November 22, 2016

Introduction

At the decisional hearing held on October 19, 2016, I voted with Chairman Kaye and Commissioner Adler to approve the U.S. Consumer Product Safety Commission’s (“CPSC” or “Commission”) Fiscal Year 2017 Operating Plan (FY17OP), as amended. I am excited about all of the work the CPSC has committed to tackling in this fiscal year, and look forward to the execution of the FY17OP that will address so many pressing safety issues before this agency.

My fellow Commissioners and I debated several key issues and proposed amendments during the decisional and I strongly believe that honest, open debate in public is part of what makes CPSC such a transparent and credible independent government agency. Prior to the hearing, Commissioner Buerkle circulated among the Commissioners several potential amendments with which I strongly disagreed. Commissioner Buerkle did not formally introduce her amendments at the decisional due to a lack of support. However, in her closing statement delivered after I had concluded mine, and later in a written statement, Commissioner Buerkle raised the issues contained in the amendments she chose not to introduce. Since there has been no public opportunity to discuss these issues, I am presenting the reasons for my opposition in this statement.

 

Commissioner Buerkle’s Proposals

Delaying Safety

All of Commissioner Buerkle’s proposals have one effect: delaying safety in the interest of yielding to unreasonable demands of industry.

Since I became a Commissioner over three years ago, I have been vigilant in trying to promote forward momentum in addressing critical safety issues. Inertia is one of the most insidious enemies of consumer safety. As a fundamental principle, I do not think it is in the consumers’ interest or in line with CPSC’s public-health mission to delay safety.  The CPSC and its leadership should be working to resolve outstanding safety issues in a timely, efficient, and effective manner by utilizing all of the options to do so. Those options include issuing recalls, pursing enforcement actions, undertaking rulemaking activities, engaging with voluntary standards committees, issuing policy statements, and more.  There is no reason whatsoever that these options should be mutually exclusive. Often we can better protect consumers by utilizing multiple regulatory tools concurrently.

Commissioner Buerkle’s contemplated amendments would have needlessly delayed work on four critically-important rulemaking activities by moving them backwards to have staff engage in completely unnecessary additional data analysis and technical review instead of moving forward towards approval of final rules. The four rules Commissioner Buerkle wants to delay, perhaps indefinitely, are:

  1. Information Disclosure Under Section 6b of the CPSIA, Section 1101, scheduled for a Final Rule (FR) in the Operating Plan
  2. Voluntary Recall, scheduled for a Final Rule in the Operating Plan
  3. Furniture Tip-Over, scheduled for an Advanced Notice of Proposed Rulemaking (ANPR) in the Operating Plan
  4. Portable Generators, scheduled for a Notice of Proposed Rulemaking (NPR) in the Operating Plan

Section 1101 and Voluntary Recall

Commissioner Buerkle suggests that the proposed amendments to both Section 1101 and the voluntary recall rules are “a black eye to the agency, through no fault of the staff.”[1]   She further argues that there has been “lack of clarity and transparency in the process” which somehow equates to “election year, ‘midnight’ rulemaking.”[2]

These statements have no basis or merit. 

While Chairman Kaye may have stated that these proposed rules were not a priority for him, a majority of the Commission has consistently slated these rules for finalization in numerous fiscal year operating plans, mid-year adjustments to the operating plans, regulatory agendas, and budget requests.  Our stakeholders have had ample opportunity to comment on these proposed rules. We have followed all statutory and regulatory requirements in proposing the rules and nothing in the Commission’s conduct supports allegations of so-called “midnight rulemaking.”

These rules have been ripe for a final decision for years and further delay serves no purpose. It is time for certainty for both industry and CPSC.

Section 1101 – Information Disclosure

Commissioner Buerkle and I have consistently disagreed about the best approach to the proposed revisions to Section 1101 since we voted on the matter in early 2014. 

The public comment period closed over two years ago and the comments we received are neither complex nor voluminous. Staff should review the comments and send a proposed final- rule package to the Commission with their best recommendations, whatever those may be.  Once the Commission receives a proposed final rule, then, in the usual course, we as a Commission will decide what, if any, compromises should be made to arrive at a final rule.

Commissioner Buerkle would not just delay decision-making, but would indeed have us move backward on this rule by tasking staff with conducting additional unnecessary Data Analysis/Technical Review (DA/TR) instead of proposing a Final Rule. Such a change would needlessly delay a decision for several more years. Her articulated reasons for this backward movement include that it is possible that the Office of General Counsel’s (OGC) proposed revision of the CPSC’s Procedures for Disclosure or Production of Information under the Freedom of Information Act (FOIA) regulations may impact our approach to revisions to Section 1101. While OGC’s proposal on the FOIA regulations is certainly something I want to review before voting on the proposed Section1101 final rule, these activities can and should occur concurrently. Staff should review the handful of comments received on the Section 1101 NPR and make recommendations for a final rule while OGC simultaneously drafts the proposed revisions to the FOIA regulations. 

Once the FOIA regulations are presented to the Commission (which we expect should happen this calendar year), staff may incorporate any necessary changes in the proposed Section 1101 rule before the end of our fiscal year in September 2017. 

Finalizing the Section 1101 NPR has a real and potentially significant impact on safety. There is nothing we can do about the non-disclosure requirements Congress has given us in Section 6(b) of the Consumer Product Safety Act (CPSA). These statutory requirements prevent the CPSC from communicating even the most emergent safety information to consumers for what sometimes is weeks after discovering the hazard. However, CPSC can remove the additional hurdles it previously imposed on itself in Section 1101—hurdles that go significantly further than the statutory restrictions on information sharing in Section 6(b). Removing these unnecessary regulatory restrictions will improve safety by permitting CPSC to give consumers critical and timely information while still satisfying the statutory requirements of Section 6(b). 

I have full confidence in our staff and their ability to analyze and respond to the comments we received on the NPR, make any necessary updates based on the proposed FOIA regulations, and prepare a package to the Commission by the end of the fiscal year 2017. Doing so will directly improve consumer safety through providing what Commissioner Buerkle, in virtually all other settings, advocates: information and education.

Voluntary Recall Rule

Commissioner Buerkle and I have also consistently disagreed about the best approach to the Voluntary Recall NPR since we voted on it in 2013. 

This proposed rule has languished far too long. CPSC received the last comments on this NPR over two years ago and again, the comments are not complex. The main focus of industry’s objections to the proposed rule changes has been on the question of whether they should be legally bound to voluntary-recall agreements they negotiate and to which they agree in writing.

Staff should review these comments and send an FR package to the Commission, addressing those comments and making any necessary changes to the NPR.  Once the Commission receives staff’s recommendations, then, in the usual course, we, as a Commission, may decide what, if any, compromises should be made to arrive at a final rule.

It is time for certainty for industry, consumers, and CPSC.

Commissioner Buerkle, however, would again like to go backwards and tell staff to engage in completely unnecessary and redundant analysis instead of proposing a final rule. Her purported reason for this backward momentum is that we should wait for a recall effectiveness workshop that we hope will occur this spring. I certainly hope that the workshop will be informative and relevant to the proposed rule, but there is absolutely no reason that information we learn in the spring cannot be incorporated in a proposed FR by the end of the fiscal year in the fall. The workshop is no excuse for any delay.

The voluntary recall rule has a direct impact on safety.  Indeed, how we conduct our voluntary recalls goes to the core of what we do here at this agency to protect consumers. I have full confidence in our staff and their ability to analyze the comments, incorporate what they may learn from the recall effectiveness workshop, and prepare a package to the Commission by the end of the fiscal year 2017; therefore, I strongly disagree with Commissioner Buerkle’s proposal of more delay.

Furniture Tip-Overs

Preventing deaths and injuries from furniture and TV tip-overs has been one of my main priorities since I became a Commissioner. This is a serious and latent hazard. A child dies every two weeks when furniture or a TV falls on him or her. Every 24 minutes, a child goes to an emergency room as a result of a tip-over injury.

In 2014, I supported funding an information and education campaign to encourage consumers to anchor their furniture and TVs and have actively participated in that campaign. However, education and information are clearly not enough to address this hazard. The furniture that is killing our toddlers must be made more stable. As with any hazard, the most effective approach, when feasible, is designing the hazard out. I have therefore been actively engaged in efforts to make furniture more stable. My staff and I have engaged with the ASTM subcommittee to encourage improving the voluntary standard and enhancing stability. We have met with CPSC technical staff, and a number of external stakeholders to consider and investigate ways to improve stability. I also introduced an amendment to our 2016 Operating Plan directing staff to draft a briefing package to the Commission addressing the adequacy of the current voluntary standard and the degree of compliance with the standard. We received staff’s comprehensive briefing package in September, and it clearly shows both that the current voluntary standard has serious deficiencies and that there is widespread non-compliance even with this inadequate standard. These staff findings are consistent with the findings in Kids in Danger’s detailed report on furniture stability, issued in August of this year.

Because the current voluntary standard does not adequately address many of the hazard scenarios that lead to deadly tip-over incidents, I fully support including an ANPR on tip-overs in the 2017 Operating Plan. Commissioner Buerkle, again, wants to move backward on developing a mandatory stability rule even though the only anticipated activity in this fiscal year is an ANPR. This conveys a misunderstanding of the purpose of an ANPR, which is an early, preliminary step, on the long road to rulemaking. The actions taken during the ANPR stage include data collection and soliciting input from stakeholders which inform the decision on whether and how to move forward on the rulemaking process.

The incident data are grim. The existing voluntary standard, as clearly explained in staff’s briefing package, is insufficiently protective, and compliance with this standard is spotty. The education and information campaign, while important, has not reduced the incident rate to date. These factors compel us to act without delay and with all the tools we have, including issuing an ANPR seeking input on rulemaking to enhance furniture stability.

While staff works on an ANPR, I hope to see Congressional action on the STURDY Act, introduced by Senators Casey, Blumenthal, and Klobuchar and Congresswoman Schakowsky. This reasonable legislative proposal would relieve CPSC of the onerous requirements of Sections 7 and 9 of the CPSA, and allow us to issue a mandatory standard based on, or more stringent than, the voluntary standard.

Portable Generators

One of the most dangerous products CPSC has dealt with in recent years is portable generators which can emit up to 1500 times more carbon monoxide (CO) than an idling automobile. People simply do not realize how dangerous these generators are, in spite of labels and warnings, and continue to operate them inside their homes and garages. Even those who know that portable generators should be operated outside frequently place them too close to an open window. 

Our data show that there were at least 25,400 medically-attended CO injuries and 503 deaths between 2004 and 2012 from this hidden, odorless hazard. People can survive, and without sequelae, if we can lower CO emissions. Our staff estimates that 208 of the 503 deaths that occurred from CO poisoning from 2004 – 2012 could have been averted if low-emission generators were in place and, of course, the level of injuries could be significantly improved through CO reduction. 

CPSC staff has worked for more than a decade on both finding feasible ways to significantly reduce CO emissions from portable generators and trying to get industry to adopt a voluntary standard that addresses emissions, all in the interest of saving lives. While our staff has been successful in the former, the efforts on the latter, with rare exceptions, have fallen on deaf ears.

I met with the Portable Generator Manufacturers’ Association (PGMA) in October 2015 after having been briefed by our staff on the exciting work we and others were doing in perfecting technology that significantly reduces CO emissions in portable generators. I was hoping that PGMA would discuss the efforts its members were making in the same direction since this is the only real way to address this significant danger. I appreciated that significantly reducing CO emissions would require an economic investment from industry, but given that low CO technology is currently available, combined with the horrific statistics on CO poisonings in this country, I remained hopeful.

Instead, PGMA’s sole focus, as it has been for a decade, remained labeling and education, which would cost industry nothing. However, years of education and outreach efforts on portable generators, including passing a mandatory warning label requirement in 2007, have already failed miserably. Indeed, PGMA specifically declined to address emissions ostensibly because they did not believe lowering CO emissions in portable generators is a path forward.  PGMA actually argued that consumers exposed to CO from portable generators will still die and lowering CO emissions will only delay their inevitable death. PGMA even suggested, without any facts or data to support, that reduced emissions would somehow be more dangerous because people might be more inclined to move the generator into their house. PGMA even refused to require a longer extension cord which would make it easier for people to place the generators further from the house.

PGMA’s position that lowering emissions will simply mean it will take people longer to die is belied by the data. In one study, the time interval required for a victim’s COHb[3] level to reach the benchmark representing incapacitation increased from eight minutes to 96 minutes when using a low CO emission prototype generator in an enclosed garage. This time interval further increases for potential victims who may be in other rooms in the home. This is critical time that can mean the difference between life and death.

The PGMA G300 voluntary standard, which does not require any reduction of CO emissions, is inadequate and CPSC staff has expressed grave concerns regarding this standard repeatedly to no avail. Then, after a decade of delay and just prior to the Commission briefing on the NPR, PGMA informed the CPSC that it was reopening its voluntary standard and would address, at long last but in an unspecified manner, reducing CO emissions. Since PGMA told our staff just two months ago that it only has a “framework” for addressing an undetermined level of CO emissions and that it has no concrete proposal for a standard or test method, we know such a standard is years away. Nevertheless, Commissioner Buerkle would have us delay rulemaking on portable generators, based on that last-minute request from PGMA. Although I am pleased that PGMA is now going to begin the process of addressing CO emissions, there is no reason whatsoever for the CPSC to delay rulemaking. Our staff has offered to work in concert with PGMA, and our notice and comment process will not disrupt their efforts. I was proud to vote to publish the NPR along with all of my fellow Commissioners, except Commissioner Buerkle. I hope we get informative and helpful comments, and I look forward to receiving staff’s proposed final rule in a timely manner.

Conclusion

Consumer product safety is best served when we resolve safety issues so that all stakeholders—industry and consumers—know what CPSC believes is the safest option going forward.  Predictability in the marketplace is the key for both industry and consumers.  This is why I have tried to push CPSC to resolve or actively move forward on long-standing open issues such as Section 1101, voluntary recall rule, furniture tip-overs, and portable generators.  I also strongly believe that we need to move forward on addressing additional safety concerns that have remained unresolved for many, many years, such as window cord strangulation and crib bumper suffocation. Delaying action on these issues compromises the CPSC’s ability to fulfill its mission of keeping consumers safe. Americans’ lives depend on our action and commitment to make smart decisions for their protection.    

The fiscal year 2017 Operating Plan allows us to move forward on addressing critical safety issues facing consumers today.  I was proud to vote for it and I look forward to making strides in fulfilling our mission of protecting the public against unreasonable risks of injury from consumer products.

[1] Statement of Commissioner Buerkle on the FY17 Operating Plan, October 21, 2016, https://www.cpsc.gov/about-cpsc/commissioner/ann-marie-buerkle/statements/commissioner-buerkle-statement-on-the-fy17

[2] Id.

[3] Carboxyhemoglobin (COHb) – expressed as a percentage, reflects the percentage share of the body’s total hemoglobin pool occupied by CO. Although the relationship is not absolute, COHb levels can provide a useful index of CO poisoning severity.