Commission Participation and Commission Employee Involvement in Voluntary Standards Activities 16 CFR Part 1031, Notice Proposed Rulemaking, Comment Request

CPSC is issuing a proposed rule amending the existing regulation on Commission participation and employee involvement in voluntary standards activities.
September 20, 2013

Action

Notice Of Proposed Rulemaking.

 

Summary

 

The United States Consumer Product Safety Commission (Commission or CPSC) is issuing a proposed rule that would amend the existing regulation on Commission participation and employee involvement in voluntary standards activities. Currently, Commission rules allow employees to participate in voluntary standard development groups on a non-voting basis, and do not allow Commission employees to accept leadership positions in voluntary standard development groups. The proposed rule would remove these restrictions and would allow Commission employees to participate as voting members and to accept leadership positions in voluntary standard development groups, subject to prior approval by the Office of the Executive Director (OEX).

 

 

Table of Contents Back to Top

DATES: Back to Top

Written comments must be received by October 21, 2013.

 

ADDRESSES: Back to Top

You may submit comments, identified by Docket No. CPSC-2013-0034, by any of the following methods:

 

Electronic Submissions Back to Top

Submit electronic comments in the following way:

 

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

 

The Commission is no longer accepting comments submitted by electronic mail (email), except through www.regulations.gov.

 

Written Submissions Back to Top

Submit written submissions in the following way:

 

Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.

 

Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to: http://www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information electronically. Such information should be submitted in writing.

 

Docket: For access to the docket to read background documents or comments received, go to: http://www.regulations.gov.

 

FOR FURTHER INFORMATION CONTACT: Back to Top

Jacob Miller, Deputy Voluntary Standards Coordinator, Office of Hazard Identification and Reduction, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone: 301-504-7415; jmiller@cpsc.gov.

 

SUPPLEMENTARY INFORMATION: Back to Top

I. Introduction Back to Top

Many consumer products under the Commission's jurisdiction are covered by voluntary standards. Voluntary standards provide safety provisions addressing potential hazards associated with consumer products found in in such locations as homes, schools, and recreational areas. Voluntary standards activity is an ongoing process that may involve multiple revisions to a standard within one year, or over multiple years. Voluntary standards development activities for consumer products within the Commission's jurisdiction are handled primarily by three standards development/coordinating organizations: ASTM International (previously called the American Society for Testing and Materials), the American National Standards Institute (ANSI), and Underwriters Laboratories Inc. (UL). Along with industry, consumer groups, and product safety experts, CPSC staff works with these organizations to coordinate the development of voluntary standards.

 

Currently, CPSC staff provides technical support to organizations that coordinate the development of voluntary standards. According to the CPSC's Voluntary Standards Activities FY 2013 Midyear Report, CPSC staff will provide technical support or monitor voluntary standards activities for 71 products in FY 2013. Staff participates in the voluntary standards development process by providing expert advice, technical assistance, and information, based on analyses of the numbers and causes of deaths, injuries, or incidents associated with a product. Staff may also conduct CPSC research, perform laboratory tests, and provide draft language for a voluntary standard.

 

The Commission's involvement and staff's participation in voluntary standards activities have been and currently are governed by the Commission's rule at 16 CFR part 1031, Commission Participation and Commission Employee Involvement in Voluntary Standards Activities (part 1031). Part 1031 prohibits CPSC staff from voting and precludes staff from holding leadership positions in voluntary standards development groups. The proposed rule would amend part 1031 to eliminate these prohibitions and allow these activities on an optional basis, provided that such activities have the prior approval of the CPSC Office of the Executive Director.

 

A. Statutory and Regulatory Background

Congress enacted the Consumer Product Safety Act (CPSA) in 1972, codified at 15 U.S.C. 2051, et seq., to protect consumers against unreasonable risks of injury associated with consumer products. In furtherance of that goal, Congress established the Consumer Product Safety Commission as an independent regulatory agency, and Congress granted the CPSC broad authority to promulgate mandatory safety standards for consumer products as a necessary alternative to industry self-regulation. 15 U.S.C. 2056(a)(1)(A). Although neither the CPSA nor the other statutes administered by the Commission referred to voluntary standards, the Commission issued regulations in1978, describing the extent and form of Commission involvement in the development of voluntary standards (43 FR 19216 (May 4, 1978)). Acknowledging the contribution that voluntary standards had made to reducing hazards associated with consumer products, the Commission stated its support for an effective voluntary standards program, finding that a proper combination of voluntary and mandatory standards can increase product safety better than either mandatory or voluntary activities alone.

 

In 1981, Congress amended the CPSA, the Federal Hazardous Substances Act (FHSA), and the Flammable Fabrics Act (FFA), to, among other things, mandate that the Commission give preference to voluntary standards as opposed to promulgating mandatory standards, if the Commission determines that a voluntary standard will eliminate or adequately reduce an unreasonable risk of injury and there will be a likelihood of substantial compliance with the standard. 15 U.S.C. 2056(b), 15 U.S.C. 1262(g)(2), 15 U.S.C. 1193(h)(2). In 1989, the Commission adopted regulations to reflect the policies set forth by the 1981 amendments, making several changes in the agency's policies on employee participation in voluntary standards development activities. The 1989 amendments also combined parts 1031 (on employee membership and participation) and 1032 (on Commission involvement) into a revised part 1031, titled, Commission Participation and Commission Employee Involvement in Voluntary Standards Activities. 54 FR 6646 (Feb. 14, 1989).

 

In 2006, the Commission amended several provisions of part 1031. 71 FR 38754 (July 10, 2006). Among other things, the 2006 amendments provided that Commission employees only participate in voluntary standards efforts consistent with the Commission's priorities identified in the operating plan, performance budget, mid-year review, or other official Commission document. In addition, the Commission added a requirement that employees with ongoing participation in voluntary standards activities report regularly to the Voluntary Standards Coordinator, to help ensure ongoing oversight and coordination. Lastly, the 2006 amendments added a requirement that the CPSC provide notice and the opportunity for the public to comment on staff's positions on voluntary standards activities.

 

B. Recent Statutory Changes Involving Voluntary Standards

In the past, CPSC staff typically served on voluntary standards committees based on the Commission's priorities. Staff participated without any expectation that such voluntary standards would necessarily form the basis of a mandatory standard. The Consumer Product Safety Improvement Act of 2008 (CPSIA), however, gave rise to the expectation that, for certain children's products, voluntary standards would form the basis for mandatory standards development. For example, section 104(b) of the CPSIA requires the Commission to promulgate consumer product safety standards for durable infant and toddler products. These standards are to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standard, if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product.

 

Congress also has addressed participation by federal agencies in voluntary standards development. Public Law 104-113 directed federal agencies to “use technical standards that are developed or adopted by voluntary consensus standards bodies” and to “participate with such bodies in the development of technical standards.” Public L.aw 104-113, 12(d)(1) (2), 110 Stat. 775, 783 (1996), 15 U.S.C. 272 note. Congress anticipated that federal agencies would “work closely” with voluntary standards organizations, that these organizations would “include active government participation,” and that agencies would “work with these voluntary consensus bodies, whenever and wherever appropriate.” H.R. Rep. 104-390 at 15, 25 (1995). See also 141 Cong. Rec. H14334 (daily ed. December 12, 1995) (Statement of Rep. Morella).

 

C. GAO Report

On May 16, 2012, the U.S. Government Accountability Office (GAO) issued a report titled, “Consumer Product Safety Commission: A More Active Role in Voluntary Standards Development Should Be Considered” (GAO Report) (available at: http://www.gao.gov/assets/600/590990.pdf). The GAO Report recommended that the Commission review its policy for staff participation in voluntary standards development activities and determine the feasibility of the agency staff assuming a more active, engaged role in developing voluntary standards. Specifically, the GAO Report recommended that CPSC staff be allowed to vote to approve or disapprove balloted provisions of voluntary standards and to hold leadership positions at various levels of standards development organizations, including task groups, subcommittees, or committees. GAO concluded that changing the CPSC's regulations to allow staff to participate more actively in voluntary standards activities, especially when working with technical committees for which CPSC staff can provide expertise, and permitting CPSC staff to vote on voluntary standards, could result in stronger voluntary standards, without compromising the CPSC's independence.

 

D. CPSC's Response to the GAO Report

In response to the GAO Report recommendations, the Commission proposes removing the prohibitions on CPSC staff participating as voting members and accepting leadership positions in voluntary standard development groups. However, the Commission would require that staff participation in such activities receive prior approval by OEX. When approving staff's participation in such activities, OEX should consider the policy concerns set forth in 16 CFR 1031.9 (appearance of preferential treatment, loss of impartiality, compromise of the agency's independence, and a real or apparent conflict of interest). The policy concerns in § 1031.9 must be balanced against Commission priorities, available resources, the need for greater staff involvement, and the efficiency of the voluntary standards process. Thus, OEX will evaluate, on a case-by-case basis, each request for staff to participate as a voting member of a voluntary standard development group or to accept a leadership position. OEX would authorize staff generally to vote on matters involving a specified voluntary standard, but would not be approving each individual vote.

 

Permitting CPSC staff the option to vote on a voluntary standard and/or accept a leadership position in a voluntary standards development group may result in a more effective voluntary standards process and accelerate standards development and implementation, without compromising the CPSC's independence. Such participation could gain CPSC staff further access to and familiarity with latest technologies, and would provide an opportunity for staff to help establish standards that would advance CPSC's safety goals. In addition, “full” federal government participation in standards development increases the likelihood that the standards can meet both public and private sector needs. 141 Cong. Rec. H14334 (daily ed. December 12, 1995) (Statement of Rep. Morella). A single standard that satisfies both industry and the CPSC would benefit both industry and the CPSC by simplifying applicable requirements—only a single set of standards would apply.

 

In addition, optional staff participation in voluntary standards development groups by voting and taking leadership roles would be consistent with the guidance reflected in OMB Circular A-119 Revised, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities” (February 10, 1998). Among other things, OMB Circular A-119 encourages agency representatives serving as members of voluntary consensus standards bodies to “participate actively and on an equal basis with other members,” and to “vote . . . at each stage of the standards development process unless prohibited from doing so by law of their agencies.”

 

In participating as a voting member of, or in a leadership position on, a voluntary standards development group, CPSC staff shall indicate clearly that any views expressed in connection with such participation represent CPSC staff's position and may not necessarily represent the Commission's position. Making such a disclaimer is consistent with current staff practice regarding representations in oral and written presentations and staff documents intended for public release. As in these contexts, CPSC staff's views cannot serve as a proxy for the Commission's or the agency's views on any particular issue. Similarly, CPSC staff serving in leadership positions on a voluntary standards development group would serve in their capacity as CPSC staff members, and their views would not necessarily represent the views of the Commission. In particular, CPSC staff participation in a voluntary standards development group, even in a leadership position, does not provide any assurance that Commission will adopt the resulting voluntary standard.

 

Removing prohibitions on employees voting and serving in leadership positions should not result in the Commission compromising the policy concerns set forth in § 1031.9. Generally, before any substantive issue is balloted on a voluntary standards committee, the committee is given the opportunity to discuss the proposals in detail. Currently, Commission staff engages in these discussions, such that the technical opinions of staff are known before a proposed change in a voluntary standard is balloted. Accordingly, CPSC staff's ability to vote on such ballots should not fundamentally alter current procedures in a manner that impinges on the Commission's independence. Rather, staff's ability to vote on a voluntary standard may improve the credibility and efficiency of the standard. Additionally, not only can OEX consider policy concerns when deciding whether to authorize staff participation in voluntary standards activities as voting members or in leadership roles, but OEX's approval also can impose constraints or limitations tailored to specific circumstances, such as measures to avoid undue influence or any appearance of impropriety.

 

To serve in a leadership position on a voluntary standards development group, CPSC staff must agree to follow the procedures set forth by the voluntary standards development group for leadership positions. Staff's leadership role may involve helping the development group to run more smoothly and assisting the committee in achieving timely deliberations.

 

II. Description of the Proposed Rule Back to Top

Following is a section-by-section description of the proposed changes to part 1031.

 

Section 1031.10(b)—Existing § 1031.10(b), regarding definitions, lists the types of activities that may comprise “employee involvement” in voluntary standards development activities. Proposed § 1031.10(b) expands the list of activities to include: “participating as a voting member of, or in a leadership position on, a voluntary standard development group, when authorized,” to recognize that such activities are part of the term “employee involvement.”

 

Section 1031.11(c)—Existing § 1031.11(c), regarding procedural safeguards, states that involvement in voluntary standards activities by Commission officials and employees is predicated on an understanding by the voluntary standards group that such involvement is on a non-voting basis. The proposed rule deletes this provision as inconsistent with the goal of allowing employees the option, with prior approval, to participate as voting members of a voluntary standards committee.

 

Section 1031.11(d)—Existing § 1031.11(d), regarding procedural safeguards, states: “[i]n no case shall Commission employees or officials vote or otherwise formally indicate approval or disapproval of a voluntary standard during the course of a voluntary standard development process.” The proposed rule renumbers this section to § 1031.11(c), and revises the content to remove the existing language, which is inconsistent with allowing Commission employees the option, with prior approval, to vote. The proposed rule provides that employees authorized to participate as voting members of a voluntary standard development group represent the position of CPSC staff. Such votes do not necessarily represent the opinions or views of the Commission, and would not be binding on the Commission.

 

Section 1031.11(e)—Existing § 1031.11(e), on procedural safeguards, states that Commission officials and employees cannot accept voluntary standards committee leadership positions, except that the Voluntary Standards Coordinator may accept leadership positions with the governing bodies of standards-making entities with the approval of the Executive Director. The proposed rule renumbers this provision to § 1031.11(d), and revises the language to state that Commission officials or employees may accept leadership positions in voluntary standards development groups or leadership positions with the governing bodies of standards-making entities, when authorized with prior approval by the Office of the Executive Director.

 

Section 1031.11(f)—The proposed rule renumbers existing § 1031.11(f) to § 1031.11(e).

 

Section 1031.12(b)—Existing § 1031.12(b), on membership criteria, states that all officials and employees not discussed in § 1031.12(a) [which lists Commissioners and employees who may not become members of voluntary standards groups because they either make or advise on final agency decisions] may be advisory, non-voting members of voluntary standards development and advisory groups with the prior approval of the Executive Director, including the Voluntary Standards Coordinator. Proposed § 1031.12(b) would revise the language to provide that all other officials and employees not covered under § 1031.12(a) may participate as voting members or accept leadership positions in voluntary standard development groups, when authorized with the prior approval of the Office of the Executive Director. Proposed § 1031.12(b) would remove the reference to the Voluntary Standards Coordinator because such person is not prohibited from becoming a member of a voluntary standards group in § 1031.12(a). Thus, the Voluntary Standards Coordinator would fall within the class of persons discussed in proposed § 1031.12(b) who may serve as a voting member and hold leadership positions, as authorized.

 

Section 1031.12(c)—Existing § 1031.12(c) references the Executive Director as the management official with the authority to approve staff serving as members of a voluntary standards organization or group. Proposed § 1031.12(c) removes the reference to the “Executive Director” and replaces it with “Office of the Executive Director” to reflect that prior approval for membership in voluntary standards activities must be approved by the Office of the Executive Director.

 

III. Request for Comments Back to Top

The Commission encourages stakeholders to comment on all sections of the proposed amendments to 16 CFR part 1031, and specifically requests comment on the following additional issues. Comments should be submitted in accordance with the instructions in the ADDRESSES section at the beginning of this notice.

 

1. The value of CPSC staff participation in voluntary standard development groups in a voting capacity or in a leadership role, including potential related benefits;

 

2. Concerns relating to, or issues raised by, CPSC staff participation in voluntary standard development groups in a voting capacity or in a leadership role, at the committee level, as well as in leadership positions with the governing bodies of standards-making entities, and potential solutions or measures to mitigate such concerns or issues;

 

3. The requirement for OEX approval of staff participation in voluntary standard development groups, considering the criteria for Commission involvement in voluntary standards activity as noted in 16 CFR 1031.5 and the extent and form of Commission involvement in the development of voluntary standards as noted in 16 CFR 1031.6, either in a voting capacity or in a leadership role.

 

IV. Environmental Impact Back to Top

Generally, the Commission's regulations are considered to have little or no potential for affecting the human environment, and environmental assessments and impact statements are not usually required. See 16 CFR 1021.5(a). The proposed rule solely involves Commission procedure, and therefore, the proposed rule is not expected to have an adverse impact on the environment. The rule generally falls within the categorical exclusion in 16 CFR 1021.5(c), eliminating the need for an environmental assessment or environmental impact statement.

 

V. Regulatory Flexibility Act Back to Top

The Regulatory Flexibility Act (RFA) requires that proposed rules be reviewed for the potential economic impact on small entities, including small businesses. Section 603 of the RFA requires agencies to prepare and make available for public comment an Initial Regulatory Flexibility Analysis (IRFA), describing the impact of the proposed rule on small entities and identifying impact-reducing alternatives. Section 605 of the RFA provides that no IRFA is required if the proposal would not have significant impacts on a substantial number of small entities and the agency head certifies and publishes that determination in the notice of proposed rulemaking in the Federal Register. This section summarizes CPSC staff's assessment of the potential impact that the proposed rule amending 16 CFR part 1031 would have on small entities.

 

The proposed amendment would neither impose any new requirements on businesses, including small businesses, nor require any greater governmental participation in voluntary standards. The proposal would simply provide the option of increased involvement by Commission employees in the voluntary standards process. Participating CPSC staff would continue to abide by existing voluntary standards bodies' procedures for voting membership and leadership positions.

 

Although there are millions of small businesses that conform to voluntary standards related to consumer product safety, none of the proposed changes would impose any new obligations on small businesses that conform to voluntary standards. Product manufacturing, importing, testing, reporting, recordkeeping, and other commercial activities would be unaffected. Accordingly, the proposed amendment to 16 CFR part 1031 on participation and involvement of CPSC employees in voluntary standards would not directly impact any small businesses or other small entities. The proposed amendment, if promulgated on a final basis, would not have a significant impact on a substantial number of small entities.

 

VI. Paperwork Reduction Act Back to Top

The proposed rule does not require any stakeholder to create, maintain, or disclose information. Thus, the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) is not implicated in this proposed rulemaking.

 

VII. Effective Date Back to Top

The Administrative Procedure Act (APA) generally requires that the effective date of a rule be at least 30 days after publication of a final rule. 5 U.S.C. 553(d). The Commission proposes that any final rule based on this proposal would become effective 30 days after the final rule is published in the Federal Register because the proposed rule solely affects Commission procedure and does not require stakeholders to take any action.

 

List of Subjects in 16 CFR Part 1031 Back to Top

For the reasons stated in the preamble, the Commission proposes to amend 16 CFR part 1031 as follows:

 

 begin regulatory text 

PART 1031—COMMISSION PARTICIPATION AND COMMISSION EMPLOYEE INVOLVEMENT IN VOLUNTARY STANDARDS ACTIVITIES Back to Top

1.The authority citation for part 1031 is revised to read as follows:

 

Authority:

15 U.S.C. 2051-2083; 15 U.S.C. 1261-1276; 15 U.S.C. 1191-1204; Sec. 3, 104, 106, 223 Pub. L. 110-314, 122 Stat. 3016, 3017 (2008), Sec. 3, 4 Pub. L. 112-28 (2011).

 

2.In § 1031.10 paragraph (b), revise the third sentence to read: “Employee involvement may include regularly attending meetings of a standards development committee or group, taking an active part in discussions and technical debates, expressing opinions, expending other resources in support of a voluntary standard development activity, and participating as a voting member of, or in a leadership position on, a voluntary standard development group, when authorized.”

 

3.In § 1031.11, remove paragraph (f) and revise paragraphs (c), (d), and (e) to read as follows:

 

§ 1031.11 Procedural safeguards.

* * * * *

 

(c) Commission officials or employees who are authorized to participate as a voting member of a voluntary standard development group represent the position of CPSC staff. Such votes or opinions do not bind the Commission in any way or necessarily represent the opinions or views of the Commission, but rather, solely represent the views of the CPSC staff.

 

(d) Commission employees and officials who are involved in the development of voluntary standards may accept leadership positions in voluntary standard development groups (e.g., committee chairman or secretary) or leadership positions with the governing bodies of standard-making entities, when authorized with the prior approval of the Office of the Executive Director.

 

(e) Attendance of Commission personnel at voluntary standards meetings shall be noted in the public calendar, and meeting summaries shall be submitted to the Office of the Secretary, as required by the Commission's meetings policy, 16 CFR part 1012.

 

4.In § 1031.12, revise paragraph (b) to read as follows:

 

§ 1031.12 Membership criteria.

* * * * *

 

(b) All other officials and employees not covered under § 1031.12(a) may participate as voting members or accept leadership positions in voluntary standard development groups, when authorized with the prior approval of the Office of the Executive Director.

 

* * * * *

 

5.In § 1031.12 paragraph (c), remove the phrase: “Executive Director,” and add in its place “Office of the Executive Director.”

 

 end regulatory text 

Dated: September 16, 2013.

 

Todd A. Stevenson,

 

Secretary, Consumer Product Safety Commission.

 

[FR Doc. 2013-22805 Filed 9-19-13; 8:45 am]

 

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