Of the various debates and documents that can presage the interests and activities of the U.S. Consumer Product Safety Commission (CPSC), the agency’s operating plan is generally the most illustrative. The CPSC adopts a new plan around the beginning of each fiscal year, laying out that year’s objectives. Last Tuesday, the Commission received a briefing from agency staff on the FY20 Op Plan. The five commissioners will now review the draft and discuss potential changes, and they will likely hold another public meeting to vote any amendments and a final plan. Presumably, that vote will occur before Commissioner Ann Marie Buerkle’s departure on October 27; once she’s gone, the body will be evenly split on party lines, and the odds of failing to reach consensus will go up.
Patching the Breach
The CPSC’s unauthorized disclosure of incident information concerning more than 11,000 companies was a big story earlier this year. While Republican Commissioners Dana Baiocco and Peter Feldman pushed to bring in an FBI expert to investigate the disclosure, they were rebuffed when fellow Republican Buerkle joined Democrats Bob Adler and Elliot Kaye to vote down the proposal. Perhaps unsurprisingly, the draft does not make any mention of an outside investigation, although the draft plan does include a priority project to “review and update internal controls” to prevent a recurrence of it. Commissioners Baiocco and Feldman may make another pitch.
The same project also includes work to build “an online data clearinghouse to permit the public to obtain incident data.” The disclosure came from a clearinghouse that the public – from consumer advocates to industry – had been able to access to look for incident trends across product categories. Interested stakeholders could call the CPSC’s epidemiology staff and request a copy of the data, and agency leadership has suggested the disclosures were the result of inadequate training for these staffers.
The Op Plan contemplates an online clearinghouse portal. More standardized access to reduce the potential for human error in the release of information, but stakeholders should pay careful attention to how this database is structured, and they should share any concerns with CPSC and with congressional leadership to make sure the CPSC creates proper controls on how information gets into the clearinghouse.
A New Day at the CPSC?
In 2017, the CPSC proposed a rule that would require flesh-sensing or other active injury mitigation (AIM) technology on table saws to address blade-contact injuries. Given the changes in Commission composition since then, many assumed that proposed rule would remain proposed for the foreseeable future. Indeed, when the agency submitted its FY20 budget request to Congress, it listed the table saw rule as one that would not move forward in the coming fiscal year. The draft Op Plan, however, anticipates a final rule on table saws in FY20.
At the briefing, Commissioner Kaye said this change came from a “direction from the Commission.” The CPSC has not published any vote on the acceleration, but the shift and Kaye’s comments suggest there may be consensus on finalizing the rule.
The proposed rule on stability in recreational off-highway vehicles (ROVs) may be moving in the other direction. Nearly three years ago, CPSC staff recommended terminating that rulemaking in light of revisions to the relevant voluntary standards that staff believed would adequately address the risks of rollover and occupant ejection. The Commission voted on party lines to keep the rulemaking open, with the then Democratic majority citing concerns about the stability-informational hang tags required in the standard. A second vote failed earlier this year with Commissioners Baiocco and Feldman voting to terminate the rulemaking. The issue has been in limbo since then, but the draft plan anticipates a vote on an “ROV Rulemaking Termination Package” before the fiscal year is out.
The Best-Laid Plans?
Of course, the CPSC can only spend the money Congress appropriates. The House has passed an appropriations bill that would increase the CPSC’s budget from $127 million in FY19 to $135.5 million in FY20, welcome news to the many stakeholders who have called for funding increases, including at a House subcommittee hearing earlier this year. The Senate has not acted, but it is unlikely to agree to so large an increase. Prudently, CPSC staff based its draft Op Plan on the current $127 million figure, so any negotiated increase would come as a bonus.
Staff’s assumption of a flat budget will also come in handy if the funds run dry. Congress has passed a continuing resolution (CR) to maintain FY19 funding levels through November 21. Further CRs or an appropriations bill would at least allow the CPSC to continue operating at its current levels. If the CR expires without a successor, we could see another government – and CPSC – shutdown. Assuming at least continuity of funding, however, the plan will be the most reliable guide to what to expect from the CPSC in the next year.
Stakeholders should pay careful attention to the decisional meeting on the Op Plan, which is likely to occur in mid-October. The discussion and likely amendments offered in that meeting will offer critical insights into not only the objectives of the agency, but also the priorities of each commissioner. Translating those priorities into prospective vote counts can help stakeholders identify which of the plan’s goals are most and least likely to materialize.