CPSC Shutdown Effects Extend to and beyond U.S. Borders

Concern about the flow of imports into the United States and CPSC’s international activity were among the product safety effects of the federal government closures that still were in place as PSL went to press. The former was the result of no agency field staff being deemed essential to the narrowly defined duties allowed during the funding fight. Thus, for example, the Toy Industry Association informed its members that although U.S. Customs and Border Protection would be largely unaffected, any shipments tagged by that agency as needing further CPSC review likely would be delayed. CPSC and Customs over the past decade have developed a cooperative relationship which involves leveraging Customs data on incoming shipments and shippers to target those most likely to be problematic.

Meanwhile, CPSC Chairman Inez Tenenbaum told PSL that she had to cancel trips to Indonesia and China. The former would have seen her interacting with the apparel and footwear industry as well as with her government counterpart in that nation. The China trip was for the 5th biennial summit between CPSC and Chinese regulators. The summits aim to help align the goals of the nations and otherwise increase cooperation on product safety. The two nations swap hosting duties with the last one occurring in Washington, D.C. (PSL, 10/17/11, p. 1). Furthermore, explained Tenenbaum, there were plans to conduct education events with Chinese toy and electrical product manufactures. She added that there are hopes that such activity still might occur in the future with solutions such as webinars.

Furthermore, she and some members of the CPSC staff were scheduled to attend the international symposium of the International Consumer Product Health and Safety Organization (ICPHSO) that occurred October 9-10 in Surfers Paradise, Queensland, Australia.

Conference chairman Joan Mattson, president of Mattson Consulting Services, told PSL she would read Tenenbaum’s planned keynote speech to participants. Mattson further explained that ICPHSO was able to fill the CPSC slots with speakers and moderators from Health Canada, the Australian Competition & Consumer Commission, and attendees of a related working group meeting of the Organization for Economic Cooperation and Development. She remarked, “We’re lucky to have such a knowledgeable and willing batch of safety professionals,” but also acknowledged, “It’s not idea, and we do lose a great deal by CPSC’s absence, but we’re powering through and looking forward to settlement [of the shutdown] so that we can welcome our CPSC partners back into the fold.”

CPSC was among the agencies subject to what became known as “mini-CRs” (continuing resolutions) introduced by House Republicans. Each would open single federal agencies although CPSC’s has not come up for a floor vote as others did. H.J. Res. 86, introduced by Rep. Terry Lee (R-Neb.) would fund CPSC at $114.5 million for fiscal 2014 (began October 1). The amount is based on the fiscal 2012 appropriations number.

PSL sought the comments of CPSC members about the situation.

Chairman Inez Tenenbaum: “I sincerely hope and pray that Congress and the President can pass a budget and allow the federal government to resume its operations. I am personally concerned about my employees and worry daily if they are in financial distress.” She added that she is “proud of exempt employees who have carried out” the work allowed during the stalemate: addressing imminent threats to safety, protecting government property, and supporting those tasks. She stressed that they are limiting their time to those duties while emphasizing that a priority for the roughly 20 staffers (PSL, 10/7/13, p. 1) are reviewing incoming reports to “see if they rise to the level of imminent threats.”

Commissioner Robert Adler: “I regret that the CPSC has had to dramatically reduce the services it offers to protect the safety of American consumers, but I’m happy to hear that Congress has taken steps to pay the staff for the shutdown days. We have so many dedicated CPSC employees who want only to return to work and continue their life-saving mission. I hope that they can do so soon.”

Commissioner Nancy Nord: “While the agency has taken steps to assure that any imminent product hazards will be addressed during this period, I do hope that, when we return, we will do so with a new mindset that collaboratively seeks solutions to the most serious problems in order to protect consumers while still avoiding unnecessary cost and harm. This has been done in the past and it can be done again.” Nord also posted an essay on her blog (nancynord.net) in which she compared the difficulty in compromise between Congress and the President to past tensions over compromise among commissioners. She cited as examples decisions on the CPSIA database (saferproducts.gov), lowering lead limits to 100 parts per million, and disagreements related to testing and component parts rules.

Commissioner Marietta Robinson: “I wish that everyone in this country could spend one day with the incredibly hard-working, devoted staff of the CPSC to just get some idea of the value of this agency. Product safety is our completely apolitical goal and our critically important efforts to achieve that goal for all of us, including our children, have been stalled until our staff is able to get back to work.”

Commissioner Ann Marie Buerkle did not respond.

Commissioner Nancy Nord is slated step down at the end of the month. Her term technically ended a year ago, but the CPSA allows commissioners to remain an extra year to facilitate seating replacements. If the shutdown extends long enough, her official actions as a commissioner likely would be over. Although commissioners are not subject to the work restrictions (as they are presidential appointees who are exempt from the Annual and Sick Leave Act) their staff cannot work and agency meetings and other activity are strictly curtailed under the shutdown rules, making any commission level actions highly unlikely. Her departure will leave the commission with a 3-1 Democratic majority. President Barack Obama has not nominated a replacement.

Roughly 28% of respondents to an online survey by PSL said the shutdown already had affected what they do. About 72% said it had not. Meanwhile, there was a near equal split at 34.4 vs. 35.9% for those who said the closure would or would not have an effect if it lasted much longer. The remaining 29.7% said it might affect them over the long term.

PSL also sought short comments to responses. Below are some paraphrased highlights of the answers and opinions.

No effect yet

• CPSC is not the frontline on product safety; companies are and focus on it regardless of CPSC’s presence.
• CPSC actions have long lead times so effect take a while.

Already had an effect

• Some recalls are stalled.
• Meetings with commissioners are canceled.
• CPSC staff is unavailable for interpretation or answers.
• CPSC staff is not working on pending compliance and regulatory matters.
• There is uncertainty about the timing of CPSC’s work.
• CPSC is giving limited attention to Section 15 reports.
• Standards work is slowed or stalled without CPSC input.
• There is concern about imports being held up.

No future effect

• Diligence in product safety is not dependent on CPSC.

Yes future effect

• Companies would need to conduct recalls without CPSC.
• There would be a logjam of pending CPSC issues.
• Public protection and education would be weakened.

Maybe future effect

• There might be delays in recalls, possibly leading to incidents. There might be other recall-related problems.
• Speed to market for imports needing inspection might be slowed. Shipments might be held up at the ports.
• There is value in getting CPSC’s view on legal questions.

The survey is not necessarily an accurate reflection of the state of U.S. product safety during the shutdown because it was small scale (fewer than 70 respondents) and the participants were self-selected. It is intended only to give an anecdotal view into what some stakeholders were experiencing and thinking. PSL left the survey open for now, so results might change.

View them at svy.mk/1ad7nGf.

Participate for a limited time at www.surveymonkey.com/s/T8KDTQ7.