Commissioners Pass CPSC FY23 Operating Plan with Many Amendments

Commissioners October 26 voted 3-1 to approve the FY2023 CPSC Operating Plan with more than two dozen amendments. The negative was Commissioner Peter Feldman, who nonetheless praised the document as reflecting good collaboration.

He explained that his no vote was due to his concerns expressed at a recent briefing (PSL, 10/17/22) that the plan's funding expectations should be more in line with current congressional proposals. Those are roughly $153-$166 million. The plan has two paths, one based on CPSC getting its complete $195.5 million budget request or getting no increase and staying near $139 million.

The bulk of the revisions, 19, were in a manager's amendment from Chairman Alexander Hoehn-Saric and reflecting pre-meeting negotiations among commissioners' offices. It passed 4-0. Topics included:

• Feldman's desires to prioritize and track GAO recommendations, publicize seizures and other enforcement activities, and expand compliance staff if money allows.

 

• Commissioner Richard Trumka's goal to evaluate 100% of civil penalty cases for criminal referral as well as activities on fires in ROVs, carbon monoxide from portable generators, recall effectiveness, and voluntary standards.

 

• Commissioner Mary Boyle's objectives on underserved groups and gender disparities plus work involving PFAS, battery ingestions, and civil penalties.

Other approved amendments involved:

• Liquid Nicotine Access: Feldman got a 4-0 vote to focus on the 2015 packaging law. Despite Trumka's positive vote, he wondered if market consolidation towards larger firms means access problems might be less than when the law passed. Feldman disputed that, including pointing out that he found noncompliant packaging near CPSC.

 

• TikTok: Feldman also got a 3-1 vote to keep agency, for now, off the social media platform due to unresolved IT security concerns. Trumka, the negative, suggested the move was unneeded as ongoing investigations either will clear or block TikTok presence for all federal agencies. Boyle was hesitant, saying the decision should be under the chairman's oversight of staff, not a commission vote, but supported the move because Hoehn-Saric did.

 

• IT Security: Unimplemented IG recommendations were Feldman's target. Trumka was negative in the 3-1 vote.

 

• Gas Stoves: Trumka got 4-0 support to issue a request for information about indoor air hazards. This was instead of his desire to start a rulemaking towards a ban.

 

• International Cooperation: Trumka's idea of enhancing CPSC's efforts to learn from other nations, especially on chemicals, got 3-1 support. Feldman was the negative.

Two amendments failed. They would have addressed:

• Monopolies: Feldman wanted staff to consult with relevant regulatory agencies on whether CPSC proposals might have anticompetitive effects. Only Hoehn-Saric joined him in the failed 2-2 vote. Opposition involved resource scarcity and barriers to rulemaking efficiency.

 

• Infant Pillows and Other Child Hazards: Boyle sought to clear the way for possible movement towards expanding the existing pillow ban. Hoehn-Saric and Feldman did not support her in the failed 2-2 vote, mainly over need to get justification for a rulemaking. Boyle countered that the amendment would not have directed a rulemaking but would have facilitated one "if circumstances allowed."

Additionally, Feldman withdrew an amendment for more cost controls over staffers' conference and training participation. He said he was satisfied that Hoehn-Saric was committed to evaluating an existing policy directive.

Commissioners later remarked in writing, including:

Hoehn-Saric (bit.ly/3SLzBUW):

"The goals set forth in the operating plan are aggressive and the timetables are tight, but I believe that they are obtainable. They are not simply aspirational but provide a roadmap for the Commission, and if we fall short, it will not be for a lack of trying by staff, my fellow Commissioners, or myself. CPSC staff are the backbone of this agency. I am truly grateful for the work they do and am honored to be in the trenches with them fighting to make products safer for all Americans from infants to seniors."

Boyle (bit.ly/3syX3Kw):

"I was…disappointed that my amendment on baby safety was not adopted as part of the final Operating Plan. As I have done throughout my career at CPSC, today I advocated for infant safety as a top priority for the Commission. Through my amendment, I intended to emphasize the need for continued baby safety research should the agency receive additional funds, and to clarify the difference between nursing pillows and infant pillows – a point of confusion that was evident during our briefing on the Operating Plan."

"Within this amendment, I asked my fellow Commissioners to support the goal of expediting our infant pillow rulemaking to a final rule that will update and clarify the scope of the existing ban. This proposal builds on staff work authorized in last year’s Operating Plan. The market has changed over the last two decades, and this action is overdue. I included language intended to remove artificial deadlines associated with rulemaking, endorsing the goal of a notice of proposed rulemaking (NPR) this year while signaling the need to continue working towards the earliest possible date for a final rule (FR) upon completion of the NPR. This is a paradigm shift from past years and was adopted elsewhere in the FY23 Plan."

Feldman (bit.ly/3gSqk0k):

"Last year, Congress considered and rejected the Commission’s $170 million proposal, and instead funded the Commission at $139.05 million, nearly 20 percent below CPSC’s request. For FY23, Congressional appropriators have already rejected the Commission’s $195.5 million request. Nevertheless, this plan is keyed to the $195.5 million figure, which we will not receive. The plan’s second funding scenario, flat funding pursuant to a continuing resolution, is also unlikely. Based on my experience, I anticipate funding somewhere between the House and Senate appropriations levels ($166.3 million and $153 million, respectively). Rather than approve a plan that fluctuates wildly between two unlikely funding scenarios, our operating plan should better reflect what we are likely to receive."

"Further, safety standards should not create anti-consumer monopolies. Among other concerns with this plan, my amendment to collaborate with our federal antitrust authorities was not adopted. This would have used few resources and ensured that our standards work does not unintentionally raise prices and limit innovation."

Trumka (bit.ly/3faCAIO):

"My driving purpose as a consumer advocate is to get hidden hazards out of American homes. It is imperative that we devote as much time, energy, and resources as possible to regulating chronic hazards and toxic chemicals. The Commission adopted my amendment to move forward with public input on the hazard posed by gas stoves. And we adopted Commissioner Boyle’s amendment to address PFAS in things like textiles, apparel, and children’s products. We continue to be the global leader in consumer safety, but we have a lot of catching up to do on chemical regulation, so we amended our plan to track international standards so that we can build on them. CPSC will be at the forefront of addressing what I believe are the most dangerous hidden hazards of our time…"

"…One of my priorities for CPSC is to swiftly and effectively deter bad actors from selling consumer products that they know are dangerous. We have already increased our use of strong civil penalties. Today and with the adoption of my amendment, the Commission committed to streamlining its process of referring cases to the Department of Justice for criminal prosecution where appropriate. My amendment is a warning to the worst corporate offenders. We will not tolerate recklessness when it comes to safety, and we will punish those who would put profit over peoples’ lives. "