Five CPSC Developments to Watch for in 2013

PSL has identified five issues that are likely to make either the biggest or most news in the coming year. They are CPSC’s surveillance and compliance activity, the soon-to-be effective testing and certification rule, the phthalates CHAP, agency vacancies and the day-to-day churn of rulemakings, voluntary standards, reports and similar activity. Here are our takes:

Surveillance and Compliance: CPSC always has voiced a need to regulate innovatively and to leverage its resources (remember ex-Chairman Ann Brown’s Little Agency that Could in the 1990s). However, numerous developments in recent years and months are pointing to what could be one of the more newsworthy eras in this area. Top among the trends is that what was once a once-in-a-decade rarity now seems to have become common: using the administrative complaint route. CPSC filed four in the last five months of 2012, an average of more than one every other month. Does it have more companies in its sights?

Beyond that development, the number of companies paying civil penalty settlements over alleged Section 15 violations has increased. Although many have involved the agency’s campaign against drawstrings on children’s upper outerwear, other products are targets too. Will that trend continue or grow?

Finally, expect to see CPSC’s investments in its surveillance infrastructure begin to pay off increasingly. Those include upgrades to its in-house data systems, its increasingly closer work with Customs, and the SaferProducts.gov database.

Testing and Certification: The core parts of the much-debated and long-delayed CPSIA testing and certification rules become effective next month, so expect 2013 to be heavy with related learning experiences. A big question is how public can those lessons be. Can CPSC strike a balance between publicly disclosing enough details about any learning experiences versus keeping that information general enough not to run afoul of rules like 6(b)? As for any heavy-handed enforcement, CPSC staff in the past has expressed willingness to work with industry during the learning curve phase.

Meanwhile, numerous CPSC projects – such as the draft proposed changes related to certificates of compliance or the long-term project to look at ways to reduce testing costs – could affect this area. The big question is whether all this will lead to less or more clarity a year from now.

Phthalates: The chronic hazard advisory panel (CHAP) is late with its report, which had been expected in the middle of last year. It is unclear what is holding up the document, but a likely reason involves the peer review process that panel members had sought. Some in industry have voiced concern about the scope, the openness and the timing of the project.

Its origin is a directive in the CPSIA related to that law’s permanent ban of three phthalates and interim ban of three others. As allowed under that directive, the work has expanded to include consideration of not only other phthalates but also other chemicals that industry might use as replacements in the face of any further bans. Although the process had seen a high level of openness – with a webpage dedicated to documents and meetings held via public teleconference or webcast – information coming out of CPSC dried up in the latter part of 2012.

These factors are creating angst in industry, which awaits an unknown document with an unknown scope of potentially broad effect beyond CPSC and that will appear at an unknown time.

Agency Leadership: With two commissioner slots vacant and a third opening up this fall (Commissioner Nancy Nord is in her final year), President Barack Obama will have the chance to fill the commission with people of his liking (although two would be Republicans).

One of the empty slots has had a nominee stalled for a year – Marietta Robinson, a Democrat – and the other awaits a pick. The question is whether the Senate will move on her nomination independently (she received a hearing last spring) or if it will wait for the second nominee, to be a Republican, to act on both together.

Beyond the coming year, Obama could expand his long-lasting print when the tenures of Chairman Inez Tenenbaum and Commissioner Robert Adler end. Commissioners can and usually do serve a year beyond the end of their term (as Nord is doing now) to facilitate replacing them. Tenenbaum’s term ends in 2013 but she could serve until 2014. Adler’s ends in 2014 with service allowed until 2015. That all means that at the end of Obama’s presidency, all five commissioners could be his appointees with tenures ending between 2017 (allowed to 2018) and 2021 (allowed to 2022).

Meanwhile, the agency has key staff positions vacant, most notably the head of Compliance. Expect those staffing decisions to make some news.

Rules, Standards and Studies: This area is about quantity more than major news, although development can fall into the latter. It is about the steady flow of CPSC’s mainstay activities. In the early years of the CPSIA, CPSC got away from such projects, but in recent years, it has increasingly returned to them. Expect PSL stories on a weekly basis.