CPSC to Vote on New Operating Plan on October 10, 2018

Date: Sep 24, 2018

The Consumer Product Safety Commission (CPSC) is currently reviewing the proposed Operating Plan for Fiscal Year 2019 (2019 Op Plan). It will hold a public briefing on the plan on September 26, 2018 and will vote on October 10, 2018. This is the first Operating Plan proposed by Acting Chair Anne Marie Buerkle since the Democrats lost their majority on the Commission with the confirmation of Commissioner Dana Baiocco. Cloture on the nomination of Peter Feldman has been filed, and he will likely be confirmed and sworn in by the time the vote on the 2019 Op Pan is held. 

The CPSC's Operating Plans are seminal documents for setting CPSC policy and budgetary priorities, and Acting Chair Buerkle has worked hard to safeguard the Commission's funding. The Operating Plans spell out the mandatory rulemaking activities that will be undertaken, the voluntary standards CPSC staff will support, and the underlying programs and initiatives staff will work on. They also set forth staff's performance measures and key deliverables. While the plans are generally developed under the guidance of the Executive Director and senior CPSC management, the CPSC Chair, as the "principle executive officer"[1] of the Commission, to whom the Executive Director reports, has significant influence over the direction of the Operating Plan. The other commissioners traditionally get involved in an Operating Plan once it is formally submitted to the Commission in advance of a vote, at which time their ability to influence the plan is typically limited to proposing amendments or submitting related motions, which require support of the majority for passage.

CPSC stakeholders, especially regulated industries, pay close attention to the Operating Plans, as they provide the clearest guidance on the CPSC's policy and program direction for the coming fiscal year.

A close comparison of the 2019 Op Plan with the CPSC's 2018 Operating Plan shows that it is very consistent with the 2018 Operating Plan, especially in the overall agency structure and the ongoing projects CPSC staff is engaged in. In short:
  1. Acting Chair Buerkle is not making radical changes in the Commission's direction;
  2. the plan prioritizes work on voluntary standards, working with stakeholders, and burden reduction; and
  3. CPSC will continue to focus on identifying emerging hazards and improving its  data capabilities.
Reflecting these priorities, in FY 2019 CPSC will be working on fewer mandatory rules, 12, versus 15 in 2018. A noted addition to the list of mandatory standards under development is CO sensors for furnaces, an issue championed by Commissioner Adler. Additionally, staff is expected only to conduct data analysis and a technical review for furniture tip-overs and will provide only a briefing package rather than a proposed final rule for portable generators. Consistent with this change, the priority activities for the Office of Hazard Identification and Reduction (EXHR) now explicitly include working with the voluntary standards organizations to address the hazards of furniture tip-overs and portable generators.

The 2019 Op Plan includes welcome news on stakeholder engagement and cooperation. EXHR's expanded list of priority activities includes the long-awaited review of the retailer reporting program and enhanced focus on voluntary standards. The Office of Compliance and Field Operations is also prioritizing several internal efficiency and procedural enhancements, such as triaging low-level hazard recalls, that could help streamline stakeholders' interaction with that office. Also planned are continued work on recall effectiveness initiatives and a review of the CPSC's Fast-Track recall program. In addition, the 2019 Op Plan includes several burden-reduction initiatives. On the regulatory side, staff is tasked with developing potential recommendations for manufactured fibers and flammability exemptions, among others. The Office of Import Surveillance has been tasked with developing processes to streamline product sampling and detention at ports to alleviate the significant burden of such detentions.

On the data side, the 2019 Op Plan calls for CPSC to explore collection of injury data from the growing sector of urgent care centers and a possible pilot for FY 2020. CPSC will also continue to explore additional data sources that can help identify emerging hazards. The Office of Communications will try to improve CPSC's ability to share data by developing data visualization tools.

Acting Chair Buerkle is also attempting to keep CPSC's capabilities current by focusing on a number of perceived emerging hazards. CPSC will continue to spend significant resources on lithium ion battery safety initiatives. In response to rapid changes in the retail environment and global supply chains, and CPSC's difficulties in dealing with hazards involving fad products such as hover boards and fidget spinners that are increasingly sold direct to consumers, CPSC will be evaluating ways to better monitor e-commerce platforms. Finally, following up on the Internet of Things hearing held in May, CPSC has joined efforts to develop voluntary standards relating to the Internet of Things.

As this brief review of the 2019 Op Plan shows, new initiatives at the CPSC have the potential to benefit industry stakeholders but may also complicate life for some. E-commerce companies and makers and sellers of connected products should keep a close eye on CPSC's work in these areas. Changes to the Fast-Track recall program and enhanced focus on recall effectiveness and direct notice may have significant impacts on the costs of conducting recalls. At the same time, Acting Chair Buerkle's emphasis on stakeholder engagement may offer new vehicles for stakeholders to share concerns and offer suggestions on ways to maintain consumer safety while reducing costs and enhancing efficiencies. To engage effectively, however, it remains important for interested stakeholders to stay abreast of CPSC's activities and initiatives and offer thoughtful and constructive suggestions.

For more information, contact Sheila A. Millar at millar@khlaw.com or +1 202.434.4143,
JC Walker at walker@khlaw.com or +1 202.434.4181, Boaz Green at green@khlaw.com or +1 202.434.4267, or Anushka Rahman at rahman@khlaw.com or +1  202.434.4166. Join our mailing list to receive industry specific information and invitations to seminars and webinars from Keller and Heckman LLP.

[1] The role of the Chair is set out in the Consumer Product Safety Act, 15 U.S.C. § 2053(4)(f)(1).