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Statement from Commissioner Ann Marie Buerkle on the Fiscal Year 2020 Operating Plan

October 16, 2019

Thank you to CPSC’s staff for their efforts in developing the FY 2020 Operating Plan. It is a challenge to develop an operating plan while the agency functions on a continuing resolution and our budget remains uncertain.

This year’s Operating Plan was amended and approved by a 4-1 vote. While I did not support all of the amendments that were included in the package, I thank my fellow Commissioners for the robust discussion and their willingness to compromise.

I am pleased that the amendment sponsored jointly by Commissioner Baiocco and me to direct staff to present a draft Federal Register notice to withdraw the “Guidance Document on Hazardous Additive, Non-Polymeric Organohalogen Flame Retardants in Certain Consumer Products”, was approved. 

The implication and consequences of the use of guidance documents by the federal government have been widely debated. While not considered to be legally binding, guidance documents have an impact on the marketplace. They are often considered “backdoor rulemaking” and can carry with them the imprimatur that comes with rules issued by the federal government. 

Just this month, the President issued an Executive Order addressing the inappropriate use of guidance and directing agencies to reform their approach to issuing guidance. Whether that Executive Order applies to CPSC or not, I think our OFR guidance exemplifies the type of guidance that is inappropriate. It is not a mere interpretation of our laws and regulations. Instead, it is telling manufacturers, retailers, and consumers to stop making, selling, or buying this entire class of OFRs before we have gone through the process our statute specifies. As the Executive Order says, it is not enough to include a disclaimer that the guidance is not binding. The simple fact is people assume the federal government would not be telling us not to use certain chemicals if we didn’t have a sound scientific basis for doing so.

Further, the recent National Academy of Sciences (NAS) report undercuts the premise of the guidance document that all organohalogens can be treated alike. It distinguishes between many different subclasses and even for those subclasses, it admits that after more analysis, it might not even be appropriate to treat all the chemicals in a subclass the same way. 

This Operating Plan makes clear that the Commission is moving down the road toward more intensive review of these chemicals, which I support. But in the meantime, there is no basis for treating all these chemicals as automatically hazardous or sufficiently hazardous to warn consumers or retailers away from them.

Finally, I want to stress that flame retardant chemicals are used for a reason. At my urging, the staff had a tech-to-tech meeting focused particularly on the use of OFRs in electronics enclosures. These products face a different situation than many of the other products covered by our guidance. Specifically, these enclosures generally contain heat sources and, for that reason, are generally subject to industry standards requiring them to withstand an open flame. Therefore, I do not think this category of products can avoid using flame retardants as readily as some other types of products, and the published guidance discourages the manufacturers of these products from using chemicals that may have significant advantages without any showing that they are in fact hazardous. 

This guidance, developed and issued by a previous Commission majority, was premature and should be removed. I thank Commissioner Baiocco for joining me in offering this amendment.

While I am pleased the OFR guidance amendment was approved and included in the final operating plan, there are a few amendments that I did not support, but were approved by a majority of the Commission. An amendment related to the Office of Communications, requiring timely updates, at the request of a Commissioner, to the Commission including information supporting any safety claim made by Communications, shows either an unwillingness or inability to understand how the agency’s communications materials are developed. The Office of Communications does not unilaterally put out safety messaging. They work closely with CPSC’s technical and enforcement staff, the Office of the Executive Director, and the Office of the General Counsel, to ensure our messages are fact-based and accurate. In addition, the Office of Communications regularly meets and provides updates to all Commission offices and is always available to answer questions, especially when materials are before the Commission. The amendment was unnecessary and insulting to the professionals, and I could not support it.

Lastly, I am concerned about the amendment requiring emerging hazard voluntary standard work to be directed by the Commission. CPSC’s staff are the experts and part of what makes the voluntary standards process work so well is that staff has a certain amount of autonomy to work with stakeholders to improve safety. Inserting the Commission into the voluntary standards process is inappropriate and possibly illegal, given our regulations forbid voluntary standards participation by Commissioners and certain senior staff. Functionally, I do not see how this amendment will actually be implemented without completely disrupting and slowing down staff’s efforts to develop voluntary standards related to emerging hazards. 

Once again, the Commission’s actions reflect mistrust of staff’s ability to function as professionals. The basis for this amendment was sometimes staff cannot agree on what agency data means. Does anyone think that in a 2-2 Commission there will be any agreement? This amendment has the potential to bring our voluntary standards work to a grinding halt.

While the inclusion of these amendments causes me concern, I did support the final operating plan so that staff has direction on the important safety work they need to accomplish in FY 2020.

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