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Acting Chairman Ann Marie Buerkle Withdraws Nomination, Announces Intent to Resign From CPSC, Effective October 27, 2019

In a press release this afternoon, Acting Chairman Ann Marie Buerkle announced that she would be withdrawing her nomination to be the permanent Chairman of the CPSC, as well as her nomination for an additional 7 year term, which would have expired in October 2025. Buerkle will step down as Acting Chairman on September 30th, and will be leaving the agency at the end of her term on October 27, 2019 (her first term ended in October 2018, but the law allows for a sitting Commissioner to stay on for one additional year if their vacancy has not been filled). In the press release, Acting Chairman Buerkle cited to her desire to pursue new public service opportunities and spend more time with her six children and eighteen grandchildren. Buerkle’s statement noted:

“Serving as a Commissioner at the CPSC for the past six years and as the agency’s Acting Chairman for the past two and a half years has been one of the most rewarding periods of my professional career. Nonetheless, the time has come to pursue new opportunities that will allow me to continue my life’s work of advocacy and public service as well as spend more time with my six children and eighteen grandchildren.”

Acting Chairman Buerkle has spent the past 2 years in confirmation limbo. In July 2017, she was nominated by President Trump to serve as the permanent Chairman of the CPSC, along with an additional 7-year term on the Commission. Following a Senate confirmation hearing in September 2017, her nomination was approved by the Senate Committee on Commerce, Science, and Transportation, but the full Senate never took action to vote on her confirmation.  President Trump therefore re-nominated Buerkle in January 2018.  Again, in 2018, the Senate took no action to confirm Acting Chairman Buerkle and she was nominated for a third time in January 2019. During this time, we saw Commissioners Baiocco and Feldman receive confirmation, ushering in a 3-member Republican majority for the first time since 2006.

Once her resignation is official, the CPSC will have two Republican and two Democratic Commissioners. Without the quick nomination and confirmation of a new Republican Commissioner over the summer, this could end the current Republican majority less than a year after it began and leave the Commission split at 2-2. This type of split is not unheard of at the agency. The Commission was split between October 2011 and June 2013 with a Democratic Chairman This time, however, there will presumably be a Republican Acting Chairman.

Unless a new Chairman is confirmed before Buerkle’s departure, it will be up to the remaining four Commissioners to elect a new Vice-Chairman by majority vote. The Vice-Chairman will then become the Acting Chairman of the agency until a permanent Chairman is confirmed.

The Trump administration will need to select a nominee to fill Buerkle’s spot on the Commission with a term ending in October 2025. The nominee could also be nominated to become the permanent Chairman of the agency or the Trump administration could consider Commissioners Feldman or Baiocco for the position. It is also possible that, heading into an election year, the administration does not put any nominee forward and allows the Commission to remain 2-2 with a Republican Acting Chairman. 

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About this Author

Shawn Skolky, Mintz Levin Law Firm, Washington DC, Corporate and Litigation Law Attorney

Shawn advises on many aspects of antitrust and competition law, including antitrust counseling, merger review, and private antitrust litigation, including class actions. His consumer product safety practice focuses on helping companies seeking representation on product safety reporting obligations, recalls, regulatory compliance, product safety investigations, and enforcement matters involving the Consumer Product Safety Act (CPSA) and other federal and state product safety laws.

Matthew Howarse, Consumer Safety, Attorney, Mintz Levin, Law Firm

Matt is a prominent consumer product safety lawyer who advises manufacturers, retailers, importers, distributors, trade associations, and test laboratories. He has extensive experience with compliance, regulatory enforcement, recalls, and other product safety related issues. He represents clients before the Consumer Product Safety Commission (CPSC), Health Canada, the Federal Trade Commission, Congress, and state agencies. Matt draws on his four-year tenure as the CPSC chief of staff and his many years advising clients in private practice to devise practical and resourceful solutions for clients. He serves as Chair of Mintz’s Consumer Product Safety Practice and president-elect of the International Consumer Product Health and Safety Organization (ICPHSO).

Based in Washington, DC, Matt is the Chair of the firm’s Consumer Product Safety Practice. He focuses his practice on consumer product compliance and enforcement issues involving the US Consumer Product Safety Commission (CPSC), individual US states, the Federal Trade Commission, and Health Canada.

Matt previously served as the Chief of Staff of the CPSC from 2010 to 2013 and as the Chairman’s Senior Counsel in 2009. Matt is very involved in the national and international product safety community and currently serves as Vice President on the Board of Directors for the International Consumer Product Health and Safety Organization (ICPHSO).

Matt regularly helps companies seeking representation on product safety reporting obligations, recalls, regulatory compliance, product safety investigations, civil penalties, import investigations, internal compliance programs and training, the CPSC’s public database, and other regulatory and enforcement matters involving the Consumer Product Safety Act (CPSA), Consumer Product Safety Improvement Act (CPSIA), Federal Hazardous Substances Act (FHSA), Flammable Fabrics Act (FFA), Poison Prevention Packaging Act (PPPA), the Canada Consumer Product Safety Act (CCSPA), and other federal and state product safety laws. He assists clients with navigating complex product safety compliance issues and avoiding unwarranted recalls or enforcement actions.

Matt’s experience includes representing manufacturers, distributors, and retailers of apparel, children’s toys, fitness equipment, office supplies, household furniture, juvenile products, power tools, products requiring child resistant packaging, audio video equipment, arts & crafts materials, books, recreational and sporting equipment, safety equipment, hair care tools, kitchen appliances, lighters, candles, heating and cooling equipment, home decorations, promotional products, household cleaners, and many other types of consumer products. Matt also advises trade associations, testing laboratories, and various other types of clients on product safety issues and represents them before product safety regulators and Congress.

With over 10 years of experience in product safety, including the representation of a wide range of consumer product industries and working in a senior leadership position at the CPSC, Matt is able to provide well rounded, efficient, and thorough advice on the full spectrum of product safety issues.

Charles Samuels Antitrust Attorney Mintz Levin Law Firm

Chuck is an antitrust and regulatory lawyer who devotes a significant portion of his practice to assisting clients with consumer product safety and environmental regulations. He serves as general counsel to numerous trade associations. For the Association of Home Appliance Manufacturers, Chuck negotiated and drafted amendments to federal laws, including the Consumer Product Safety Act. Corporations in many industries, local governments, and state agencies are also on his client roster. He represents clients before a wide array of federal agencies, including the Consumer Product Safety...