1102.12(b). A request for designation of confidential treatment must be conspicuously marked.
(d) Timing of submission. 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 the Commission in a timely manner prior to the 10th business day after the date on which the Commission transmits the report to the manufacturer or private labeler. If a request for confidential treatment is submitted in a timely fashion, the Commission 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 a report of harm before publication in the Database until it makes a determination regarding confidential treatment.
(e) Assistance with defense. No request to redact confidential information from a report of harm pursuant to 5 U.S.C. 552(b)(4) should be made by any person who does not intend in good faith, and so certifies in writing, to assist the Commission in the defense of any judicial proceeding that thereafter might be brought to compel the disclosure of information that the Commission has determined to be a trade secret or privileged or confidential commercial or financial information.
(f) Commission determination of confidentiality. If the Commission determines that information in a report of harm is confidential, the Commission shall:
(1) Notify the manufacturer or private labeler;
(2) Redact such confidential information in the report of harm; and
(3) Publish the report of harm in the Database without such confidential information.
(g) Commission determination of no confidentiality. If the Commission determines that a report of harm does not contain confidential information, the Commission shall:
(1) Notify the manufacturer or private labeler; and
(2) Publish the report of harm, if not already published, in the Database.
(h) Removal of confidential information. As stated at 6A(c)(1)(C)(iii) of the CPSA, to seek removal of alleged confidential information that has been published in the Database, a manufacturer or private labeler may bring an action in the district court of the United States in the district in which the complainant resides, or has its principal place of business, or in the U.S. District Court for the District of Columbia.