Blocked Sunshine Complicates Window Covering Harmonization

CPSC’s harmonization efforts on window covering standards, and perhaps extending to all products, could be complicated by international differences in openness polices for meetings. The issue arose when PSL learned that its reporter would be denied access to a teleconference in which CPSC staff planned to participate and involving the Canadian Standards Association (CSA) S707 window covering products technical committee. CPSC’s Public Calendar showed the meeting as substantial interest, a designation that for decades the agency routinely has applied to participation in voluntary standards meetings. CPSCers refrained from participating after learning from PSL that the meeting was closed.

Under CPSC rules at 16 CFR part 1012, meetings must be open to the public, including the press, if they involve substantial interest matters – discussions “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.” There are exceptions, such as discussions of surveillance or proprietary matters, but even in those cases, meetings typically are closed only for the affected portions. CPSC rules, moreover, give special deference to the press. For example, if an outside group invites CPSC to a meeting, agency staff may attend even if public access is limited for reasons like space consideration, but the press nonetheless cannot be barred.

The rules do not directly mandate how outside groups run their meetings, but they do bar CPSC participation in non-complying meeting, leveraging openness.

CPSC’s mandates thus conflict with CSA meeting policies, which restrict outsider attendance absent the permission – sought in writing – of the committee chair and the project manager. Those policies explicitly bar the press in all cases, citing concerns about “free and open discussion.”

CSA Standards, Health and Safety Manager Jeanne Bank clarified to PSL that these rules govern CSA development of Canadian standards but that the group’s work on U.S. standards, mostly involving gas products, follows ANSI openness requirements. She also explained that CSA policies mandate a balanced cross section of stakeholders on committee membership to protect against dominance by any group. She did provide PSL with an overview of what occurred at the window covering meeting (see related story in this issue).

Polices that block press coverage are not limited to Canada. For example, Standards Australia’s meeting policies not only bar the press, they also guard against sharing meeting minutes with media representatives. In Europe, although CEN policies do not mention the press, media are not on a list of acceptable participants. While the rules do provide for outsider access, they emphasize, “Stakeholders should be given the possibility to decide on a possible participation in ‘their’ technical body in cases where such participation is not provided for in the CEN rules.”

These facts mean that under CPSC’s open meeting rules, it cannot directly participate in standards meetings in jurisdictions that lack compatible public-access policies. With an increasing emphasis on international regulatory cooperation and harmonization, the question arises whether CPSC’s influence ins such situations can extend beyond strategies like speaking through surrogates or giving written feedback once it learns what occurred. The issue might be arising now due to more use of teleconferencing by CPSC for meetings with groups outside the Washington, D.C. region. Such technology increases the ability of the public to seek to participate – and the press to listen in – regardless of location.

Window covering safety is a favored project of CPSC Chairman Inez Tenenbaum, who has spearheaded a quadrilateral effort by regulators in Australia, Canada, the EU and the U.S. to influence strengthened and harmonized voluntary standards for window coverings (PSL, 2/27/12, p. 1). In the U.S., the topic has become contentious at times, including a walkout last year by consumer groups in protest of the progression of the standards (PSL, 9/12/11, p. 5). CPSC currently is following a Government Accountability Office (GAO) suggestion to explore increased participation in voluntary standards activity, including seeking committee leadership and voting status (PSL, 5/28/12, p. 1), but it has not publicly addressed non-U.S. standards.

CPSC rules require the commission in most cases to defer to voluntary standards unless it can demonstrate a need to create mandatory rules or is directed to do so by Congress. The CPSIA gave it the power to adopt certain voluntary standards, mostly for juvenile products, as mandatory.

In response to PSL questions about whether CPSC did or does participate in other CSA work on Canadian voluntary standards, including a list of any, agency staff wrote:

“This is not the case as far as we can tell. CPSC staff has been involved in the development of ANSI national consensus voluntary standards for gas appliances and window coverings. CSA has also been involved in the development of these ANSI standards. To the best of our knowledge, CPSC staff has not been involved in helping to develop CSA standards…

 

…To the best of our knowledge, CPSC staff is not now nor have they been involved in the development of CSA – Canada voluntary standards. We are not able to confirm at this time if CPSC staff in the distant past was ever involved in working with CSA on a standard.”