Members of the U.S. Consumer Product Safety Commission (CPSC) are set to vote on a final rule to allow the staff not only to participate on the committees that develop voluntary standards, but to vote as members of the committees and even lead them (provided the Executive Director gives prior approval). If the Commission approves the rule, this will overturn the current limitations on staff participation. The outcome of the vote, originally scheduled for January 6, 2016, has not yet been publicly announced. The delay in public announcement of a vote often indicates continued deliberation among Commissioners, up to and including a decision to hold a public hearing on an issue.
The proposal follows from the Commission’s 2013 proposed rule, which responded to a 2012 recommendation by the U.S. Government Accountability Office (GAO) that the CPSC study the feasibility of assuming a more active, engaged role in the development of voluntary standards. Comments from stakeholders on the original proposal ran the gamut. Some entirely opposed both new forms of participation, some supported both, and some supported staff voting but not taking a leadership role.
Critiques of the proposal pointed to the potential violations of the Administrative Procedure Act (APA), the Federal Advisory Committee Act (FACA), and potential openness requirements under the Government in the Sunshine Act, which in turn might violate standards organization rules. Proponents thought that voluntary standards would benefit from the votes of CPSC staffers who were already participating in the discussions.
The voluntary standards development process has long been a key aspect of the CPSC’s mission. Congress has instructed that CPSC, when considering rulemaking on a specific hazard, defer to a voluntary standard that effectively addresses the contemplated hazard, and that either is currently widely followed or expected to be.
Further, in the 2008 Consumer Product Safety Improvement Act (CPSIA), Congress directed the Commission to identify voluntary standards for durable nursery products and make them mandatory, either as a whole or with specific amendments that improve safety. This process, called the § 104 process after the statutory provision, prompted critiques from then-Commissioners and others that the staff’s views are given inappropriate extra weight. This follows from their ability to recommend that the Commission adopt a voluntary standard with changes, including changes that might have been considered and rejected by the voluntary standards committee.
If the Commission does approve the proposal as staff drafted, we will see whether staff participation improves the voluntary standards process, or whether concerns that have beset the § 104 process are magnified.