[Federal Register Volume 78, Number 183 (Friday, September 20, 2013)]
[Proposed Rules]
[Pages 57818-57822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22805]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1031
[CPSC Docket No. CPSC-2013-0034]
Commission Participation and Commission Employee Involvement in
Voluntary Standards Activities
AGENCY: Consumer Product Safety Commission.
ACTION: Notice of proposed rulemaking.
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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).
DATES: Written comments must be received by October 21, 2013.
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2013-
0034, by any of the following methods:
Electronic Submissions
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
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
[[Page 57819]]
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: 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; [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
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,
[[Page 57820]]
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 Sec. 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 Sec. 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
Following is a section-by-section description of the proposed
changes to part 1031.
Section 1031.10(b)--Existing Sec. 1031.10(b), regarding
definitions, lists the types of activities that may comprise ``employee
involvement'' in voluntary standards development activities.
[[Page 57821]]
Proposed Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 Sec.
1031.11(f) to Sec. 1031.11(e).
Section 1031.12(b)--Existing Sec. 1031.12(b), on membership
criteria, states that all officials and employees not discussed in
Sec. 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 Sec. 1031.12(b) would revise the
language to provide that all other officials and employees not covered
under Sec. 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 Sec. 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 Sec.
1031.12(a). Thus, the Voluntary Standards Coordinator would fall within
the class of persons discussed in proposed Sec. 1031.12(b) who may
serve as a voting member and hold leadership positions, as authorized.
Section 1031.12(c)--Existing Sec. 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 Sec. 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
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
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
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
[[Page 57822]]
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
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
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
Business and industry, Consumer protection, Voluntary standards.
For the reasons stated in the preamble, the Commission proposes to
amend 16 CFR part 1031 as follows:
PART 1031--COMMISSION PARTICIPATION AND COMMISSION EMPLOYEE
INVOLVEMENT IN VOLUNTARY STANDARDS ACTIVITIES
0
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).
0
2. In Sec. 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.''
0
3. In Sec. 1031.11, remove paragraph (f) and revise paragraphs (c),
(d), and (e) to read as follows:
Sec. 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.
0
4. In Sec. 1031.12, revise paragraph (b) to read as follows:
Sec. 1031.12 Membership criteria.
* * * * *
(b) All other officials and employees not covered under Sec.
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.
* * * * *
0
5. In Sec. 1031.12 paragraph (c), remove the phrase: ``Executive
Director,'' and add in its place ``Office of the Executive Director.''
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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