CPSC Updates Its Rules on Staff Participation in Voluntary Standards

Commissioners voted 5-0 to approve and publish a final rule to let staff vote and take leadership positions in voluntary standards development. However, the resulting degree of change and other effects remain uncertain. Thus Commissioner Ann Marie Buerkle added an amendment (also passed 5-0) to require staff to report on questions like whether such activity has had value for CPSC, what expenses it has added, and if experiences differ from one standards development panel to another or from one staffer to another.

This report would be due 14 months after the Office of the Executive Director begins approving requests. When that clock might begin will depend on people seeking the changes, and initially there might only be a few, limiting any data for the report. Under Buerkle's amendment, follow-up reports could be in the semiannual reports on voluntary standards activity.

Although requests for voting and/or leadership roles are likely to come from the staffers involved, Deputy Executive Director Safety Operations Jay Howell confirmed that they potentially could come from elsewhere at CPSC. As for situations likely to prompt internal CPSC desire for leadership, he noted two: when an industry is new to standards development, so CPSC could help with organization and the learning curve; and when the agency perceives a standards process as stalled, and CPSC wants to move it forward. Staffers seeking leadership still would need to get those positions via whatever rules exist at a standards development organization (SDO).

Discussion addressed conflict of interest. A commenter to the proposal had raised ASTM rules against using standards to block products. CPSC lawyer Mary House said those involve antitrust so were not applicable. Commissioner Marietta Robinson noted that giving approval to the Executive Director rather than commissioners would insulate mandatory standards votes. She also pointed to other agencies' allowance of leadership and voting as well as related Department of Justice views that such roles are not conflicts.

Buerkle, however, said Section 104s might be problematic and urged care related to them. She emphasized that it would be crucial to ensure it is understood that staffers' votes were not commission decisions.

Commissioner Robert Adler explained that although he supported the change, he was hesitant about the value of the voting option. If a decision were to come down to a CPSC staffer's vote, then the agency wouldn't have done its job of persuasion, he suggested. He also cautioned about keeping in mind that the role of a committee chair – as a broker or facilitator –might differ from agency staffer's roles as experts.

Commissioner Joseph Mohorovic lauded the move as an example of good regulatory review aimed at updating outdated policies. He quipped that he was happy to celebrate small victories.

Adler and Chairman Elliot Kaye emphasized the heavy role that voluntary standards play in CPSC work. Adler pointed out that voluntary standards projects far outnumber mandatory standards actions. Kaye noted CPSC's requirements to defer to a voluntary standard unless it can show that the standard is poorly followed or does not protect safety. Thus staffers' efforts in the area are vital, he said.

Buerkle said she supported the change but wondered at its necessity, saying it was "top down" and did not come from staff as something needed.

It stemmed from recommendations in a 2012 Government Accountability Office (GAO) report (PSL, 5/28/12). The NPR received mixed reviews in comments from industry and consumer groups (PSL, 10/28/13). It got some commentary from commissioners at a 2013 briefing on a Section 104 rulemaking for handheld infant carriers (PSL, 11/11/13), but there was little public activity after that. Then CPSC revived the proposal about a month ago (PSL, 1/4/16).

In her closing statement, Buerkle noted that the GAO report also had questioned CPSC's open meetings policies as more restrictive of staff activity than are other agencies'. She said this was not the first time that the agency has become aware that the policy presents "burdens and challenges to collaboration and creative thinking." She urged the agency to "heed the GAO's concerns and look for ways to adjust our policy where it presents an obstacle to candid exchanges and ultimately to the success of the process."

Under CPSC's transparency rules at 16 CFR part 1012, its meetings must be open to the public, including the press, if they involve "substantial interest" matters, defined as topics “that pertain in whole or in part to any issue that is likely to be the subject of a regulatory or policy decision by the Commission.” CPSC makes case-by-case exceptions, such as for surveillance or proprietary matters, but even in those situations, meetings often are closed only for the affected portions.

The rules do not directly mandate how outside groups run their meetings, including whether they can ban the press or public, but they do bar CPSC participation in non-complying meetings, leveraging openness.

The GAO report (1.usa.gov/1TuSdGJ) discussed only one meeting situation, stating that CPSC helped negotiate with window-covering standards makers to let consumer groups participate. Interestingly, however, this example was in the report's section on why consumer groups value CPSC participation. Further, the example involved participation in the process, not simply open access to observers. Where the report calls CPSC's meeting policy a problem, it asserts that it limits CPSC's ability but only briefly and without explanation or examples.

Beyond the report, also in 2012, CPSC staffers had to back out of a teleconference on Canadian window covering standards when CSA forbade PSL from listening under its access rules (PSL, 10/1/12). In other cases, which occur very infrequently, perhaps a few times a decade, PSL has opened substantial-interest CPSC meetings run by outside groups by asking CPSC to remind or educate the hosts that agency staffers could not attend otherwise. 

As in Canada, SDOs in other foreign jurisdictions such as Europe and Australia have policies that can limit public or press observation. These rules affect CPSC's ability to work with them.

Nonetheless, the bulk of CPSC's voluntary standards activity involves ASTM or UL, which both have strong open-meeting protections. Additionally, ANSI - which accredits voluntary standards, including by ASTM and UL and many SDOs outside those systems (such as for ROVs and window coverings) - mandates that "participation shall be open to all persons who are directly and materially affected by the activity in question." 

Such openness requirements are regardless of CPSC's policies, so an erosion of its transparency protections likely would have little affect on public access to most U.S. voluntary standards discussions without similar, parallel weakening of the SDOs' safeguards.

On the other hand, under different CPSC rules than exist now, agency staff or individual commissioners hypothetically might be able to hold closed meetings with consumer groups or industry - outside the sessions protected by SDO rules - to discuss standards ideas or any other substantial-interest matters for which public scrutiny of government activity is deemed problematic.

CPSC created its sunshine rules in 1973, prior to passage of the 1976 Government in the Sunshine Act, which mandated similar policies government-wide. That law was a reaction to desires to protect against government corruption following the Watergate scandal.

However, courts have allowed much narrower definitions of meeting to comply with that law than CPSC uses for its policy - more akin to briefings or decisional meetings at which a quorum of commissioners sit and deliberate. According to a primer from the Reporters Committee for Freedom of Press, "Essentially, if enough members of an agency who could pass a vote meet to discuss issues the agency is currently investigating or likely will be investigating, the gathering qualifies as a “meeting” under the Act and can be closed only under a statutory or judicially created exemption" (bit.ly/20ep1ZV).

The Consumer Product Safety Act does not address open meeting policies.

Whether such a change could occur is questionable as it would open the agency to attacks during the process and require a majority of commissioner to go on the record with a vote to curtail consumer access to discussions about consumer safety policy as well as, possibly, to block industry access to discussions about regulatory policy. Congressional scrutiny of such a move likely would occur too.