U.S. Consumer Product Safety Commission

What’s a Consumer Product, Anyway?

ICPHSO 2013 ANNUAL MEETING & SYMPOSIUM

FEBRUARY 28, 2013PATRICIA POLLITZER, ASSISTANT GENERAL COUNSEL

DIVISION OF REGULATORY AFFAIRS, OFFICE OF GENERAL COUNSEL

This presentation was prepared by CPSC staff. It has not been reviewed or approved by, and may not necessarily reflect the views of, the Commission.

“any article, or component part thereof, produced or distributed

(i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or

(ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise….”

“Consumer Product”§ 3(a)(5) of CPSA

“Any article which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer”

Exceptions from definition of “consumer product”

Tobacco and tobacco products;

Motor vehicles and motor vehicle equipment (National Traffic and Motor Vehicle Safety Act of 1966);

Pesticides (Federal Insecticide, Fungicide, and Rodenticide Act);

Firearms and ammunition (subject to tax under section 4181 of Internal Revenue Code);

Aircraft (Federal Aviation Act);

Exceptions from definition of “consumer product”

Boats, vessels, and associated equipment (Federal Boat Safety Act);

Drugs, devices, or cosmetics (Federal Food, Drug, and Cosmetic Act);

Food (Federal Food, Drug, and Cosmetic Act; Poultry Products Inspection Act; Federal Meat Inspection Act; Egg Products Inspection Act);

Amusement rides permanently fixed to a site.

Exceptions from definition of “consumer product”

Risks of injury associated with a consumer product if the risk could be eliminated or reduced by actions under the Occupational Health and Safety Act, Atomic Energy Act, or Clean Air Act.

Risks of injury associated with electronic product radiation emitted from an electronic product (Public Health Service Act).

Exclusions under § 31 of CPSA

Available information about the productWhere product is sold

Price

Promotional information and labeling

Intended use and location of intended use

Relevant statutory definitionsStatutes and regulations

Other agency’s interpretations

Conclusion

U.S. Consumer Product Safety Commission

Information Disclosure and the Consumer Product Safety Act

ICPHSO 2013 ANNUAL MEETING & SYMPOSIUM

FEBRUARY 28, 2013MELISSA V. HAMPSHIRE, ASSISTANT GENERAL COUNSEL, DIVISION OF

ENFORCEMENT AND INFORMATION, OFFICE OF THE GENERAL COUNSEL

This presentation was prepared by CPSC staff. It has not been reviewed or approved by, and may not necessarily reflect the views of, the Commission.

Section 6(a) – manufacturer or private labeler’s request for confidential treatment for submission of trade secret/confidential business information (under section 6(a)(2)) within 15 calendar days after the date of receiving notification from the Commission. (15 U.S.C. § 2055(a))

Section 6(b) allows advance notice and opportunity for comment by a manufacturer or private labeler before the Commission’s public disclosure of any product specific information of an identified manufacturer or private labeler.

(15 U.S.C. § 2055(b))

Information Disclosure Provisions§ 6 of CPSA

Time for advance notice and opportunity to comment prior to public disclosure of information is generally 10 calendar days. (15 U.S.C. § 2055(b)(1); 16 CFR § 1101.22 ) Commission cannot disclose in less than 15 days unless:Commission publishes a finding that the public health and safety requires a lesser period of notice:

Allows for shortening of time for submitting comments to CPSCAllows for shortening of time for CPSC notification of intent to disclose over objection

§ 6(b)(1) and (2)Timing of Notice and Opportunity to

Comment

Section 6(b)(1) –(3) shall not apply to public disclosure of

information about any consumer product with respect to which the Commission has filed an action under section 12,

or which the Commission has reasonable cause to believe is in violation of any consumer product safety rule or provision of the CPSA or similar rule or provision of any other Act enforced by the Commission; or

information in the course of or concerning a rulemaking proceeding, adjudicatory proceeding, or other administrative or judicial proceeding

Exceptions to Advance Notice andOpportunity to Comment

Described in § 6(b)(4)

In addition to the requirements of section 6(b)(1), section 6(b)(5) bars the public disclosure of information submitted pursuant to section 15(b) unless:

Commission issues a complaint under section 15 (c) or (d) alleging a substantial product hazard;

In lieu of a section 15(c) or (d) proceeding, the Commission accepted in writing a remedial settlement agreement;

Section 15(b) submitter agrees to disclosure; or

Commission publishes health and safety finding of lesser notice than required under section 6(b)(1)

§ 6(b)(5) of CPSA

Section 6(b)(5) restrictions on disclosure do not apply to the public disclosure of information about a consumer product

that is the subject of an action under section 12;

or that the Commission has reasonable cause to believe is in violation of any consumer product safety rule or provision under the CPSA or similar rule or provision of any other Act enforced by the Commission,

or information in the course of or concerning a judicial proceeding

§ 6(b)(5) of CPSA

Do not apply to information submittedUnder section 15(b) of the CPSA; or

Mandatory/voluntary reporting program established between retailer, manufacturer or private labeler and the Commission

Section 6A DatabaseExclusions

Sharing of information

Section 29 (e) allows Commission to provide to another Federal agency or a State or local agency

accident or investigation reports

Section 29(f) sharing of information obtained by the Commission to federal, state, local or foreign government agency

Specific requirements necessary to use this provision

Information Sharing§ 29(e) and (f) of the CPSA

U.S. Consumer Product Safety Commission

Commission OperationsICPHSO 2013 ANNUAL MEETING & SYMPOSIUM

FEBRUARY 28, 2013

MATTHEW R. HOWSARE, CHIEF OF STAFF AND CHIEF COUNSEL TO THE CHAIRMAN

This presentation was prepared by CPSC staff. It has not been reviewed or approved by, and may not necessarily reflect the views of, the Commission.

Fiscal Year Commission Agenda & PrioritiesPriorities Hearing Budget Operating Plan

Commission Voting AgendaOnce items are ripe for Commission decision, the Commission, led by the Chairman’s office, sets a schedule for Commission consideration.

Rulemaking ProceedingsRequests for Information, Advance Notices of Proposed Rulemakings, Notices of Proposed Rulemaking, Final Rules

Enforcement ActionsAdministrative lawsuits, issuance of subpoenas

Statements of Commission Policy & Commission Guidance Documents

Typical Subjects of Commission Action

Provisional Civil Penalty Agreements

Referrals to the Department of Justice for Civil and/or Criminal Penalties

Docketing and Disposition of Petitions

Most Notices Published in the Federal Register

Anything a Majority of the Commission Chooses to Make the Subject of Commission Action

Typical Subjects of Commission Action

Primarily driven through staff’s creation of proposed budget and operating plan and the Commission’s modifications and approval of the final agency budget and operating plan.

Stakeholder Input & RequestsPriorities hearingOther public hearings and proceedingsCorrespondence and meetings with agency staffCorrespondence and meetings with Commissioners and Commission staffPetition process

Legislative Mandates

Unplanned Activities

How do Issues become the Subject of Commission Action

Agenda Planning—The Chairman’s office regularly leads a meeting with senior staff and the other Commissioners’ offices to discuss and finalize the Commission’s agenda for the upcoming week.

Submission of Briefing Packages—Once a staff briefing package is completed and cleared, it is submitted to the Commission and then made available on CPSC.gov (if cleared for public release).

Commission Procedures for Decision Making

Two Primary Methods for Commission decisions:

Ballot Votes

5 business day turn around from submission of briefing package through Commission vote date.

Decisional Matters

Staff briefing of the Commission 5 business days following submission of the briefing package.

Commission decisional meeting 10 business days following the staff briefing.

Commission Procedures for Decision Making

Generally—Deviations from the normal schedule for ballot votes and decisional matters occur regularly for a wide range of reasons—everything from pure scheduling issues through allowing more time to reach Commission consensus.

Ballot Votes—Potential for a one-time 3 day extension of the voting due date and/or the transformation of a ballot vote into a decisional matter.

Decisional Matters—Potential for a deferral of Commission decision for up to one week.

Shortened Timeframes—The timeline for the Commission’s consideration of an issue can be shortened by staff in certain cases where time is of the essence.

Alternative Schedules—As adopted by a majority of the Commission

Deviations from Normal Decision Making Schedule

Since July 1, 2009, the Commission has voted 364 times.

An average of ~140 votes per year

Voting Breakdown:

85% -- Unanimous votes

8% -- One dissent votes

7% -- Two dissent votes

How often does the Commission Vote?