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Tuesday October 05, 2021

CPSC Republicans Flex Majority; GC Deems Their Vote 'Null and Void'




Baiocco and Feldman October 1 won a 2-1 vote to approve the following language:

"The General Counsel has no authority under the statutes, regulations, and procedures governing the United States Consumer Product Safety Commission, to nullify a vote of the Commission. Assuming, arguendo, such authority were vested, it is the opinion of the Commission that the vote on the Fiscal Year 2022 Operating Plan (Briefing Package dated September 15, 2021) was conducted in accordance with Commission procedures and practices, notwithstanding any interpretation, intent, or meaning the Commission’s Office of General Counsel (OGC) has provided to the contrary, and thus that this document was approved, as amended, on September 24, 2021."

Republican commissioners' September 24 use of their temporary majority to alter CPSC's FY2022 Operating Plan led to an assertion from Acting Chairman Robert Adler that their move was a "clear and serious breach of our internal rules."


Then, after Commissioners Dana Baiocco and Peter Feldman issued a joint statement ( that they were "pleased" with a 2-1 approval of an amended plan, Adler disputed their claim of an approval in follow-up remarks ( He declared, "Unfortunately, stating something categorically and with enthusiasm simply doesn’t make it true." He pointed to the Record of Commission Action, which explained (

"On September 26, 2021, upon request for review by the Acting Chairman, the Acting General Counsel [GC] determined that the vote on the Fiscal Year 2022 Operating Plan…is null and void because the Decision Making Procedures were not followed."

Adler's complaint involved what he described in his initial statement ( as the submission "[m]oments before the deadline…[of] a seven-page single-spaced list containing over 50 amendments with no advance notice to me or anyone on agency staff." His statement used terms like "Government by Ambush" and a "power grab." The latter referred to the departure of former commissioner Elliot Kaye (PSL, 9/10/21). On the ongoing Senate consideration of three CPSC nominees, he wrote:

"In light of this unprecedented and inappropriate attempt to change the way CPSC operates, I hope that members of the Senate will confirm the pending nominations of new Commissioners in order to ensure that the agency can continue its normal mode of operation."

In response to the nullification, Sen. Roger Wicker (R-Miss.), Commerce Committee ranking member, September 30 issued a rebuke ( that included:

"There is no way to interpret this action except as a brazen act of sabotage by an acting Chairman who found himself on the losing side of a vote. During my tenure as ranking member and formerly as chairman of the Senate Commerce Committee, which has oversight jurisdiction over the CPSC, I have never seen a vote by the Senate-confirmed commissioners of an independent agency nullified by an Acting General Counsel."

Some of the revisions by Baiocco and Feldman were to:

  • Add funding for burden reduction work involving third party tests of children's products.

  • Change the focus of a project involving infant pillows from expanding the ban to evaluating the ban.

  • Trim a Compliance hiring goal by referring only to targeting "violative products" and removing reference to off-brand and counterfeit items.

  • Add a project to reinstate a "children's product defect team" in the Compliance office.

  • Add a requirement that Communications staff must comply with commissioners' requests for "information to support any safety claim made" in various outreach.

  • Prohibit use of media influencers (PSL, 3/29/21) without completion of a four-step justification and vetting process.

  • Prohibit downloading and use of TikTok on CPSC-issued devices and prohibiting the Communications office from expanding its online presence onto the service.

  • Implement all Inspector General recommendations within 180 days or explain why not every 90 days thereafter.

  • Remove gas appliances from a rulemaking project on CO risks from those and portable generators.

  • Remove a Compliance priority to target "at least two products customarily purchased online."

In their statement, the pair wrote, "[T]his plan advances a number of priorities to protect consumers and strengthen the agency." Including items both from their amendments and from the initial draft, they asserted benefits to:

  • Inspections via the hiring of 27 port inspectors with a mandate that 10 go to "traditional high-volume ports."

  • Compliance via the reestablishment of a children's product defect team along with 30% increase in resources and "overhauling" of certain internal systems.

  • Hazard identification via lab and data investments plus directions for standards and rulemaking work.

  • Communications via a 25% increased budget and directions to target issues like emerging hazards and seniors.

  • "Security and accountability" via the changes related to inspector general recommendations.

  • Diversity via changes in recruitment and personnel practices as well as attention to "vulnerable, diverse, and disenfranchised communities" in agency activities.