October 16, 2018

On October 10, 2018, in a vote of 4 to 1, the Commission approved an Operating Plan for Fiscal Year 2019. Although the Operating Plan contained many important safety initiatives that I agree the CPSC should undertake this fiscal year, I was unable to support it in its final form because it fell short in a few key areas.

As I considered the draft Operating Plan, I tried to work within the framework as presented to the Commission and offered amendments with the following goals in mind:

  • First, increasing transparency and accountability of the CPSC to the American public, given our vital mission to keep people safe;
  • Second, measuring the agency’s progress with explicit deliverables and milestones and clear communication of our plans, our strategies, and our goals as we pursue this important mission; and
  • Third, enhancing our risk assessments and policy decisions with better data and information.

I am pleased that some of the amendments that I offered to provide increased transparency, clearer deliverables, and enhanced data were incorporated to some extent into a Manager’s Amendment offered by Acting Chairman Buerkle and supported by all of my colleagues, including these changes:

  • Window Coverings: The mandatory standards chart in the Operating Plan was revised to more accurately reflect that there is ongoing data analysis and technical review work being done at the staff level on the window coverings standards. Every month, approximately one child dies and another suffers near strangulation after becoming entangled in a window covering cord. Cordless options are currently available and can be functional, attractive and affordable. Although some retailers are committed to selling only cordless options, certain types of window coverings with hazardous cords are still available for purchase. This change reflects the fact that staff will continue its work in FY 2019 to ensure that window covering standards address the strangulation hazards associated with all window coverings.
     
  • Internet of Things: The Operating Plan was revised to reflect that staff will provide the Commission with a status report on staff’s work on the Internet of Things (IoT) in FY 2019. With the rapidly increasing popularity and complexity of Internet-connected devices, the CPSC must have a clear plan with timelines and deliverables to get ahead of any emerging hazards within our jurisdiction. Product designers need to be aware of the capabilities of every component of their final product and predict unintentional uses and intentional misuses that could lead to foreseeable hazardous conditions. We need to continue collaborating and working with stakeholders and other agencies on these issues. However, that alone is not a path forward, nor does it provide much transparency for the public into what our agency is doing to address this issue. This change to the Operating Plan will require staff to provide the Commission with a clear deliverable outlining their current progress on IoT-related work. Although it was not specified in the Manager’s Amendment, I am hopeful that staff will provide as a part of their status report any associated timelines for future work, including if possible a list of strategies for preventing potential safety issues.
  • Fast Track and Recall Effectiveness Programs: The Operating Plan was revised to reflect that staff will provide the Commission with summaries of their evaluation of the fast track program and their plan to improve recall effectiveness. I believe this will provide additional transparency and accountability as staff evaluates and works on improving these programs.

I am grateful to my colleagues for supporting my amendments in the Manager’s package. In particular, I would like to express my appreciation to Acting Chairman Buerkle for her leadership in putting together the Manager’s Amendment and her continued commitment to finding compromise among the Commissioners. However, I was disappointed that we could not reach agreement on all of the changes that I proposed, including the following changes that were not adopted:

  • Publishing ROV Death and Injury Data: I proposed that death and injury data for recreational off-road vehicles, commonly known as ROVs or side-by-sides, be added to the Commission’s existing annual death and injury data report for all- terrain vehicles, or ATVs. Off-highway vehicles, including ROVs and ATVs, are among the most dangerous consumer products within the CPSC’s jurisdiction. At least one study has suggested that ROV sales have quadrupled from 2000 to 2015 and that fatal crashes have increased drastically.1 Providing the public with the death and injury data on ROVs that we currently collect is an important first step in better understanding the hazards and evaluating trends associated with off-highway vehicles.
  • Deadline for Gates and Other Enclosures NPR: I offered a motion to set a firm deadline for moving ahead with a Notice of Proposed Rulemaking (NPR) on Gates and Other Enclosures. Simply put, I proposed a clear “pencils down” deadline. This project was already listed as an NPR in the Operating Plan, so the motion would have simply provided a firm deadline for completion of staff’s work (no later than six months from passage of the Operating Plan).

There is no safety justification to wait any longer than six months to send the NPR to the Commission for its consideration. Staff has raised the issue of push- out forces in the ASTM meetings at various meetings during the last three years. Meanwhile, in 2016, there were an estimated 2,900 emergency department- treated injuries associated with baby gates involving children younger than 5 years old. This is an increase from the previous year. Five deaths occurred between 2011 and 2014.2

To be clear, this is not a rulemaking that requires universal agreement on a voluntary standard. Under Section 104 of the Consumer Product Safety Improvement Act, Congress only required the Commission to “consult” with various stakeholders and “examine and assess the effectiveness of” any relevant voluntary standard, and promulgate a rule that is substantially the same as that voluntary standard or more stringent than the voluntary standard if the Commission determines that more stringent standards would further reduce the risk of injury. Through its work in the voluntary standards setting for the past three years, staff has done just that and has a recommended approach that would further reduce the risk of injury beyond the existing voluntary standard.

Therefore, we should move forward as soon as possible and publish an NPR for public comment. An NPR does not bind the Commission. If the voluntary standard changes in the next year, then those changes can be addressed through the rulemaking process. Although my motion failed, my hope is that the staff will nevertheless send up an NPR within the next six months.

My vote against the Operating Plan for FY 2019 should not be viewed as a vote against staff’s work or the work of the agency. In fact, I think we are not giving staff and our agency enough credit. I believe that there is more that we can be doing to advance our safety mission even with the extremely limited resources that we have.

The CPSC’s annual Operating Plan is a vehicle for progress in advancing our mission of safety, saving lives and preventing injuries - a mission that makes working here so meaningful.

We can and should sharpen our hazard identification datasets to enhance the speed with which we find potential problems in the marketplace. But we also need to strike a careful balance between rigorous data collection and delay and over-analysis. I could not support delaying rules or protracted technical reviews when the hazard mitigation strategies are already well-known, they are available and there are no legal impediments to moving forward.

My hope is that we will continue to aim to be transparent and accountable to the public regarding our efforts to advance safety. And most importantly, I hope that we can reach a little bit more for safety and dream a little bit bigger for a safer world. We are capable of that and the public is counting on us to do it.

10/10/2018

Manager’s Amendment to the FY 2019 Operating Plan (to be offered by Acting Chairman Buerkle)

  1. On p. 9, in the Mandatory Standards Summary Table under Other Ongoing or Potential Rulemaking-Related Activities, add “DA/TR” for Window Coverings in the FY 2019 Op Plan column.
  2. On p. 13, under project “#13327 – Emerging Hazards,” after the words “as well as related wearable products, and 3-D printing.” add the following: “In FY 2019, staff will provide the Commission with a status update on its current progress on IoT-related work.”
  3. On p. 24, under project “#34382 – Fast Track Program,” after the words “In FY 2019, staff will evaluate the program” add the following: “and provide a summary of its evaluation to the Commission.”
  4. On p. 24, under project “#34789 – Recall Effectiveness,” add the following at the end of the section: “Staff will provide a summary of its plan to the Commission.”
  5. The Executive Director shall allocate one additional full-time employee to support the Voluntary Standards activity and coordination work in EXHR. In addition to providing support for ongoing voluntary standards activities, this FTE shall assist the Voluntary Standards Coordinator in an ongoing assessment of the Commission’s voluntary standards activities and future needs of the voluntary standards program. The additional FTE will be funded by reducing the funding in project 23704 Nanotechnology to account for the additional FTE. Budget Table 2 shall be updated to reflect the offset in Nanotechnology and EXHR’s FTE of 160 and the total FTE to 539.

Commissioner Kaye Motion and Amendment to the FY 2019 Operating Plan

Commissioner Kaye Motion to the Draft FY 19 Operating Plan

Motion – Gates

No later than 180 days after the Commission approves the Fiscal Year 2019 Operating Plan, staff shall provide to the Commission for its consideration a Notice of Proposed Rulemaking proposing a mandatory consumer product safety standard for Gates and Other Enclosures under and consistent with section 104 of the Consumer Product Safety Improvement Act of 2008.

In furtherance of providing additional transparency and data to the public, the FY 2019 draft Operating Plan shall be amended as follows:

Amendment to the Hazard Identification Operating Plan Details: pgs. 11-20

  • p. 15, under project “#22637 – All-Terrain Vehicles (ATVs): Rulemaking activities,” strike the first bullet under “FY 2019 activities under this project include:” and replace with the following bullet:
    “Annual Off-Highway Vehicle (ATV and ROV) death and injury data update report, with data on ATV and ROV deaths, by state; relative risk of death, by year; injuries distributed, by year; and age grouping; and”

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1 Richardson, RE, McMurry, TL, Gepner, B, Kerrigan, JR (2018). Field data analysis of recreational off- highway vehicle crashes. Traffic Injury Prevention. Sep 27:1-6. doi: 10.1080/15389588.2018.1470326.

2 Chowdhury, RT (2017). Injuries and deaths associated with nursery products among children younger than age five. U.S. Consumer Product Safety Commission. https://www.cpsc.gov/s3fs-public/Nursery- Products-Annual-Report-2017_0.pdf?iVo_dlqsrtuWAep2RzahKbFcsiCfXZhK