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From Products Liability Law Daily, September 20, 2013

CPSC requests comments on proposed changes to employee involvement in voluntary standards activities

By Pamela C. Maloney, J.D.

The Consumer Product Safety Commission (CPSC) is proposing to remove current restrictions on Commission participation and employee involvement in voluntary standards activities so that Commission employees could participate as voting members and accept leadership positions in voluntary standards development groups with the approval of the Office of the Executive Director (OEX) (CPSC Notice of Proposed Rulemaking, 78 FR 57818, September 20, 2013).

Background. Under current Commission rules, employees may participate in voluntary standard development groups on a non-voting basis and they are not allowed to accept leadership positions in these groups. During FY 2013, CPSC staff will provide technical support to organizations that coordinate the development of voluntary standards for 71 products. Staff technical support includes providing expert advice, technical assistance, and information based on analyses of the numbers and causes of deaths, injuries, or incidents associated with a product. CPSC staff also conducts research, performs laboratory tests, and provides draft language for voluntary standards. The staff now participates in these groups without any expectation that such voluntary standards will necessarily form the basis of a mandatory standard.

Reasons for proposed changes. The CPSC is proposing the elimination of these restrictions under the direction of the Consumer Product Safety Improvement Act of 2008 (CPSIA), which gave rise to the expectation that for certain children’s products voluntary standards would form the basis for mandatory standard setting. In addition, Public Law 104-113 directs 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.” Finally, a Government Accountability Office report titled, “Consumer Product Safety Commission: A More Active Role in Voluntary Standards Development Should Be Considered” recommended that the Commission review its policy for staff participation in voluntary standards and determine the feasibility of agency staff assuming a more active, engaged role in the process. In proposing the changes, the Commission added the requirement that staff participation in such activities must receive prior approval by OEX. In approving participation, OEX should balance the policy concerns set forth in 16 C.F.R. §1031.9 (appearance of preferential treatment, loss of impartiality, compromise of the agency’s independence, and a real or apparent conflict of interest) against Commission priorities, available resources, the need for greater staff involvement, and the efficiency of the voluntary standards process.

Comments sought. The Commission specifically requests comments on: (1) the value of CPSC staff participation in voluntary development groups in a voting capacity or a leadership role, including potential related benefits; (2) concerns relating to, or issues raised by, CPSC staff participation as outlined by the proposal and potential solutions or measure to mitigate any concerns or issues; and (3) the requirement for OEX approval of staff participation in standards development groups.

Written comments must be received by October 21, 2013.

RegulatoryActivity: ProposedRules

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