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[Federal Register Volume 78, Number 183 (Friday, September 20, 2013)]
[Proposed Rules]
[Pages 57818-57822]
From the Federal Register Online via the Government Printing 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; jmiller@cpsc.gov.

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]
BILLING CODE 6355-01-P
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