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Monday October 10, 2016

Thune Wonders if Kaye Misled on Recalls and 6(b) Rules; Kaye Responds

Sen. John Thune (R-S.D.) October 5 challenged CPSC Chairman Elliot Kaye on the possibility that the commission soon might revive the voluntary recalls and 6(b) rulemakings. The senator suggested Kaye's statements at August's meeting on the fall 2016 Regulatory Agenda (PSL, 9/5/16) "appear to contradict statements you have made in other settings, including during a hearing before the Senate Commerce Committee's Subcommittee on Consumer Protection, Product Safety, Insurance, and Data Security last year. Given the serious legal obligations that attend testimony before Congress, I expect that you will confirm the accuracy of your prior statements before this committee." Thune is chairman of the full committee.


The issue stems from an announcement at that session by Commissioner Robert Adler that he would be offering compromises on the controversial proposals sometime this fall. Thune's letter homed in on Kaye's statements during the decisional meeting, including: "Nothing has changed from my perspective" and "I have been pushing for potential compromise at the Commission level now for…almost two years."


The legislator contrasted them with Kaye's statements at a 2015 subcommittee hearing that it was "100 percent accurate" that the rules were "not where the Commission is focusing its attention at the moment." Thune also pointed to Kaye's promise to Sen. Jerry Moran (R-Kan.), subcommittee chairman, that he would ensure the panel was "fully informed…before you change your intentions" on the voluntary recalls proposed rule. Thune additionally noted similar statements before Congress by Kaye earlier that year.


Thune, suggested, "If it is true that you have been working for a compromise for two years, which seems plausible given the impending consideration of just such a compromise this fall, then the statements you made before two congressional subcommittees appear potentially misleading."


On the other hand, he wrote, "Moreover, if your intention to pursue this controversial [recalls] rule has changed…then I am disappointed that you did not follow through on your commitment to keep the committee informed.


Thune directed Kaye to explain whether and for precisely how long he had been seeking compromise, to provide copies of all communications regarding compromise over the rulemakings, and to give a list of all meetings on the topic, including attendees and any related documents.


Meanwhile, Kaye's reacted:

"I appreciate Chairman Thune’s interest in this matter. As with all Congressional inquiries, I will provide the Chairman with a thorough and timely response.
"Unfortunately, the letter does not depict an accurate picture of the facts. I have remained consistent since the start of my tenure as Chairman when it comes to my safety priorities and the relative value of these two rules. Consistent with these priorities, CPSC staff has not proceeded with either rule. Also consistent with my prior public statements, I still believe in compromise for these two rules and was pleased that my colleague Commissioner Adler recently stated that he would seek to achieve compromise at the Commission level. My consistent pushing for compromise as a matter of process should not be confused with pushing any specific substantive compromise.
"Most importantly, the staff remains focused on addressing significant and persistent safety hazards, such as those presented by portable generators. I am extremely proud of the achievements of agency staff and am confident that we will continue to make great strides to protect the public.”

The 6(b) proposal (PSL, 1/20/14) would loosen information disclosure strictures in areas like requiring more justification from companies for non-disclosure or giving the agency more leeway in releasing information it deems to be publically available elsewhere already. The recalls one (PSL, 9/30/13) sought to clarify CPSC's initial recall negotiation positions, but there was concern over issues like language indicating that agreements would be legally binding (PSL, 11/18/13).