January 26, 2021

Volume XI, Number 26


January 25, 2021

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Despite COVID, CPSC Policy Discussions Forging Ahead – Sort Of

Much like the rest of the world, the U.S. Consumer Product Safety Commission (CPSC) and its constituents and stakeholders are trying to determine how to operate amid the historic disruptions of the COVID-19 pandemic.

Some CPSC functions – particularly staff-driven operations like recalls – are functioning reasonably well even with a dispersed, telecommuting workforce. But other matters – especially the policy questions that commissioners must answer – present a greater challenge. Nonetheless, the agency is finding ways for its four commissioners to fulfill their responsibilities despite the hurdles.

Remote – Maybe Virtual? – Commission Voting

Of course, the commissioners and their staffs discuss issues via phone and email, and there are also multiple procedures that allow the Commission to vote on proposals without convening in a single room. But these procedures have limitations. The Commission can vote by ballot – a formal vote sheet developed and distributed by the CPSC’s Secretariat – or it can vote by electronic poll, an email sent by one Commissioner’s office through the agency’s Office of the Secretary.

However, votes cast by ballots and polls are less transparent than votes cast in open meetings, and the public may as a result be less informed than it typically would be. Matters decided by ballot generally do not usually see any public discussion, and polls typically do not even generate official Records of Commission Action (RCA). That means the public may be unaware that a vote even took place. Consequently, ballots have typically been used for less controversial policy issues, such as accrediting test labs, while polls have traditionally been reserved for purely ministerial functions, such as setting dates for meetings.[1]

But now ballots and polls may be used for more significant policy matters. With COVID’s emergence, policy discussions at the CPSC initially slowed down. Votes were generally limited to topics that are amenable to ballots, such as updating rules to align with revisions to consensus standards that have been adopted into law, or that could not reasonably be delayed, such as the annual midyear operating plan adjustments.

In the next few months, we expect to see more Commission efforts to move policy proposals through either ballots or web-conferenced hearings. In fact, the CPSC appears to be conducting a trial run of its remote collaboration systems: the agency has set a May 27 date for the postponed annual Priorities Hearing, a hearing that is now expected to take place entirely remotely.

If the mechanics of the Priorities Hearing work well, the CPSC may conduct more web-conferenced hearings and, perhaps, more votes on substantive issues. One limitation there: the fact that the current four commissioners are split 2-2 on partisan lines.

Virtual Confirmation?

Last October, Republican Commissioner and Acting Chair Ann Marie Buerkle left the agency when her term expired, having withdrawn her re-nominations after they had failed twice in the Senate. When she did so, she left the four remaining commissioners with a 2-2 partisan split, and her deciding vote passed the acting chairmanship to Bob Adler, a Democrat. Without a natural majority, as we wrote late last year, the Commission may find it hard to reach consensus on significant policy questions.

Buerkle made no official statement about her decision, but some CPSC stakeholders have suggested that Buerkle calculated that the Republican Senate would be more likely to use its limited floor time to ensure that an eventual Republican CPSC nominee would be confirmed so that the agency would not be in Democratic hands. But any late-summer calculation necessarily did not anticipate COVID-19.

The White House nominated Dr. Nancy Beck, then an EPA official, on March 16. The next day, Maryland (where the CPSC sits) announced that it would postpone its primary elections. Understandably, COVID-related issues have largely captured the attention of the Senate since then, including that of the Committee on Commerce, Science, and Transportation, which has jurisdiction over CPSC nominations.

Ordinarily, the Senate acts on a significant nomination only after it has been favorably recommended by the relevant committee, and a committee will not vote on a significant nomination without holding a hearing. It’s unclear whether those practices will be followed during the pandemic.

Senate Commerce last held a nominations hearing on March 11. Some committees, like Foreign Relations, have opted for videoconference nominations hearings. It’s unclear if Commerce would do so as well, but developments at the CPSC may convince them. From a sweeping lawyering up of the agency’s compliance function to unilateral statements that criticize companies’ products but that don’t appear to have been the result of Commission votes, CPSC stakeholders perceive a growing aggressiveness from the agency, and the Senate majority may want to gain a Republican chairmanship and a GOP majority at the CPSC.

[1] There have been exceptions to the CPSC’s general preference for conducting business of public import in public. For example, we understand that, about a year ago, the Commission voted to maintain the ongoing rulemaking for recreational off-highway vehicles (ROVs), again rejecting CPSC staff’s recommendation to withdraw the proposed rule. However, the agency has not published an RCA of that vote, presumably because, as we understand, it took place by poll.

© 2020 Schiff Hardin LLPNational Law Review, Volume X, Number 140



About this Author

Mike Gentine Schiff Hardin Product Liability Lawyer Washington DC

With experience spanning federal government, private practice, and in-house roles, Mike advises clients on legal and regulatory matters particularly in the area of consumer goods and product safety.

Mike has held multiple positions at the U.S. Consumer Product Safety Commission (CPSC). He served as senior counsel for the Office of CPSC Commissioner Joseph P. Mohorovic from 2014-2017, where he advised on various policy, enforcement, and ethics issues. He led several efforts to reform rules and regulations, including an initiative to reduce the paperwork burden on CPSC-regulated...