CPSC Staff Present Operating Plan for Fiscal 2013

The choice by the Department of Justice (DOJ) and CPSC not to pursue an appeal of a decision involving the CPSIA database does not end the matter because consumer groups are continuing their appeal. Scott Michelman, the Public Citizen attorney handling the case, explained to PSL that although the government is not seeking a reversal of the specific decision that supported the plaintiff company’s desire to keep its name and other information out of saferproducts.gov, his group, Consumer Federation of America, and Consumers Union will continue their opposition to details about the case being under seal.

The reason, he said, is that the public does not know the facts that the court looked at or how it applied the law to those facts. He explained that the appeal in the U.S. Fourth Circuit will focus on the First Amendment and on judicial secrecy. He said the groups are “full speed ahead” with questioning whether such cases should be litigated in secret, asserting that the public’s strong interest in being informed in such matters “does not yield just because a company wants to avoid bad publicity.”

Specifically, the consumer groups’ brief, filed December 13, included arguments such as that open judicial proceedings are necessary to ensure public oversight of the courts; that the firm’s interest in protecting its reputation meets neither the First Amendment compelling interest test nor a common law standard for secrecy; and that sealing the case violates the common law right of access. Read the brief at www.citizen.org/documents/Company-Doe-v-Public-Citizen-Opening-Brief-Appellants.pdf.

CPSC spokesman Scott Wolfson declined to comment on the specifics of the choice not to appeal, pointing PSL to DOJ, which took the lead on the case. However he did note that CPSC stands by its original assessment (PSL, 10/29/12, p. 1) that the decision changed neither the agency’s mandate with the database nor the program’s value to the public. He added that CPSC also believes the site allows companies to have a closer relationship with the agency via the business portal. He further explained that CPSC has procedures in place to ensure that it complies with both the decision and its own rules governing the database. DOJ spokesman Charles Miller declined to comment.

The July decision in Company Doe v. Tenenbaum et al. termed CPSC’s actions “arbitrary and capricious.” CPSC sought to publish a report involving the company’s product after getting information saying the report was “materially misleading.” In October, a redacted copy of the decision became public.

Find it and more about the case at www.gpo.gov/fdsys/pkg/USCOURTS-mdd-8_11-cv-02958.

CPSC staff December 12 presented the fiscal 2013 operating plan before commissioners, revealing the agency’s likely priorities in the year that began October 1. According to Director of the Office of Financial Management Jay Hoffman, the 2013 budget has 187 goals, categorized as annual milestones, internal operating plan measures, or budget key performance measures.

Under the $116.425 million strategic plan funding budget, $39.8 million is allocated for “rigorous hazard identification”; $32.1 million for “decisive response”; $23.1 million for “commitment to prevention”; $12.6 million for “leadership in safety”; and $8.8 million for “raising awareness.”

Regarding enforcement priorities, CPSC Executive Director Kenneth Hinson explained that CPSC will focus on public pool and spa requirements, and CPSIA mandates for durable infant goods. Also, he said CPSC would aim resources at FHSA enforcement, including toys, bath sets, rattles, pacifiers, infant pillows, refrigerators, and refuse bins. “These are some of the older regulations that are on the books that we just occasionally need to circle back around and enforce and make sure that manufacturers are still compliant,” he explained. Hinson also noted that the top priority for import surveillance would be the continued development of the International Trade Data System/Risk Assessment Methodology system (ITDS/RAM) pilot.

He laid out the following hazard-identification priorities:

• Durable nursery product mandatory standards: bassinets, bassinet attachments to play yards, bedside sleepers, handheld carriers, soft infant carriers, and strollers.

   

• Technical work: table saws, portable generators, fireworks, and firepots/gel fuels.

   

• Draft final rules: imidazolines child-resistant packaging, rare earth magnet sets, animal testing, mattresses, and toy guns/caps.

   

• Draft proposed rules: recreational off-highway vehicles, infant slings, infant inclined-sleep products, and an FHSA definition of “strong sensitizer.”

   

• Petitions to evaluate: crib bumpers, architectural glazing, and unblockable drain systems.

Following the staff presentation, commissioners raised a number of concerns surrounding the priorities outlined in the 2013 Operating Plan.

Commissioner Robert Adler was particularly concerned about the status of ATVs and ROVs as a CPSC priority. “For me, ATVs remain the single most dangerous discretionary use product in our jurisdiction,” Adler explained. “Every year 700 deaths and 100,000 serious injuries are associated with ATVs, and I hope we will continue keeping that in mind as we progress.” Adler went on to bring up a number of possible approaches that CPSC might take with regards to ATV safety, including physical barriers to prevent extra passengers, speed limiting requirements, and roll-over protection. Staff responded that it will take them quite some time to review the current comments and input surrounding the ATV issue, but assured Adler that ATVs will remain a priority.

In addition to ATVs, Adler specifically brought up senior product safety, adult bedrails, table saws, upholstered furniture, portable generators, and carbon monoxide sensors as issues that he felt were worthy of prioritization. However, he did acknowledge that resources were limited. “Unfortunately, part of the discussion is that we have to make terrible trade-offs,” lamented Adler.

Commissioner Nancy Nord mentioned public pool safety, the alignment of standards with foreign regulators, reduction of third-party testing costs, and industry outreach among her top concerns with the 2013 Operating Plan. “With the testing rule going into effect, outreach is a critical thing that this agency needs to be doing,” stressed Nord. “These rules are hard to understand, and the implications for violating them are pretty serious.”

Chairman Inez Tenenbaum noted that it is extremely difficult to weigh priorities on such a limited budget. “To be a federal agency, we have a very small budget,” she explained. “So we really have to choose wisely those products on which we focus in a fiscal year.” Tenenbaum went on to explain that while many of their decisions are heavily based on injury and death data, a large number of the agency’s priorities are statutorily mandated by Congress, including durable nursery equipment and pool safety. Commissioners noted that they will be working in close contact with staff to review, finalize, and eventually approve the operating plan.

Staff’s briefing package is at www.cpsc.gov/LIBRARY/FOIA/FOIA13/brief/2013operatingplan.pdf.