81 FR 87023 - CPSC Litigation Guidance and Recommended Best Practices for Protective Orders and Settlement Agreements in Private Civil Litigation
CONSUMER PRODUCT SAFETY COMMISSION Federal Register Volume 81, Issue 232 (December 2, 2016)
Federal Register Volume 81, Issue 232 (December 2, 2016)
| Page Range | 87023-87025 | |
| FR Document | 2016-29004 |
[Federal Register Volume 81, Number 232 (Friday, December 2, 2016)] [Notices] [Pages 87023-87025] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-29004] ======================================================================= ----------------------------------------------------------------------- CONSUMER PRODUCT SAFETY COMMISSION CPSC Litigation Guidance and Recommended Best Practices for Protective Orders and Settlement Agreements in Private Civil Litigation AGENCY: U.S. Consumer Product Safety Commission. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: The U.S. Consumer Product Safety Commission (CPSC or the Commission) is publishing this Litigation Guidance to provide recommendations for best practices to all parties in relevant litigation related to providing an exemption in protective orders and settlement agreements for reporting information to the CPSC. FOR FURTHER INFORMATION CONTACT: Todd A. Stevenson, Secretary, U.S. Consumer Product Safety Commission, Office of the Secretary, 4330 East- West Highway, Bethesda, MD 20814, Room 820, 301-504-7923; email [email protected]. SUPPLEMENTARY INFORMATION: I. Background 1 --------------------------------------------------------------------------- \1\ The Commission voted (3-2) to publish this notice in the Federal Register. Chairman Elliot F. Kaye and Commissioners Robert S. Adler and Marietta S. Robinson voted to approve publication of the notice. Commissioner Ann Marie Buerkle and Joseph P. Mohorovic voted against publication of the notice. --------------------------------------------------------------------------- The CPSC is a public-health authority with a broad mandate to protect the public against unreasonable risks of injury associated with consumer products. See 15 U.S.C. 2051 (2014); See also Public Health Authority Notification, 79 FR 11769 (March 3, 2014). The Consumer Product Safety Act (CPSA) defines consumer products broadly, making the Commission responsible for ensuring the public's safety from thousands of different ever-evolving product lines. See 15 U.S.C. 2052 (2014). The timely collection of information regarding consumer product-related safety hazards is essential for carrying out the Commission's public health and safety mission. Mandatory self-reporting of potential product hazards by manufacturers (including importers), retailers, and distributors (Industry Stakeholders) is a key element of CPSC's ability to identify potential substantial product hazards and subsequently take corrective action to protect the public. Such Industry Stakeholders are best situated to discover a potential product hazard and, thus, are statutorily required to report immediately to the CPSC when they obtain information that reasonably supports the conclusion that a product fails to comply with an applicable rule or standard, contains a defect which could create a substantial product hazard, or creates an unreasonable risk of serious injury or death. 15 U.S.C. 2064(b) (2014). Despite the mandatory reporting requirement, the Commission believes Industry Stakeholders do not always meet their reporting obligations. Industry Stakeholders may fail to report potential product hazards altogether, may fail to report them in a timely manner and/or may fail to report new incidents that occur after the initial hazard has been reported.\2\ --------------------------------------------------------------------------- \2\ The CPSA recognizes that failures to report and delays in reporting may occur, and authorizes civil penalties up to $15,150,000 for any related series of violations for stakeholders who violate their reporting obligations. See 15 U.S.C. 2068-2069 (2014). --------------------------------------------------------------------------- If Industry Stakeholders fail to report, CPSC has limited alternative means of obtaining this critical safety information. It is therefore possible that a product hazard will never come to CPSC's attention. Information in private litigation could, thus, be a key resource for the CPSC when Industry Stakeholders have not satisfied their reporting obligations. However, in some instances, confidentiality provisions imposed or enforced by the courts or agreed upon by private litigants may have prevented parties that are not industry stakeholders from sharing with the CPSC important product safety information they have discovered. See S. REP. NO. 110-439, at 6- 8 (2008); see also Footnote 2 infra. The motions and hearings involved in obtaining protective orders in private litigation for specific documents may result in enormous associated costs both in terms of money and time. This often leads to the use of ``blanket'' or ``umbrella'' protective orders covering the entirety of pre-trial discovery. See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 879 (E.D. Pa. 1981) (finding that without blanket protective orders, a judge becomes a ``veritable hostage'' required to spend years on motions for individual documents). Rather than requiring a series of individual rulings for a large number of documents, blanket protective orders may create a presumption against disclosure for all or certain groups of information that then may be challenged individually for lack of good cause. See MANUAL FOR COMPLEX LITIGATION Sec. 11.432 (2004). Such umbrella protective orders have become fairly common. See Zenith Radio Corp, 529 F. Supp. 866, 889 (E.D. Pa. 1981) (``We are unaware of any case in the past half-dozen years of even a modicum of complexity where an umbrella protective order . . . has not been agreed to by the parties); see also Jepson, Inc. v. Makita Elec. Works, LTD., 30 F.3d 854, 858 (7th Cir. 1994) (``stipulated protective orders are relatively common.''). Additionally, if incriminating documents outside the [[Page 87024]] scope of a protective order are discovered before trial, defendants often demand blanket protective orders as a condition of settlement. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785-786 (3rd Cir. 1994). In order to facilitate settlements, courts are often willing to grant these blanket orders without significantly analyzing the public interests involved. Id. The Commission believes that general acceptance of ``blanket'' or ``umbrella'' protective orders in private litigation increases the likelihood that such agreements will bar the reporting to the Commission by those who are not Industry Stakeholders of consumer product safety information that the CPSC needs to protect the public. Although a party could pursue a good-cause challenge to allow the reporting of such information, the practicalities involved create a significant disincentive--the party's attorneys must first recognize the information's relevance to the CPSC and then pursue a potentially costly series of motions and hearings that are unlikely to benefit their client directly. See Nick Saccone, Comment, Somewhere Between Florida, Texas, and Federal Rule of Civil Procedure 26(c): A Balanced Approach to Protective Orders and Confidentiality Settlements, 39 U. Tol. L. Rev. 729, 740 (2008) (``Satellite litigation concerning contested discovery requests often has little or no bearing on the ultimate result of the lawsuit, other than increasing the cost of litigation for both injured plaintiffs and defendants.''). Few parties will therefore even attempt to lift protective orders in order to inform the CPSC of relevant product safety information. According to a report submitted by the United States Senate Committee on the Judiciary on the proposed Sunshine in Litigation Act of 2008, safety information related to dangerous playground equipment, collapsible cribs, and all-terrain vehicle design defects was kept from the CPSC by protective orders in private litigation. S. REP. NO. 110- 439, at 6-8 (2008). A cursory review of other civil product liability cases reveals that protective orders are in place in cases involving additional consumer products that fall under the CPSC's jurisdiction.\3\ These protective orders prohibit parties from reporting to the CPSC information they obtain in the course of litigation that concerns potentially hazardous consumer products, including incident reports. --------------------------------------------------------------------------- \3\ For example, the following is a select (and by no means exhaustive) list of protective orders that have been entered into in ongoing litigation or settlements related to consumer products within the CPSC's jurisdiction. Any relevant information discovered in these cases is covered by the protective orders and plaintiffs would be prohibited from sharing such information with the CPSC. Hampton v. Crescent Cleaners, Inc., et al., USDC Western District of Tennessee, Case 2:08-cv-02696-SHM-cgc, Document 89, Filed 08/17/2009 (infrared liquid propane wall-mounted heater); Miah v. Ames True Temper, Inc., et al., St Ct of DeKalb County, GA, Civ Action File No. 03A05859-7, Protective Order, 7/22/2013 (wheelbarrow); Tamayo v. Dollar Tree Stores., Inc., et al., USDC Eastern District of PA, Case 2:13 cv-02062-GP, Document 41, Stipulated Protective Order, (Document 41), Filed 12/05/13 (markers); Williams v. Ideal Industries, Inc., et al., USDC Northern District of Georgia, Case 1:14-cv-02883-LMM, First Amended Protective Order (Document 46), Filed 02/17/15 (multimeter device); Broughton v. Paoli, LLC, et al., NC Carteret County Sup Ct, 15 CVS 471, Stipulated Protected Order, 12/21/2015 (office chair); and Gomez v. Harbor Freight Tools USA, Inc., Sup Ct of CA Los Angeles County, Case no. BC616712, Stipulation and Protective Order--Confidential Designations, Filed 8/17/2016 (gas cans). --------------------------------------------------------------------------- The Commission believes the best way to protect public health and safety is to preemptively exclude or exempt the reporting of relevant consumer product safety information to the CPSC (and other government public health and safety agencies) from all confidentiality provisions. II. The Model: NHTSA's Enforcement Guidance Bulletin The Commission has reviewed the National Highway Transportation Safety Administration's (NHTSA) guidance on this issue. NHTSA is situated similarly to the CPSC with a public health and safety mission to reduce traffic accidents and the deaths and injuries resulting from them. See 49 U.S.C. 30101 (2014). NHTSA's ``ability to identify and define safety-related motor vehicle defects relies in large part on manufacturers' self-reporting.'' NHTSA Enforcement Guidance Bulletin 2015-01: Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation, 81 FR 13026, 13026 (March 11, 2016) (hereinafter NHTSA Enforcement Guidance Bulletin). NHTSA found that it does not always receive such information from their industry stakeholders. Id. NHTSA recently issued an Enforcement Guidance Bulletin in an attempt to address the use of ``protective orders, settlement agreements, or other confidentiality provisions'' barring reporting to the agency. Id. The NHTSA Enforcement Guidance Bulletin laid out a detailed, comprehensive and compelling legal analysis supporting the disclosure to public health authorities, notwithstanding confidentiality provisions in protective orders, settlements, and similar agreements. CPSC agrees with NHTSA that Rule 26 of the Federal Rules of Civil Procedure and various related state laws, as well as case law on public policy and contract law, all support the conclusion that government agencies with public health and safety missions should be excluded or exempted from the various relevant protective orders that are ubiquitous in private litigation today. NHTSA's legal analysis of this issue is available at: https://www.federalregister.gov/documents/2016/03/11/2016-05522/nhtsa-enforcement-guidance-bulletin-2015-01-recommended-best-practices-for-protective-orders-and. CPSC further agrees with NHTSA that nondisclosure provisions may be appropriately used by courts and litigants to ``promote full and complete disclosure, to prevent abuses of the discovery process, and to protect legitimate privacy and proprietary interests.'' 81 FR 13029. However, when such orders and agreements shield relevant and actionable safety information behind nondisclosure provisions, they violate the good-cause requirement of Rule 26 of the Federal Rules of Civil Procedure, its state corollaries, and the well-established public policy favoring protecting public health and safety. III. Recommendation for Best Practices CPSC recommends, following the example set by NHTSA, that ``all parties seek to include a provision in any private protective order or settlement agreement that--despite whatever restrictions on confidentiality are imposed, and whether entered into by consent or judicial fiat--specifically allows for disclosure of relevant [consumer product] safety information to [the CPSC] and other applicable authorities.'' 81 FR 13029-13030. CPSC's proposed Litigation Guidance does not impose any new or additional requirements, but sets forth CPSC's recommendations for best practices when parties are considering confidentiality provisions in litigation related to consumer products within the CPSC's jurisdiction. Parties in the process of establishing or already subject to confidentiality provisions may use this Litigation Guidance and CPSC's standing as a public-health authority to support a reporting exception to these provisions. See 79 FR 11769. For example, the exception could explicitly state ``nothing herein shall be construed to prohibit any party from disclosing relevant consumer product safety information to the Consumer Product Safety Commission.'' Alternatively, a [[Page 87025]] clause might more generally state that ``nothing herein shall be construed to prohibit any party from disclosing relevant safety information to a regulatory agency or government entity that has an interest in the subject matter of the underlying suit.'' The CPSC, however, is not endorsing any particular language since the parties themselves are in the best position to determine how that may be accomplished. IV. Conclusion The CPSC is publishing this Litigation Guidance to provide recommendations for best practices when drafting protective orders, confidentiality agreements, and settlement agreements. The Litigation Guidance should be reviewed by judges, plaintiffs, and defendants, as well as those parties wishing to submit amicus briefs relating to protective orders and confidentiality agreements in ongoing litigation. The Commission believes this Litigation Guidance is simple. Protective orders, confidentiality agreements and settlements (as well as other similar documents), should include language that allows any party to report consumer product safety information, incidents, injuries and deaths to the CPSC.\4\ --------------------------------------------------------------------------- \4\ The public is always encouraged to report relevant consumer product safety information to the CPSC via the CPSC's hotline [(800) 638-CPSC (2772)]; the CPSC's online reporting tool: www.saferproducts.gov; and by contacting the CPSC's Office of Compliance and Field Operations directly [(301) 504-7547]. --------------------------------------------------------------------------- The Commission notes that this Litigation Guidance is not a binding or enforceable rule and would not change any person's rights, duties or obligations under the CPSIA or any other Act administered by the Commission. Dated: November 29, 2016. Todd A. Stevenson, Secretary, Consumer Product Safety Commission. [FR Doc. 2016-29004 Filed 12-1-16; 8:45 am] BILLING CODE 6355-01-P
![Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Notices 87023
Council address: Pacific Council, ACTION: Notice. Industry Stakeholders do not always
7700 NE. Ambassador Place, Suite 101, meet their reporting obligations.
Portland, OR 97220–1384. SUMMARY: The U.S. Consumer Product Industry Stakeholders may fail to report
Safety Commission (CPSC or the potential product hazards altogether,
FOR FURTHER INFORMATION CONTACT: Ms.
Commission) is publishing this may fail to report them in a timely
Kelly Ames, Pacific Council; telephone: Litigation Guidance to provide
(503) 820–2426. manner and/or may fail to report new
recommendations for best practices to incidents that occur after the initial
SUPPLEMENTARY INFORMATION: The all parties in relevant litigation related
primary purpose of the Area 2A Pacific hazard has been reported.2
to providing an exemption in protective If Industry Stakeholders fail to report,
halibut manager’s meeting is to prepare orders and settlement agreements for CPSC has limited alternative means of
and develop recommendations for the reporting information to the CPSC. obtaining this critical safety
January 23–27, 2017 International FOR FURTHER INFORMATION CONTACT: information. It is therefore possible that
Pacific Halibut Commission’s (IPHC) Todd A. Stevenson, Secretary, U.S. a product hazard will never come to
annual meeting in Victoria, British Consumer Product Safety Commission, CPSC’s attention. Information in private
Columbia, Canada. Recommendations Office of the Secretary, 4330 East-West litigation could, thus, be a key resource
generated from the meeting would be Highway, Bethesda, MD 20814, Room for the CPSC when Industry
communicated to the IPHC by the 820, 301–504–7923; email tstevenson@ Stakeholders have not satisfied their
Pacific Council’s representative, Mr. cpsc.gov. reporting obligations. However, in some
Phil Anderson. Attendees may also instances, confidentiality provisions
SUPPLEMENTARY INFORMATION:
address other assignments relating to imposed or enforced by the courts or
Pacific halibut management. No I. Background 1 agreed upon by private litigants may
management actions will be decided by The CPSC is a public-health authority have prevented parties that are not
the attendees. The meeting will be open with a broad mandate to protect the industry stakeholders from sharing with
to the public, and the agenda, which public against unreasonable risks of the CPSC important product safety
will be available one week before the injury associated with consumer information they have discovered. See
meeting, will provide for a public products. See 15 U.S.C. 2051 (2014); See S. REP. NO. 110–439, at 6–8 (2008); see
comment period. also Public Health Authority also Footnote 2 infra.
Although non-emergency issues not Notification, 79 FR 11769 (March 3, The motions and hearings involved in
contained in the meeting agenda may be 2014). The Consumer Product Safety obtaining protective orders in private
discussed, those issues may not be the Act (CPSA) defines consumer products litigation for specific documents may
subject of formal action during these broadly, making the Commission result in enormous associated costs both
meetings. Action will be restricted to responsible for ensuring the public’s in terms of money and time. This often
those issues specifically listed in this safety from thousands of different ever- leads to the use of ‘‘blanket’’ or
document and any issues arising after evolving product lines. See 15 U.S.C. ‘‘umbrella’’ protective orders covering
publication of this document that 2052 (2014). The timely collection of the entirety of pre-trial discovery. See
require emergency action under section information regarding consumer Zenith Radio Corp. v. Matsushita Elec.
305(c) of the Magnuson-Stevens Fishery product-related safety hazards is Indus. Co., 529 F. Supp. 866, 879 (E.D.
Conservation and Management Act, essential for carrying out the Pa. 1981) (finding that without blanket
provided the public has been notified of Commission’s public health and safety protective orders, a judge becomes a
the intent to take final action to address mission. ‘‘veritable hostage’’ required to spend
the emergency. Mandatory self-reporting of potential years on motions for individual
Special Accommodations product hazards by manufacturers documents). Rather than requiring a
(including importers), retailers, and series of individual rulings for a large
The public listening station is distributors (Industry Stakeholders) is a number of documents, blanket
physically accessible to people with key element of CPSC’s ability to identify protective orders may create a
disabilities. Requests for sign language potential substantial product hazards presumption against disclosure for all or
interpretation or other auxiliary aids and subsequently take corrective action certain groups of information that then
should be directed to Mr. Kris to protect the public. Such Industry may be challenged individually for lack
Kleinschmidt at (503) 820–2425 at least Stakeholders are best situated to of good cause. See MANUAL FOR
10 business days prior to the meeting discover a potential product hazard and, COMPLEX LITIGATION § 11.432
date. thus, are statutorily required to report (2004). Such umbrella protective orders
Dated: November 28, 2016. immediately to the CPSC when they have become fairly common. See Zenith
Tracey L. Thompson, obtain information that reasonably Radio Corp, 529 F. Supp. 866, 889 (E.D.
Acting Deputy Director, Office of Sustainable supports the conclusion that a product Pa. 1981) (‘‘We are unaware of any case
Fisheries, National Marine Fisheries Service. fails to comply with an applicable rule in the past half-dozen years of even a
[FR Doc. 2016–28918 Filed 12–1–16; 8:45 am] or standard, contains a defect which modicum of complexity where an
BILLING CODE 3510–22–P could create a substantial product umbrella protective order . . . has not
hazard, or creates an unreasonable risk been agreed to by the parties); see also
of serious injury or death. 15 U.S.C. Jepson, Inc. v. Makita Elec. Works, LTD.,
2064(b) (2014). 30 F.3d 854, 858 (7th Cir. 1994)
CONSUMER PRODUCT SAFETY (‘‘stipulated protective orders are
asabaliauskas on DSK3SPTVN1PROD with NOTICES
COMMISSION Despite the mandatory reporting
requirement, the Commission believes relatively common.’’). Additionally, if
CPSC Litigation Guidance and incriminating documents outside the
1 The Commission voted (3–2) to publish this
Recommended Best Practices for
notice in the Federal Register. Chairman Elliot F. 2 The CPSA recognizes that failures to report and
Protective Orders and Settlement Kaye and Commissioners Robert S. Adler and delays in reporting may occur, and authorizes civil
Agreements in Private Civil Litigation Marietta S. Robinson voted to approve publication penalties up to $15,150,000 for any related series
of the notice. Commissioner Ann Marie Buerkle and of violations for stakeholders who violate their
AGENCY: U.S. Consumer Product Safety Joseph P. Mohorovic voted against publication of reporting obligations. See 15 U.S.C. 2068–2069
Commission. the notice. (2014).
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scope of a protective order are protective orders prohibit parties from CPSC agrees with NHTSA that Rule 26
discovered before trial, defendants often reporting to the CPSC information they of the Federal Rules of Civil Procedure
demand blanket protective orders as a obtain in the course of litigation that and various related state laws, as well
condition of settlement. Pansy v. concerns potentially hazardous as case law on public policy and
Borough of Stroudsburg, 23 F.3d 772, consumer products, including incident contract law, all support the conclusion
785–786 (3rd Cir. 1994). In order to reports. that government agencies with public
facilitate settlements, courts are often The Commission believes the best health and safety missions should be
willing to grant these blanket orders way to protect public health and safety excluded or exempted from the various
without significantly analyzing the is to preemptively exclude or exempt relevant protective orders that are
public interests involved. Id. the reporting of relevant consumer ubiquitous in private litigation today.
The Commission believes that general product safety information to the CPSC NHTSA’s legal analysis of this issue is
acceptance of ‘‘blanket’’ or ‘‘umbrella’’ (and other government public health available at: https://
protective orders in private litigation and safety agencies) from all www.federalregister.gov/documents/
increases the likelihood that such confidentiality provisions. 2016/03/11/2016-05522/nhtsa-
agreements will bar the reporting to the enforcement-guidance-bulletin-2015-01-
Commission by those who are not II. The Model: NHTSA’s Enforcement recommended-best-practices-for-
Industry Stakeholders of consumer Guidance Bulletin protective-orders-and.
product safety information that the The Commission has reviewed the CPSC further agrees with NHTSA that
CPSC needs to protect the public. National Highway Transportation Safety nondisclosure provisions may be
Although a party could pursue a good- Administration’s (NHTSA) guidance on appropriately used by courts and
cause challenge to allow the reporting of this issue. NHTSA is situated similarly litigants to ‘‘promote full and complete
such information, the practicalities to the CPSC with a public health and disclosure, to prevent abuses of the
involved create a significant safety mission to reduce traffic discovery process, and to protect
disincentive—the party’s attorneys must accidents and the deaths and injuries legitimate privacy and proprietary
first recognize the information’s resulting from them. See 49 U.S.C. interests.’’ 81 FR 13029. However, when
relevance to the CPSC and then pursue 30101 (2014). NHTSA’s ‘‘ability to such orders and agreements shield
a potentially costly series of motions identify and define safety-related motor relevant and actionable safety
and hearings that are unlikely to benefit vehicle defects relies in large part on information behind nondisclosure
their client directly. See Nick Saccone, manufacturers’ self-reporting.’’ NHTSA provisions, they violate the good-cause
Comment, Somewhere Between Florida, Enforcement Guidance Bulletin 2015– requirement of Rule 26 of the Federal
Texas, and Federal Rule of Civil 01: Recommended Best Practices for Rules of Civil Procedure, its state
Procedure 26(c): A Balanced Approach Protective Orders and Settlement corollaries, and the well-established
to Protective Orders and Confidentiality Agreements in Civil Litigation, 81 FR public policy favoring protecting public
Settlements, 39 U. Tol. L. Rev. 729, 740 13026, 13026 (March 11, 2016) health and safety.
(2008) (‘‘Satellite litigation concerning (hereinafter NHTSA Enforcement III. Recommendation for Best Practices
contested discovery requests often has Guidance Bulletin). NHTSA found that
little or no bearing on the ultimate result CPSC recommends, following the
it does not always receive such
of the lawsuit, other than increasing the example set by NHTSA, that ‘‘all parties
information from their industry
cost of litigation for both injured seek to include a provision in any
stakeholders. Id. NHTSA recently issued
plaintiffs and defendants.’’). Few parties private protective order or settlement
an Enforcement Guidance Bulletin in an
will therefore even attempt to lift agreement that—despite whatever
attempt to address the use of ‘‘protective restrictions on confidentiality are
protective orders in order to inform the orders, settlement agreements, or other
CPSC of relevant product safety imposed, and whether entered into by
confidentiality provisions’’ barring consent or judicial fiat—specifically
information. reporting to the agency. Id.
According to a report submitted by allows for disclosure of relevant
The NHTSA Enforcement Guidance [consumer product] safety information
the United States Senate Committee on
Bulletin laid out a detailed, to [the CPSC] and other applicable
the Judiciary on the proposed Sunshine
comprehensive and compelling legal authorities.’’ 81 FR 13029–13030.
in Litigation Act of 2008, safety
analysis supporting the disclosure to CPSC’s proposed Litigation Guidance
information related to dangerous
public health authorities, does not impose any new or additional
playground equipment, collapsible
notwithstanding confidentiality requirements, but sets forth CPSC’s
cribs, and all-terrain vehicle design
provisions in protective orders, recommendations for best practices
defects was kept from the CPSC by
protective orders in private litigation. S. settlements, and similar agreements. when parties are considering
REP. NO. 110–439, at 6–8 (2008). A confidentiality provisions in litigation
(infrared liquid propane wall-mounted heater);
cursory review of other civil product Miah v. Ames True Temper, Inc., et al., St Ct of related to consumer products within the
liability cases reveals that protective DeKalb County, GA, Civ Action File No. 03A05859– CPSC’s jurisdiction.
orders are in place in cases involving 7, Protective Order, 7/22/2013 (wheelbarrow); Parties in the process of establishing
additional consumer products that fall Tamayo v. Dollar Tree Stores., Inc., et al., USDC or already subject to confidentiality
Eastern District of PA, Case 2:13 cv–02062–GP,
under the CPSC’s jurisdiction.3 These Document 41, Stipulated Protective Order,
provisions may use this Litigation
(Document 41), Filed 12/05/13 (markers); Williams Guidance and CPSC’s standing as a
public-health authority to support a
asabaliauskas on DSK3SPTVN1PROD with NOTICES
3 For example, the following is a select (and by v. Ideal Industries, Inc., et al., USDC Northern
no means exhaustive) list of protective orders that District of Georgia, Case 1:14–cv–02883–LMM, First reporting exception to these provisions.
have been entered into in ongoing litigation or Amended Protective Order (Document 46), Filed
settlements related to consumer products within the 02/17/15 (multimeter device); Broughton v. Paoli,
See 79 FR 11769. For example, the
CPSC’s jurisdiction. Any relevant information LLC, et al., NC Carteret County Sup Ct, 15 CVS 471, exception could explicitly state
discovered in these cases is covered by the Stipulated Protected Order, 12/21/2015 (office ‘‘nothing herein shall be construed to
protective orders and plaintiffs would be prohibited chair); and Gomez v. Harbor Freight Tools USA, prohibit any party from disclosing
from sharing such information with the CPSC. Inc., Sup Ct of CA Los Angeles County, Case no.
Hampton v. Crescent Cleaners, Inc., et al., USDC BC616712, Stipulation and Protective Order—
relevant consumer product safety
Western District of Tennessee, Case 2:08–cv– Confidential Designations, Filed 8/17/2016 (gas information to the Consumer Product
02696–SHM–cgc, Document 89, Filed 08/17/2009 cans). Safety Commission.’’ Alternatively, a
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![Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Notices 87025
clause might more generally state that CONTACT PERSON FOR MORE INFORMATION: FOR FURTHER INFORMATION CONTACT:
‘‘nothing herein shall be construed to Todd A. Stevenson, Office of the Please contact the U.S. Army
prohibit any party from disclosing Secretary, U.S. Consumer Product Environmental Command Public Affairs
relevant safety information to a Safety Commission, 4330 East West Office, (210) 466–1590 or toll-free 855–
regulatory agency or government entity Highway, Bethesda, MD 20814, (301) 846–3940, or email at
that has an interest in the subject matter 504–7923. usarmy.jbsa.aec.nepa@mail.mil.
of the underlying suit.’’ The CPSC, Dated: November 29, 2016. SUPPLEMENTARY INFORMATION: The
however, is not endorsing any particular proposed action is to construct, operate,
Todd A. Stevenson,
language since the parties themselves and maintain solar PV arrays and/or
Secretary.
are in the best position to determine ancillary power systems on Army
how that may be accomplished. [FR Doc. 2016–29061 Filed 11–30–16; 11:15 am]
installations, to include U.S. Army
BILLING CODE 6355–01–P
IV. Conclusion Reserve facilities, Army National Guard
sites, and joint bases managed by the
The CPSC is publishing this Litigation
Department of the Army (with all
Guidance to provide recommendations
DEPARTMENT OF DEFENSE henceforth referred to only as ‘‘Army
for best practices when drafting
installations’’ or ‘‘installations’’). The
protective orders, confidentiality
Department of the Army proposed action includes, for those solar
agreements, and settlement agreements.
PV projects where the existing
The Litigation Guidance should be Programmatic Environmental
reviewed by judges, plaintiffs, and infrastructure is insufficient,
Assessment for Construction and constructing (or upgrading) and
defendants, as well as those parties Operation of Solar Photovoltaic
wishing to submit amicus briefs relating maintaining the associated
Renewable Energy Projects on Army infrastructure required for the
to protective orders and confidentiality Installations
agreements in ongoing litigation. transmission and management of the
The Commission believes this generated electricity to the electric grid.
AGENCY: Department of the Army, DoD.
Litigation Guidance is simple. Associated infrastructure includes but is
ACTION: Notice of availability. not limited to electricity transformers,
Protective orders, confidentiality
agreements and settlements (as well as SUMMARY: The Department of the Army
transmission and distribution lines, and
other similar documents), should has completed a Programmatic sub or switching stations; as well as
include language that allows any party Environmental Assessment (PEA) for ancillary power control systems such as
to report consumer product safety construction, operation, and energy storage systems, micro-grid
information, incidents, injuries and maintenance of solar photovoltaic (PV) components, and back-up power
deaths to the CPSC.4 renewable energy projects on Army generators. The proposed action may
The Commission notes that this installations and is making the PEA and include real estate actions on Army
Litigation Guidance is not a binding or a draft Finding of No Significant Impact lands where the projects could be
enforceable rule and would not change (FNSI) available for public comment. funded and constructed by the Army,
any person’s rights, duties or obligations The draft FNSI incorporates the PEA, funded through a third party Power
under the CPSIA or any other Act which does not identify any significant Purchase Agreement utilizing a lease of
administered by the Commission. environmental impacts from the Army or Joint Base land to an
proposed action or any of the independent power producer or the
Dated: November 29, 2016.
alternatives. The draft FNSI concludes local regulated utility company, or
Todd A. Stevenson, funded via some other relationship with
Secretary, Consumer Product Safety that preparation of an environmental
impact statement (EIS) is not required, a private or public entity.
Commission. The projects being evaluated and
[FR Doc. 2016–29004 Filed 12–1–16; 8:45 am] and therefore will not be prepared.
The PEA is programmatic and analyzed would generally range from
BILLING CODE 6355–01–P
nationwide in scope. For years, the approximately 10 megawatt (MW) to
Army has analyzed and implemented 100 MW per site; however, the projects
solar PV projects at Army installations outside of this MW range (e.g., less than
CONSUMER PRODUCT SAFETY 10 MW) are inclusive in this proposed
COMMISSION across the country. In the PEA, the
Army leveraged this experience with the action. On average, seven acres of land
Sunshine Act Meeting Notice goal of streamlining the National are currently required to produce one
Environmental Policy Act process for MW of power. As this technology has
TIME AND DATE: Wednesday, December 7, future solar PV proposals, as evolved, the acreage requirement for one
2016; 9:30 a.m.–12 p.m. appropriate, in a manner consistent MW generating capacity has decreased;
PLACE: Hearing Room 420, Bethesda with Council on Environmental Quality therefore, it is possible that future solar
Towers, 4330 East West Highway, and Department of the Army PV technologies may require even less
Bethesda, Maryland. regulations. acreage per MW; currently,
STATUS: Closed to the Public. approximately 70 acres of land would
DATES: The public comment period will be required for a 10 MW site and 700
Matter To Be Considered: Compliance
end 30 days after publication of the acres of land for a 100 MW site. PV
Matters: The Commission staff will brief
Notice of Availability in the Federal systems on rooftops would generally
asabaliauskas on DSK3SPTVN1PROD with NOTICES
the Commission on the status of various
Register by the Department of the Army. expect to have capacity measured in
compliance matters.
ADDRESSES: Written comments should watts or kilowatts (kW), not MW, and be
4 The public is always encouraged to report be sent to: U.S. Army Environmental of a much smaller size and scope.
relevant consumer product safety information to the Command, Attn: Solar PV PEA Public After construction, equipment
CPSC via the CPSC’s hotline [(800) 638–CPSC Comments, 2450 Connell Road monitoring, routine maintenance
(2772)]; the CPSC’s online reporting tool:
www.saferproducts.gov; and by contacting the
(Building 2264), JBSA—Fort Sam (including vegetation control, snow
CPSC’s Office of Compliance and Field Operations Houston, TX 78234–7664; email: removal, solar module washing, and
directly [(301) 504-7547]. usarmy.jbsa.aec.nepa@mail.mil. periodic module/other equipment
VerDate Sep<11>2014 17:55 Dec 01, 2016 Jkt 241001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\02DEN1.SGM 02DEN1](https://thefederalregister.org/doc/81_FR_87255/page/3.svg)
Document Created: 2018-02-14 09:02:15
Document Modified: 2018-02-14 09:02:15
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice. | |
| Contact | Todd A. Stevenson, Secretary, U.S. Consumer Product Safety Commission, Office of the Secretary, 4330 East- West Highway, Bethesda, MD 20814, Room 820, 301-504-7923; email [email protected] | |
| FR Citation | 81 FR 87023 |
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