CPSC Operates as Exempt from Regulation Freeze, Keeps Communicating

CPSC decision makers maintain that the agency is exempt from the January 23 White House directive that rulemaking be frozen. Reasons involve both its role in guarding health and safety and its status as an independent agency, PSL learned.

On the former, the memo (bit.ly/2jYdyyc) states that the stoppage is "[s]ubject to any exceptions the Director or Acting Director of the Office of Management and Budget…allows for emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters." Debate could hinge on the words emergency and urgent versus (below) critical.

The command further directs agencies to:

"Notify the OMB Director promptly of any regulations that, in your view, should be excluded from the directives…because those regulations affect critical health, safety, financial, or national security matters, or for some other reason. The OMB Director will review any such notifications and determine whether such exclusion is appropriate under the circumstances."

Beyond such interpretations, CPSC and other independent agencies typically have been deemed exempt from such directives. For example, two 2011 executive orders on issues like regulatory streamlining and retrospective review were seen as nonbinding. The Office of Information and Regulatory Affairs eventually issued a guidance on desired voluntary actions by independent agencies (PSL, 7/30/11), and CPSC took steps to follow the requests (PSL, 9/9/11).

Republican Commissioners Ann Marie Buerkle and Joseph Mohorovic January 25 did abstain from voting to publish an NPR on fireworks on the grounds that CPSC should voluntarily comply in deference regardless of legal requirement. Buerkle noted lack of White House direction on the matter. They did cast votes on ending an ROV rulemaking.

Relatedly, soon after the election (PSL, 11/28/16), the chairs of the congressional committees with CPSC oversight urged it to avoid "complex, partisan, or otherwise controversial" activity until a Republican chairman is in place.

Meanwhile, another White House memo (bit.ly/2kdKP5E) directs agencies to stop all hiring, but it too has exemption for certain health and safety activities. Whether CPSC would deem itself subject was unclear.

Elsewhere, CPSC not only has been continuing public communications such as press releases and tweets, it expanded to Facebook and Instagram (see related story). This contrasts with some other agencies – like the Environmental Protection Agency, Interior, Agriculture, and Health and Human Services – that reportedly were put under orders to go silent.

A growing number of Twitter accounts claiming to be run by staffers of some of those agencies appear to be defying those commands. There are competing portrayals of the directives as benign and typical of all new administrations versus gag orders that go far beyond what has occurred before.

Independent agencies like CPSC operate outside the Cabinet structure. The President and Congress have very limited ability to remove the people appointed to run them once installed, typically only for extreme reasons like malfeasance.